Local Union No. 277, International Brotherhood Of Painters And Allied Trades (Polis Wallcovering Co. Et Al.)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local , Union ,No. 277, 'International Brotherhood of Painters and Allied Trades (Polis Wallcovering Co. et al.) and Edward W. Pygatt and Jennings V. Love Local Union No. 277, International Brotherhood of Painters , and Allied Trades (Del E. Webb New Jersey, 'Inc.) and Edward W. Pygatt. Cases 4- CB-4170 and 4-CB-4941 10 December 1986, SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 21 July 1982 the Board issued its Decision and Order' in Case 4-CB-4170, finding, inter alia, that the Respondent Union had violated Section 8(b)(1)(A) of the Act by refusing to refer Edward W. Pygatt for employment because he had engaged in conduct viewed by the Respondent's officials as disloyal. The Board ordered, inter alia, that Pygatt be made whole for any loss of earnings resulting from the unfair labor practice. On 19 September 1983 the United States Court of Appeals for the Third Circuit granted enforcement in part and re- manded the matter in part to the Board.2 The court directed the Board to determine if the Re- spondent had carried its burden in establishing the affirmative defense that no employers requesting workers in Pygatt's job classification (paperhanger) would have accepted Pygatt if he had been re- ferred. On remand, the Board, in a Supplemental Decision and Order3 issued .on 29 June 1984, con- cluded that the Respondent had not carried its burden of showing that it would slave been futile to refer Pygatt. On 27 March 1985 the Third Circuit granted enforcement of the Board's 29_ June 1984 Order.4 On 22 January 1986 the Board issued its Deci- sion and Order5 in Case '4-CB-4941 finding, inter alia, that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Del E. Webb New Jersey, Inc. (manager of the Claridge Hotel and Casino) to discharge Pygatt. The Board ordered, inter alia, that Pygatt be made whole for any loss of earnings resulting from the Respond- ent's unfair labor practices. There was a disagreement over the amounts owed Pygatt in each case and on 4 April 1986 the i 262 NLRB 1336 (1982). 2 717 F.2d 805 (3d Cit. 1983). a 271 NLRB 58 (1984). 4 Memorandum Opinion, Nos. 84-3443 and, 84-3540 5 278 NLRB 169 (1986). Regional Director, issued an order consolidating Case 4-CB-4170 with Case 4-CB-4941 for hearing. On 27 June 1986 Administrative Law Judge Claude R. Wolfe issued the attached supplemental decision 'in the consolidated backpay proceeding. The .Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its- authority in this proceeding to a three- member panel: The Board has considered the judge's supple- mental decision and the record in, light of the ex- ceptions and brief and has decided to affirm the judge's rulings, findings,6 and conclusions only to the extent consistent with this Supplemental Deci- sion and Order. In calculating the backpay formula in Case 4- CB-4170 the General Counsel first divided the total number of hours worked by paperhangers having at least one referral during the backpay period by the total number of those paperhangers to arrive at an average number of hours worked (total average). The General Counsel then eliminat- ed those paperhangers (and their hours) who did not work at least 60 percent of the total average. By dividing the remaining hours by the remaining number of paperhangers, the General Counsel ar- rived at an average number of hours for those pa- perhangers who worked at least 60 percent of the total average. The General Counsel then calculated the percentage of this average that Pygatt worked in the 1-year period preceding the unfair labor practice. Thus, the General Counsel calculated that Pygatt worked 83 percent of the average number of hours of those paperhangers who worked at least 60 percent of the total average. The General Counsel applied this formula for each year of the backpay period, awarding Pygatt 83 percent of the hours averaged by those paperhangers who worked at least 60 percent of the total average. The General Counsel then multiplied this number of hours by the wage rate in effect and arrived at Pygatt's gross backpay. 6 The Respondent argues that the representative employee formula ap- proved by the judge in Case 4-CB-4941 did not take into account the excessive absenteeism and tardiness of Pygatt. The judge stated that there was no evidence to support this contention. R Exh. 11, however, is a warning notice issued by the Claridge Hotel and Casino (Pygatt's em- ployer during the relevant backpay period ) dated 14 February 1985. It states that Pygatt had a record of excessive tardiness and absences since starting work 18 September 1984. This does not change the result in Case 4-CB-4941, however, because the warning notice did not specify when Pygatt's absences and tardiness occurred. Since the backpay period in that case was from 7 to 14 November 1984 and the representative em- ployees were credited by the judge as having worked the same hours as Pygatt worked immediately before and after the backpay period, the most accurate estimate of Pygatt's backpay for that period is achieved by using the representative employee formula. 282 NLRB No. 60 PAINTERS LOCAL 277 (POLIS WALLCOVERING) 403 The Respondent argues that the, number of hours Pygatt would have worked absent the unfair labor practice is inflated by eliminating the paperhangers who worked less than 60 percent of the total aver- age. We agree. The basis for eliminating the paperhangers with hours below 60 percent of the total average was explained at the hearing by the Board's compliance officer, who stated:? Normally when calculating backpay in a sort of straight production type area, you don't include individuals who worked less than 24 hours, so I figured 24 over-24 over 40 comes to a 60% average. And what I did was I looked at the individ- uals who worked much less than 60% of the average, okay? Thus, the compliance officer applied a statistical technique used in straight production industry cases to the instant construction industry case. In straight production industry cases this tech- nique helps the Board reach the most accurate backpay estimate by assuring that part-time work- ers do not artificially lower the backpay due full- time discriminatees. This rationale does not apply in construction in- dustry cases, however, where, as here, the work is intermittent and even employees willing and able to work fill time may not have the opportunity to do so. Indeed, there was testimony at the hearing that the demand for paperhangers fluctuated great- ly during the backpay years because the initial building/renovation boom associated with the casino industry in Atlantic City had dropped off. In order to eliminate the artificial increase in Py- gatt's hours caused by the exclusion of the paper- hangers with referrals below 60 percent of the total average, the average number of hours for the back- pay period should be calculated by dividing the total hours worked by all paperhangers having at least one referral by the total number of those pa- perhangers.8 In addition to preventing an artificial increase in Pygatt's backpay, this formula achieves the most accurate estimate of what Pygatt would have re- ceived, absent the unfair labor practice, in that it protects against an artificial decrease of Pygatt's backpay by eliminating the paperhangers who had no referrals. Accordingly, the backpay formula for Case 4- CB-4170 is changed to reflect the average number of hours worked by the paperhangers who had at least one referral during each calendar year of the backpay period. ORDER The National Labor Relations Board orders that the Respondent, Local No. 277, International Brotherhood of Painters and Allied Trades, its offi- cers, agents, and representatives, shall make Edward W. Pygatt whole by paying him $23,360.90 for wages lost9 and amounts expended by him to secure replacement medical health insur- ance,1 ° with interest to be computed thereon in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977). The Respondent shall make the appropriate deductions' from this amount of any tax withholdings required by state and Federal laws, and shall submit the withholdings to the appropri- ate authorities. IT IS FURTHER ORDERED that the Respondent pay $4900 into the I.B.P.A.T. Union and Industry National Pension Fund'! as contributions on behalf of Edward W. Pygatt and shall also pay into that fund an, additional 12 percent of the delinquent contributions for the period I May 1982 through 14 November 1984 as required by article XI, section 11.17, of the collective-bargaining agreement cov- ering that period. The prior agreement contains no such penalty provision, and it is therefore ordered that the Respondent shall pay into the pension fund the monetary penalties, if any, required under the Agreement and Declaration of Trust dated 1 April 1967 for the delinquent pension fund payments for the period 1 July 1980 through 30 April 1981. ' Tr. 65. a This average, once broken down by year and quarter, is then multi- plied by the wage rate in effect to arrive at Pygatt's gross backpay. See Appendix A attached hereto. s This figure is the sum of the wages lost in the consolidated cases and the amount required to reunburse Pygatt for replacement medical health insurance. Since the formula in Case 4-CB-4170 has been changed by this Supplemental Decision and Order a recalculation of the wages owed in that case was required. This recalculation is contained in Appendix A of this opinion. 10 The amount the Respondent owes Pygatt for replacement medical health insurance ($4399.90) is not affected by the change in the formula, so no recalculation of this figure is required. 11 This figure includes $43 for pension, payments lost during the back- pay period in Case 4-CB-4941. The pension amount in Case 4-CB-4941 is unaffected by the change in formula ordered herein, so no recalcula- tion is required The recalculation of the pension figures in Case 4-CB- 4170 necessitated by the change in the formula used in that case is con- tained in Appendix B of this opinion. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Category' Yr. Qtr.' 1980 ...................................................... 3d .................................................... 4th .................................................. 1981 ...................................................... 1st ................................................... 2d .................................................... 3d .................................................... 4th ...................... ...................... 1982 ...................................................... 1983 1st ................................................... 2d .................................................... 3d .................................................... 4th .................................................. ...................................................... 1st ................................................... 2d .................................................... 3d .................................................... 4th .................................................. 1984 ...................................................... 1st ................................................... 2d .................................................... '3d .................................................... 1 2 3 4 5 6 Total Total Hrs. of # of Paper- pHs hanger w/at Avg. (PH) Least Hrs. w/at 1 Least 1 Re- Referral ferral Avg. Hr. Gross Qtr. Wage Back- Hrs. Rate pay 17,981 - 15 = 1199-4 = 300 300 $13.20 = $3960 300 x 13.20 = 3960 17,011 - 14 = 1215-4 = 304 304 x 13.20 = 4013 304 x 13.74 = 4177 304 x 14.00 = 4256 304 x 14.00 = 4256 9,791 - 13 = 753-4 = 188 7 8 Inter- im Net Earn- Backpay ings $272 = $3,688.00 408 = 3,552.00 408 = 3,605.00 408 = 3,769.00 3000 = 1,259.00 4296 = (40.00) 1,88 x 14.00 = 2632 - 4,296 = (1,664.00) 188 x 14.67 = 2758 - 4296 = (1,538.00) 188 x 15.00 = 2820 - 4022 = (1,202.00) 188 x 15.00 = 2820 - 3885 = (1,065.00) 10,943 - 11 = 995-4 = 249 12,550 - 7 = 1793-4 = 249 x 15.00 = 3735 - 3885 = (150.00) 249 x 15.87 = 3952 - 3885 = 67.00 249 x 16.30 = 4059 - 5503 = (1,444.00) 249 x 16.30 = 4059 - 6312 = (2,253.00) 448 448 x 16.30 = 7302 - 6312 = 990.00 448 x 17.34 = 7768 - 6312 = 1,456.00 448 x 17.85 = 7997 - 8788 = (791.00) Wage/Insurance Totals Total Net Backpay owed in Case 4-CB-4170 $18,386.00 Replacement medical health insurance reimbursement owed in Case 4-CB-4170 4,399.90 Total net backpay owed in Case 4-CB-4941 575.00 $23,360.90 Pension Fund Totals Pension fund contribution owed in Case 4-CB-4170 4,857.00 Pension fund contribution owed in Case 4-CB-4941 43.00 $4,900.00 ' The figures used in categories 1, 2, 5, and 7 were derived from G.C. Exhs. 5 and 14 admitted into evidence at the hearing. PAINTERS LOCAL 277 (POLIS WALLCOVERING) 405 APPENDIX B.-CASE 4-CB--4170 PENSION FUND CALCULATION Yr./Qtr. Avg. Qtr. Htx Contribution Rate' Amt Owed 300 300 304 304 304 188 188 188 188 188 249, 249, 249 249 448 449 449 $.95 ................................................... .95 ...................................................... .95 .................................................... .95 thru Apr.-1!00 May/June.......... 1.00 .................................................... 1.00 .................................................... 1.00 .................................................... 1.00 ..................................................... 1.00 ..................................................... 1.00 ................................................. 1.00 .................................................... 1.00 .................................................... 1.00 ................ ............................... 1.00 .................................................... 1.00 .................................................... 1.00 ................................................... Total pension fund contributions owed in Case 4-C13-4170. `$285 285 289 96 202 304 304 188 188 188 188 249 249 249 249 448 448 448 $4857 ' The contribution rate figures are derived from G.C. Exh. 17 admitted into evidence at the hearing. Margarita Navarro-Rivera, Esq., for the General Counsel. Robert F. O'Brien, Esq., for the Respondent. SUPPLEMENTAL DECISION CLAUDE It WOLFE, Administrative Law Judge. This backpay proceeding was litigated before me at Philadel- phia, Pennsylvania, on 30 April and 1 May 1986. On the entire record, the demeanor of the witnesses as they tes- tified, and after carefully considering the posttrial briefs filed by the parties, I make the following findings 'and conclusions. 1. HISTORY OF THE CASE On 27 July 1982 the National Labor Relations Board (Board) issued its Decision and Order' directing Local Union No. 277, International Brotherhood of Painters and Allied 'Trades (Respondent) to make Edward W. Pygatt whole for losses resulting from Respondent's un- lawful refusal to refer Pygatt for employment. On 19 September 1983 the United States Court of Appeals for the Third Circuit remanded the matter to the Board for the purpose of determining whether Respondent had car- ried its burden of proving there were no requests for em- ployees in Pygatt's job classification (paperhanger) from employers who would accept Pygatt if he were re- ferred. 2 On reconsideration the' Board, by Supplemental Decision and Order of 29 June 1984, affirmed its previ- ous decision, specifically fording that "the Respondent presented no credible or probative evidence demonstrat- ' Polls Wallcovering Co., 262 NLRB 1336. 2 717 F. 2d 805. ing that referring Pygatt would have been futile because no area contractors with jobs available would have hired him," and again directing Respondent to make, Pygatt whole.3 Respondent filed a petition for review with the United States Court of Appeals for the Third Circuit. The court then issued its judgment and memorandum opinion on 27 March 1985 dismissing the petition for review and granting enforcement of the Board's Order of 24 June 1984.4 The parties were unable to agree on the appropriate amount of backpay due Pygatt. Accordingly, the Re- gional Director for Region 4 issued a backpay specifica- tion and notice of hearing in Case 4-CB-4170 on 30 Sep- tember 1985. Respondent filed an answer on 31 October 1985 and an amended answer on 15 January 1986. The Regional Director then, on 3 March 1986, issued amend- ments to backpay specification. Respondent filed an answer to the amendments on 19 March 1986. In the midst of the foregoing exchange of backpay specifications and answers thereto, the Board, on 22 Jan- uary 1986, issued its Decision and Order in Case 4-CB- 4941.5 finding, inter alia, that Respondent had violated Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act (the Act) by causing an employer to discharge Edward W. Pygatt, and directing Respondent to make Pygatt whole for losses suffered by reason of this unlaw- ful conduct. As in the earlier case, there was disagree- ment over the amounts due Pygatt. The Regional Direc- tor therefore issued an order consolidating cases, consoli- dated backpay specification and notice of hearing in Cases 4-CB.-4170 and, 4-CB-4941 on 4 April 1986. Re- spondent filed its answer to this consolidated specifica- tion on 24 April 1986. Thus matters stood when the pro- ceeding came before me. II. CONTENTIONS AND DISCUSSION Respondent agrees ,with the backpay specification's al- legation that the appropriate periods for computing any moneys due Pygatt are 1 July 1980 to 24 September 1984 in Case 4-CB-4170 and 7 to 14 November 1984 in Case 4-CB-4941 , but makes the following contentions: Case 4-CB-4170 1. There were no paperhanging employers will- ing to provide employment for Pygatt during the relevant time frame. 2. No backpay is due Pygatt because he failed to look for or seek interim employment during the period of no work referrals by the Union from 1 July 1980 through September 1984. 3. No backpay is appropriate during Pygatt's period of insurance business employment. 4. Foremen's hours should not be used in calcu- lating backpay. 5. If any backpay is found appropriate, the ad- ministrative law judge should calculate all hours worked or not worked by all journeymen paper- hangers on the Union's referral list. 2 Painters Local 277 (Polls Wallcovering), 271 NLRB 58. ° Local Union 277 v. NLRB, Nos. 84-3443 and 84-3540 (3d Cis 1985). s Painters Local 277 (Webb New Jersey, Inc), 278 NLRB 169 (1986). 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case 4-CB-4941 Pygatt's backpay for time lost from the Claridge Hotel casino job should be substantially reduced. With respect to Respondent's contention that there were no employers willing to hire Pygatt during the backpay period in Case 4-CB-4170, the same contention was raised before the Board and the court as a defense to the refusal to refer Pygatt and was rejected in each in- stance. Defenses rejected in the underlying unfair labor practice proceeding may not be entertained as reasons to toll backpay liability because it is the law of the case.6 Moreover, although given leave at hearing to do so, Re- spondent adduced no credible or probative evidence to supplement its claims in the prior proceedings of inability to refer.? This contention is therefore again rejected. The argument that Pygatt must be denied backpay be- cause he failed to seek interim employment is similarly without merit. It is Respondent's burden to establish facts in mitigation of liability, and the Board has no burden of negativing matters of defense or mitigation that Respondent has not, proved.8 Respondent has nei- ther shown, as it is required to do, that there was work available to Pygatt during the backpay period,9 or that Pygatt would have been hired if he had applied for such work." ° It is true that Pygatt testified he did not look for nonunion paperhanging work, but there is no persuasive showing any was available. Moreover, Pygatt, by his in- creased activity in his insurance business, which he had conducted during his employment as a paperhanger, sought and obtained substantial additional income that was treated in the backpay specification as interim, earn- ings amounting to $66,28811 and resulted in the complete elimination of any backpay due in the entire year of 1982, the third and fourth quarters of 1983 and the first and third quarters of 1984 as well as total deductions of $22,874 during the remainder of the backpay period. That Pygatt drew these additional earnings from self-em- ployment does not obscure the simple fact that his in- creased activity was interim employment drastically re- ducing Respondent's potential backpay liability. With respect to contention number 3, Respondent "suggests" that the corporate tax returns for Pygatt's business be examined "and those figures, including gross receipts, be examined and used as offset against back- pay." Respondent further states that I am required to carefully scrutinize the corporate gross earnings as well as net profits to ascertain interim earnings. I am well aware that an administrative law judge is required to de- 6 Overseas Motors, Inc., 277 NLRB 552 (1985); NLRB v. Laredo Pack- ing Co., 730 F.2d 405 (5th Or. 1984), enfg. backpay order in 271 NLRB 553 (1984). 7 The testimony of Respondent's business manager, James T. Brennan, that there was no place to send Pygatt was specifically discredited in the unfair labor practice proceeding, and I perceive no reason to credit that general claim now. s NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Or. 1963). McLaughlin Mfg. Corp., 219 NLRB 920, 922 (1975); and see Newport News Shipbuilding, 278 NLRB 1030 (1986). 10 Champa Linen Service Co, 222 NLRB 940, 942 (1976). 11 Longstanding Board precedent supports this treatment of additional income during the backpay period from secondary employment previous- ly held Rice Lake Creamery Co., 151 NLRB 1113, 1114 in. 4 (1965); AAA Dental Laboratory, 41 NLRB 263, 285 (1942). termine whether the General Counsel's backpay formula is proper and to make recommendations to the Board as to the most accurate method of determining the amounts,12 but I am not required to prove interim earn- ings. That responsibility to prove and compute offsetting earnings is Respondent's, and I must decline the invita- tion to become its surrogate. Furthermore, neither facts nor law were proffered or adduced to support Respond- ent's suggestion that the gross receipts of the corporation are all income to Pygatt. Turning to Respondent's contentions that the basic computation of gross backpay in Case 4-CB-4170 is in error because it does not include all hours worked or not worked by all journeyman paperhangers, and because it does include hours worked by foremen, it is helpful to first consider some basic and well-established principles relating to the computation of backpay. The sole burden of the General Counsel is to show the gross amounts of backpay due, but it has long been recognized that this is an inexact science not readily lending itself to specific formula for each and every situation. The General Coun- sel may use as close approximations as possible, and may adopt formulas reasonably designed to produce such ap- proximations, so long as the formula selected is not arbi- trary or unreasonable in the circumstances. 13 Here the General Counsel, utilizing a list furnished by Respondent of all paperhangers referred by Respondent during the backpay period, calculated the average annual hours worked per paperhanger, excluding those individuals who either did not work at all during the year for which such hours were calculated and those who did not, work at least 60 percent of the average hours worked by pa- perhangers as a group in a given year. As to those who did not work at all during a relevant period there is no evidence of the reasons they did not work and it cannot be presumed they were available for work absent proof they were. I am persuaded it was neither arbitrary nor unreasonable to ' exclude them. The exclusion of those who worked less than 60 percent of the average hours actually worked by all paperhangers is consistent with Board precedent permitting the elimination of employees from a representative complement if their hours worked are so small that their inclusion would result in a distort- ed rather than reasonably accurate approximation of the wages lost by the disciiminatee or discriminatees as the case may be.14 Considering Board precedent together with the fact that during the period 1 July 1979 to 30 June 1980 Edward Pygatt worked 83 percent of the av- erage annual hours worked during that period by paper- hangers working more than 60 percent of the time, and that Pygatt during that period worked approximately 106 percent of the average if all working paperhangers' 12 J. S. Alberici'Construction Co., 249 NLRB 751 In. 3 (1980); accord: East Wind Enterprises, 268 NLRB 655, 656 (1984). 12 See, e.g., Pipeline Local 38 (Hancock Northwest), 268 NLRB 167, 168 (1983); Everspray Enterprises Inc., 253 NLRB 922 (1980), enfd. 692 F.2d 760 (7th Or. 1982); C-F Air Freight, 276 NLRB 481 (1985).. 14 See, e.g , Champa Linen Service Co., 222 NLRB 940 (1976), Golay & Co, 184 NLRB 241, 272 (1970), enfd. sub noire. Golay & Co. Y. NLRB, 447 F. 2d 290 (7th Or. 1971), cert. denied 79 LRRM 2314, No. 71-617 (Jan. 24, 1972) No. 71-617, International Trailer Co., 150 NLRB ,1205, 1211 (1965). PAINTERS LOCAL 277 (POLIS WALLCOVERING) hours are utilized, I conclude that the'General Counsel's exclusion of those working less than 60 percent of the average hours and his subsequent computation of gross backpay on the basis of 83 percent of the average annual hours worked-by those paperhangers working at least 60 percent of the average hours available were reasonably calculated to produce a fair and more nearly accurate ap- proximation of gross backpay due Pygatt. Respondent has sustained no reasonable challenge to the validity of the basic formula, and I conclude and find the formula is not arbitrary or unreasonable but is fair and equitable. The 83 percent of the annual figure was divided by the General Counsel into four equal quarters on which quar- terly gross backpay was computed by multiplying these hours by the established wage rate, which is not in ques- tion. The argument that foremen's hours should be excluded from the computation because they received additional work hours per day pursuant to the relevant collective- bargaining agreements fails because the collective-bar- gaining agreements in question merely show that fore- men receive 8 hours a day at straight time on workdays when the size of the work force exceeds 10 employees and 8 hours straight time for all holidays listed in the agreement. There ' is no evidence that any of these al- leged foremen, worked with a crew of more than 10 em- ployees and no evidence of the exact times any of them may have actually worked as, foremen. James' T. Bren- nan's bare general testimony that they were foremen will not suffice. The failure to show exactly when they worked as foremen.and the size of their crew at relevant times destroys any significance the collective-bargaining agreements' provision for extra pay might have in this proceeding. That foremen receive 10 percent more than the prevailing hourly wage, as the contracts indicate, is irrelevant because their hours, not their wages, were uti- lized for the backpay computation. Respondent also contests the computation of backpay in Case 4-CB-4941. All backpay owing in this case ac- crued during the period 7 to 14 November 1984. Re- spondent argues that the General Counsel improperly presumed Pygatt was entitled to overtime pay, and Pygatt had a work history of lateness, absences, and leaving work early, which should have been considered by the General Counsel. In discussing these contentions in his posttrial' brief, Respondent offers testimony of the Region's compliance officer at pages 87 and 88 of the of- ficial record as authority for his assertion that "Indeed, Mr. Pygatt during the 80 days of employment had eight days of absence, five days which he left early and 39 days in which he arrived late." There is not one shred of testimony or evidence on those pages or elsewhere in the record to support` this argument. Pygatt expressly denied this history of absence is accurate and Respondent pro- duced no evidence to' the contrary other than its bare ipse dixit, which has no evidentiary worth. Robert Curley, the Region's compliance officer and a believable witness, credibly testified that Pygatt and coworkers 407 Sturges and Melero worked the same hours immediately before and after the backpay period, and he therefore averaged the hours of Sturges and Melero during the backpay period to arrive at the hours Pygatt probably would have worked. This is a completely reasonable method for arriving at a fair approximation of Pygatt's backpay, and I specifically find he is entitled to backpay for any overtime hours produced by the averaging of the hours of Sturges and Melero. Respondent offers' no alter- -native computation nor any good cause to question the General Counsel's computation," s In addition to wages lost the specification requests pension contributions covering both. periods of discrimi- nation and reimbursement of Pygatt for premiums he was required to pay to obtain replacement medical health insurance in lieu of the employer-paid insurance lost by reason of the discrimination against him. Re- spondent agrees that the contributions -to the pension fund should be made if Pygatt is entitled to 750 hours an- nually during the backpay period, and further agrees that the arithmetic employed by the General Counsel is cor- rect if the formulas and the hours alleged are correct. I find that the formulas are fair and reasonable and the result of their application is therefore a fair approxima- tion of the amounts due. Accordingly, I further find that the computation of moneys due the pension fund is arith- metically accurate, and based on a reasonable computa- tion of back wages due. With respect to the costs of re- placement medical health insurance, Respondent is, as a matter of law,16 liable for reimbursement of sums ex- pended by Pygatt in securing replacement insurance. There is no contention that he did not secure essentially comparable insurance or that the amounts set forth in the specification as expenditures therefor are inaccurate. I therefore find the specification accurately reflects the amounts paid for insurance for which Respondent 'must reimburse Pygatt. Conclusion' Respondent has not met its burden of adducing sub- stantial evidence mitigating its liability, nor has it suc- cessfully attacked the validity of the General Counsel's formulas and computations, or shown them to be arbi- trary or unreasonable. The General Counsel has shown that the formulas set forth in the backpay specification are reasonable and that reimbursement to the pension fund and for medical insurance premiums is required. The computations are arithmetically accurate.' The back- pay specification is therefore adopted. [Recommended Order omitted from publication.] 15 Respondent notes that Pygatt should receive no backpay for Sunday or Monday because these were his days off, Inasmuch as Pygatt is cred- ited with no backpay for the Sunday and Monday in the brief backpay period in question, I do not know the purpose of Respondent's notation other than it might be a friendly reminder. 16 Sheet Metal Workers Local 418 (Young Plumbing), 249 NLRB 898, 902 (1980); Artim Transportation System, 193 NLRB 179, 194 (1971).