United Supermarkets, Inc.

394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Supermarkets, Inc. and Retail Clerks Union Local No. 368, Chartered by United Food and Commercial Workers International Union, AFL-CIO. Cases 16-CA-7365, 16-CA-7378, 16-CA-7473, 16-CA-7500, 16-CA-7524, 16- CA-7554, 16-CA-7561, and 16-CA-7666 16 December 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 30 September 1985 Administrative Law Judge Robert A. Gritta issued the attached supple- mental decision.' The Respondent filed exceptions and a supporting brief; the General Counsel filed exceptions and a supporting brief and a brief in answer to the Respondent's exceptions; counsel for discriminatee Alice Faye Bonner filed exceptions and supporting brief; and counsel for the discrimin- atees filed a response to the Respondent's excep- tions. The Respondent filed an answering brief to the General Counsel's and Bonner's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, to modify the remedy,2 and to adopt the recommended Order as modified. Priscilla A. Sain Discriminatee Priscilla A. Sain failed to report income she received from tips while bartending at the Moose Lodge. The judge neither penalized Sain for this omission, finding that it was an over- sight rather than an intentional attempt to conceal interim earnings, nor did he deduct any amount from the backpay award to Sain to account for the interim tip income. We believe that it is inappropri- ate to ignore these interim earnings and that a rea- sonably accurate figure for tips can be derived from the record. The backpay specification sets forth the weekly earnings Sain derived from working at the Moose Lodge. Sain testified that she worked 2 or 3 days a week at an average of 6 or 7 hours per day. Her 1 The Board's original Decision and Order is reported at 261 NLRB 1291 (1982) 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I January 1987 shall be computed at the ",short-term Federal rate " for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to l January 1987 (the effective date of tht 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) wage rate began at $3.75 an hour and rose to $4. By her own admission she did not keep a record of the amount she earned in tips, stating that, "when you talk about $.50 or $1.00 a night tip, it was hardly worth writing down." Sain also stated that the largest amount she ever earned from tips in one night was $10 and that there were occasions on which she earned no tips. Setting aside these high and low figures, as atypical, we assign 75 cents as an average night's tips. On the basis of this avail- able information we would conclude that during each quarter of 1981 Sain derived $9.75 in tip income and that during each quarter of 1982 and the first quarter of 1983 Sain derived $29.25 in tip income. Accordingly, these amounts, totaling $185.25, should be deducted from the backpay due Sain. This approach more accurately reflects Sain's actual interim earnings than the judge's approach, which merely ignores evidence regarding tip income. Rickey C. Stanberry The judge determined that Rickey C . Stanberry's backpay award should not be affected by any unre- ported workmen's compensation benefits he re- ceived during the second and third quarters of 1979 as a result of an on-the-job injury sustained during his interim employment at Paschal Tile Company. The judge stated that "the Board does not ,penalize the claimants who, but for Respondent's unlawful conduct, would not have been put in a position to be injured. Workmen's compensation payments are not subject to credit against Respondent's backpay liability and, therefore, are not reported to the Board's compliance officer . Payments thusly re- ) ceived cannot be the basis for a finding of conceal- ment of interim earnings." The Respondent has excepted to the judge 's find- ings on this issue. We find merit in these excep- tions. - The Board's treatment of workmen's compensa- tion awards in backpay proceedings is set forth in American Mfg. Co.:3 [A]wards of workmen's compensation consist of two components, one being payment for lost wages and the other being reparation for physical damage suffered . . . . [T]o hold the wage portion of the award to be nondeductible would result in double payment to the employ- ee for that period, and hence this part is more accurately regarded as deductible interim earn- ings. However, the portion of the award which is reparation for the physical damage 3 167 NLRB 520, 523 (1967) See also Canova Moving & Storage Co, 261 NLRB 639 (1982) 287 NLRB No. 42 UNITED SUPERMARKETS 395 suffered is unrelated to wages earned , does not result in double wage payment to the discri- minatee, and continues to be excludable from interim earnings. It is undisputed that Stanberry did not report to the compliance officer his receipt of the workmen's compensation benefits. The record does not dis- close what portion, if any, of the benefits is attrib- utable to lost earnings . Accordingly, it is necessary to remand this matter to Region 16 for a determi- nation as to the proper allocation of the moneys. In view of Stanberry's concealment of the workmen's compensation benefits, if any part of these moneys is determined to be compensation for lost wages, the quarters in which such moneys were received will be excluded from the allowable backpay period.4 The record discloses that the relevant quarters in which the workmen's compensation benefits may have been received were the second and third quarters of 1979. Accordingly, the net backpay amounts for these quarters will be ex- cluded from Stanberry's award until a determina- tion of the effect of the concealment of the work- men's compensation award may be made . Because this is the only aspect of Stanberry's backpay award which is unresolved, however, backpay for the remainder of the backpay period will be award- ed, in conformance with the judge's other determi- nations. 5 to the end of the backpay period. The General Counsel excepts to the judge's determination as being inconsistent with the Board's American Navi- gation formula. We agree. Under American Navigation, concealed interim earnings generally operate to deprive a backpay claimant of backpay only for those quarters in which the concealed interim income was received. In accordance, however, with certain cases whose holdings were reaffirmed in American Navigation, the Board may deny all backpay to claimants whose "intentionally concealed employment cannot be attributed to a specific quarter or quarters be- cause of the claimant's deception."6 The record shows that Bonner's unreported em- ployment with Allstate occurred in the third and fourth quarters of 1980. The record does not set forth when her second unreported job at Angel oc- curred. The General Counsel contends, however, that the compliance officer has, posthearing, made such a determination. It is, therefore, necessary that this issue be resolved by further proceedings, in order exactly to establish the quarters in which earnings from such unreported employment were derived and in order for the judge then to recon- sider Bonner's testimony in light of the principles set out in American Navigation, supra, as reaffirmed in Ad Art, supra, in order to determine the amount of backpay, if any, to which she is entitled.? Alice Faye Bonner The judge found that Bonner concealed employ- ment with two interim employers, Allstate Securi- ties and Paul V. Angel. As a result, the judge con- cluded that Bonner should be denied backpay from the date of the first concealed interim employment 4 American Navigation Co., 268 NLRB 426 (1983). The Respondent has also excepted to the judge's disposition of Stan- berry's moonlighting income . The judge properly excluded from interim earnings all amounts derived from Stanberry 's independent after-hours work installing shower doors manufactured at Paschal Tile Company. Al- though the Board's practice is to exclude from computation of interim earnings those amounts received from second jobs, it is nevertheless im- portant for the integrity of the compliance processes that discriminatees report fully and accurately income derived from all sources during the entire backpay period. We note, however, that because the moonlight income is not includa- ble as interim earnings and because the amount and composition of work- men's compensation benefits should be determinable from documentary evidence, Stanberry's initial failure to report this income does not make it impossible to attribute interim earnings to particular quarters . Thus, Stan- berry's case does not call for a remand , pursuant to the rule of the cases cited in American Navigation, supra at 428 fn. 6, to determine whether his concealment made a calculation of backpay impossible See discussion concerning employee Bonner, infra The backpay specification discloses that $839 68 was due for the second quarter of 1979 and no net backpay was due for the third quarter. Accordingly, pending determination of the effect of the concealment of the workmen's compensation award, $839.68 will be excluded from the backpay amount determined by the judge, for a current backpay award of $14,848.31. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, United Supermarkets, Inc., Amarillo, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied and set forth in full below. 1. The amount of $40,164.22 will be awarded to Priscilla A. Sain. 2. The amount of $14,848.31 will be awarded to Rickey C. Stanberry. IT IS FURTHER ORDERED that this proceeding is remanded to Region 16 for the purpose of deter- mining what portion of the workmen's compensa- tion awarded to Rickey C. Stanberry is attributable to lost wages. If it is determined that any part of the workmen's compensation moneys is attributable to lost wages, then the quarter in which such 6 American Navigation, supra, 268 NLRB at 428 fn 6, cited in Ad Art, Inc., 280 NLRB 985 fn . 2, and Member Stephens' concurring opinion at 987 (1986); M. J. McCarthy Motor Sales Co., 147 NLRB 605 (1964); Great Plains Beef Co., 255 NLRB 1410 (1981) 9 The General Counsel points out, and we agree, that the judge erro- neously cited the year 1979 as his starting point from which Bonner's backpay should be denied The correct year is 1980. 396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD moneys-,were received will be excluded from the compensable backpay period. IT IS FURTHER ORDERED that this proceeding is remanded to the administrative law judge for the purpose of determining which quarters Alice Faye Bonner was employed by Paul V. Angel and for determining her entitlement to backpay. CHAIRMAN DOTSON, dissenting in part. In accord with my concurring opinion in Ad Art, Inc., 280 NLRB 985 (1986), I would deny all back- pay to Alice Fay Bonner and would hold in abey- ance an award of backpay to Rickey C. Stanberry pending a decision on remand. I agree with my colleagues on all other aspects of this case. The judge found that Bonner intentionally con- cealed two interim employments from the Board. He concluded that "Bonner's attempts to deceive on this record are wholly transparent and evince the necessary intent to defraud and abuse the Board's compliance procedures for personal gain through an augmented backpay recovery." In these circumstances, I find for the reasons stated in my concurring opinion in Ad Art, that net backpay cannot be ascertained with any reasonable certainty and award of backpay for any calendar quarter is inappropriate. With respect to Stanberry, the judge found that he did not report workmen's compensation pay- ments to the Board. The judge erroneously found that such payments were not subject to credit against the Respondent's backpay liability and therefore were not reportable to the Board's com- pliance officer. He then concluded that workmen's compensation payments could not be the basis for a finding of concealment of interim earnings in viola- tion of the backpay process. Like my colleagues, I would remand this case to determine what portion, if any, of Stanberry's workmen's compensation payments is attributable to lost earnings. ,If any portion is attributable to lost earnings, however, I would then require the judge to determine whether Stanberry willfully and intentionally concealed these payments from the Board. The judge did not address the issue of Stan- berry's intention because he erroneously found that the payments were not reportable as interim earn- ings and therefore could not form the basis for a finding of concealment. Under both the majority and concurring views in Ad Art, however, the dis- criminatees' intention to conceal, and not ` merely the failure to report, is the critical factor affecting entitlement to backpay. Accordingly, in the 'event any portion of Stanberry's workmen's compensa- tion payments is reportable as interim earnings, I would require the judge to determine whether Stanberry intentionally concealed these payments from the Board. If the judge finds intentional con- cealment, I would deny all backpay for the reasons stated in my concurring opinion in Ad Art. If the judge finds no intentional concealment, I would grant the full backpay award. J. O. Dodson, Esq., for the General Counsel. Don Graf Bill Harriger, and Dan Young, Esqs. (McClos- key, Harriger, Brazill & Graf), of Lubbock, Texas, for the Respondent. Marvin Menaker, Esq., of Dallas, Texas, for discrimina- tees Rickey Stanberry, Priscilla Sain, and Alice Faye Bonner. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge. On 28 May 1982, the National Labor Relations Board issued its Decision, Order, Certification of Representative, and Direction of Second Election i directing, inter alia, United Supermarkets, Inc. to reinstate and make whole, with interest, employees Priscilla Sam, Donna Bates, Rick Stanberry, Claude Murry, Tanna Stoops, Mark Soltis, Judy Grove Bedford, and Faye Bonner for any loss of earnings suffered by reason of the discrimination against them . On 16 February 1983 the United States Court of Appeals for the Fifth Circuit entered its judg- ment enforcing the Board's Order. Agreement could not be reached concerning the amount of backpay due the discriminatees, so the Regional Director for Region 16 of the Board issued a backpay specification and notice of hearing alleging the amounts due each discriminatee under the Order as enforced. Respondent filed a timely answer denying the specifications.2 This matter was tried before me on 11, 12, and 13 De- cember 1984, and 29-30 January 1985, in Amarillo, Texas. On the entire record,3 including briefs submitted by all parties, and from my observations of the witnesses and their demeanor, I make the following FINDINGS AND CONCLUSIONS 1. ISSUES The issues before me for resolution are whether sever- al discriminatees should be denied backpay for various periods of time thereby reducing Respondent's liability. ' 261 NLRB 1291 2 The specifications, although amended during the trial, are still in dis- pute with respect to Priscilla Sam , Rick Stanberry, and Faye Bonner Discriminatees Tanna Stoops, Claude Murry, Judy Grove Bedford, Donna Bates, and Mark Soltis are no longer in dispute with Respondent in accordance with the amended specifications 8 At trial I instructed Compliance Officer Joe E Pearce to submit in writing the amended calculations that were made necessary by record testimony, which he did on 11 February 1985 The General Counsel, in brief, moved the writings be admitted into the record I now receive into the record G C. Exhs 3(a) through (l) UNITED SUPERMARKETS 397 II. FACTS A. Priscilla A. Sain Sain was discriminatorily discharged on 16 July 1977. She accepted Respondent's offer of reinstatement on 1 April 1983 . Her backpay period is thus established as the period from 16 July 1977 to 1 April 1983. The General Counsel's specifications calculate Sain's net backpay as $40,349.47. The General Counsel's method of calculation, including hours of work and rates of pay she would have received absent the discrimination, is not disputed. What Respondent does dispute is Sain's part -time interim em- ployment coupled with a willful loss of earnings and extra activity engaged in by Sain, which Respondent contends would have caused her discharge for cause had she remained in Respondent's employ. Respondent argues that Sain's concealment of bartending tips and contract wages during interim employment in addition to its prior disputed activities , would have singularly or in concert tolled Sain's backpay earlier than that claimed by the General Counsel to be the end of the period. Sain was continuously employed and had earnings during the backpay period with the exception of the fourth quarters in 1979 and 1980. Sain's uncontroverted testimony is that she made appli- cation among numerous employees in the Amarillo area in addition to applying with the Texas Employment Commission . She sought full-time employment , but ac- cepted part-time employment rather than be out of work. Sain was the sole support for herself and two children. At one point during the backpay period, Sain worked at two part-time jobs, working in excess of her prior 39 hours with Respondent . One interim employer, United Food Company, offered Sain an hourly wage for part- time employment, and on occasion paid her contract wages. Sain accepted any position that was available at the time in an effort to qualify herself for any full-time opening that might exist in the future, and with the an- ticipation of eventually getting full-time employment. Sain failed to report the contract wages for a quarter in each of the years 1977 and 1978, but reported the con- tract wages for 1980. Sain's testimony shows unequivo- cally that she attempted to ascertain all her wages at United for both income tax and backpay purposes. Her failure to disclose the contract wages for 1977 and 1978 is adequately explained by her inability to produce tax records for these years at the commencement of the trial.4 In addition to the contract wages, Sain did not report any tips received while bartending at the Moose Lodge. She testified that tips were so small they were not worth writing down , and she could not recall what amount she had actually received . Sain averaged about 4 A procedural controversy arose during trial over the General Coun- sel's failure to produce tax records of the discriminatees . The tax records were not requested by the compliance officer originally charged with cal- culating backpay. In addition, Respondent did not subpoena the individ- ual tax records prior to trial . The General Counsel and the replacement compliance officer (Pearce) were accommodated by the individuals and produced the tax records available pursuant to Respondent 's request. Albeit use of tax records during the compliance stage of a case may be advisable, there is no mandatory requirement on Regional Offices to do so 20 hours per week at the Lodge and guessed that the best night she had for tips was $10 which would be her share from the total. Total tips would be split among all employees on a particular night . Sain stated that she did not report the tips on her income tax because the amount was miniscule. The hiatus in Sain's interim employment the last quar- ter of 1980 and the first quarter of 1981 was occasioned by a dispute between her and United Food over wages. Sain had progressed to $6 an hour whereas new hires were coming in at $4 an hour. The Employer proposed lowering her wage to $4 in an attempt to appease new hires who discovered they were making less wages. Sain tried to negotiate a $5 wage but was unable to do so. The Employer gave her an option of working for $4 or quitting. Sain quit and sought other employment. She was unable to find employment until March of the fol- lowing year. During the backpay period, the Union continued its organizing drive of Respondent's stores. One organizing effort was an informational picket established by the Union. Sain, among others, participated in the picketing at one of Respondent's stores in August 1979, Sain was arrested for trespassing . On 14 August 1979 the Union filed unfair labor practice charges based on the arrest. Sain was tried and found "not guilty" of criminal tres- pass in the Municipal Court of Amarillo on 26 October 1979. In September, Judge Heilbrun issued his decision on the unfair labor practice charge, finding the picketing to be protected and the arrest to be violative of Section 8(a)(1) of the Act. Analysis and Conclusions Respondent contends that Sain's picket activity, par- ticularly since it resulted in an arrest for trespass, consti- tuted criminal conduct for which Sain could have been discharged. Thus, Sain's backpay should be tolled as of 10 August 1979. Alternatively, Respondent argues that the same conduct prevented Sain from obtaining suitable interim employment, but offered no affirmative evidence for support. Respondent's persistence apparently rests on its current appeal of Judge Heilbrun's decision which is still pending before the Board rather than the judgment of the Municipal Court of Amarillo. In my view, the Municipal Court's judgment is dispositive of the issue. Sain's conduct on 10 August 1979 was not unlawful and, therefore, her continued employment could not have been in jeopardy. Accordingly, I conclude and find that her backpay continued to accrue after 10 August 1979. Respondent's only evidence of willful loss pertains to the hiatus in Sain's interim employment in late 1980 and early 1981 . The record clearly shows that a wage dispute precipitated Sain's separation, and that the separation was the result of an ultimatum to take a wage reduction. Discriminatees are not required to continue interim em- ployment associated with unreasonable demands on wages. Sain's reaction is within the pattern of conduct expected of backpay claimants and, therefore, does not militate against the General Counsel's specifications for backpay owed by the Respondent. 398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's argument 'that Sam should be denied backpay beginning with her acceptance of part-time em- ployment is unavailing to the employer in my view. Con- trary to Respondent's contention there is no proscription against accepting part-time i nteri m 'employment, particu- larly when, as here, Sain sought full-time employment, and as the evidence shows, worked as many hours as possible up to and in excess of her established 39 6 hours with Respondent . The instant facts are unlike McCann Steel Co, 224 NLRB 607 (1976), wherein constructive in- terim earnings were substituted for actual interim earn- ings because the backpay claimant failed to work as many hours as were available. To deny Sam backpay for accepting part-time employment rather than waiting for a full-time employment offer (which may have or may not have materialized), would be tantamount to convert- ing her efforts to mitigate Respondent's backpay obliga- tion into a penalty against her. The record evidence shows that Sam , even when employed full time at Re- spondent's store, sought and found extra work to ensure her fiscal soundness as the family breadwinner. Clearly, those efforts continued during the backpay period which is more than that required of backpay claimants Respondent's final argument is based on Sam 's alleged concealment of $1099 wages and tips earned at two sepa- rate interim employers. The record evinces oversight rather than intentional concealment of the $1099 wages. Sam reported her wages to the compliance officer as re- flected in her tax returns for 2 of the 4 years for which she had records. Several tax records were unavailable to her at the time and she sought the proper wages from the interim employer Regardless of the efforts, limited $1099 wages were omitted in her report to the compli- ance officer and clearly the omission was the result of her memory, unaided by written records, not an unlaw- ful intent to conceal wages to enhance her backpay. Ad- ditionally, Sain's testimony shows that she received some tips at the Moose Lodge while bartending, but failed to keep a record for reporting purposes . Her uncontrovert- ed testimony does not disclose an amount certain, nor does it show the amount to be significant . Respondent argues that the uncertainty should be resolved by apply- ing the Internal Revenue standard for tips received by a taxpayer when uncertainty exists, i.e., 8 percent of wages earned . I denied like motion at the trial and I reaffirm that denial here . The IRS standard is applied as a puni- tive measure against taxpayers failing to report wages or unable to report wages with certainty, and is supported by statutory obligations on the taxpayer. In backpay pro- ceedings, uncertainties are to be resolved against the wrongdoer whose conduct made uncertainty possible. Although it may appear that Sain could have kept wage records with more diligence, Respondent has failed to sustain the burden of proof of its affirmative defenses. Accordingly, I conclude and find that Priscilla Sam is entitled to $40,349.47 as set forth in the backpay specifi- cation, as amended, with interest as required. B Rickey C. Stanberry Stanberry was discharged on 25 July 1977 and offered reinstatement on 31 March 1983, which establishes the backpay period for compliance purposes . Stanberry ap- plied for employment in Amarillo at several grocery stores and convenience stores. Stanberry was a stocker for Respondent and began his interim employment as a warehouseman at Cal Farley's Boys Ranch Amarillo in August 1977. While employed at the Ranch Stanberry obtained another job in Oklahoma City, Oklahoma, which paid higher wages . Stanberry decided to accept the higher paying job in Oklahoma . He left the Ranch in May 1978 to take the new job with Paschal Tile Compa- ny in Oklahoma City, working as a full -time shower door fabricator . Stanberry remained employed at Paschal until September 1980 At some point in time of his em- ployment at Paschal, Stanberry began installing shower doors for individuals after his workday at Paschal was concluded . Either Stanberry or the individual would purchase the door from Paschal and Stanberry would in- stall it on his own time Stanberry did not know how many doors were installed , but received $30 to $45 for each installation . Stanberry did not report the door in- stallation earnings to the Board's compliance officer, nor did he report the earnings on his Federal tax return. Stanberry acknowledged ' that Paschal could ascertain from sales records how many doors were purchased for installation by Stanberry .5 While employed at Paschal, Stanberry sustained an on-the-job injury and received workmen's compensation payments in the amount of $750 from Paschal's insurance carrier These payments were not reported to the compliance officer during the backpay investigation. Stanberry left Paschal and Oklahoma City to move to a' smaller town He settled in Wetumka, Oklahoma, during September and accepted employment at C A.P Casing Pulling Company as an operator. Stanberry stated he preferred working in a small town and wanted to be closer to his home town. Wetumka is approximately 28 miles from Stanberry's home town of Sasakwa. Stan- berry remained employed at C.A P. until he was laid off due to lack of work in September 1981 Stanberry stated that after the layoff he checked back to determine if C A.P was working again and has continued to do so every 2 or 3 months.6 Stanberry's immediate search for employment, aided by a phone call from his father in Bovina, Texas, led to a beef packer job in Friona , Texas, with Missouri Beef Company. Stanberry 's family stayed in Oklahoma while he worked in Texas He began work at the beef plant as a box thrower in December 1981. Stanberry voluntarily left the beef packing job in February 1982 to return to Oklahoma with his family He found work in Seminole, Oklahoma, with a pipeline company in April 1982. The a Stanberry, as well as other employees of Paschal , was accommodated by Paschal in their after-hours work , particularly by supplying the doors and cashing the individual customer checks that may be written to Pas- chal There was, however, no business arrangement between Paschal and the "moonlighting" employees Paschal testified that he did not have records from which he could ascertain the number of doors installed by Stanberry Paschal further testified that Stanberry could have received larger bonuses than he was actually paid if he had performed better than an average employee 6 Peace, owner of C A P, testified in his deposition that Stanberry, after the September layoff, never contacted the company again Peace was unable to locate Stanberry when work was available by November UNITED SUPERMARKETS 399 pipeline work lasted until July 1982 when- Stanberry was laid off for lack of work. Stanberry made applications for work in Amarillo, checked newspaper ads, visited the Oklahoma Unemployment Office and visited several company offices but was unsuccessful. Stanberry was out of work until January 1983 when he accepted janitorial work in a nursing home in Weleetka, Oklahoma His backpay period ceased during his nursing home employ- ment. 7 Analysis and Conclusions Respondent does not dispute the General Counsel's method of calculation of Stanberry's backpay based on actual interim earnings. Respondent does dispute the ap- plication of Stanberry's bonuses when received, placing the entire bonus in one quarter rather than prorating the amount throughout the year. Contrary to Respondent's argument that an employer's decision to pay a bonus is based on the entire year's work and, therefore, estab- lishes a weekly accrual of the bonus, I conclude and find the opposite to be true. There is no evidence in this record to evince any bonus accrual by Stanberry. The employer only calculates a bonus, if any, at year's end based on the entire year's operation. In addition, bonus amounts are subjectively determined based on an apprais- al of each individual employee's work record. Thus, no employee earns a bonus during the year. The General Counsel's applications of Stanberry's bonuses to the quar- ters in which received are not only reasonable under ac- counting principles, but are within established backpay procedures used by the Board. Respondent's further contention that Stanberry would have received larger bonuses had he been a better than adequate employee at Paschal's resulting- in a larger credit for Respondent in Stanberry's interim earnings, is unavailing to Respondent. Notwithstanding Paschal's tes- timony concerning bonuses and Stanberry's proficiency, the entire testimony is pure speculation and would re- quire the Board to accept rank subjectivity in determin- ing a backpay claimant's interim employment. Such a credit for Respondent would be based on a presumption that denies the degree of certainty required when feasi- ble. Uncertainty, as it exists in backpay calculations by the General Counsel, only applies to favor the discrimin- atee, not the wrongdoer. Additionally, there is no duty impressed on backpay claimants to be, at a minimum, an adequate employee for interim employers. Thus, the entire foundation for Respondent's bonus argument is un- sound, for if no duty exists for claimant, Respondent has no correlative right. Respondent will only be credited with a claimant's failure to receive interim income when such failure is attributed to the conduct of the claimant in his search for and attainment of interim employment. Respondent elicited from Stanberry, during his testi- mony, that he had used illicit drugs while employed at Cal Farley's Boys Ranch. Respondent now argues that Stanberry should be denied backpay thereafter because if Stanberry had used drugs while employed by Respond- ° The General Counsel extended Stanberry's interim wages at Missoun Beef throughout the remainder of the backpay period due to Stanberry's voluntary quit ent, he would have been discharged for cause (The use of drugs against Respondent's continued employment policy.) An employment circumstance extant at an inter- im employer's place of business is not to be judged by employment standards of Respondent. Moreover, the speculative basis for such an argument does nothing more than energize a cornucopia of uncertainty. As stated before, any uncertainty is resolved against Re- spondent whose unlawful conduct created the circum- stances giving rise to the uncertainties. Respondent also contends that Stanberry concealed from the compliance officer two separate amounts of in- terim earnings in an attempt to perpetrate a fraud on the Board or to abuse its process, thereby enhancing his amount of backpay due. Respondent is here making ref- erence to the earnings of Stanberry for installing shower doors on his own time and the workmen's compensation payments he received while employed by Paschal Tile Company. Respondent argues that because the customers Stanberry serviced on his own time were acquired through contact with Paschal, any income received from such customers likewise is derived from his employment with Paschal. Albeit, some of Stanberry 's installation cus- tomers may have originally been purchasers of Paschal doors, Paschal neither considered the after-hours installa- tion as company business nor did he assume any respon- sibility to the customers. Notwithstanding, the possible derivation of the work Stanberry's income was not re- ceived from Paschal nor was it part of his regular full- time employment. The income thus derived was, howev- er, supplemental to his full-time earnings from Paschal. As supplemental income earned over and above his full- time employment, it does not constitute interim earnings and, therefore, is neither reportable to the compliance of- ficer nor subject to credit against Respondent's backpay liability. The record clearly shows that Stanberry failed to report the door installation earnings to the IRS and because all income from whatever source is reportable to the IRS, such failure constitutes concealment from the IRS. It does not, however, constitute concealment from the Board since reporting is not required. Therefore, Stanberry cannot be charged with perpetration of a fraud on the Board or with abuse of the Board's backpay pro- ceedings. I do not, by this conclusion and finding, con- done any claimant's practice of concealing income from the IRS, but I cannot and will not impute the conceal- ment of earnings from the IRS to Stanberry's responsibil- ities to reasonably and diligently search for interim em- ployment to mitigate the losses of wages during the backpay period. With regard to the workmen's compensation payments received by Stanberry as a result of an on-the-job injury at Paschal, the Board does not penalize the claimants who, but for Respondent's unlawful conduct, would not have been put in a position to be injured. Workmen's compensation payments are not subject to credit against Respondent's backpay liability and, therefore, are not re- portable to the Board's compliance officer. Payments thusly received cannot be the basis for a finding of con- cealment of interim earnings in violation of the backpay processes. Stanberry's workmen's compensation pay- 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments, therefore, were properly excluded from the Gen- eral Counsel's calculations of Respondent's backpay li- ability. Respondent's final contentions for mitigation of its backpay liability is based on arguments of willful idle- ness, unavailability, leaving interim employment for per- sonal reasons, and accepting interim employment in a dif- ferent profession. Respondent's contentions are partially founded on premises that backpay claimants must stay in the Amarillo area to search for work and must concen- trate their search in retail grocery stores. As unqualified premises both are faulty because no such proscriptions against leaving the geographical area or applying for work in different professions exist. It is true that a claim- ant could be penalized for leaving the immediate geo- graphical area when employment sources are abundant and particularly if the foreign interim employment netted income substantially below what was in the original geo- graphical location. Likewise, if an interim employment in a different profession were accepted at a time when em- ployment opportunities in the critical profession were extant and the interim earnings were substantially below what was available in the prior profession, a claimant may be penalized. In both the examples, a penalty would only be effected against the claimant if affirmative evi- dence in the record showed that the claimant's choice of area or profession resulted in a failure to mitigate the backpay liability of Respondent by seeking and accepting substantially equivalent employment. No such affirmative evidence is in this record. The record does show that Stanberry. left the geographical area to find work in a different profession and in both cases Stanberry made equal or better wages than Respondent was obligated to pay its employees. Moreover, Respondent elsewhere in its brief argues for an extension of these same interim earnings (due to the generous amount) throughout the backpay period to reduce its backpay liability. In my view, Stanberry made a reasonable and diligent search for interim employment and did substantially miti- gate the backpay liability of Respondent during the back- pay period. Stanberry did have several periods of idle- ness between employment, but I conclude and find that we have several periods of idleness between employment and that he was diligently searching for substantially equivalent employment during those periods The Gener- al Counsel amended the backpay specifications by ex- tending the interim earnings of Stanberry at Missouri Beef following his voluntary quit to return to Oklahoma. Respondent argues the same extension should apply to Stanberry's separation from Paschal Tile Company, thereby reducing its backpay obligation considerably. Not only are the two separations distinguishable, but Re- spondent's figures resulting in no backpay liability for the remaining quarters after Stanberry's separation from Pas- chal, are based on erroneous fiscal assumptions. Namely, the inclusions of speculative bonus amounts and the method of crediting these amounts and the crediting of Stanberry's supplemental income earned after his full- time employment hours and unrelated to his full-time employment. Both of these erroneous credits were dis- cussed above and need no further consideration. With regard to the separation at Missouri Beef, Stanberry ac- cepted the employment because no work was available in the Oklahoma area he had settled in and willfully left his family in Oklahoma. That is, he took the Beef employ- ment knowing full well he would be, away from his family. To then leave that employment after only several months when the wage prospects of continued employ- ment were substantial is tantamount to failure of the claimant to mitigate the backpay liability of Respondent. Backpay claimants may terminate interim employment for personal reasons without penalty, but under the cir- cumstances of Stanberry's Missouri Beef separation, he must accept the consequences of leaving. Accordingly, I conclude and find that the General Counsel properly ex- tended Stanberry's interim earnings at Missouri Beef re- sulting in a mitigation of Respondent's backpay liability for Stanberry. I further conclude and find that the Gen- eral Counsel's calculations of Stanberry's net backpay in the amount of $15,687.99 is based on an accurate method of determining the amount due. C. Alice Faye Bonner Bonner was discharged on 26 September 1977, and was offered reinstatement on 31 March 1983. Bonner tes- tified that she was employed as a checker for United ap- proximately 5 or 6 months prior to her discharge. When first employed, Bonner worked' something less than full time, averaging 24 to 30 hours per week. Prior to her discharge, she sought less hours per week because she did not want to work full-time hours and was according- ly scheduled to work 8 hours on Wednesdays and Satur- days for a total of 16 hours Notwithstanding, the hours she was scheduled to work, her workweek may total more or less depending on the workload and Bonner's availability to work more hours if requested. Bonner stated 'that she sought full-time or part-time employment throughout the backpay period of third quarter 1977 through first quarter 1983 She applied at the Texas Em- ployment Commission, made phone calls, ran babysitting and housekeeping ads in the paper, made applications at John Altman Boutique, Top-of-Texas Kennels, and Safeway in addition to her past employers. Of the 23 quarters in, the backpay period, Bonner had part-time employment in 8 quarters as reflected in the original and first amended backpay specification of the General Counsel. During Bonner's direct examination, she testi- fied that during interim employment in 1978 and 1979, on two occasions, she terminated the employment to give birth to a child. On each such occasion, she was unable to work for 6 weeks. Following the birth of her second child in early 1979, she was unable to find work and remained unemployed throughout the remainder of 1979, all of 1980 and most of 1981, and half of 1982. Bonner told the compliance officer during the investiga- tion that any job paying minimum wage would be diffi- cult because of babysitting and transportation costs. She said $4 to $5 would be needed as a, wage. For a 5-year period ending in 1982, Bonner's adult daughter and child resided with Bonner. Bonner kept her children and her grandchild while the daughter worked outside the home, usually part time. Beginning the last of 1980 to January 1982, Bonner worked full time in a feed store venture UNITED SUPERMARKETS 401 started by her husband . She was the only employee in the store because her husband was a full-time truckdriv- er. Neither she nor her husband drew any salary from the feed store. The feed store went bankrupt and ceased doing business in January 1982. Bonner stated that she was available for other employment after the store had been open about 6 months . Bonner also attended college to study nursing while she was self-employed. The busi- ness never made any money and when Bonner realized it would fail, she looked for and accepted employment elsewhere. Her interim employment at Southwest Osteo- pathic Hospital, the fourth quarter of 1981, was the first such interim employment . Thereafter, Bonner was em- ployed by the Potter County sheriff during the third quarter of 1982, and remained employed until the back- pay period ended. Bonner testified that the first amended specification contained her entire employment during the backpay period. On recall by Respondent, Bonner acknowledged that she had interim employment in 1980 which was not re- ported on the General Counsel's specifications. She ex- plained that she forgot the day nursery employment of $49.60, but thought she had told the compliance officer about the Allstate Securities employment of $1,056.36. Bonner did not report Paul V . Angel employment of $1,408.88 because she did not do the work nor did she receive the wages. However, all three employments were reported on Bonner's 1980 Federal tax return filed 3-9-1981 and prepared by the Bonners. The Angel em- ployment and Allstate Securities were reported to the Social Security Administration as FICA wages for Faye Bonner. She explained that the Angel employment was janitorial work for Levi Strauss Company, the same em- ployer for whom she performed security work as an All- state Securities employee. Bonner agreed to independent- ly contact the janitorial services so that an underaged re- lation by a previous marriage could perform the services. Levi had refused to employ the underaged individual for insurance purposes. Bonner stated that she reported the janitorial income as her own to obviate the paperwork required of contractors with employees . When asked why she did not accept the janitorial job at Levi's for herself, Bonner replied, "The pay wasn't great." Bonner also acknowledged that the security position offered through the Texas Employment Commission was refused after her employment by Allstate albeit she was not sure if the offer was made while she was self-employed. Fur- ther testimony by Bonner during recall established that her contacts with Texas Employment Commission for employment occurred weekly, monthly, or bimonthly rather than continuously. Analysis and Conclusions The Board, instructing its remedial orders against dis- criminatory discharges, must be mindful of the purposes of the Act. In numerous cases, the Board has explicated: the remedy of reinstatement and backpay is not a private right, but a public right granted to vindicate the law against one who has broken it. Its object is to discourage discharges of employees contrary to the statute, and thereby vindicate the policies of the National Labor Re- lations Act. The statute authorizes reparation orders, not in the interest of the employees, but in the interest of the public. They are not private rewards operating by way of penalty or of damages. In this case, the General Counsel has alleged that Alice Faye Bonner's net loss of earnings as a result of her unlawful discharge, totals $18,115 . 13. The testimony of Compliance Officer Pearce, based on disclosures by Bonner, was offered by the General Counsel to establish his prima facie case. (The 16-hour workweek is discussed below.) Respondent offered testimony to establish facts that would negate the existence of liability or that would mitigate that liability . Respondent, pursuant to its bur- den, has contended that: ( 1) Bonner incurred a willful loss of earnings throughout the backpay period by failing to seek interim employment; (2) Bonner incurred a will- ful loss of earnings by failing to maintain interim employ- ment because of her excessive absences and tardiness; (3) Bonner was unavailable for employment during the back- pay period for personal reasons ; (4) Bonner was unem- ployed during extended periods of time in -the backpay period when there were jobs available in her work field; (5) Bonner rejected interim employment during the back- pay period when she supposedly was unemployed and had no other job opportunities available; and (6) Bonner intentionally and knowingly failed to report interim earn- ings to the Board's compliance officer. In addition to Respondent's contention, counsel for claimant Bonner argues that the General Counsel's for- mula of a 16-hour workweek is erroneous and that back- pay should have been calculated on a 30.6-hour work- week. As the trier of facts, I must consider whether the Gen- eral Counsel's formula is the proper one in view of all the facts adduced by the parties, and make recommenda- tions to the Board as to the most accurate method of de- termining the amounts due. American Mfg. Co. of Texas, 167 NLRB 520 (1967). All discriminatees have a broad duty to mitigate their losses. To sustain this duty, a discriminatee must make reasonable efforts to mitigate the loss of income during the entire backpay period by diligently seeking other em- ployment substantially equivalent to the original employ- ment. Reasonable searches for and maintenance of inter- im employment is the standard , not the highest degree of diligence. Thus, success is not the measure of the suffi- ciency of a discriminatee's search for interim employ- ment. The law only requires an honest good-faith effort. The record as a whole must establish the sufficiency of the discriminatee's efforts. Any uncertainty existing in the record with regard to those efforts or the amounts of interim earnings are to be resolved against the Respond- ent as the wrongdoer. The instant case has a backpay period covering almost 6 years and the inordinate length of time can, in some measure, be attributed to Respondent's election to delay offers of reinstatement until all appeals were exhausted. A 6-year backpay period is inherently frought with diffi- culties of recall, inadvertent errors of fact, and poor rec- ordkeeping resulting in uncertainties as generally reflect- ed in the General Counsel's backpay specifications. That 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is not an indictment of the General Counsel or the com- pliance officer, for in the last analysis the General Coun- sel and his supporting compliance officer must rely on the information supplied by the discriminatee. As noted elsewhere in this decision, it is unfortunate that the com- pliance procedures utilized by the Board do not require some backpay documentation prior to a backpay specifi- cation being issued A series of amendments to a backpay specification only serves to personify the uncertainties that the compliance officer must deal with in calculating the backpay due. The reporting habits of discriminatees vary as their numbers and give rise to issues that unduly prolong the proceedings. The instances of fraud and abuse in the compliance procedures are-rare but they do exist. These rare instances cause concern whenever un- certainties or errors subsist. The instant case is not free of this concern. To begin with, the General Counsel originally calcu- lated Bonner's backpay on a 30-hour week, but amended his specifications to 16 hours on Respondent's presenta- tion of Bonner's record testimony in the underlying unfair labor practice case (an exhibit here). Further, this record shows convincingly that Bonner sought less hours work each week and in fact was scheduled for only 2 days work just prior to discharge. Albeit Bonner's deci- sion for less scheduled work may in part be based on the fact that on occasion she was sent home after reporting for work, it is equally supportable by Bonner's work his- tory during the backpay period and her testimony in- volving searches for employment. The record evidence shows Bonner's chief intent was to work less than a full week. I, therefore, conclude and find that the General Counsel's use of a 16-hour workweek comports with the facts of this case and accurately forms a basis for Bon- ner's backpay calculations. Issues raised by Respondent as enumerated above: Willful loss of earnings throughout the backpay period by failing to seek interim employment. This is a general attack on Bonner's failure to be more employed during the backpay period. The record- evi- dence shows that Bonner had interim employment in all quarters of the backpay period and in four of those quar- ters Respondent's liability was zero due to her interim earnings. Although Bonner's testimony of her search for interim employment was less than specific and subject to little or no recall, Respondent has not come forward with affirmative evidence to show a willful loss by fail- ure to seek employment. Respondent's collateral argu- ment that Bonner did not seek substantial employment in terms of the hours per week she desired or accepted is unavailing, particularly when Respondent insists that she should' have sought and obtained full-time employment. Bonner's backpay is based on a 16-hour week and suita- ble employment requires nothing further. Willful loss of earnings by failing to maintain interim employment because of excessive absences and tardiness. The abstractual and speculative nature of Respondent's evidence bearing on this issue is unconvincing and non- probative. In addition, Respondent's argument is pre- mised on an unknown theory that discriminatees must conduct themselves as model employees within a stand- ard dictated by the interim employer and without regard to Respondent's own working conditions The record evidence clearly shows that Respondent's own standard of work was much less than that argued for; indeed, Bonner's prior workweek hours were as varied as those within the backpay period. Moreover, the hours varia- tion was due as much to Respondent's requirements as to Bonner's volitions. There is no evidence that Bonner in- tentionally conducted herself in such a manner as to ensure ' employment separation. Absent such intent and without regard for Respondent's argued theory, I con- clude and find that Bonner did not incur a willful loss of earnings by failing to maintain interim employment due to absences and tardiness. Bonner was unemployed during extended periods of time in the backpay period when there were jobs available in her work field. I am treating this contention as a general attack on Bonner's employment history. It is undisputed that Bonner had extended periods of employment, but that fact alone does not sustain Respondent's burden. The record does not contain any affirmative evidence that substantially equivalent employment was available at any time when Bonner was seeking work and that she re- fused such employment. Therefore, Respondent has failed to support its contention. Bonner was unavailable for employment during the back- pay period for personal reasons,- Bonner rejected interim em- ployment during the backpay period when she supposedly was unemployed and had no other job opportunities avail- able. Respondent claims that Bonner's family, with its at- tendant responsibilities, precluded her from seeking or accepting employment if it was offered. Although Bon- ner's testimony of her search for work was vague and permeated with a lack of memory, there is no affirmative evidence that Bonner was not available for work because of children and grandchild. The lack of interim employ- ment while her children were young, without more, is not sufficient to support Respondent's claim Respondent's alternative claim that Bonner was not available for employment while self-employed is another mattes. Bonner's initial testimony sought to-establish a business joint venture between husband and wife, but later testimony characterized Bonner's contribution as nothing more than an employee who received no pay. Bonner's statement that she looked for work always while ' working in the feed store was also qualified by later testimony showing that she either did not look for work the entire time she worked in the feed store, or that she monthly or bimonthly sought other employment. Bonner's demeanor while testifying about the feed store was other than straightforward. Her responses were equivocal and expressed an intent to maintain her posi- tion or support her claims without regard for past events. Although lack of specificity alone is not cause to discredit a witness, when such a lack evinces a design to avoid the truth, it becomes a factor that must be consid- ered. I discredit completely Bonner's testimony that she sought other employment while working at the feed store. Her late testimony that for the first 6 months at the feed store she did not seek work because she expect- UNITED SUPERMARKETS ed the business to prosper only surfaced after Bonner re- alized the incredulity of the entire situation . Bonner stated and clearly evidenced lack of knowledge,,of.the business serves to further support the credibility determi- nation. She obviously had insufficient knowledge and un- derstanding of the business to express any reasonable outcome of her labors or to sustain her stated position that she was self-employed ; however, ,Bonner consistent- ly claimed that she was gainfully employed. The record testimony surrounding the operation of the feed store leaves doubt as to whether the business was ever intended to be a good-faith venture. Albeit, poor management of a business is not tantamount to unlawful machinations, the result is the same and Bonner cannot, particularly within her expressed role of an ignorant sub- ordinate, satisfy the reasonableness test of interim earn- ings Bonner's continued , presence in the feed store was nothing more than subterfuge to justify her failure to seek and obtain substantially equivalent employment and I so conclude and find Further support for this finding is the belated disclo- sure that while working in the feed store she attended nursing courses at a local college. The fact the courses may have ultimately led to interim employment just prior to the demise of the feed store does not change the conclusion that Bonner was not seeking other employ- ment to mitigate her loss of wages. Additionally, Bonner stated that the offered employment she refused occurred while the feed store was in operation . Although she testi- fied that the hours were not to her liking and the wages were poor, the offered employment was substantially equivalent to that she obtained just prior to the com- mencement of operations at the feed store at Allstate Se- curities, additional employment that was not disclosed until late in her testimony . Based on the entire record, it is clear to me that Bonner never intended to seek work while the feed store operated except to satisfy her own convenience or desires completely unrelated to her duty to mitigate the losses . Therefore, in accordance with my findings above, I would disallow Bonner any backpay from September 1980 through January 1982, the period of time the A & B Feed Store was in operation. Bonner intentionally and knowingly failed to report inter- im earnings to the Board 's compliance officer. Late in the trial, two interim employments were dis- closed through Respondent's witnesses and tax records. Respondent argues that Bonner testified that the Angel employment was not hers , but rather was someone else's and further that she thought she reported the Allstate employment to the compliance officer . Generally, such oversights can be explained by the unusual length of the backpay period (6 years) and the accumulation of many work places with several lasting only short periods of time. Also discriminatees, however hard they try, have difficulty keeping records to facilitate reporting all inter- im income to the Board . However, in Bonner's case, the reasonable innocence is outweighed by the contrary ad- missions and disclosures in the record . Notwithstanding Bonner's assertions that her work records were not avail- able to her, the trial record contains her 1980 Federal tax return that was individually prepared by Bonner and her husband, i.e., no outside preparer was involved Their in- 403 dividual tax return was unrelated to the corporate re- turns required by the A & B Feed Store. Further, nonre- ported Allstate employment was related to other report- ed employment which tends to eliminate lack of recall as an excuse . The Allstate and Angel employments were re- ported on Bonner's individual Federal tax return as per- sonal income and both also were reported to Social Se- curity as FICA wages. I find it extremely difficult to be- lieve that Bonner overlooked the two employments when reporting interim employment to the Board. Rather, I believe the failure to report the two employ- ments is an extension of Bonner 's design to substitute her work at A & B Feed Store for her duty to mitigate by seeking substantially equivalent interim employment She could not advance both, so she chose to rely on A & B Feed. An additional consideration in determining Bonner's good faith is the fact that her actual employment was so limited that confusion among a number of different em- ployers would not come into play. The original specifica- tion listed five employers . The final amended specifica- tion added the two additional employers for a total of seven. The numbers are not unwildey. Bonner is an ad- mitted prevaricator in her explanation that the Angel employment was not her own. She admitted entering into a questionable arrangement with Angel to perform the janitorial work and then falsely reported the income to IRS and Social Security Administration . It is no never mind that the report can be characterized as an over- statement of taxes because the benefits Bonner expected to receive as a result of the subterfuge outweigh the laudable overstatement of taxes I do not credit Bonner's explanations:of the admissions, nor do I credit her, expla- nation of the nature of the Angel employment . I cannot condone admitted false reporting to fiscal agencies, nor can I condone a practice of machinations with regard to rules and regulations for one's own convenience . This is a situation where if one version is accepted as the truth, all others fail as untruths. This is not the usual case of "uncertainties" in computations and therefore resolved against the original wrongdoer, Respondent . Any uncer- tainties associated with Bonner's backpay calculations emanate from her conduct during the backpay period and during the trial of this case I wholly discredit Bon- ner's testimony relating to the Allstate and Angel em- ployments (excepting only the belated admissions against her interest) based on her transitive demeanor when testi- fying and the equivocal testimony she gave . Bonner was an untrustworthy witness who was incapable or unwill- ing to relate the facts as they occurred , and with strong inclinations to perceive accounts of events from a pos- ture of her own self-interest. Bonner's evasive , shifting, and contradictory testimony was, on occasion, rendered improbable by documented fact.8 I conclude and find that Bonner's attempts to deceive on this record are wholly transparent and evince the necessary intent to de- fraud and abuse the Board's compliance procedures for personal gain through an augmented backpay recovery. 8'The General Counsel's corroborating testimony relating to the Angel employment, even if credited, would not change my findings or conclu- sions 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Accordingly, I shall deny all backpay to Bonner from the dates of employment of the concealed earnings to the end of the backpay period. Because the date of the Angel employment (if it is the first of the concealed em- ployments) is not ascertainable on this record, I expect the compliance officer to determine the true date of em- ployment and revise the specifications in accord with my finding. It is reasonable to assume that the overlap of the above findings relating to Bonner's backpay will result in different backpay amounts being calculated. I would expect and do order that the greater disallowance shall prevail Further, I cannot find on this record that Bonner failed to make reasonable efforts to mitigate the losses from the start of the backpay period through quarter of 1979, which explains my finding of a partial disallowance of backpay thereafter. On the basis of the foregoing and the entire record in this proceeding, I hereby issue the following recom- mended9 ORDER The Respondent, United Supermarkets, Inc., Amarillo, Texas, its officers, agents, successors, and assigns shall make the claimants involved in this proceeding whole by payment to them amounts of backpay computed in accord with this Supplemental Decision, plus interest, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); and Florida Steel Corp., 231 NLRB 651 (1977). The back- pay amount as so computed shall be subject to any Fed- eral, state, or local taxes required by law to be deducted and remitted to the proper authorities. 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses