G. Zaffino & Sons, Inc., Vabs Realty Corp.

G. ZAFFINO & SONS 571 G. Zaffino & Sons, Inc., Vabs Realty Corp., Vincent Zaffino, Angelo Zaffino, Bruno Zaffino, and Salvatore Zaffino 1 and Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL- CIO. Cases 29-CA-6890 and 29-CA-6932 June 30, 1988 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFr On June 30, 1987, Administrative Law Judge James F. Morton issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed excep- tions and a supporting brief, and the Respondent filed a brief in response to the General Counsel'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,2 and conclusions only to the extent con- sistent with this Supplemental Decision and Order. The Respondent's employees who were repre- sented by Local 455, the Union, went on strike on July 1, 1975. In January 1976, the Respondent vio- lated Section 8(aX2) and (1) of the Act by solicit- ing its employees to abandon their support for the Union and urging and soliciting them to join Team- sters Local 810 and violated Section 8(a)(1) by threatening plant closure as an inducement for the employees to abandon their support for the Union.3 The Respondent subsequently violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union when it requested bargain- ing in July 1978.4 In August 1978, the Union made an unconditional offer to return to work. In 1980, the Board found that the Respondent violated Sec- tion 8(a)(3) by failing to reinstate fully its striking i The caption is amended to reflect the second amended backpay spec- ification References to the Respondent in this Supplemental Decision and Order, unless otherwise specified , refer to G Zaffino & Sons, Inc 2 In sec E of his supplemental decision, the judge inadvertently stated that Albert Cioffoletti suffered net wage losses totaling $9677 47 Cioffo- letti actually suffered net wage losses totaling $7030 10, as claimed in the second amended backpay specification , and reimbursement of that amount is ordered 8 Independent Assn of Steel Fabricators, 231 NLRB 264 (1977), enfd in pertinent part 582 F 2d 135 (2d Cir 1978), cert denied 439 US 1130 (1979). 4 Kuno Steel Products Corp, 252 NLRB 904, 905 (1980), enfd sub nom NLRB v Koenig Iron Works, 681 F 2d 130 (2d Cir 1982) G Zaffino & Sons, Inc. was one of the respondents in Kuno employees.5 Subsequently, the Regional Director issued the instant backpay specification. The judge found, inter alia, that no discriminatee for whom the General Counsel sought backpay pursuant to the make-whole order was entitled to reimbursement for fringe benefits lost as a result of participation in the strike. The judge also found that Sylvio Ruta, Roger Williams, and Robert Ca- talano, strikers who returned to the Respondent's employ, were not entitled to receive reimbursement for lost wages pursuant to the make-whole order. Additionally, the judge found that Williams and Catalano were not entitled to reimbursement of medical expenses. For the reasons set forth below, we disagree with the judge. 1. It is well settled that the "finding of an unfair labor practice . . . is presumptive proof that some backpay is owed by the [Respondent]."6 The burden is on the General Counsel to prove the gross amount of backpay due.7 The burden then shifts to the Respondent to establish facts that negate or mitigate its liability." In analyzing the General Counsel's backpay claims for Joseph Cassara, Albert Cioffoletti, Junius Howell, Joseph Reiss, Sylvio Ruta, Roger Williams, and Robert Catalano, the judge acknowl- edged that the collective-bargaining agreement ef- fective just prior to the 1975 strike provided unit employees various fringe benefits. He also found that the Respondent did not provide these contrac- tual benefits to employees after the strike began. The judge mistakenly stated that the Regional Di- rector's second amended backpay specification sought to make the discriminatees whole by requir- ing the Respondent to provide them the fringe ben- efits that the Union had established in subsequent contracts with other employers during the backpay period. The judge then reasoned that requiring the Respondent to provide such benefits would compel the Respondent to grant concessions to the Union that had not been achieved in negotiations, con- trary to Section 8(d) of the Act. The Regional Director's second amended back- pay specification does not seek to impose on the Respondent any terms in the Union's subsequent collective-bargaining agreements with other em- ployers; rather, the specification uses a formula 5 Id. at 905-906 These employees are Sylvio Ruta, Roger Williams , and Robert Cata- lano, who individually abandoned the strike and returned to the Re- spondent's employ, as well as Joseph Cassara , Albert Cioffoletti, Junius Howell, and Joseph Reiss, who were not reinstated upon the August 1978 unconditional offer to return to work. 6 NLRB v Mastro Plastics Corp, 354 F 2d 170, 178 (2d Cir 1965), cert denied 384 U S 972 (1966) 7 NLRB v Brown & Root , 311 F 2d 447, 454 (8th Cir 1963) 9 Ibid 289 NLRB No. 76 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD based on continuing the terms of the parties' ex- pired agreement . Although the Second Circuit held that the Respondent validly withdrew from the multiemployer group following the 1976 impasse in bargaining between the group and the Union,9 the Union, as the incumbent, was still entitled to a pre- sumption of majority status among the Respond- ent's unit employees.10 The Respondent was, therefore, obligated to bargain on request with the Union as an individual employer, because the Re- spondent did not show a good-faith doubt as to the Union's majority status.1l Because the Union re- tained majority status, the Respondent was obligat- ed to bargain with the Union on its July 1978 re- quest for bargaining.12 The Respondent was like- wise required to continue giving effect to its ex- pired collective-bargaining agreement with the Union until bargaining to impasse.13 Thus, the second amended backpay specification, based on the expired agreement's terms, correctly calculated the gross amounts of backpay due. The Respond- ent, on the other hand, has not established any facts to negate or mitigate its liability. Specifically, the judge denied all claims set forth in the second amended backpay specification for vacation, holiday, and sick leave pay, as well as contributions to the Union's Welfare, Pension, and Annuity Funds. We will, therefore, order the Re- spondent to make the discriminatees whole by paying them the respective amounts set forth in the second amended backpay specification for vaca- tions, holidays, and sick leave,14 and by making the contributions to the Local 455 Welfare Fund,1 s NLRB v. Independent Assn. of Steel Fabricators, 582 F.2d 135 (2d Cir 1978) 10 Id. at 150 11 Ibid " Kuno Steel Products Corp, 252 NLRB 904, 905 fn 4 (1980). la See NLRB v. Katz, 369 U.S. 736 (1962); Taft Broadcasting Co., 163 NLRB 475 (1967) 14 Sylvio Ruts, Roger Williams, and Robert Catalano are entitled to $3033.80, $7662.50, and $9839 20, respectively 15 The Respondent asserts that a discriminatee is made whole when he is reimbursed for the cost of premiums incurred in obtaining substitute health insurance coverage and for his out-of-pocket medical expenses to the extent that those expenses would have been reimbursed through the Local 455 Welfare Fund To be made whole, however, a dtscriminatee must be restored to the position he would have occupied had the discrim- ination not occurred. This includes not only reimbursement of the discn- minatee's premiums and medical expenses , but also requires the Respond- ent to contribute to the Welfare Fund according to the expired contract's terms so that the discriminatee's future interests in the Fund will be en- sured. "[T]he diversion of contributions from the union funds undercut[s] the ability of those funds to provide for future needs " Stone Boat Yard v NLRB, 715 F 2d 441, 446 (9th Cir. 1983). Hassett Maintenance Corp, 260 NLRB 1211 (1982), a cryptic decision on which the Respondent relies, focused on what it characterized as the double insurance costs that would result from requiring the employer (which had provided other coverage) in that case to make contributions to the welfare fund Hassett did not address restoring the full range of an employee's interests in the welfare fund The Hassett decision did not rec- oncile its limited remedial order with pre-Hassett precedent requiring em- ployer contributions to union welfare funds on employees' behalf, see, e.g., Kraft Plumbing & Heating, 252 NLRB 891 (1980), affd. mein 661 Pension Fund, and Annuity Fund on their behalf in the respective amounts set forth in the second amended backpay specification. 2. The backpay specification also claimed that Sylvio Ruta, Roger Williams, and Robert Catalano, strikers who returned to work for the Respond- ent,16 are owed $294.83, $4651.60, and $9677.47 in back wages, respectively, on the theory that they would have received the same pay rates and wage increases that similarly situated replacement em- ployees received, absent the discrimination against them. The measure of back wages due used in the specification was the pay rate each earned before the strike, plus increases granted similarly situated employees, less the rates each actually earned, mul- tiplied by the hours each worked.17 The judge rejected the claims for Ruta, Wil- liams, and Catalano because he found that the pay rates set and increases granted before July 1, 1978, were not discriminatory and did not constitute con- tinuing violations of the Act. This proceeding, however, is not an unfair labor practice proceed- ing; the unfair labor practice has already been found and affirmed by a court of appeals. Kuno Steel Products Corp., 252 NLRB 904 (1980), enfd. sub nom. NLRB v. Koenig Iron Works, 681 F.2d 130 (2d Cir. 1982). The judge apparently misunder- stood the Kuno order. The Board specifically found that the Respondent violated Section 8(a)(3) by not fully reinstating strikers who individually returned to work before August 9, 1978,18 but ordered that, under the circumstances, the Respondent's backpay liability would run only from 6 months before the instant charges were filed.19 Manifestly, the Board contemplated the use of the discriminatees' pres- trike pay rates and increases granted to similarly situated employees before the backpay period to determine the amounts of back wages due. Accord- ingly, we will order the Respondent to make F.2d 940 (9th Cir. 1981), as does precedent decided after Hassett. See Stone Boat Yard, 264 NLRB 981 (1982), which the Ninth Circuit en- forced. The court rejected the double -coverage/punitive claim: the "em- ployer cannot complain of the extra cost of improperly created , substitute fringe benefits.. . The company is merely required to repay what it has unlawfully withheld." Stone Boat Yard v. NLRB, 715 F.2d at 446. 1e Member Cracraft continues to adhere to her position that in certain circumstances an employer's obligation to bargain may be suspended with regard to the wages, hours, and terms and conditions of employment of employees who abandon a strike and return to work . See Schmidt-Tiago Construction Co, 286 NLRB 342, fn. 9 (1987) (joining then Chairman Dotson's dissent in relevant part). This position was and continues to be a minority view. For institutional reasons, Member Cracraft will apply precedent in this area. She notes , additionally, that the parties have not raised the issue in this case. 17 The calculation, computed quarterly, was adjusted for overtime and part-time. 19 Although Robert Catalano returned to the Respondent's employ on August 24, 1978, after the Union 's unconditional offer to return, the Board grouped him with those who returned before August 9, 1978, for purposes of the make -whole order in Kuno, supra at 906. 19 Id. at fn. 5 573 whole Sylvio Ruta, Roger Williams, and Robert Catalano by paying them $294.83, $4651.60, and $9677.47, respectively, as claimed on their behalf in the backpay specification. 3. The General Counsel has excepted to the judge's failure to include in the make-whole remedy reimbursement of Roger Williams and Robert Catalano for the purchase of substitute health insurance and out-of-pocket medical ex- penses incurred during the backpay period. The second amended backpay specification, to the extent supported by the documents the General Counsel introduced at the hearing, claimed $5253.22 for Catalano's and $3572.53 for Williams' substitute medical insurance premiums and out-of- pocket medical expenses. The judge, who, as stated above, dismissed all fringe benefit claims for all dis- criminatees, did not specifically address medical ex- penses. It is customary to include reimbursement of sub- stitute health insurance premiums and out-of-pocket medical expenses in make-whole remedies for fringe benefits lost.20 Because the Respondent has established no facts that would negate or mitigate its liability, we will order the Respondent to reim- burse Catalano $5253.22 and Williams $3572.53 for their documented medical expenses during the backpay period. ORDER The National Labor Relations Board orders Re- spondent G. Zaffino & Sons, Inc., New Rochelle, New York, its officers, agents, successors, and as- signs, Respondent VABS Realty Corp., New Ro- chelle, New York, its officers, agents, successors, and assigns, and Respondents Vincent Zaffino, Angelo Zaffino, Bruno Zaffino, and Salvatore Zaf- fino, New Rochelle, New York, their agents, suc- cessors, and assigns, to make whole the employees named below by paying them the amounts of back- pay set forth opposite their names, plus interest in the manner prescribed in New Horizons for the Re- tarded,21 less tax withholdings required by Federal and state laws, and by paying to the Welfare Fund, Pension Fund, and Annuity Fund of Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, the respective amounts on their behalf set forth opposite their names, plus interest in the manner prescribed in Merryweather Optical Co.22 Name Backpay Medical Expenses Welfare Fund Pension Fund Annuity Fund J. Cassara $4,942.25 0 $5,636.88 $7,046.10 $1,409.22 A. Cioffoletti 7,030.10 0 562.41 703.01 140.60 J. Howell 3,719.35 0 297.55 371.94 74.39 J. Reiss 2,557.40 0 204.59 255.74 51.15 R. Catalano 19,516.67 $5,253.22 7,243.88 9,054.85 1,810.97 S. Ruta 3,328.63 0 1,970.14 2,462.68 492.54 R Williams 12,314.10 3,572.53 5,901.11 7,376.38 1,475.28 Kathleen M. Troy, Esq. and Beatrice Kornbluh, Esq., for the General Counsel. Stanley Israel Esq. (Kliegman, Goldstein, Israel & Cooper), of New York, New York, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. This is a proceeding to determine how much backpay, if any, is due seven employees who, as found by the Board, were discriminated against by G. Zafnmo & Sons, Inc. (Re- spondent) because they took part in a strike called by Shopmen's Local Union No. 455, International Associa- tion of Bridge, Structural & Ornamental Iron Workers, AFL-CIO (Local 455). The hearing in this case was held in conjunction with five other backpay cases, all of which had their genesis in a strike that began almost 12 years ago. Three of the seven discriminatees involved in this case had been reinstated by Respondent to their former jobs, but not fully. The other four had been unlawfully denied reinstatement. The General Counsel amended the backpay specifica- tion to allege that Respondent was owned by four Zaf- fino brothers and that they , together with a realty com- pany they controlled, should be held jointly and several- ly liable for all backpay found to be due. 20 See, e.g., RMC Constructors, 266 NLRB 1064 (1982). 21 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1 , 1987 (the effective date of the 1986 amendment to 26 U.S.C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 22 240 NLRB 1213 (1979). 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent, in its answer to the amended specifica- tion, asserts that no backpay is due. Regarding the three discriminatees who had returned to its employ, Respond- ent states that they have been fully reinstated. Concern- ing the remaining four discriminatees, Respondent con- tends that they "were unavailable for work" as of the start of their backpay period . It further contends that one of those four incurred a willful loss of interim employ- ment. Counsel for Respondent also represents the four Zaf- fino brothers and the realty company involved, VABS. They all deny that they should be liable for any backpay. On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed with me, I make the following FINDINGS OF FACTS 1. BACKGROUND AND OUTLINE OF THE CASE Respondent had been engaged in the business of making and installing iron, steel, and related products in New York City and vicinity. In mid-1975, it had been a member of an employer association then negotiating a collective-bargaining agreement with Local 455 to super- sede the one that was then scheduled to expire on 30 June 1975. Local 455 struck on 1 July 1975 and the ap- proximately seven unit employees of Respondent began picketing. A bargaining impasse was reached on 19 January 1976. See NLRB v. Steel Fabricators, 582 F.2d 135 (2d Cir. 1978). Respondent withdrew from the multiemployer unit. Local 455 requested Respondent, on 13 July 1978, to bargain regarding its unit of employees . Respondent violated Section 8(a)(1) and (5) of the Act in rejecting that request. See Kuno Steel Products Corp., 252 NLRB 904 (1980). Respondent had by then made numerous changes in the wage and benefits of its unit employees. The Board made some reference to it in finding that three of the discriminatees had, prima facie , not been fully reinstated, but there was no contention that those changes were unilaterally instituted in violation of Sec- tion 8(a)(5). Three of Respondent's striking employees abandoned the picket line and returned to Respondent's employ. In the underlying decision in this case, the Board made the findings excerpted below. See Kuno Steel Products, supra at footnote 5, which reads The General Counsel presented evidence estab- lishing a prima facie case, which [Respondents have] not adequately rebutted, that . . . unfair labor prac- tice strikers individually returned to work prior to August 9, [1978] and were not fully reinstated to conditions current at the time the strike began. Since an individual employee may make an uncon- ditional offer to return to work, each individual em- ployee who was reinstated pursuant to an uncondi- tional offer was entitled to full reinstatement to the status quo which he occupied at the time he went on strike. The Laidlaw Corporation, 171 NLRB 1366, 1381-82 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). Accordingly, in light of Respondents' failure to rebut the General Counsel's prima facie case, we fmd their conduct in this regard to be violative of Sec. 8(a)(3) of the Act. We agree with the Administrative Law Judge's recommendation that determination whether the total wages and benefits package these employees have received since returning to work is substantial- ly equivalent to the wages and benefits they re- ceived prior to the strike-and thus satisfies the full reinstatement requirement-should be considered in the compliance stage of this proceeding . Under the circumstances of this case, we hold that Respond- ents' backpay liability to any employee who re- turned to work before August 9 shall run only from 6 months prior to the filing of charges herein (i.e., from 1 July 1978). In the footnote just quoted, "August 9" is the date on which Local 455 applied, inter alia, to Respondent on behalf of the remaining strikers to return to work. In Kuno Steel, supra, the Board found that Respondent had unlawfully refused to accept that application and ordered Respondent to offer those strikers reinstatement and to make them whole. The Board's order in Kuno Steel was enforced. See NLRB v. Koenig Iron Works, 681 F.2d 130 (2d Cir. 1982). Seven years had, by then, passed since the strike had begun. In related proceedings, the Board has had occa- sion to comment on the lengthy history of the litigation arising from that strike. Shortly after the strike began, Respondent hired re- placements and reemployed two of the striking employ- ees when they abandoned the strike. It paid these em- ployees lower wage rates and provided them with differ- ent fringe benefits than those given just prior to the start of the strike. It has, throughout the years since, effected many other changes in the wages, hours, and other terms and conditions of employment of the unit employees. Re- spondent stated, in its brief, that no unfair labor practice charges have even been filed against it for either (i) uni- laterally paying to bargaining unit replacements wages and benefits lower than those paid prior to the strike or (ii) unilaterally changing prestrike benefits granted to strikers on their return to work. Bargaining between Local 455 and Respondent re- sumed in 1983. Local 455 filed an unfair labor practice charge on 8 July 1983 and a complaint issued thereon against Respondent alleging that it violated Section 8(a)(1) and (5) of the National Labor Relations Act, by refusing to bargain in good faith. That complaint was dismissed on a finding that Respondent was engaged only in lawful hard bargaining. See G. Zaffino & Sons, 275 NLRB 456 (1985). The first three claims discussed below are for those discriminatees who had returned to Respondent's employ. II. SYLVIO RUTA Just before the strike began in July 1975, Ruta had worked for Respondent as a mechanic at $6.70 an hour. He joined the strike on 1 July 1975 but left it on 9 Sep- G. ZAFFINO & SONS tember 1976 to return to work for Respondent. He was the first striking employee to return. According to foot- note 5 of the Board's decision in Kuno Steel, supra, his backpay period did not begin then but started on I July 1978-the date 6 months prior to the date on the under- lying unfair labor practice charge was filed in this case. As of the start of his backpay period, he was receiving $7.50 per hour. The General Counsel contends that he should have then been receiving $7.70 an hour based on average raises given other employees since the strike began and is due a total of $294.84. Shortly after the backpay period began, he received a raise that disposed of any further wage claim . Strangely, Ruta actually re- ceived larger raises in his backpay period and more total wages than the General Counsel's gross backpay formula would have given him. The General Counsel's formula, in essence, asserts that, at some point antedating the start of the limitation period of Section 10(b) of the Act, i.e., 1 July 1978 as set by the Board in footnote 5 of Kuno, supra Respondent gave raises to unit employees, including Ruta and that Ruta, at that point, should have been receiving $7.70 an hour. The General Counsel's formula then projects that figure into the backpay period. In other words, the Gen- eral Counsel contends in effect that Respondent's failure to pay Ruta an average increase at a time barred by Sec- tion 10(b) was a discriminatory act that continued into the backpay period. Such a theory is clearly without merit under the doctrine of Machinists Local No. 1424 Y. NLRB, 362 U.S. 411 (1960). I therefore find that Respondent has not discriminated against Ruta concerning his wage rates on or since 1 July 1978. The General Counsel also contends that Ruta should be made whole regarding alleged fringe benefit losses he suffered. The General Counsel contends that he was dis- criminatorily denied all the fringe benefits provided for in Local 455's contract with Respondent, which had ex- pired on 30 June 1975 and also all the improvements in those benefits in the subsequent standard contracts Local 455 reached with other companies in the New York City area. As noted above, a bargaining impasse had been reached in 1976. No unfair labor practice charge was ever filed to protest Respondent's discontinuance of the use of Local 455 benefit plans and recently, the Board dismissed a complaint that Respondent had failed to bar- gain collectively with Local 455 about a new contract. In these circumstances, were Respondent required now to provide Ruta with the fringe benefits of Local 455 contracts, it would effectively be compelled to grant concessions, a result proscribed by Section 8(d) of the Act. Moreover, the furnishing of such benefits to Ruta and not to all other unit employees would constitute dis- parate treatment based on the fact that Ruta had taken part in the Local 455 strike. To award him those benefits would constitute, not remedy, discrimination. I therefore conclude that Respondent is not obligated to provide Ruta or for that matter the other discrimina- tees, with the fringe benefits contained in Local 455 con- tracts. 575 Respondent has provided certain fringe benefits for unit employees. The General Counsel has not asserted any claims thereunder for any of the discriminatees. I note this here because later in this decision, the discus- sion of fringe benefits claims asserted by the General Counsel for some of the other discriminatees refers to the above. I find that Respondent provided Ruta, during the whole of his backpay period, with a nondiscriminatory wages and benefits package and I conclude that he was fully reinstated with no backpay due him. 111. ROGER WILLIAMS Williams had been employed by Respondent as a fin- isher just prior to the start of the strike; he was then earning $7.40 per hour. He joined the strike but left it on 6 April 1978 to return to work for Respondent at $9 an hour, the rate he was earning at the start of his backpay period, 1 July 1978. The General Counsel's backpay for- mula states that he should have then been receiving only $8.40 an hour. I have some difficulty comprehending the nature of the backpay claim asserted for him. The formu- la used by the General Counsel is based on an average of wage increases given since 1975. According to the Gen- eral Counsel, Williams' actual hourly wage rates contin- ued to exceed those projected for him under the General Counsel's formula for the first 10 quarters of his backpay period. At that point, the "average" increases received by others began to outweigh the increases he actually was given. Obviously, if the compliance investigation had been completed in the first year or two of the back- pay period, the General Counsel would have had no wage claim to make for Williams under its present for- mula. The critical point for me to decide, in any event, is whether Respondent had, as of the start of the backpay period, discriminated against Williams. Certainly, based on his wage rate, it did not because he was then earning 60 cents an hour more than the rate the General Counsel contends he was entitled to get. Regarding his fringe benefits, he and the other employees of Respondent then were all being treated equally. The General Counsel's claim on behalf of Williams for fringe benefits is the same as the one I already rejected for Ruta. It may be that, as the General Counsel contends, in the 11th calendar quarter after 1 July 1978, Respondent paid him less than the average wage rate because of some un- lawful reason, but it would be inappropriate for me to assume that Respondent resumed then, for no apparent reason, its earlier discriminatory treatment of Williams. There was no unfair labor practice charge filed during or after the 11th quarter alleging any such resumption. Based on the above I find that Williams had been fully reinstated as of and since 1 July 1978 and is due no back- pay. IV. ROBERT CATALANO Catalano returned from the strike to Respondent's employ after Local 455 had applied on 8 August 1978 for reinstatement of the strikers. It appears from the Board's order in Kuno Steel, supra, that it treated Williams as one 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD who had returned before the application. In any event, he had been earning $6.70 an hour as a mechanic when the strike began in 1975. He returned to Respondent's employ on 24 August 1978 as a mechanic earning $7.50 an hour. The General Counsel contends that, based on average raises granted to unit employees in the 3-year period antedating the start of the backpay period, Cata- lano's hourly rate should have been $7.70 an hour then, not $7.50. However, the first discriminatee discussed above, Ruta, was receiving $7.50 an hour then based on raises received earlier and, in his overall backpay period, there was no discrimination shown him, according to the General Counsel's own formula. If the $7.50 rate was discriminatory, it was set well before the backpay period began to run. The General Counsel's formula uses aver- age raises to calculate the rates Respondent should have paid. As noted earlier, the rate on which $294.83 was claimed for Ruta was set long before the limitations period of Section 10(b) of the Act began to run. The raises he received during the backpay period exceeded the average. For the second discriminatee who returned to work, Williams, his wage rates for 2-1/2 years after the start of the backpay period, also exceeded the aver- age. For Catalano, his rates were lower than the average. It may fairly be said then that the rates of those three discriminatees, on average, were about equal to the aver- age raises given replacements. Certainly, no separate basis exists to infer that Respondent sought to further pe- nalize the discriminatees during the backpay period be- cause they once had taken part in the Local 455 strike. The fact that Catalano did not get the same raises as the other two discriminatees is no basis to fmd that Respond- ent continued to discriminate against him. I find, instead, that the mathematical computations for Catalano in the General Counsel's formula are insufficent by themselves to show that he was given disparate treatment because he once took part in this Local 455 strike. Respecting the claim made on his behalf for fringe benefits, the finding above about similar claims made for Ruta and Williams are applicable. Accordingly, I con- clude that Catalano had been fully reinstated on his return to work for Respondent and that no backpay should be awarded to him. V. ALBERT CIOFFOLETTI In this and following sections, the claims of the four discriminatees who were not reinstated by Respondent are discussed. According to the amended backpay specification, Ciof- foletti had the most seniority among Respondent's em- ployees who were still on strike when Local 455 applied for their reinstatement on 9 August 1978. On that premise, the specification alleged that he should have been reinstated on 31 August 1978 when Respondent in- stead hired a replacement. In support of that allegation the General Counsel offered the testimony of the super- visory compliance examiner in Region 29 who stated that all of the material allegations in the amended specifi- cation were based on information and records furnished to Region 29 by Respondent. Respondent did not contro- vert that account. Indeed, its own formula, discussed below, uses much of the same data relied on by the Gen- eral Counsel, and its formula differs from the General Counsel's principally in that Respondent would omit cer- tain data as irrelevant. Respondent, in its answer, asserted that Cioffoletti in- curred a willful loss of employment during his backpay period and thus is entitled to no award. Respondent con- tends that Cioffoletti had retired from employment soon after the start of the strike and long before Local 455 ap- plied for his and other strikers reinstatement. In support of that assertion, Respondent placed in evidence a docu- ment furnished it by the General Counsel. The document was submitted to Region 29 by Cioffoletti when it was conducting its compliance investigation. The document is entitled "Statement of Claimant for Backpay." It is signed with Cioffoletti's name and the General Counsel acknowledged that Cioffoletti did sign it. The General Counsel noted too that the answers to the printed ques- tions were inserted in longhand by someone whose hand- writing clearly was not that of Cioffoletti. That is obvi- ously the case. The handwritten answers are to some extent confusing . On the one hand the "No" box is checked alongside a question asking if the claimant was unavailable for work during the backpay period.' Yet, at another point in the document, there is a note to the effect that the claimant was unemployed during the backpay period, and a further note, with an asterisk that reads, "Did not pursue employment" and still a further note, reading "None" (also asterisked) in the section asking claimant to describe efforts to secure employment. The document contains no explanation why the asterisks were placed on it. The Respondent has the burden of establishing that a backpay claimant has incurred a willful loss of employ- ment. See Clear Pine Mouldings, 268 NLRB 1044, 1059 (1984) and cases cited there. Respondent, to prove that Cioffoletti incurred such a loss, offered only the docu- ment described above. On its face, it is ambigious. Ciof- foletti's signature on it seems to some extent to be writ- ten by a feeble hand. If there had been some other evi- dence before me, I might have been able to give some weight to this document but, by itself, it affords no basis to reject Cioffoletti's claim. There is nothing to explain the apparent contradictions in the document, or the use of the asterisks or the variations in the handwriting. Re- spondent has offered, without more, an ambiguous docu- ment as an admission against interest . Cf. Industrial Waste Service, 268 NLRB 1180 at fn. 1 (1984), where the Board (absent consistent, objective facts) rejected the General Counsel's contention that a decedent's affidavit should be given weight. Had Respondent offered some clarification of the apparent inconsistencies and confu- sion in the document before me, the burden might have shifted to the General Counsel to come forward with re- buttal evidence. On the record before me, I can give no weight to the document. More significantly, Respondent easily could have tested the validity of its own theory, that Cioffoletti was unavailable because he was retired. It could have, on receiving Local 455's application on his behalf, offered to reinstate him. It did not. It cannot be 1 The "Yes" box alongside had a crossed out "X" in it G. ZAFFINO & SONS allowed to exploit the very ambiguity its unlawful acts created. The gross backpay formula relied on by the General Counsel is based on the earnings of the mechanic who was hired in place of Cioffoletti. The use of this formula has been approved by the Board. See Big Three Industri- al Gas & Equipment Co., 263 NLRB 1189, 1194-1195 (1982). Respondent offered an alternative formula, one based on an amalgam of Cioffoletti's wage rate when he went on strike in July 1975 and the rates paid to his re- placement, beginning more than 3 years later. Respond- ent contends that the Board, at footnote 5 of Kuno Steel, supra, specified that the formula it proposes is the one to be used. Footnote 5, however, refers to those discrimina- tees who had returned to Respondent's employ without full reinstatement. It has no application to Cioffoletti's case or to those of the other discriminatees discussed below. If Respondent's formula had been used, Cioffo- letti would be credited with less pay than his replace- ment received-a result that would compound the very wrong that footnote 5 was aimed at correcting. The General Counsel's claim for fringe benefits alleg- edly owed Cioffoletti fails for the reasons discussed at length above concerning essentially the same such claim for Sylvio Ruta. Based on the foregoing, I find that Cioffoletti suffered quarterly, net wage losses totaling $9677.47. VI. JOSEPH CASSARA, JUNIOUS HOWELL, AND JOSEPH REISS The gross backpay formula used by the General Coun- sel in calculating wage losses of these discriminatees is premised on the same concept used in computing Cioffo- letti's, just discussed, i.e., the earnings of replacements as disclosed by Respondent's own records. Respondent's answer raises the same contention already considered in discussing Cioffoletti's claim. For the same reasons set out above, I reject those contentions of Respondent and find that these discriminatees are entitled to awards re- spectively for the net backpay claimed in the second amended specificiation. The fringe benefits claimed for them, however, are denied for the reasons discussed above in the section relating to Sylvio Ruta's claim. Thus, the sums due these employees appear alongside their names: Joseph Cassara $4,942.25 Junious Howell 3,719.35 Joseph Reiss 2,557.40 VII. THE OTHER RESPONDENTS The General Counsel contends that VABS Realty Corp. (VABS), and Vincent Zaffino, Angelo Zaffino, Bruno Zaffino, and Salvatore Zaffino are, with Respond- ent, a single-integrated business enterprise and therefore that all are jointly and severally liable for backpay due under the Board Order. Vincent Zaffino, Angelo Zaffino, Bruno Zaffino, and Salvatore Zaffino are brothers who, over 40 years ago, took over their father's business. In 1947, they formed VABS, an acronym comprised of the first initials of their respective first names, for the purpose of holding title to 577 the real property and the building where the operating companies were then housed. They, with their sister Clementine, each owned one-fifth of the shares of VABS stock. The four brothers also founded Respondent in 1947 in order to incorporate the operating company; each owned one-quarter of Respondent's issued stock. These brothers were the only ones to manage Re- spondent's operations. It appears that Bruno took care of all purchasing, hiring and firing employees , and adminis- trative functions. The other brothers worked in the shop, and in the field as estimators or overseeing operations. The four were the only officers of Respondent; no board of directors was ever established. It appears that there never was a written lease of the building to Respondent by VABS. Each month Re- spondent paid a certain sum to Clementine as her share of the rental of the building. The four brothers later in- creased that rental payment to her. When Vincent died in 1980, his widow also began to receive regular rental payments from Respondent. It does not appear that the other three brothers drew any money from VABS. In fact, at one point VABS mortgaged its holdings in order to provide Respondent with operating capital. The ar- rangement that Respondent had with VABS was charac- terized by one of the brothers as very informal and the same thing has to be said of the way the brothers operat- ed Respondent. Thus, its records indicate that items of a personal nature were paid by Respondent, e.g., the cost of perpetual care of their father's grave; maintenance work on an apartment building owned by one of the brothers was paid out of Respondent 's assets. Vincent died in 1980. His widow, instead of inheriting his stock, received the proceeds of an insurance policy paid for by Respondent, which also retired the stock pre- sumbly held by Vincent. The same practice was fol- lowed when Bruno died. Angelo and Salvatore Zaffino then were the sole stockholders. They sold the business to AT&T Iron Works in 1984 for $120,000 and split that sum between them. The real property held by VABS was also sold then, for the sum of $325,000, presumably for the benefit of the five shareholders; Angelo, Salva- tore, Clementine, and the widows of Vincent and Bruno. The relevant indicia of a single enterprise are (1) inter- relationship of operations, (2) centralized control of labor relations, (3) common management, (4) common owner- ship or financial control, and (5) representation to the public as a single-integrated enterprise, although no one of these factors is controlling. See Capital Theatre, Cap- ital Rock, 231 NLRB 1370, 1374 (1977). In that case, a realty company and the operating companies were held to constitute a single-integrated enterprise responsible for remedying the unfair labor practice filed therein. The record in the case before me shows dealings between VABS and Respondent, that cannot be characterized as being at arms length. Instead these furthered the common interests of the overall business. On the basis of the foregoing and the record as a whole, I find that VABS and Respondent were highly integrated enter- prises in terms of ownership, operation, and centralized control of labor relations and, as such, constitute a single employer within the meaning of the Act. 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Board's Order ran against Respondent's officers, agents, successors, and assigns. As the corporate assets were distributed to the Zaffinos in 1984 when the busi- ness and property were sold and as a corporation cannot by divesting itself of all property leave remediless the holder of a contingent claim, it is appropriate now to pierce the corporate veil to hold those individuals liable for the backpay up to the amounts of the funds distribut- ed to them from corporate assets. See F & W Oldsmo- bile, 272 NLRB 1150 (1984). THE REMEDY For the reasons set forth above, I find that the obliga- tions to the discriminatees will be discharged by the pay- ment to them of the respective amounts found due set forth above. The backpay provided with interest is to be computed quarterly in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977), minus any tax withholding required by Federal and state laws. [Recommended Order omitted from publication.]