Conti-Nental Corp.

CONTINENTAL INSURANCE CO. Continental Insurance Company, Division of Conti- nental Corporation and Hotel Employees and Restaurant Employees Union Local 100, New York, New York and Vicinity, AFL-CIO, Suc- cessor to Local 6, Hotel, Restaurant and Club Employees and Bartenders Union , AFL-CIO Marriott Food Service, Inc., a Division of Marriott Corp. and Hotel Employees and Restaurant Employees Union Local 100, New York, New York and Vicinity, AFL-CIO, Successor to Local 6, Hotel, Restaurant and Club Employees and Bartenders Union, AFL-CIO Interstate United Corporation and Hotel Employees and Restaurant Employees Union Local 100, New York, New York and Vicinity, AFL-CIO, Successor to Local 6, Hotel, Restaurant and Club Employees and Bartenders Union, AFL- CIO. Cases 2-CA-17886, 2-CA-17887, and 2- CA-18204 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On July 25, 1984, Administrative Law Judge Harold B. Lawrence issued the attached supple- mental decision. Thereafter the Respondent, Conti- nental Insurance Company, and the General Coun- sel filed exceptions and supporting and answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 only to the extent consistent with this Decision and Order. In his decision, the judge concluded that back- pay claimants Bertha DePalma, Angelo Bonomo, and Elaine Hickey should receive the backpay sought for them by the General Counsel. Specifi- cally, the judge found that these three discrimina- tees made reasonable and diligent efforts to obtain i The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In accordance with our decision in New Horizons for the Retarded, 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) 579 employment during the backpay period. The Re- spondent has excepted to these findings and, for the reasons set forth below, we find merit in the Respondent's contentions. The record shows that on February 27, 1981,3 Marriott Food Service, Inc. (Marriott) terminated the operation of a cafeteria and executive dining room for personnel of the Continental Insurance Company (the Respondent) at the Company's of- fices in downtown Manhattan. In June, Interstate United Corporation (Interstate) resumed operation of the facility and offered similar positions to many of the previously discharged cafeteria employees. The reinstatement and tolling date for the backpay period was July 6. Bertha DePalma Claimant Bertha DePalma, who resided on Staten Island, was employed by Marriott as a wait- ress at its downtown facility. While employed in that position she traveled to work by ferry and bus to downtown Manhattan. According to DePalma's testimony, she talked to Marriott' s general manag- er, Carol Kramer, about employment opportunities at other Marriott facilities. As a result, Kramer of- fered DePalma a similar position at Marriott's mid- town Manhattan facility located on 42d Street.4 However, in order to reach this facility, DePalma would have had to travel by subway to midtown after the ferry ride. DePalma testified that it was too far to travel on the salary being offered and that she had never ridden the subway. For these reasons, she rejected Kramer's offer. The judge found that DePalma's rejection of this position was not, by itself, a sufficient ground to disqualify her from receiving backpay. Rather, he concluded that DePalma was under no obligation to accept employment in midtown since she had diligently sought positions elsewhere5 and there was an abundance of restaurants in the downtown Manhattan area. Unlike the judge, we view DePalma's action not in terms of the reasonableness of limiting her job search but as a refusal to accept an offer of similar employment.6 DePalma testified that she rejected 8 All dates are in 1981 4 On termination of its operation at the Continental facility, Marriott transferred Kramer to its Pfizer facility, located on 42d Street, as the general manager there 5 In this regard the evidence shows that DePalma read newpaper ad- vertisements each day and answered a number of them She contacted several brokerage firms, applied at several restaurants , and inquired of a friend who was a dining room supervisor at Chase Manhattan Bank She did not accept any of the jobs advertised because they required night or weekend work and she wanted to continue to work normal daytime hours as she had done at the Respondent's facility. 6 See Lundy Packing Co, 286 NLRB 141, 142 (1987) 289 NLRB No. 77 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kramer's offer at Marriott's midtown facility be- cause it was too far to travel on the salary being offered and because she had never ridden the subway. DePalma offered no specifics, however, as to the difference in travel time or expense. The ab- sence of such evidence, coupled with the fact that her stated reason for not riding the subway was a personal preference, leads us to conclude that the record contains an insufficient basis for excusing DePalma's rejection of this job offer.7 According- ly, we find that DePalma's rejection of a compara- ble job offer tolled her backpay. Angelo Bonomo Angelo Bonomo had been employed as the first chef at the Continental facility and was 66 years old at the time of his discharge. A few days prior to the closing of the cafeteria, Bonomo advised Marriott's general manager, Carol Kramer, that he intended to retire. According to Kramer's testimo- ny, Bonomo stated he would not apply for a posi- tion at other Marriott facilities because "he was an old man and intended to retire." Similarly, Marri- ott's personnel director, Delores Coe, testified that Bonomo had advised her that he intended to retire on his dismissal.8 During the backpay period Bonomo collected social security and union pension payments in addi- tion to receiving unemployment insurance benefits. Moreover, according to his credited testimony, Bonomo sought employment by reviewing newspa- per advertisements, and by visiting the Union's em- ployment office, a private employment agency, and the New York State employment referral service several times a week. The judge found that Bonomo was eligible for backpay. In arriving at this determination, he relied on the fact that Bonomo had collected unemploy- ment insurance benefits and concluded that Bonomo had conducted a reasonable job search. 7 We acknowledge, as our dissenting colleague notes, that DePalma is a grandmother . We also note, however , that she testified that she "[had her] health" and that her subsequent acceptance of a position as a wait- ress makes it clear that she was physically capable of carrying out the duties of that job Regarding her objection to taking the subway, DePalma testified that she did not do so because "I don't have to " Under further questioning by counsel for the General Counsel, she elaborated on her reasons as fol- lows- "I'd be afraid to I don't know anything about the subway. I may as well tell you the truth I never rode them I worked on Bleeker Street, and then I worked on Maiden Lane " We note, however, that so far as the record indicates, the job at Marriott's midtown facility, which De- Palma declined, was a day-shift job that would call for travel on the subway at times when millions of other New Yorkers are traveling by subway to their jobs We further note that DePalma also testified that she "take[s] the bus" in New York, but she indicated that she had not both- ered to find out whether the bus would take her to 47th Street, where the Marriott facility was located, since she had "never travelled that far." 8 The judge did not discredit the testimony of either Kramar or Coe Bonomo did not contradict the testimony of management officials or a fellow employee that he told them he planned to retire The judge further found that Bonomo's collecting social security benefits and union pension payments did not automatically mean that he had elected to rely exclusively on that income, and that his ac- ceptance of those benefits is not necessarily incon- sistent with a desire to obtain employment. Since he found that Bonomo had conducted a reasonable job search, the judge concluded that this claimant is entitled to backpay from February 27 to June 29, when he failed to accept Interstate's offer of rein- statement. We disagree. The unrefuted evidence demonstrates that Bonomo advised three management officials and one fellow employee that he intended to retire on the closing of the cafeteria. Consistent with this stated intention, Bonomo actually collected both social security and union pension benefits. Al- though Bonomo also collected unemployment in- surance benefits and visited several unemployment agencies, there is no substantial evidence that Bonomo either interviewed or applied for specific positions during the backpay period. The record does show, however, that Bonomo was contacted during this time and offered employment by AT&T as an occasional cook. Bonomo rejected this offer because he was going away but stated that he would contact AT&T on his return. He never fol- lowed up on this offer.9 Bonomo was also offered reinstatement by Interstate in mid-July but effec- tively rejected the offer by responding that he was planning a vacation and would be unavailable until September. In the particular circumstances here, we find that Bonomo's visits to several employment agencies do not warrant finding that he engaged in a reasonable job search. Thus, Bonomo's stated intent to retire and his acceptance of retirement benefits, his re- sponse to the AT&T and Interstate job offers, and the absence of a showing that he actually inter- viewed or applied for a specific job lead us to con- clude that, if he did not retire, he effectively re- moved himself from the job market." ° More specif- ically, Bonomo's refusal of jobs with AT&T and Interstate because those jobs did not suit his con- venience demonstrate that he would only have ac- cepted work when he chose and as he pleased. That being so, Bonomo's visits to employment agencies are not inconsistent with his announced retirement intentions (which may well have dis- 9 We find this evidence relevant not for the purpose of showing a comparable offer, but as an indication of Bonomo's actions consistent with his stated intention to retire 10 In so finding we are not overruling the judge's crediting of Bono- mo's testimony that he made attempts to find employment , but are find- ing that such attempts were insufficient to establish a reasonable job search CONTINENTAL INSURANCE CO. suaded Marriott from offering him work at its other facilities) and his claiming social security and pension benefits. Indeed, viewed in the context of Bonomo's job refusals and the receipt of such bene- fits, those visits appear to have been for the pur- pose of enabling him to decide if there were any jobs he might be interested in, rather than as active efforts on his part to seek work and fulfill his obli- gations to mitigate any backpay that might be owed him.11 Accordingly, we find that Bonomo is ineligible for backpay. Elaine Hickey Elaine Hickey had been employed as a waitress for Marriott and resided on Staten Island. During the backpay period she followed advertisements in a Staten Island newspaper, and applied for posi- tions at several restaurants , department stores, and a clothing store. With the exception of a diner in Brooklyn, all of these positions were located on Staten Island. In this regard, Hickey testified that she did not apply for jobs in other city boroughs but confined her search to the Staten Island area because she believed it was too expensive to com- mute to Manhattan. Although the judge observed that by essentially limiting her job search to Staten Island, Hickey had eliminated prospects for employment in other boroughs, he, nevertheless, concluded that this did not mean that she failed to conduct a diligent job search. Rather, based on the evidence, the judge found Hickey made reasonable efforts to find em- ployment on Staten Island and is entitled to an award of backpay. Contrary to the judge, we find that Hickey un- reasonably limited her job search. We find it signif- icant that Hickey was working for Marriott in Manhattan when she was unlawfully discharged and she subsequently accepted reinstatement with Interstate there. Her exclusion of this area is, there- fore, at odds with a reasonable job search and, therefore, we conclude that Hickey did not make reasonable efforts to seek interim employment. Ac- cordingly, we find her to be ineligible for an award of backpay. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Continental Insurance Company, Divi- sion of Continental Corporation; Marriott Food Service, Inc., A Division of Marriott Corp.; and 11 Likewise, his claiming unemployment benefits indicated no more than that he believed he was entitled to such benefits simply because he had been terminated from his job at the Continental cafeteria. 581 Interstate United Corporation, their officers, agents, successors , and assigns, shall take the action set forth in the Order as modified. Delete the following named claimants and the amounts set forth opposite their names from the Order: Angelo Bonomo, Elaine Hickey, and Bertha DePalma. MEMBER JOHANSEN , dissenting in part. It is a rare and regrettable chapter in the annals of Federal statutory compliance in which a panel majority of the National Labor Relations Board in- forms a grandmother earning social security that she must either conquer her fear of the New York City subway system or forgo restitution under the Act. Backpay claimant Bertha DePalma actively sought out job opportunities waitressing on two shores of New York Harbor and rejected no job offer in the relevant job market for a woman of her age,' experience, and skills.2 I dissent from the tolling of her backpay on June 29, 1981. ' To a question by counsel for the General Counsel seeking to adduce her precise age, DePalma gave the following response . "Do I have to tell my age? All that matters is that I have my health , right?" 2 See Lundy Packing Co., 286 NLRB 141, 142 (1987). Leonard Grumbach, Esq., Peter Fuster, Esq. and Ellen Dichner, Esq., for the General Counsel. Melvin S. Katzman, Esq., of New York, New York, for Respondent Continental. Louis Neuman, Esq. (Guggenheimer & Untermyer), of New York, New York, for Respondent Interstate. Carlton J. Trosclair, Esq., of Washington, D.C., for Re- spondent Marriott. Robert M. Archer, Esq. (Suozzi, English & Cianciulli, P. C), of Mineola, New York, for the Petitioner. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. Pursuant to an Order of the National Labor Relations Board approving a stipulation entered into among the Respondents and the Board on July 15, 1981, in which it was provided that the Respondents, jointly and severally, would make whole the losses suffered by the discrimina- tees named in these proceedings for any loss of pay that they may have suffered by reason of the alleged discrimi- nation against them , and differences having arisen con- cerning to the amounts payable under the Order, the Re- gional Director for Region 2 issued a backpay specifica- tion and notice of hearing in Cases 2-CA-17886, 2-CA- 17887, and 2-CA-18204. The Respondents have filed an answer and two amended answers to the backpay specifi- cation, which admitted the allegations of the backpay specification except regarding cutoff dates, the effect on the claimed amounts of wage increases, overtime pay- ments, vacation pay, bonuses, and fringe benefits, and denied knowledge or information sufficient to admit or 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD deny the interim earnings data supplied in the appendices to the specification. However, the Respondents admitted the correctness of the allegations relating to gross back- pay of the claimants, the formula for determining the net earnings, and the formula for determining net backpay. The Respondents have conceded the correctness of 11 of the backpay specifications; questioned one, that of Oc- tavio Parra, only as to the correctness or propriety of in- cluding medical expenses in the backpay award; request- ed retention of jurisdiction for 1 year with respect to 4 claimants who did not appear at the hearing; and contest the eligibility for backpay of 29 of the claimants. They have alleged affirmative matter in the answer and amended answers that essentially embraces five points: that the claimants failed to exercise reasonable diligence in seeking employment during the backpay period; that claimants who did not follow up on a suggestion made by Marriott that they file applications for employment at other Marriott facilities should be deemed to have will- fully failed to seek employment; that the backpay period should be deemed tolled as of the date when Respondent Interstate sent out a mailgram to the claimants offering reinstatement; that the Respondents are entitled to offset severance pay given to the employees; and that Respond- ents are entitled to offset certain amounts that were erro- neously paid to two employees when the employees re- ceived vacation paychecks to which they were not enti- tled. A hearing was held before me at New York City, New York, on April 25-27 and 29; May 2-5; June 1-3; and July 5, 1983. The parties were afforded full opportu- nity to be heard, to call, examine and cross-examine wit- nesses, and to introduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and by Respondent Continental Corporation on behalf of all the Respondents. On the entire record and based on my observation of the demeanor of the witnesses and the manner in which they gave their testimony and after consideration of the briefs submitted, I make the following FINDINGS OF FACT I. BACKGROUND AND ISSUES Marriott Food Service, Inc. (Marriott) is a division of Marriott Corp. It operated a cafeteria and executive dining room for personnel of the Continental Insurance Company at that Company's offices in downtown Man- hattan, New York City. It terminated its operation of these facilities on February 27, 1981,1 on very short notice to the employees. It paid many of them severance pay equal to 1 week's wages. Respondent Interstate United Corporation (Interstate) took over the operation of the facilities immediately thereafter. On June 26, Inter- state sent mailgrams to the backpay claimants, as follows: You are hereby offered employment with Interstate United Corporation at 80 Maiden Lane, New York City, in the same job you formerly held with Marri- I All references to dates and quarter years refer to dates in 1981 and quarters of that year unless otherwise stated ott Food Service at that address or in a substantially equivalent job. If interested, please write Don Ger- stein, Interstate United Corporation, 80 Maiden Lane, New York, N.Y., 10038, or telephone him at (212) 440-2670, within two weeks from your receipt of this message. A number of the claimants responded to the mailgram and were interviewed by Donald Gerstein, Interstate's district food service manager. The proposed reinstate- ment date was July 6, 1981, which I accordingly find to be the date on which the backpay period was tolled except in certain specific situations noted hereinafter. II. CONTENTIONS APPLICABLE TO MORE THAN ONE CLAIMANT A. The Standard of Diligence by Which Claimants' Efforts to Find Employment Must be Judged The Respondents' admission of the gross backpay computations made it incumbent on the Respondents to allege and prove any respect in which any of the claim- ants were ineligible for backpay or any respect in which the backpay specifications were incorrect. Marlene Indus- tries, 234 NLRB 285 (1978); Blue Hills Cemetery, 240 NLRB 735 (1979). The Employer has the burden of showing that the backpay claimant incurred a willful loss by refusing to take new employment or by neglecting to make reasonable efforts to fmd interim work. Inland Empire Meat Co., 255 NLRB 1306, 1308 (1981), enfd. mem. 692 F.2d 764 (9th Cir. 1982). The determination of whether there has been a lack of diligence in looking for work depends on the facts and circumstances of each case. Amshu Associates, 234 NLRB 791, 794 (1978). The discriminatee is required only to make reasonable efforts to find work. Consequently, his failure to explore some employment possibilities or to employ a particular mo- dality of search, as when an employee concentrates on personal applications but fails to consult newspaper ad- vertisements, does not by itself compel the conclusion that a diligent search was not conducted. DeLorean Cad- illac, 231 NLRB 329, 330 (1977), modified on other grounds 614 F.2d 554 (6th Cir. 1980). See Blue Hills Cemetery, supra at 736. Doubts respecting such matters are resolved in favor of the backpay claimant and against the respondent employer, who is the wrongdoer respon- sible for the existence of the uncertainty. United Aircraft Corp., 204 NLRB 1068 (1973). Amshu Associates and Inland Empire make it very clear that examination of the backpay claimant and attempts to impeach his testimony are not acceptable substitutes for affirmative proof by the employer that the claimant failed to make reasonably diligent efforts to fmd interim employment, but there is an important qualification that is explicitly mentioned in both these decisions. The testi- mony of the backpay claimant must be credible. Thus, in Amshu it was held that a prima facie case was made of diligent effort to find work that shifted the burden to the Respondent to establish willful loss of earnings, but the testimony of the backpay claimant was expressly credited by the administrative law judge. Similarly, in Inland Empire, the respondent attempted to impeach the testi- CONTINENTAL INSURANCE CO. mony of the backpay claimant in much the same way the Respondents attempted to do in this case , and was held not to have met its burden of proof in the face of testi- mony by the backpay claimant that the administrative law judge expressly credited. Nothing different is in- volved in those cases (such as Blue Hills Cemetery, supra) in which it has been held that the General Counsel meets his burden by putting the backpay specification into evi- dence, whereupon the respondent has the burden of showing failure to make a reasonable effort to find inter- im employment. If the Respondent calls the backpay claimant to testify and the administrative law judge cred- its the testimony, the Respondent will have failed to meet its burden, in the absence of introduction of any other evidence. At the same time, it must be recognized that the rules respecting burden of proof are not matters of mechanical application. Where "reliance on the bare testimony of [the claimant] himself is not warranted based upon the record as a whole" the mere fact that the General Coun- sel has filed a specification will not clothe the backpay claimant with special standing to recover simply because the employer has been unable to produce affirmative evi- dence of failure to make diligent effort to obtain interim employment. See DeLorean Cadillac v. NLRB, supra, 614 F.2d at 555 . I have found the testimony of several of the claimants in these proceedings to be unworthy of belief and have accordingly found them ineligible to receive backpay. The fact that backpay liability arose in this case by reason of a stipulation between the General Counsel and the Respondents does not alter the parties' burdens of proof. They are in the same position as any other parties to a backpay proceeding . It is therefore in accordance with these and other generally applicable principles that I have reviewed the 29 disputed claims . The parties have also urged that I take into consideration court decisions rendered under other statutes and certain area employ- ment statistical data. The Respondents call attention to language contained in court decisions rendered under the Civil Rights Act of 1964 to the effect that award of backpay is a discretion- ary power that must be guided by meaningful standards. The Respondents assert that I should be guided by the application of standards consistent with the purposes of the National Labor Relations Act (the Act ). Award of backpay under the Act is not at all discretionary with me but is mandated by law. Board decisions and court deci- sions interpreting the Act are controlling regardless of any seemingly contradictory language that may be found in cases dealing with an altogether different statute that addresses problems other than the concerns of this case and the National Labor Relations Act. Both the General Counsel and the Respondents have urged me to consider statistics that they presented re- specting employment conditions in the New York area, and that supposedly are of probative value with respect to the capacity of many of the claimants to find jobs. The Respondents challenge the reliability of the General Counsel's statistics, which concededly are based on a sample rather than a full count of the population. Sam- pling on a defined statistical basis is a standard method of 583 preparing such statistics and does not invalidate them. However, I have not accorded any weight to the statis- tics adduced by either side, for they are simply not pro- bative of the facts they were offered into evidence to prove. They would be relevant if they showed that it would be either difficult or easy for these particular claimants to obtain employment . They do not show that. The utility of statistics to show whether jobs are avail- able in an area is extremely limited . In Flite Chief Inc., 258 NLRB 1124 (1981 ), affd. 696 F.2d 1003 (9th Cir. 1982), it was observed: At most, Respondents' statistical analysis may create an element of doubt . Any doubts must be re- solved in favor of the backpay claimant rather than Respondents. [258 NLRB at 1128.] Accordingly, my findings are based on the evidence ac- tually adduced by the parties that would tend to show what efforts particular backpay claimants made or failed to make to find employment. B. Offsets Claimed by the Respondents The Respondents contend that a week 's severance pay received by each of the claimants and vacation checks erroneously issued to two of the claimants are appropri- ate offsets against backpay due them. The guiding principle underlying the award of back- pay is that the discriminatees must be made whole for the losses that they have suffered by reason of the em- ployer's unfair labor practice. In cases in which the em- ployer has already compensated the discriminatees in some manner for that loss, failure to deduct the amount of such compensation from the gross backpay due to the discrimmatees would in effect overcompensate them. Consequently, it has been held that severance payments made by an employer to discriminatees during the back- pay period should be deducted from the amount of gross backpay awarded . Fibreboard Paper Products Corp., 180 NLRB 142 (1969), enfd. sub nom. United Steel Workers of America v. NLRB, 436 F .2d 908 (D.C. Cir. 1971). The General Counsel calls attention to the Board's failure to make such a deduction in a later case, Laidlaw Corp., 207 NLRB 591 (1973), enfd. 507 F.2d 1381 (7th Cir. 1974), cert. denied 422 U.S. 1042 (1975). However, I do not believe that case is applicable to the instant situa- tion. The severance payments made in Laidlaw were not made during the backpay period and did not overlap the backpay award . The language employed in the decision clearly indicated that the award of backpay, by itself, was the compensation for the loss suffered by the discri- minatees and that the severance payment was voluntarily made independently thereof only to certain of the em- ployees on closing of a plant in Peru , Indiana, several years after the latest backpay period date of any of the claimants in the case . One event had nothing to do with the other. In the present case, Respondent Marriott made the severance payments at the time the facility was closed (February 27) in lieu of pay for the first week of the backpay period, and they must therefore be deducted 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from backpay owing for the first quarter of 1981. See W. R. Grace & Co., 247 NLRB 698, 704 (1980). The Respondents claim to be entitled to an offset against the backpay due to two of the claimants because they were erroneously paid vacation pay to which they were not entitled . This tribunal is asked to ensure that the claimants are not unjustly enriched, because they will have received payment for vacation pay in the gross backpay as calculated by the General Counsel. It is agreed that accrued vacation pay normally is includable in a backpay award . Richard W. Kaase Co., 162 NLRB 1320 (1967); Kartarik, Inc., 111 NLRB 630 (1955), enfd. 227 F.2d 190 (8th Cir. 1955). The Respondents' rights to a setoff is questionable. Dolores Coe, Marriott's director of personnel, testified that an explicit decision was made not to stop payment on the checks when it was discovered that they had been erroneously mailed out. No effort was made prior to these proceedings to recover the sums paid out. The making of the payments was a deliberate act that entailed payroll deductions, such as taxes. The entitlement of any of the Respondents to a refund is therefore a matter for determination in a plenary proceeding specifically direct- ed to that issue. The Respondents can not be given an offset in this proceeding , which is concerned with alto- gether different types of issues, but must seek restitution in a forum that has jurisdiction to determine the relative rights of the parties with regarding the money and con- sider equitable factors that might justify an order of resti- tution. Accordingly, vacation pay will not be offset from any amounts owed as backpay. C. The Backpay Cutoff Date The Respondents contend that the backpay cutoff date for all eligible claimants was June 26 , on which date Re- spondent Interstate sent out mailgrams offering them re- instatement. It is uncontroverted, however, that claim- ants returning to work as a result of the mailgram were to start on July 6. Accordingly, the backpay period is tolled only as of that date except in certain cases noted below in which a different cutoff date is mandated by the particular circumstances. D. Failure to Seek and Accept Alternate Positions with Marriott The joint answers interposed by the Respondents con- tain an affirmative defense claimed to be applicable to Angelo Bonomo and Malcolm Thomas , to the effect that discriminatees who were offered and failed to accept al- ternate positions by Marriott are ineligible for backpay, and another affirmative defense claimed to be applicable to them and to 13 other employees, to the effect that dis- criminatees who were offered positions by Interstate and failed to accept such positions , though they were with- out alternate employment, are ineligible for backpay. The Respondents introduced evidence that on February 24, two of Marriott's Washington-based officers, Dolores Coe, the personnel director , and James Davis, Marriott's manager of employee relations, visited the Continental cafeteria and dining room in New York City and advised the employees being laid off that they could file applica- tions for employment at other Marriott facilities , and that Carol Kramer, general manager of the facilities at Conti- nental, also advised employees that they could file appli- cations at the other Marriott facilities. It seems clear that such a visitation was made, but most of the employees dispute the claim that they were invited to file applica- tions at other facilities. Despite the Respondents' attack on the credibility of the claimants, I believe the testimony of the 22 employ- ees who testified that they were not advised that they could file applications for employment at other Marriott facilities. The credible evidence indicates that only 10 of the claimants were approached . The Respondents' own witnesses conceded that application forms were given to only 15 of the employees who had just been laid off, and it is not even claimed that any information was dissemi- nated about locations where job openings existed. Rupert Cayenne and Ruth Lang testified that they made inquir- ies at other Marriott facilities and received negative and discouraging responses. The evidence clearly establishes that no effort was made to advise the claimants that they could apply at other Marriott facilities . On the contrary, Respondent Marriott's witnesses conceded that, as of February 27, there were no job openings at other Marri- ott facilities. Marriott application forms were available at the premises, but no attempt was made to distribute them among all or among any large number of the employees who were leaving. The letter of February 27 advising the backpay claimants of their termination makes no mention of any opportunity to file applications at other Marriott facilities, though the letter contains information about numerous other matters such as vacation benefits, medical and life insurance, and other employee fringe benefits. The Respondents' contention founders in any event on the obvious fact that the communication to the few em- ployees to whom anything was said did not constitute an unconditional offer of employment . At best, it was merely an invitation to a few employees to put in appli- cations at other locations, with no assurance that jobs comparable to those from which they had just been laid off were available. A final point that deserves consideration is the basic question whether employees who believed, as many of the employees in the present case certainly believed, that they had been discriminatorily and unfairly treated, were obligated to pursue the suggestion that the Respondents' claim was made to them that they apply for positions at other facilities operated by the Marriott organization. An employee is not obligated to attempt to return to work for the very same employer who has discriminatorily dis- charged him, or with an affiliated employer. In the present case, therefore, the reason the claimants think they were terminated is a relevant consideration. The Respondents never conceded that such discrimination ex- isted, but it was the gravamen of the complaint against the Respondents that was settled by stipulation , and thus it is a given factor in this case that the employees be- lieved they had been discriminatorily discharged. That circumstance may be considered , therefore, in evaluating CONTINENTAL INSURANCE CO. the reasonableness of their efforts to find employment, and in a proper context may preclude a determination that efforts had not been reasonably diligent because they did not seek or accept positions with the former employer. III. THE CLAIMANTS A. Undisputed Claims The Respondents concede the eligibility and correct- ness of amount owed for backpay of only 12 of the 44 claimants referred to in the backpay specification. These claimants are Phillip Deutsh, Alice Fox, Esther Gutnick, Geoffrey Hill, Jenny Irizarry, Anna Jankunis, Bridget McNamara, Octavio Parra, Blanca Schauer, Elenora Su- kovich, Gregory Taylor, and Maria Unterreiner. This concession is subject to the Respondents ' general conten- tion respecting the deductibility of severance pay re- ceived by all the claimants at the time of their termina- tion, with which I concur and, in the case of Parra, sub- ject to such adjustments as may be required by coordina- tion of medical benefits with other private and govern- mental coverages (the basic backpay being conceded). As is shown in Appendix A hereto, I have made allow- ance for their receipt of severance pay in my calculation of the backpay to which they are entitled. Parra's claim for medical benefits is discussed separately below. B. Claimants Who Did Not Appear at the Hearing The Respondents contend that four claimants who did not appear at the hearing and did not testify (Lewis Barbee, Ermine Blades, Betty McPherson, and George Whitehead) are not entitled to be paid because their eligi- bility cannot be determined. Request was made in Re- spondents' posthearing brief that the administrative law judge retain jurisdiction for 1 year so that the record could be reopened on proper application. It suffices that a backpay specification was filed, as is indicated by authorities previously cited. The claimants' failure to appear cannot automatically be deemed to sug- gest some fault or lack of credibility or reliability on their part or some lack of merit to their claims. The burden is on the Respondents, who have possession of the payroll records and had recourse to subpoenas to compel the attendance at the hearing of any claimants whom they wished to examine (a right of which they availed themselves when it suited them in the case of at least one other claimant), to show any respect in which the specifications were incorrect or inaccurate. No show- ing having been made that the specification fails to set forth the proper amount owning to these four claimants, their claims must be allowed as alleged in the specifica- tion. The Respondents never lose the burden of proving that a claimant willfully incurred loss of earnings during the backpay period. They have sustained that burden only insofar as they have demonstrated that all four of the claimants received severance pay. However, since the Respondents have not had the opportunity to exam- ine the claimants respecting interim earnings, the amount of gross backpay as reduced by the amount of the sever- ance payments, as indicated in Appendix A, will be paid 585 to the Regional Director to be held by him in escrow for a period of 1 year from the date of the Order. During that time, the Regional Director will arrange for the Re- spondents to conduct their examinations of the claimants, if the Respondents so desire, and afford them an oppor- tunity to present other witnesses and other relevant evi- dence with respect to the amount of backpay due to the claimants. The General Counsel shall be represented at any such examinations or presentations. The Regional Director will determine whether any deductions should be made from the amount of claimants' gross backpay by reason of interim earnings or otherwise, returning all sums so deducted to the Respondents and making pay- ment of the net backpay to the claimants. The Regional Director shall report the status of the matter to the Board on its conclusion. Accordingly, the claimants, Lewis Barbee, Ermine Blades, Betty McPherson, and George Whitehead are awarded the amount of backpay alleged in the specifica- tion, less the amounts received by them as severance pay, as detailed in Appendix A hereto. C. Contested Claims 1. Eric Allen The specification alleges that Allen, who worked as an assistant cook, earned $5.10 per hour or $204 per week. A total of $3632 backpay is claimed for the period from February 27 to July 6, when he resumed work with Interstate. Respondents' objection to such payment is that Allen did not make a reasonable effort to obtain em- ployment. The Respondents' contention is based on Allen's own testimony respecting his efforts to find em- ployment, which are asserted to be not credible. To the extent that it is credible, Respondents argue that it shows that his efforts to obtain interim employment were inad- equate because the claimant did not apply to employ- ment agencies, did not seek work with any other food service contractor, and applied for a job as an electrician for which he was patently unqualified. Respondent ex- plains the failure of the claimant to furnish information showing attempts to obtain employment on a form sup- plied by the Board, but as a general matter, I did not consider failure to list efforts to find employment on the Board forms as necessarily requiring that the claimant's testimony regarding such efforts be discredited, especial- ly when the testimony regarding such efforts is clear and specific and remains unimpaired after cross-examination. See Crary Horse Saloon, JD-621-81, slip op. at 21, 22. Allen testified that he is illiterate, but that advertise- ments were read to him from the newspapers three or four times a week by his cousin. I do not credit his testi- mony. Allen could not say why three or four times a week was the appropriate number of times to check the newspaper, and later changed his testimony to assert that the advertisements were read to him five or six times a week. His testimony that he could not remember the name of his cousin, who supposedly read the newspapers to him so frequently, placed a near fatal strain on his credibility. 586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There is no requirement, however, that a backpay claimant seek the precise type of work in which he had engaged prior to his termination. Allen's failure to seek work with other food service contractors and his going for an interview for a job as an electrician does not dis- qualify him for the simple reason that his main reliance was on the placement service at the Unemployment In- surance Office to assist him in obtaining employment. It is that office that referred him for an electrician's posi- tion. He filed for and collected unemployment insurance until he was hired by Interstate. He was counseled by the Unemployment Insurance Office twice a week. Moreover, the evidence indicates that the Unemploy- ment Insurance Office referred Allen for a cook's posi- tion and for one other position and that Allen, on his own, applied for a job as an auto mechanic at a company where his cousin was employed. I am convinced from listening to the testimony and observing the demeanor of this witness that the witness made an effort to obtain employment that, in the light of all of his personal circumstances, was a reasonably suffi- cient effort. It consisted mainly of going to the Unem- ployment Insurance Office and going out on the job interviews with the prospective employers to whom they referred him. When an offering occurred at Interstate, he took the job. I find that Allen made reasonable and diligent efforts to obtain work. No issue was raised with respect to the calculation in the specification of the backpay due him and I accordingly find him entitled to the amounts al- leged, less severance pay that he received in the amount of $204. I have deducted that amount from his gross backpay owing for the first quarter and find him entitled to net backpay in the amount of $3468, as set forth in Appendix A. 2. Joseph Autry Interim second quarter earnings as a pot washer in the amount of $400 reduced Joseph Autry's backpay specifi- cation to $2211 for the period February 27 to July 6. The Respondents suggest that Autry's attempt to find employment with a company for which he had formerly worked as a security guard, and which terminated him for being out of uniform, did not constitute a diligent effort to find employment. However, it may be argued with equal force that an employee who attempts to find work even with an employer who has once before dis- charged him is making an unusually diligent effort to find employment. The Respondents are also critical because Autry ad- mitted that the only newspaper advertisements he looked for were for security jobs and he did not look for an- other job as a pot washer. Autry testified that he consid- ered his experience at Marriott to be bad since his em- ployment there lasted only a few months, and that he looked for work as a security guard because he had sev- eral years of experience in that area. The law does not require an employee to limit himself to the lowest possi- ble pay scale when he is looking for work or accept any work regardless of how menial. He is required to seek employment within the broad overall range of his experi- ence and capabilities. The question, therefore, is whether Autry's efforts to find a job were reasonably diligent in the light of all the circumstances. His failure to look for a job as a pot washer does not mean that he could not have made a diligent search for some other type of em- ployment. Much more serious is Autry's concession that one of the Marriott supervisors advised him to transfer before the layoff occurred, but he made no effort to find em- ployment at any other Marriott hotel or restaurant. He did not suggest any reason for his failure to do so that even remotely hinted at any desire to avoid a discrimina- tory employer. Furthermore, he gave an altogether un- satisfactory explanation of his failure to apply for unem- ployment insurance benefits. Though he was advised by Marriott personnel how to do so, he did not file for un- employment insurance benefits because, he said, he wanted to use his time to look for a job. I cannot believe that. (Strangely, the Respondents purported to believe him, asserting in their posthearing brief that "the reason he did not file was due to a previous experience wherein he was denied benefits.") The testimony of the claimant that he did not file leads me to believe that he did not make a reasonable effort to find employment. His testi- mony respecting his efforts to find work was totally in- credible. He testified that he and a coworker named Whitehead went together to look for work and that he saw Whitehead every day because he lived in the same apartment as Whitehead throughout the backpay period, and Whitehead was also unemployed. The evidence indi- cates, however, that Whitehead was employed and that his total backpay entitlement amounted to only $86. It seems almost superfluous to note that Whitehead did not testify in this proceeding. (The glaring inconsistency between Autry's testimony and the Whitehead backpay specification placed the burden on the General Counsel to call Whitehead as a witness. His failure to do so can only give rise to an in- ference that Whitehead's testimony would not have sup- ported that of Autry.) My grave reservations regarding Autry's credibility prevent me from crediting his account of efforts to find work as a security guard at five companies that he named and his testimony respecting his efforts to obtain work as a shipping clerk at Alexander's Department Store. Accordingly, I find that Joseph Autry failed to make a reasonable effort to find employment during the backpay period and is not eligible for backpay. 3. George Bacote George Bacote was alleged to be due backpay in the amount of $1743 for the period February 27 to July 14. After being laid off, Bacote spent 7 or 8 months in New Haven, Connecticut. He did not apply for unem- ployment insurance benefits. After taking a few weeks off and living on money that he had saved, he confined his efforts to find work to visits to an employment agency specializing in temporary jobs. He showed up there at 6 a.m. three or four times a week. It was not until after the end of the backpay period that he became CONTINENTAL INSURANCE CO. interested in looking for employment of a permanent nature. The Respondents contend that they should not be compelled to support the lifestyle of a person whose am- bitions are limited to a series of temporary jobs. The legal requirement is not that a backpay claimant seek a permanent job, but that he make reasonable efforts to secure employment and mitigate the damages caused by his wrongful termination. The question in this in- stance is whether the claimant's search for a succession of temporary jobs amounts to the same thing as looking for one job with a single employer and therefore consti- tutes a reasonable attempt to mitigate the loss by obtain- ing interim employment. There is good reason to answer in the negative. Im- plicit in solicitation of employment through a temporary agency is the prospect that whatever employment is ob- tained will come to a relatively speedy end, resulting in a renewed period of unemployment. Thus, solicitation only of temporary employment must be viewed as incurring a willful loss. The evidence is clear that Bacote only worked when the agency sent him out and as a result there were weeks when he did not work at all. This type of situation has nothing to do with the kind of situation in which a backpay claimant's prior experi- ence in job hunting and his work capacities severely limit the type of job hunting of which he is capable. It is possible to agree with the General Counsel's argument that, in judging the reasonableness of the claimant's ef- forts to obtain interim employment, we take him as we find him and judge his efforts in the light of his back- ground and capabilities, while at the same time taking due cognizance of this claimant's testimony that it was only after the backpay period expired that he searched for permanent employment. If he is credible, then he had the capacity and should have hunted for permanent em- ployment during the backpay period, and his failure to do so was a willful failure to mitigate the loss. His later conduct illuminated his conduct during the backpay period, and should not be overlooked. Big Three Industri- al Gas & Equipment Co., 263 NLRB 1189 (1982). Accordingly, I find that Bacote is not eligible for backpay. I have made a similar finding on somewhat similar circumstances in the case of Malcolm Thomas, below. 4. Marie Belhsi The backpay specification for Marie Bellisi indicates net backpay owing in the amount of $1144, a reduction having been made for interim earnings in the second and third quarters of 1981. The Respondents point to an ap- parent error regarding her statement of interim earnings for the week of June 5, 1981, and submit that the Gener- al Counsel failed to meet the burden of proof. The claimant obtained interim employment at a fixed salary of $160 per week, but the amount listed for inter- im earnings for the week ending June 5, 1981, was only $128. Her paycheck stub so indicated. The Respondent contends that she should be chargeable for the fixed salary of $160. The claimant testified that she did not recall the reason for the reduction in salary that week. She did not recall having been out sick and was unable 587 to furnish any other explanation . This failure is not chargeable against her, however, but against the Re- spondents. The burden is on them to come forward with proof of lack of diligence on her part in reducing the loss. It should not have been difficult to establish the reason for the reduced pay in that 1 week, inasmuch as the Respondent Interstate was her Employer and had the pertinent records. The claimant, on the other hand, worked the week before and the week after the week in question, as well as during the week in question . She cannot be said to have made no reasonable effort to mitigate the Respond- ents' damages. Accordingly, the General Counsel was correct in com- puting her interim earnings for that week at $128, the amount that she actually earned and by which Respond- ents' backpay liability is mitigated. The law requires that interim earnings be deducted from the gross amount of backpay and that the backpay claimant receive the net backpay after such deductions. That is precisely what the General Counsel has comput- ed in this instance. I have made a further deduction of the amount of $184 paid to her as severance pay. Accordingly, I find that Marie Bellisi is entitled to net backpay in the amount of $960 , as set forth in Appendix A. 5. Angelo Bonomo The backpay specification respecting Angelo Bonomo, who was employed as chief chef in the Continental facil- ity, calls for payment of $5779 net backpay for the first and second quarters of 1981. There were no interim earnings during this period. At the hearing the General Counsel moved to amend the backpay specification to in- clude an additional $336, vacation pay accrued during this period, bringing the total net backpay requested to the sum of $6115. The Respondents contest any backpay award to this claimant on the ground that he had clearly indicated his intention to retire, and consistently there- with, had refused to submit an application for employ- ment at any other Marriott facility though invited to do so. Three Marriott officials and a former coworker testi- fied with respect to statements he made respecting his in- tention to retire and the Respondents emphasize Bono- mo's complete failure to work since he was laid off by Marriott. Nevertheless, the Respondents, despite their contention that Bonomo retired, introduced evidence that when he was offered reinstatement by Interstate as of June 29 he rejected the offer, but said that he would be available on his return from vacation in September. He received social security benefits and union pension payments, but also collected unemployment insurance benefits. Bonomo testified that he visited the employment office of Local 302, that he visited a private employment agency, and that he went to the New York State Em- ployment Referral Service four or five times a week. In addition, he applied for and collected unemployment in- surance. He reviewed the advertisements in the New York Times. I found Bonomo's testimony credible. 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The fact that Bonomo was collecting social security benefits and payments from a union pension fund, and therefore had other income, does not automatically mean that he had elected to rely exclusively on that income. His acceptance of those benefits is not necessarily incon- sistent with a desire on his part to obtain employment and does not contradict his testimony regarding his at- tempts to find it. Because I credit Bonomo's testimony that he made the attempts that he described to find em- ployment, the fact that he did not in fact return to work is not persuasive. The Respondents cite Big Three Indus- trial Gas & Equipment Co., 263 NLRB 1189 (1982), that holds that conduct after the close of the backpay period is not dispositive regarding the question of whether a backpay claimant has taken himself out of the labor market at an earlier point, thus indicating that to a degree an examination of such conduct may be pertinent. It is significant, however, only if there is some evidence tending to show a lack of serious interest in employment before the close of the backpay period. No such showing is made with respect to Bonomo. True, when he declined employment by Interstate he said he was taking a vaca- tion; however, while that might bring into question his availability at that time and during some period (unde- fined in length) immediately preceding, it affords no war- rant for wholesale speculation and it must be remem- bered that the offer from Interstate was not made until June 26, making for a backpay period much too long to support the kind of speculation in which the Respond- ents seek to indulge. The Respondents properly raised the question; the burden remains on them , however, to come forward with proof (not speculation). The testimony of Bernice Jackson that she offered Bonomo employment did not help them in that regard. She was unable to fix the time when she made the offer, except to say that she made the offer between the months of May and July. Even at that, the offer was only for "an occasional cook's job" which is an altogether inadequate offer. It suffers from precisely the same deficiency that caused the Respondents to urge that backpay be denied to those claimants who only sought temporary work through temporary employment agencies. Bonomo testified that he was on jury duty from late June (he said June 27, which was a Saturday) to July 14 and spoke to the Interstate manager the following Monday. The manager told him to come into work the next day, but Bonomo replied that he was taking the month of August as his vacation and could not come in until September. He patently was unavailable for work from June 29 onward. I find that from February 27 to June 29, Bonomo was available to work and is entitled to backpay for that period, reduced by severance pay that he received in the amount of $336 and augmented by a like amount for ac- crued vacation pay. Having rejected a specific offer of permanent employment by Interstate on June 29, howev- er, Bonomo cannot collect for the period after that date. Accordingly, I find that Angelo Bonomo is entitled to backpay for the period from February 27 to June 29, in the amount of $5779, as set forth in Appendix A. 6. Rupert Cayenne Backpay in the sum of $3876 was claimed by Rupert Cayenne for the first three quarters of 1981. He resumed work on July 6, 1981, after receiving an offer of rein- statement from Interstate . The Respondents contest his entitlement to backpay on the ground that he did not make credible efforts to obtain interim employment. Re- spondents specifically note Cayenne's testimony that he did not recall being invited to file an application for em- ployment at any other Marriott facility. This is not a valid objection because even had he been told to file at another Marriott facility, his failure to do so would not by itself have disqualified him from receiving backpay. The issue is whether he made a reasonable effort to obtain other employment. In fact, Cayenne testified that he was told by Carol Kramer that he would not be em- ployed in any other position with Marriott. The Respondents also cite Cayenne's work stoppage in the last week, when he refused to work, until he was ad- vised whether employees would be paid all moneys due them on their last day of work. I think that is irrelevant to the issue. Cayenne testified that he was employed as a chef at a salary of $240 per week and had worked for Marriott for approximately 5 years. During the period from February 27 to July 6, 1981, he attempted to find employment. He applied first to a few of the airlines at Kennedy Airport. He specifically named Delta and North West, where he said he put in applications approximately 2 or 3 weeks after he was laid off and was told that he would be called if they needed him. He also went to Skychef. The manager of Skychef called him in for an interview and told him that if he was needed they would call him. As a matter of fact, they did call him, 2 weeks before he was called back to work by Interstate, but by that time he was working in a factory. Cayenne testified that he also put in applications at several hospitals, and named several of them. He put in an application at an employment agency where he ap- plied for any type of job that he thought he could get and he either visited or telephoned the agency every week. In addition, he filed an application with the place- ment division of the New York State Unemployment In- surance Division, where he was advised that there were no openings. He followed the ads in the New York Daily News and the New York Post every day. Friends and relatives assisted him in the job hunt. Two weeks before Interstate called him back, a friend finally got him a job with a paper company as a machine assistant at $5.50 per hour for a 40-hour week. The Respondents seek to impale Cayenne on his own testimony that experienced chefs like himself do not have difficulty finding work in the restaurant industry. This flies in the face of Cayenne's testimony respecting his un- successful efforts to obtain interim employment. Even if generalities such as this straw grasped by the Respond- ents might otherwise be helpful in weighing the facts, the credible testimony of Cayenne regarding the specific ef- forts made by him would always, and in this instance does, outweigh it. CONTINENTAL INSURANCE CO. I credit Cayenne's testimony that he was always avail- able to work during the period from February 27 to June 26. He appears to have made a reasonable effort to obtain employment and, accordingly, I find him eligible for backpay. In my calculation of the amount of backpay owing, I find that he received severance pay in the amount of $240 that must be deducted from his gross backpay for the first quarter and I do not interpret the testimony as requiring deduction of 2 weeks' interim earnings from the gross backpay for the second quarter. Cayenne's testimony was that he was available through June 26. He worked on the interim job during the week of June 29 to July 3. (He testified that his friend got him the job 2 weeks before he resumed work with Interstate, not that he worked for those 2 weeks.) His interim earn- ings thus amounted to $220 for .4 weeks in the second quarter and .6 weeks in the third quarter. I therefore cal- culate Cayenne's net backpay at $4100 as set forth in Ap- pendix A. 7. Bertha DePalma The backpay specification in the amount of $2112 for Bertha DePalma covers the first two quarters of 1981 and the first 2 weeks of the third quarter, and is based on a weekly salary of $114. At the hearing, the specification was amended to allege average weekly earnings of $142.50 prior to termination and net backpay of $2,764.50. She had been a waitress at the Continental fa- cility since April 1979, earning an hourly wage of $5.70. The number of hours that she worked each week vaned. The Respondents dispute her eligibility because she re- jected a position with Marriott, and assert that if she is eligible the cutoff date should be not later than June 29. DePalma conceded that she asked Carol Kramer about another job and Kramer offered her a job at the Marriott facility at the Pfizer facility. DePalma felt that the loca- tion was unsuitable because it was uptown around 47th Street in Manhattan. She lives in Staten Island. She did not feel that she could travel that far by ferry and bus on the salary that was being offered. She was used to coming to work by ferry and bus to downtown Manhat- tan and did not like the idea of having to ride the subway uptown. Because of the travel factor, she turned down the job. DePalma's rejection of employment in midtown Man- hattan is not, by itself, reason to disqualify her from re- ceiving backpay. The test is whether she actively sought employment. She testified credibly that she did. She reg- istered for and collected unemployment insurance bene- fits. She read the want ads in the New York Daily News and Staten Island Advance every day and answered sev- eral advertisements (she did not take the jobs advertised only because they required night or weekend work and she wanted to continue working normal daytime hours as she had done at the Continental facility). She contact- ed several brokerage firms in New York City. She ap- plied at several restaurants in Staten Island. She made in- quiry of a friend who was a dining room supervisor at Chase Manhattan Bank. DePalma's testimony respecting her reluctance to use the subways and her desire to continue the mode of work that she had known up to that point is reasonable 589 and credible. If downtown Manhattan was an area in which restaurants were few and restaurant work scarce, it might be argued that she was under some obligation to consider job openings in nearby areas easily reached by public transportation. However, restaurants are plentiful in lower Manhattan and DePalma did, in fact, subse- quently obtain employment there with Interstate. She re- sponded immediately to Gerstein's June 26 mailgram and came in for an interview with him. Under the circum- stances, I find that DePalma's efforts to find employment were reasonable and sufficient to entitle her to backpay for the period. In her interview with Gerstein, he authorized her to return to work on July 13, 1981, instead of July 6 be- cause she was caring for her grandchildren while her daughter-in-law was in the hospital. She testified that she had made a commitment to take care of her grandchil- dren during the week of July 6, pursuant to plans that had been made in late June and early July. When she was offered a position by Interstate, to start July 6, she requested and received permission to start on July 13 in- stead. The Respondents contend that in view of that cir- cumstance the proper cutoff date for backpay is June 29, arguing that her unreadiness to resume work on the date requested makes it highly unlikely that she was looking for work the week of June 29. They assert she could not have been looking if she had a commitment for the week of July 6. The Respondents' argument runs afoul of the fact Ger- stein did not offer DePalma work for the week of June 29, and thus their assumption that she could not have been looking for work fails to take into account the pos- sibility that had Gerstein asked her to work the week of June 29, she might have agreed, while still arranging to take the following week off. The latter speculation is sounder than that of the Respondents. Furthermore, it is well settled that a reasonably dili- gent effort to find interim employment does not require that the search be conducted in each and every week of the backpay period, but only that a reasonably diligent effort be conducted over the course of the entire back- pay period. That is what was proved to have been done in DePalma's case. The General Counsel agreed that DePalma's backpay period should be tolled as of July 5, instead of July 12, by reason of her unavailability during the week of July 6, and amended the backpay claim to $2622 instead of $2,764.50, deducting $142.50 for that week. I have reached a different result for the amount of the backpay owing to the claimant. I have calculated DePal- ma's backpay at $142.50 per week for the 4.4 weeks of the first quarter, the 13 weeks of the second quarter, and .6 weeks of the third quarter, and have deducted the amount of severance pay received by her from her back- pay for the first quarter. This has yielded a final net backpay figure of $2,416.80, as elucidated in Appendix A. 8-9. Louise Fuller and Celia Hassett Louise Fuller and Celia Hassett were part-time wait- resses who were employed solely in connection with spe- 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cial functions held in the Continental facility's Monroe Room. They worked an extremely limited schedule. I am satisfied that the evidence establishes that both of them made reasonably diligent efforts to find employ- ment as part-time party waitresses comparable to that which they had had prior to the layoffs. The Respondents characterize the testimony of these claimants respecting their efforts to obtain employment as vague, generalized, and uncorroborated . Listening to the claimants at the hearing, I heard them testify to vari- ous efforts that they made to obtain employment, includ- ing following ads in the newspapers and making visits to various prospective employers. Fuller listed a number of such employers, identified the newspapers in which she followed ads, and testified that she sought assistance from friends in finding employment and kept in touch with Marriott. She collected unemployment insurance during this period and reported regularly to the New York State Placement Service. Hassett's testimony was similar. She named employers from whom she sought employment, followed the news- papers, and reported to the New York State Placement Service after registering for unemployment insurance benefits. Both claimants returned to work when they were called back. I found the testimony of the two claimants sufficiently specific and detailed to merit credi- bility in all particulars. The real issue with respect to these claimants pertains to the computation of the amount of their backpay. The General Counsel has computed the sum of $2268 to be owing to Louise Fuller and the sum of $2916 to be owing to Celia Hassett. His calculation assumes that they would have worked the normal weekly hours that they had worked previously. In fact, however, they both would have worked considerably fewer hours. It is alto- gether unnecessary to speculate or make assumptions re- specting this question, for the Respondents introduced into evidence a listing of the functions held in the Monroe Room from March 2 through October 30, 1981. The records establish precisely the number of hours Fuller and Hassett would have worked. Ironically, in this instance, the General Counsel and the Respondents adopted the reverse of the positions they argued in the case of Marie Bellisi, when the Respondents wanted to speculate that she really earned her normal salary while the General Counsel rested on the actual paycheck stub. The General Counsel further urges, in his posthearing brief, that the information regarding the actual number of functions held at which these two waitresses would have worked ought to be excluded from evidence be- cause they were not alleged in either the Respondents' original answer or in their first amended answer. The ar- gument that the Respondents are required to set forth in their answer with specificity the basis on which they contend that the backpay should be calculated differently than as set forth in the specification is true generally but is not applicable in these circumstances. The purpose of that requirement is to place on the Respondents the burden of showing any respect in which an error is claimed to exist and to prevent surprise to the General Counsel. When evidence is introduced by the Respond- ents that shows the existence of an error in the specifica- tion and shows in what respect an error exists, and goes further to establish incontrovertibly the true facts of the case, there is no justification for excluding such evi- dence. The Respondents have met precisely the burden that is placed on them by the rules that govern the pro- cedure in backpay cases. The General Counsel does not complain of surprise. There is no respect in which the backpay claimants can legitimately complain that they have been prejudiced by the introduction into evidence of the actual history of the dining room during the pertinent backpay period, which fixes the maximum number of hours they could possibly have worked there. With the actual facts avail- able, it would be unconscionable to hold that backpay should nevertheless be based on the average earnings of the claimants during the period prior to the layoffs, for that would entail conscious and deliberate speculation re- garding something whose history is already fully known (and which contradicts the proposed speculation). I not only refuse to speculate when I have the actual facts before me, but I reject the General Counsel's contention that the Respondents' argument is "speculative"; I cannot see how proven facts can be deemed a matter of conjecture. I also decline to speculate, as the General Counsel urges, that Fuller and Hassett might have re- quested and been granted additional work to fill in as ex- ecutive dining room waitresses. There is not a shred of evidence to support that argument, which is literally couched in speculative terms, and the evidence of the claimants as to the type of interim employment they looked for makes it cear that, if anything is probable, it is that they would not have sought to augment their working hours. In any event, though the Respondents' answer and first amended answer did not deny the correctness of the formula used to compute gross backpay, the second amended answer alleged that the number of shifts the claimants would have worked had they continued in Marriott's employ during the backpay period (a fact that is known precisely because the number of functions is known) should be the basis of the computation. That was sufficient compliance with the pleading requirements, for it clearly put the General Counsel on notice that the Re- spondents expected to introduce the history of the dining room and argue that the claimants' backpay should be calculated on the basis of it. The Respondents introduced evidence to the effect that 29 functions were held in the Monroe Room on var- ious dates during the backpay period: on six dates in March, 3 dates in April, 5 dates in May, 5 dates in June, 6 dates in July, 3 dates in August, and 1 date in Septem- ber. The claimants' maximum earnings can thus be calcu- lated. Each would have worked a maximum of 6 hours. Fuller would have earned a maximum in the entire period of $1,017.90 ($5.85 x 6 x 29) and Hassett would have earned a maximum of $1131 ($6.50 x 6 x 29). For the purpose of fixing the backpay award, I assume (or speculate) that they each would have worked all 29 functions. That speculation is permissible because it in- volves clearly defined limits, and in backpay proceedings doubts are resolved in favor of the claimants. CONTINENTAL INSURANCE CO. Hassett and Fuller each received severance payments for which due allowance has been made. As is set forth in Appendix A, I have calculated Fuller's net backpay in the amount of $900.90 and Hassett's net backpay in the amount of $1001. 10. Gerald Furby The Respondent objects to the specification filed on behalf of Gerald Furby for net backpay in the amount of $2448 for the period from February 27 to July 6, the date when he was reinstated by Interstate, on the ground that the claimant's testimony as to his efforts to find em- ployment are contradicted by the recitation of extremely limited efforts set forth in a statement that he signed on August 3, 1981. The Respondents offer no evidence that would indicate a good reason to discount Furby's testi- mony other than the paucity of information contained in the written statement of claim. They assert that "Furby's testimony bears a remarkable resemblance to the litany of efforts to obtain employment testified to by most of General Counsel's witnesses." I see nothing remarkable about it: there are just so many ways in which an unem- ployed person can seek employment and the backpay claimants in this case inevitably had recourse to similar means of looking for a job, including interviews with prospective employers, applications to the New York State Placement Service, scrutiny of newspaper ads, and followup of leads furnished by relatives and friends. Written statements furnished by the claimants on various occasions, such as interviews by Board investigators, are not necessarily more accurate accounts of their efforts to find employment than their testimony. Their testimony under oath, subject to cross-examination, and under con- trolled conditions is much more dependable. Respond- ents' disappointment in their failure to elicit retractions on cross-examination does not justify doubts about the veracity of the claimants based solely on the meager con- tents of their earlier statements, which were obviously prepared by the claimants, persons unaccustomed to pre- paring such documents, with scant regard to their ulti- mate importance in these proceedings. I find that Gerald Furby made reasonable efforts to find employment during the backpay period. Deducting severance pay in the amount of $136, I calculate his backpay at the sum of $2312 as set forth in Appendix A. 11. Nicholas Graham Graham was unemployed for 5 .2 weeks in the first and second quarters of 1981 (February 27 to April 7). The backpay specification alleges a sum owing in the amount of $832 with interest. There were no interim earnings. The Respondents contend that because he concededly collected unemployment insurance benefits during this period, the amount he received should be deducted from the backpay, along with severance pay which he re- ceived . By their calculation, he sustained no loss of earn- ings and therefore is entitled to nothing, since he testified he received unemployment insurance benefits till he re- turned to work. The claimant testified initially that he collected bene- fits for 1 week; he later stated he collected them until he 591 returned to work. His testimony is not inconsistent. Be- cause collection of benefits must await expiration of a 2- week waiting period, he patently was referring to the circumstance that he collected benefits for 1 week, which was the week before he returned to work. In any event, unemployment insurance benefits are not an offset against gross backpay. However, severance pay that claimant received in the amount of $160 is an offset and brings net backpay to the sum of $672, as set forth in Appendix A. 12. Curtis Hailey The net backpay alleged in the specification for Curtis Hailey for the period from February 27 to July 6 is $2408, allowing for interim earnings in the second quar- ter in the amount of $400. Hailey earned $156 per week at Continental as a cook's helper. He testified that he sought employment during the backpay period with vari- ous restaurants, with a drycleaning establishment, and with a security guard company, followed up newspaper advertisements and leads from friends, and registered for unemployment insurance benefits. The Respondents pointed out a number of specific cir- cumstances testified to by Hailey himself as casting doubt on the sincerity of his attempts to seek employ- ment. The Respondents contend that he should therefore be found ineligible for backpay. However, in each case Hailey offered specific and detailed explanations of what had occurred. For example, though Hailey applied for unemployment insurance benefits, he was disqualified from receiving them because he failed to appear on one of his reporting dates (May 20). He testified that he failed to report be- cause he had been ill on that day, and that the failure was not excused because he could not cope with the agency's procedure for removing the default (he was asked to fill out certain forms, but he did not do so be- cause he could not understand what was required of him). This certainly is enough to arouse suspicion, but closer examination of all the circumstances discloses that Hailey did collect unemployment insurance for about a month and a half up to the date when he missed making his report. He had started collecting in the second week in March, and testified without contradiction that he re- ported to the unemployment insurance office on two ear- lier occasions when he was supposed to report. Another questionable circumstance for which he made a satisfactory explanation was his rejection of a job as a dishwasher 3 or 4 weeks after he filed for unemployment insurance benefits. He told the interviewer he was look- ing for a job as a cook's helper. While he was at the Un- employment Insurance Placement Office the placement worker telephoned the prospective employer and was advised that there was an opening for a dishwasher, and asked him if he wanted the job. He declined it. He wanted to try to stay a cook's helper. This is credible in light of his testimony that he filled out applications and sought employment in restaurants as a cook's helper. I do not believe that Hailey's credibility is diminished by the fact that he accepted temporary employment as a carpenter's helper, assisting the owner of the house in 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD building an extra room. He worked from 9 a.m. to 5 p.m. 5 days a week for 4 weeks and earned $100 per week, clearly proving his willingness to work if worthwhile work was available. The fact that he did not respond to the mailgram of- fering him reinstatement is cited as a refusal on his part to accept work. He testified that he ignored the mail- gram because he never actually read it . I find no difficul- ty in believing, on the basis of all his testimony , that had he understood the mailgram he would have reported. That certainly was his reaction when he received a tele- phone call instructing him to report for work . This ob- jection by the Respondents ignores the claimant 's testi- mony that friends furnished leads and that the lead to the construction work came from his brother. I attach no significance to Hailey's failure to contact Local 6. He is required to have made a reasonable effort to obtain inter- im employment; that does not mean he must be penalized for having overlooked some possibility that has occurred to the Respondents' lawyers. The fact that the construction work started shortly after May 20 has prompted the Respondents , in their posthearing brief, to speculate that Hailey missed his re- porting date at the Unemployment Insurance Office be- cause he was already working, and that the period of in- terim employment is therefore longer than he admits. However, no affirmative proof was presented, such as testimony from the owner of the house . Backpay cannot be reduced on the basis of speculation. The questions that the Respondents raise respecting the claimant's testimony are not unreasonable, but in each instance that they cited, the claimant provided an explanation plausible enough to entitle his overall testi- mony that he attempted to fmd other work to be cred- ited. Again, it is to be noted that doubts are required to be resolved in favor of the claimant in a backpay pro- ceeding. I credit the claimant's testimony that he looked for work. In fact, he found work and when he did, he worked a full working day, 5 days a week , for an entire month. The fact that there is no testimony that he spoke to friends or relatives or contacted Local 6 , a point argued in the Respondents' posthearing brief, does not eradicate the substantial evidence of the efforts that he did make to find work. Accordingly, allowing for the severance pay that he received in the amount of $156, and his interim earnings in the amount of $400 in the second quarter, I fmd him entitled to backpay in the amount of $2252 as set forth in Appendix A. 13. Eddie Hall The backpay specification for Eddie Hall is $2332, for a period covering 13.4 weeks, from February 27 to June 3, at $175 per week . Though Hall obtained employment before receiving an offer of reinstatement , the Respond- ents contend that he failed to make diligent efforts to obtain interim employment . Their position is based en- tirely on the manner in which Hall testified . The Re- spondents point out that initially Hall testified to efforts that he made during the month of March , and those seemed to be the only efforts that he made; after what the Respondents characterize as prompting by the Gen- eral Counsel, he testified to efforts made subsequently. I did not have the impression , while listening to this claimant, that his testimony was the result of prompting, nor did I find it incredible that he did not succeed in ob- taining employment by following newspaper advertise- ments. I credit his explanation that he was not qualified for many of the positions advertised. During the backpay period, he signed up to take sever- al civil service examinations. He took and passed the Post Office examination but was not called for a position. The Respondents' argument, that Hall failed to go after certain jobs that appeared to offer only minimum wages, ignores Hall's very credible explanation that these par- ticular employers were looking for people just coming out of school who would be willing to work for the min- imum wage . There was no point to his taking a job that paid a salary below what he needed to live , and the law does not require acceptance of employment on a level lower than that from which he was discriminatively dis- charged. Accordingly, allowing for $160 severance pay that Hall received, I calculate his net backpay at $2172 as set forth in Appendix A. 14. Elaine Hickey The backpay specification for Elaine Hickey indicated net backpay owing in the amount of $1857 for the first and second quarters of 1981, from February 27 to June 29, based on her weekly salary of $108 . This was amend- ed at the hearing to reflect a cutback of the period to May 8, 1981, and a reduction of net backpay to $1555. However, as a result of her testimony, the General Counsel has moved to amend the backpay specification, again, this time to toll backpay as of July 20 and to re- flect a reduction in the amount of 1 week's pay for a week in which she was on vacation. Net backpay owing is therefore asserted to in the amount of $2052. The Re- spondents, however, contend that Hickey made no dili- gent effort to attempt to seek employment and therefore is ineligible, because she limited her search to Staten Island. Respondents point out that the unemployment in- surance benefits that she was receiving , plus savings on carfare that resulted from her not coming into Manhat- tan, were almost equivalent to the amount of her former salary. They contend that this proves she had a motiva- tion not to work . They hypothesize that she must have been unwilling to go job hunting in the brisk March weather after returning from a week's vacation in sunny Puerto Rico. Finally, they assert that the mere fact that she was eligible for unemployment insurance benefits does not establish that she made diligent efforts to find employment. The Respondents' argument wholly ignores the actual evidence that is in the record and that they have failed to rebut. The fact that Hickey limited her job hunt to Staten Island and thus eliminated prospects for employ- ment in other boroughs, chiefly Manhattan, does not mean that she did not conduct a diligent search in Staten Island. The mere fact that unemployment insurance pay- ments that she received almost equaled her income when CONTINENTAL INSURANCE CO. she worked does not negate the claimant's sworn (and credible) testimony respecting efforts that she made to find a job. The Respondents' skepticism cannot take the place of evidence. The Respondents' assertion of the ob- vious, that it is colder in New York in March than it is in sunny Puerto Rico, similarly proves nothing. Finally, the General Counsel did not rely on the fact that the claimant received unemployment insurance benefits but on her testimony as to actual efforts made by her to find a job. Hickey testified that she applied to numerous restau- rants on Staten Island and to a diner in Brooklyn; she ap- plied for sales positions on two occasions at May's De- partment Store and at a clothing store on Staten Island; she filed an application with a private employment agency in Staten Island; she followed the want ads in a Staten Island newspaper, which furnished her leads to the opportunities at May's, at the clothing store, and at one of the restaurants. She reported to the unemploy- ment insurance office weekly except for 1 week at the end of March when she went to Puerto Rico. When she was offered reinstatement by Interstate, she accepted and was reinstated as of July 20, 1981. On this evidence I find that the backpay claimant made reasonable efforts to find employment and is enti- tled to backpay for 3.4 weeks in the first quarter, 13 weeks in the second quarter, and 2.6 weeks in the third quarter, with the first quarter's backpay reduced by the severance payment that she received. I calculate net backpay in the amount of $1944 as set forth in Appendix A. 15. Ruth Lang The backpay specification for Ruth Lang, in the amount of $2931, covers the period from February 27 to July 6, when she was reinstated by Interstate. The Re- spondents contest her eligibility for backpay on the ground that she did not make reasonable efforts to find employment during the backpay period. I do not believe that Lang made any serious attempts to find employment, notwithstanding the fact that she collected unemployment insurance benefits. Lang failed to list places to which she applied for employment on her statement of backpay claim dated August 4, 1981. Her demeanor and testimony during the hearing were such as to compel me to reject her explanation of her failure to furnish the information. Notwithstanding my reluctance to penalize claimants for lack of completeness in filling out such questionnaires, I cannot accept Lang's excuse that she did not furnish the information because she did not believe that her right to backpay depended on how many places she went to in search of a job. Unlike some other claimants whose statements were sparse or incomplete, she could not credibly fill in the details omitted from the statement by testimony regard- ing such efforts. Then she conceded that her efforts were minimal. I find altogether incredible her testimony that she did not look for employment because she did not have carfare. Her testimony showed that she had carfare to travel to the unemployment insurance office and to May's Department Store, where she claimed she looked for work; that on being laid off, she received a paycheck 593 in the approximate amount of $137, a severance payment of $186, vacation pay of $502.20, and an additional erro- neous check for vacation pay of $576.60; and that she collected unemployment insurance benefits during the backpay period. In the face of this, I cannot credit her testimony, when pressed for a reason why she did not have enough carfare to go job hunting, that she had to pay bills. I can understand the necessity to pay pressing expenses and the difficulty of traveling in an era of high transportation costs. Nevertheless, the quickest solution to her problems would have been to find employment. Under these circumstances, while failure to institute a job search immediately after being laid off does not dis- qualify a backpay claimant, in this situation the claim- ant's failure to begin looking for 3 or 4 weeks under- mines her credibility. A much more strenuous effort was indicated than she appears to have made, and her excuse for her failure is singularly inappropriate. Lang's credibility was not enhanced by her testimony that she was ignorant of the amount of money that her husband earned. Not only is that hard to believe, as I re- press my incredulity at his failure to lend her carfare, but I am baffled at her testimony that her husband drove her back and forth by car to collect her unemployment in- surance checks but she could not remember what kind of car he owned. I also cannot credit her testimony that even the little cash she had available for carfare was re- duced because her bills increased after she became unem- ployed. Accordingly, I find that Ruth Lang is not eligible for backpay by reason of her failure to make a reasonably diligent effort to obtain interim employment. 16. Tina Lindsey The backpay specification filed for Tina Lindsey origi- nally alleged backpay owing in the amount of $1755 for the 16-week period from February 27 to June 29, with- out offset for interim earnings. It was amended to reflect interim earnings of $640 in the second quarter and net backpay of $1013, and was further amended, in the Gen- eral Counsel's posthearing brief, to reflect interim earn- ings of $770. Respondents question the calculation of net backpay. On the basis of Lindsey having worked Saturdays and Sundays for 10 weeks, from April 18 through June 21, with average tips of $17.50 per day and an interim weekly salary of $42, making a weekly total of $77 per week, the General Counsel arrived at a total of $770 in- terim earnings for that period. On June 25, she began working a 28-hour week, at the same hourly rate of $3.50. Her weekly salary for the 4 days immediately pre- ceding June 29 would therefore amount to $98, with tips of $70, bringing her total earnings for that week to $168. I thus calculate that Tina Lindsey had interim earnings of $968 in the second quarter, which, with the severance pay of $102 that she received in the first quarter, must be deducted from her backpay entitlement. Her net back- pay, as set forth in Appendix A, therefore amounts to $1285. 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 17. Evelyn Major Evelyn Major's eligibility for net backpay for the period from February 27 through the third quarter of 1981 (June 29) amounting to $2322 is challenged by Re- spondents on the basis of her written statement in July 1981 listing only two prospective employers to whom she had made application for employment. These were the Chase Manhattan Bank and the Chemical Bank. The Respondents cite discrepancies between that statement and her testimony at the hearing and suggest that she may have been coached. They call attention to the simi- larity of her testimony to factors listed in the NLRB Ca- sehandling Manual. I find nothing in the claimant's testi- mony that would lead me to believe that she had been "coached" in the pejorative sense of that term. That a witness covers essential favorable points in the course of her testimony is certainly not cause to disregard it-ad- herence to such a view would speedily reduce our legal system to shambles, for no prima facie case could ever be accepted as credible. There has been no effective attack on testimony that she gave under oath as to her efforts to find employ- ment. She testified that after her termination she returned to the Continental facility to seek employment by Inter- state; she applied to Chase Manhattan Bank, Chemical Bank, Orbachs, and Macy's; she went back to an em- ployment agency from which she had previously ob- tained part-time employment and attempted through that agency to obtain a full-time position; she read the want ads in the Daily News and the New York Post on a daily basis; she responded to an ad placed by a private employment agency for a cafeteria worker; she enlisted the assistance of other persons in her search for employ- ment; she reported on several occasions to the New York State Placement Service, and she collected unem- ployment insurance benefits. As soon as Interstate of- fered her reinstatement she accepted the position and went back to work. Accordingly, I find that she is entitled to backpay as alleged in the specification, but reduced by severance pay received by her in the first quarter in the amount of $136. As set forth in Appendix A, her net backpay thus amounts to $2186. 18. Peter McCabe The only issue with respect to Peter McCabe's claim is whether the 1 week's severance pay given to him by Marriott at the time of his termination precludes his re- ceiving backpay for the 1 week that elapsed before he was rehired. Though the specification alleged that he was out of work from February 27 to March 16, he testi- fied that he was rehired 1 week after he was terminated. Acordingly, the Respondents contend he is not entitled to backpay. McCabe testified that the Marriott operation at Conti- nental Insurance closed on Friday and the following week he made application with Marriott to work at its Pfizer Corporation facility because he knew Marriott had just opened up there and needed help. He was hired 5 or 6 days thereafter. He testified that he was out just that week and went back to work the following week. Docu- mentary evidence shows his return to work on March 11, 1981. The receipt of severance pay does not destroy eligibil- ity, but the amount of the severance pay received must be deducted from the backpay due the claimant. He is entitled to 1 week's backpay in the amount of $336. He received severance pay in the amount of $364, according to the schedule of severance pay introduced into evi- dence by the Respondents. He concededly received not less than 1 week's severance pay. He is therefore not owed any net backpay. 19. Catherine Moran The backpay specification for Catherine Moran, as amended at the hearing, set forth a claim for backpay in the amount of $2709, representing gross backpay for the period from February 27 to August 24, allowing for a re- duction in the amount of $258 for 2 weeks during which she was concededly unavailable for work. Interstate sent her a reinstatement mailgram on June 26, but she did not return to work for Interstate, for reasons discussed below; instead, she began work on August 24 at the ex- ecutive dinning room of the Federal Reserve bank. The Respondents, disputing her credibility, contend that Moran did not make reasonable efforts to obtain em- ployment during the backpay period and that that period should be cut back to June 20 because her testimony in- dicates that she was not available for work after that date. On direct examination, Moran testified that she visited and applied for employment at approximately 10 restau- rants, which she named, and that she also applied to the caterers at a number of temples and one church. She fur- ther testified that she reviewed the advertisements regu- larly in the New York Times and in the Irish Echo; that she made three visits to the New York State Placement Service and that she collected unemployment insurance benefits throughout her backpay period. She responded affirmatively to the mailgram from Interstate, but ad- vised Gerstein that she needed a 2-week delay in starting because two members of her family were ill at that time. On July 13, she filed an application for a position as an executive dining room waitress at the Federal Reserve bank. I am not unmindful of the existence of some contradic- tions (seeming or actual) in Moran's testimony, but they are not material and do not detract from the essential credibility of her testimony as a whole. The Respond- ents, for example, call attention to testimony by her that they quote as being to the effect that she did not recol- lect whether she responded to advertisements in the New York Times and that the Irish Echo did not have a section devoted to advertisements for waitress' positions. Her actual testimony, however, was that she watched the New York Times and the Irish Echo that is pub- lished three times a week but she looked at it once a week. It was in response to a question whether she re- sponded to any of the advertisements that she said, refer- ring to the Irish Echo, that "there was no section of waitresses in there." This answer was patently the result of a misunderstanding of the question, because later in CONTINENTAL INSURANCE CO her testimony she explicitly stated that she read Irish Echo once a week and the New York Times three times a week, looking for a position as an executive dining room waitress. The Respondents also seek to impeach the claimant's testimony that she was always available for work on the basis that she was not available during a period, in late June and early July, when her husband and her daughter were hospitalized or required care at home . It was plain to me, listening to her testimony, that Moran does not use the English language with the specificity that might be expected of lawyers, but that is not a sufficient basis for an attack on credibility. The only serious question respecting Moran's credibil- ity arose from her testimony that she made known to an interviewer at the unemployment insurance office the fact that Interstate had sent her a mailgram offering rein- statement. She continued to collect benefits thereafter. She testified that she returned to the unemployment in- surance office the following week, but there was no fol- lowup respecting the job offer. She could not, however, recall what was said to her by the interviewer. She con- ceded that she did not tell the unemployment insurance interviewers that she had spoken to Gerstein by tele- phone and never revealed to them that she had told Ger- stein that she was unavailable for work because she was taking care of members of her family. I do not credit Moran's testimony that she advised the unemployment insurance interviewers that she had been offered a job, but I have no difficulty believing her testi- mony as to her efforts to find employment. Portions of a witness' testimony may be credited even though not all of it is believed. L. D. Brinkman Southeast, 261 NLRB 204, 205 fn. 5 (1982). Moran obviously did not seek em- ployment during the several weeks that she was taking care of the two members of her family and that period of unavailability requires appropriate reduction of the gross backpay. However, her entitlement to backpay for the period prior to that time is not affected, and I do not agree with the speculative contention of the Respondents that she started actual work a month after she got the job at the Federal Reserve bank because she was taking care of her family. There is no record at the Federal Re- serve bank that she had asked for deferral of her starting date there. Officials of the bank had no knowledge of the reason for the delay in putting her to work after she complied with the preliminary hiring requirements and was assigned to a position in accordance with the bank's routine hiring procedures. I find, therefore, that Moran made reasonably diligent efforts to find interim employment. Also at issue was the question of the proper cutoff date. Moran testified that she responded to Interstate's mailgram of June 26, but asked for an extension of time to return to work because two members of her family were ill. She had been caring for one of them since June 20. Moran testified that in a telephone conversation with Donald Gerstein, she was advised that if she did not return within the time specified in the mailgram, the job might not remain available for her. As she had to take care of her sick family members, she considered the op- portunity at Interstate to have been extinguished, and 595 counted on the promise of the job with the Federal Re- serve bank. She started actual work there on August 24. The General Counsel therefore contends that August 24 is the cutoff date of the backpay period for Moran; the Respondents argue that , because she was not available from June 20, that is the cutoff date. Unquestionably, Moran was not prepared to resume work when the offer of reinstatement was made by Inter- state. She testified that her husband was hospitalized for 13 days, from June 20 to the middle of July, suffering from phlebitis, and that her daughter underwent surgery on June 28 and was hospitalized for 8 days thereafter. Other things being equal, her backpay period would end on June 20, in view of her testimony. However, the Gen- eral Counsel contends that, because of what Gerstein said to her on the telephone, she was entitled to believe that she no longer had the Interstate offer, and had to continue job hunting. This she did successfully, landing the job at the Federal Reserve Bank. The problem there is that, though she asserted that she got the job in July, she did not begin until August 24. The Respondents con- tend she delayed beginning work in order to care for her husband and her daughter , but this is unproven specula- tion. The evidence indicates that the delay was not at all her fault. Moran was interviewed and given a physical examina- tion at the Federal Reserve bank, but was not directed to report until August 24. The bank personnel who hired her testified at the hearing that they were unable to ex- plain the reason for the delay in her starting date. There is nothing in their records that would indicate that Moran asked for any delay in starting , and routine per- sonnel procedures of the bank appear to have been fol- lowed in all respects, except for the delay in starting her. The Respondents have produced no evidence that the delay was Moran 's fault, and the burden is on them to produce such evidence, if there is any. I credit Moran's testimony respecting her telephone conversation with Gerstein. She therefore properly relied on the job offer from the Federal Reserve bank. Accord- ingly, her backpay period runs from February 27 to August 23, with deductions for severance pay, in the amount of $120, and for the period of unavailability from June 20 to July 12. I calculated her net pay in the amount of $2718 as set forth in Appendix A. 20. Sheila Nelson The backpay specification for Sheila Nelson covers a period of 8 weeks from the first quarter through a por- tion of the third quarter in the total sum of $3744. There were no interim earnings. Her period of unemployment ended when she was reinstated by Interstate on July 6, 1981. The Respondents contend that she did not make a reasonable effort to find interim employment. Nelson testified that she visited the personnel depart- ment at Continental Insurance Company seeking employ- ment but did not file an application because no one gave her an application to fill out. She named the person to whom she spoke. The Respondents, however, produced two witnesses who worked in the Continental Insurance Company personnel department at the time Nelson says 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD she filed her application, and who testified that the pro- cedure of the office was that anyone who inquired about employment was routinely given an application to fill out. The company's affirmative action plan was cited as requiring that applications be given out. These witnesses also testified that there had never been a person em- ployed in the personnel department with the name given by Nelson. The Respondents also fault Nelson for failing to regis- ter with any private employment agency, failing to seek help through the Union, failing to answer any newspaper advertisements, and even failing to speak with any of her fromer coworkers in order to be kept informed. Howev- er, the test of whether a claimant has made reasonably diligent efforts to obtain employment is not what she failed to do, but what steps the actually took to secure interim employment. Nelson had been a cashier who worked in the office at the Continental facility . She testi- fied that during the period from February 18 to July 6, 1981 , she looked for employment by making personal visits to large stores and applying for whatever jobs they might have open . At the May's store in Brooklyn, New York, she was told that an opening for a cashier had just been filled, and told the interviewer that she would take any other job that they had. She went to another depart- ment store in downtown Brooklyn and applied for a po- sition either as a cashier or as a floor girl; she was ad- vised that there were no openings. She did not file writ- ten applications with either store and testified that this was because she was not asked to do so . She visited some of the jewelry stores in the downtown area of Brooklyn. She was unable to furnish the names of any of the stores she visited, but testified that they all said they had no openings. She went to 120 Broadway and applied for a job as a clerk. She was uncertain about when she did that, but thought it might have been in March. She could not state either the name of the company to which she made application or the name of the supervisor to whom she spoke . She did not fill out a written applica- tion. She described the incident as follows : She walked in and asked a man at the front desk if she could talk to a supervisor or anybody in charge because she was look- ing for a job . He called a lady who came out and spoke to her. Nelson testified that she made application for any position that was open at Macy's at 34th Street, New York City, but she could not fix the time when she did so and did not remember to whom she spoke. When asked if she went to the store's personnel department, her testimony was, "I really don't think I went to the Personnel Department." She then explained the proce- dure she followed when she visited stores looking for employment : "When I go inside, I always ask for the In- formation Desk, because I don't know where I'm going. I asked for the Personnel Department . . . and they said that the man was busy at the time , but they would have somebody to help me ." A lady from the personnel de- partment came out to talk to her and told her that there were no job openings but made a note of her telephone number and promised to call if they had any jobs. How- ever, she never received a call. She testified that she ap- plied for jobs in gorcery stores in the neighborhood where she lives; she thought she had done that in May. She asserted that she applied at Chemical Bank at 55 Water Street, New York City, but was not sure of the month in which she did so. She asserted that on her visits to the Chemical Bank, "I applied for anything." She followed the same procedure there that she had fol- lowed elsewhere : She asked at the information desk whether they knew of any job openings . She received a negative response. she had a conversation with some- body there about typing, but there were no typing jobs open. She did not know the name of the man to whom she spoke. Nelson registered for unemployment insurance on March 2. She collected unemployment insurance and tes- tified that on her visits to the unemployment insurance office she answered inquiries about her job search. She filled out slips that they gave her on which she indicated places that she had gone looking for work . They sent her to one location, where she had an interview, but she was not hired. The claimant's testimony is not a model of precision and exactitude . Nevertheless, it sets forth a history of at- tempts to find employment. Though short on details, it is supported by her success in obtaining unemployment in- surance benefits and by the fact that she accepted work when she was offered reinstatement. I conclude that her testimony should be credited despite absence of details that would permit easy verification. The fact that she did not pursue every avenue that a more alert job hunter might have pursued does not mean that she was untruth- ful with respect to her description of the efforts to fmd work that she testified she made . The burden of estab- lishing lack of diligence is on the Respondents and doubts must be resolved in favor of the backpay claim- ant. Accordingly, I find that the claimant is entitled to net backpay in the amount of $3536, as set forth in Ap- pendix A. Allowance has been made for severance pay that she received in the amount of $208. 21. Cornelius Noonan The backpay specification for Cornelius Noonan claims net backpay of $2448 for an 18-week period ex- tending from the first quarter into the third quarter of 1981. The claimant had no interim earnings. He accepted reinstatement by Interstate and returned to work on July 6. The Respondents assert that his efforts to obtain inter- im employment were not diligent because he limited his efforts to a search for a job as a security guard whereas he had worked for Marriott as a dishwasher and utility- man. He made no attempt to obtain work as a dishwash- er. A backpay claimant will not be held to have failed to make diligent effort to find interim employment merely because he sought a different type of position than that in which he had been employed when he was wrongful- ly terminated. He must seek employment, but not neces- sarily employment in an identical job. Seeking a some- what different type of job does not disqualify a backpay claimant so long as he does not reject or fail to seek, in addition, employment substantially similar to his former employment. Avon Convalescent Center, 219 NLRB 1210 (1975), modified 549 F.2d 1080 (6th Cir. 1977). An as- CONTINENTAL INSURANCE CO. sessment of the reasonableness of his effort requires con- sideration of his skills and qualifications and his age. Flite Chief, Inc., 258 NLRB 1124 (1981), affd. mem. 696 F.2d 1003 (9th Cir. 1982). Noonan testified that his original field was security and he wanted to return to it, and that among his reasons were the fact that there seemed to be more positions in that field than there appeared to be openings for dishwashers and the fact that security posi- tions pay more than dishwashers' positions. I credit this testimony. There being no evidence that Noonan failed to attempt to obtain employment, he is entitled to back- pay. The amount will be reduced by the amount of the severance pay that he received in the amount of $136. Accordingly, I compute his net backpay in the sum of $2312 as set forth in Appendix A. 22. Octavio Parra The backpay specification for Octavio Parra called for payment of net backpay in the sum of $1440 for an 8- week period in the first and second quarters running from February 27 to April 26, when Parra suffered a heart attack that incapacitated him and tolled the back- pay period. He had already accepted an offer of rein- statement and was due to return to work on April 27. The serious problem in this instance is presented by the amendment of the specification at the hearing to in- clude such amounts as Parra became liable for as ex- penses of his medical treatment. Parra is still under treat- ment and the ultimate total cost cannot presently be known, but at the time of the hearing Parra was indebted for medical expenses in a substantial amount. A portion of his medical expenses was paid by the Marriott Corpo- ration Medical Benefits Plan (the Plan) and by Medicare. The group insurance carrier, however, disclaimed further liability after paying a portion of the initial expenses on the ground that Parra was no longer employed by Marri- ott at the time he became ill. Whatever amounts the car- rier would have paid had Parra been on the Marriott payroll when he suffered his heart attack therefore become a liability of the Respondents in this backpay proceeding. The Respondents stipulated that the provisions of the Plan would be applicable to Parra if he were an employ- ee of Marriott. The insurance carrier's position that Parra's coverage ended when he was terminated on Feb- ruary 27 is not pertinent in this proceeding except insofar as it makes the amount of the medical expenses that would have been paid under the Plan a direct liability of the Respondents. Although conceding Parra's basic enti- tlement to backpay, the Respondents nevertheless con- tended that medical expenses should not be included be- cause proof was lacking that Parra would actually have to pay the medical bills, some of which were 2 years old and, in Respondents' view, "stale" and because Parra was covered by Medicare. It is well settled that in these circumstances a backpay claimant such as Parra is entitled to be reimbursed for medical payments for which he becomes liable during the backpay period and for all such expenses that accrue thereafter that would have been covered by the medical insurance but for his wrongful termination. With respect to medical expenses, incurring of liability for same by 597 Parra is, for the purposes of these proceedings, the equivalent of having paid them, and creates liability on the part of the employer for their payment by inclusion of such expenses in the backpay award. See Carter's Rental, 250 NLRB 344, 352-353 (1980), and Matlock Truck Body & Rental Corp., 248 NLRB 461, 473-474 (1980). The question of coordinating additional cover- ages for medical expenses is something that should be worked out later as a matter of mechanics. Accordingly, the General Counsel's motion at the hearing was granted and the backpay specification was deemed amended to include all sums that would be paid by the Plan to cover Parra's medical expenses already in- curred and to be incurred. The Respondent introduced into evidence a booklet dated January 3, 1981, that summarized the Plan. Though it sets forth that the Plan documents control in the event of any conflict between the provisions of the Plan and the booklet, the Plan documents were not placed in evidence. Accordingly, for the purposes of this proceeding, the terms and conditions stated in the book- let must be deemed controlling insofar as they fix the minimum extent of the liability of the Respondents. Ex- tracts of pertinent provisions of the Plan booklet are made part of this decision as Appendix B for the conven- ience of the compliance officer, who is, of course, not precluded thereby from having recourse to all other rele- vant provisions contained in the booklet or to the provi- sions of the Plan documents themselves. The evidence in the record, including statements of ac- count, bills, and correspondence from the providers of medical services to Parra, establishes that, as of the time of the hearing Parra was indebted to them for covered medical expenses in the total amount of $10,762.75. This indebtedness was incurred during the fiscal year of Mar- riott Corporation ending December 31, 1981, and during the fiscal year ending December 31, 1982, a fact that must be taken into consideration in applying the provi- sions of the Plan relating to yearly deductibles from ben- efits, because these are governed by Marriott Corpora- tion's fiscal year. As of June 5, 1983, when the hearing was concluded, the Plan had already paid $1650 to Cabrini Medical Center and a Medicaid allowance in the amount of $5,328.10 had been applied against the St. Vincent's Hos- pital & Medical Center bill of $5,766.10. Charges still open were as follows: To Cabrini Medical Center: Hospital expenses $9,304.75 X-Ray 440.00 Echocardiogram To St. Vincent's Hospital: 200.00 Hospital expenses 438.00 Clinic 300.00 Doctors' fees 80.00 $10,762.75 The medical insurance carrier having disclaimed fur- ther liability, further contribution can only be foreseen from governmental coverages, and except as reduced by 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such coverages and the authorized deductibles, Respond- ents are liable for payment of the foregoing expenses, to- gether with any additional expenses incurred since the close of the hearing or that accrue in the future and that would have been covered by the Plan. Parra had no interim earnings. His gross backpay for the first quarter, in the amount of $792 must be reduced by the severance payment that he received in the amount of $180. His gross backpay for the second quarter, com- puted to the date his illness commenced, amounts to $648. I therefore compute his net backpay, exclusive of medical benefits, in the sum of $1260, as set forth in Ap- pendix A. The compliance officer will determine whether any deductions must be made from the amount awarded for medical expenses by reason of deductibles or of govern- mental or other private coverages for such expenses, and the amount thereof. The compliance officer will also have to ascertain whether there have been any additional medical expenses incurred by Parra and, if so, whether and to what extent those would have been covered under the Plan, taking into account the deductibles and the requirement for coordination with governmental cov- erage for such expenses. Any net sums found owing to Parra should be added to the aforesaid sum of $10,762.75. On the compliance officer's determination of the net amount owing to Parra on all the foregoing, he will effectuate payment of same by the Respondents, jointly and severally. The compliance officer will retain oversight to determine what additional sums if any, become owing to Parra from the Respondents as he con- tinues his treatment and to ensure that payment of same is timely made and that coordination of benefits with governmental and other private coverages is implement- ed, in accordance with this decision. 23. Donna Stallone Backpay in the amount of $1320 is alleged to be due to Donna Stallone for the period February 27 to March 30. Respondents dispute her entitlement on the ground that prior to the termination she had given Marriott notice that she was resigning to take another job. The posture of the case with respect to Stallone is somewhat unusual. She was not called on to testify by the General Counsel but by Respondent Marriott, by whom she is currently employed. She has worked for Marriott since February 1976 and worked in the office at the Continental facility for approximately 3 years. She took a 2-week vacation after it closed, worked 3 weeks for a company in New Jersey, and then returned to work for Marriott. She testified that she had not responded to letters concerning backpay because she did not feel that Marriott owed her anything, for she had given notice to Marriott 2 weeks prior to the closing that she was re- signing to take a position with the company in New Jersey and, in addition, had declined an offer of a posi- tion at another Marriott unit made by Marriott's district manager on or before February 27. The General Counsel concedes that if the facts were as testified to by the backpay claimant she would not be entitled to backpay, but argues, without any factual basis whatsoever, that Stallone's testimony was a fabrication advanced by the Respondents to embarrass the General Cousnel by creating the appearance that the General Counsel had failed to make adequate efforts to determine the interim earnings of the claimants. Quite aside from the fact that I find such a suggestion highly implausible, I cannot ignore Stallone's testimony or her demeanor while testifying. No information was elicited on cross-ex- amination that indicated any reason to disbelieve her tes- timony or to believe that she had deliberately committed perjury for the benefit of the Respondents. She testified explicitly that she gave 2 weeks' notice that she was re- signing, that she expressly declined a position with an- other Marriott unit in which she cold have started work immediately, and that she did so because she was inter- ested in trying out a job in New Jersey. Her testimony was plausible and believable. I am thus compelled to deny backpay as alleged in the specification for this claimant. I do not see anything in this particular situation that suggests that the claimant's own needs should be transcended in order to ensure adequate enforcement of the National Labor Relations Act. The claimant's undis- puted testimony indicates she is not eligible for backpay and it would be perversion of the aims of the Act to award backpay in the face of such evidence. 24. Ervin Terry The backpay specification alleges the sum of $2457 to be owed to Ervin Terry for a 21-week period extending from the first quarter through the third quarter of 1981, from February 27 to July 27. Terry, who had been em- ployed as a food server, testified with respect to his ef- forts to find interim employment. The Respondents con- tend that his testimony is altogether incredible and that, therefore, backpay should be denied because he must be found to have made no diligent effort to obtain employ- ment. The General Counsel takes the position that Terry's credibility, if it was impeached, was only im- peached with respect to irrelevant collateral matters and that the Respondents did not meet the burden that the law places on them of presenting evidence to prove will- ful loss of earnings. I concur in the Respondents' view that a great deal of the testimony of the backpay claimant respecting his ef- forts to get employment is not credible. That failure of credibility manifestly does not relate to a collateral matter, but to a central issue, whether the backpay claimant did or did not make diligent efforts to find in- terim employment. The most cursory examination of Terry's testimony raises doubts respecting his credibility strong enough to require rejection of all of his testimony. For example, he testified that over the course of a 5- month period he did not see a single newspaper adver- tisement in the New York Post or the New York Daily News to which he felt he could respond, though he read both of these newspapers two or three times each week. Another example is the conversation Terry claimed to have had with a friend, while sitting in the friend's auto- mobile. Terry testified that his friend referred him to a store in a shopping mall where he might obtain employ- ment. He went to the store in the shopping mall but was told by someone there that no job openings existed. CONTINENTAL INSURANCE CO. What makes the story incredible is that the person at the store who told Terry that there were no job openings was his friend, the same person who, sitting in the car with him, had suggested that he apply for employment at that store. Then again, Terry testified that he attempted to obtain work as a security guard by talking to a friend who was a security guard at the World Trade Center. He could not remember the name of the friend. He made no inquiry at any employment office at the World Trade Center while he was there. The credibility of Terry's testimony that he applied for a job at a nursing home in Freeport, Long Island, while staying at his uncle's place in that area, was undermined by other testimony by him to the effect that he would not travel to that same area to borrow money, a subject that came up because he claimed that he was unable to look for work because he did not have carfare. He had, of course, received a week's severance pay, so he had some money, and he testified that his Freeport relatives lent him money to help pay his rent. They are the rela- tives who had referred him to the nursing home in Free- port. He testified that he did not attempt to borrow more money from them because it would have taken money to get out to see them on Long Island. He did not explain why he could not telephone them to ask them for help. Terry's testimony that he went to an employment agency in March 1981 is suspect because of his complete inability to remember the name of the agency. He testi- fied that that agency and five or six other agencies to which he applied requested their fees in advance, but he was unable to pay the fees. As I have just noted, he was not completely without funds. Having disclosed his inability to pay fees to advertis- ing agencies, and despite his assertion that he did not have the necessary carfare to hunt for employment in March and April, Terry proceeded to testify that he nev- ertheless gave an unnamed person $25 as a fee at a con- struction site in the Borough Hall area of Brooklyn and was instructed by him to report to work the following Monday. It turned out that Terry had been victimized by a fraud, for when he went to the jobsite that person was nowhere to be found. However, while he was there he did not talk to anybody else at the jobsite about possibly working at the construction site and he did not look for any other work in the Borough Hall area. His failure to do so makes it impossible for me to believe this portion of his testimony. Terry testified that he attempted to obtain a job with a taxi company, but conceded that he did not have the special driver's license needed to operate a taxicab and that he never made any attempt to obtain one. Terry, along with other former employees, was sent a mailgram by Interstate on June 26, offering reinstate- ment. It took him a month to respond. He testified that he did not receive it until July 24. His explanation for the delay was wholly unsatisfactory, especially because it appeared that he received mail from the Regional Office of the Board without difficulty. The General Counsel argues that the backpay claim- ant's lack of understanding and the fact that he is ill- equipped to complete forms, such as the statement of claim, should not be factors that are utilized to reduce or 599 eliminate his backpay award. The problem that exists in this case, however, is whether the claimant is credible. His whole story is unrealistic, vague, inherently self-con- tradictory, and unbelievable. Accordingly, I find the backpay claimant, Ervin Terry, ineligible for backpay. 25. Malcolm Thomas The specification for Malcolm Thomas alleges net backpay of $2146 owing for the first and second quar- ters, with an offset for interim earnings in the amount of $399. A further deduction was necessitated by disclosure at the hearing of additional earnings of $108. The claim- ant obtained his interim employment through an agency specializing in temporary jobs known as the Tip Top Agency. The Respondents contend that Thomas is ineli- gible for backpay because he limited his efforts to that agency, and that did not constitute a reasonable effort to obtain interim employment. The circumstances are not unlike those in the case of George Bacote, considered above, in which I have denied backpay. Thomas initially obtained his employ- ment as a dishwasher at the Continental facility through Tip Top, which sent him to Marriott as a temporary worker. He was paid directly by the agency on a daily basis. Marriott hired him as a full-time employee. During the backpay period, he went out on jobs to which Tip Top referred him. Almost every day, at 5 a.m., he pre- sented himself at the office of Tip Top to be sent out for a day's work. This bespeaks a willingness on his part to work when he is put to work, but such willingness is not synonymous with the making of a reasonable effort to find interim employment. I do not credit the claimant's testimony that he sought assistance in finding work of friends and of the boarders at the rooming house where he lived, and that he checked the New York Post every day for employment opportunities. He testified that he made an application to a messenger service, and I am willing to credit that testi- mony because it fits in with his pattern of search for only temporary employment. The General Counsel, in fact, conceded that that was the limit of his effort, arguing that Thomas tried to obtain employment solely through the Tip Top Agency because he knew no other method. The General Counsel makes an argument akin to the one he employed in the case of George Bacote, that the claimant must be taken as we find him, and asserts that the restriction of his effort to find employment to the temporary employment agency was reasonable because he was "obviously beaten down by sixty-four years of living [and] knew only one way of surviving-shaping up at a temporary agency." However, shaping up at a temporary agency was not, as the General Counsel argued, the only way he knew how to survive, for having had the experience of working for Marriott on a permanent basis he could have tried to do so again. He obviously did not want to have a permanent job. Sympathy for a claimant's limitations does not require gullible acceptance of the argument that he made reason- ably diligent effort to mitigate the wage loss when his testimony and the evidence indicates the reverse. 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thomas did not file for unemployment insurance bene- fits. I do not credit his explanation for omitting to do so, which was to the effect that he did not believe he was eligible for it because he had only worked for Marriott for 2 months. He never bothered checking with the Un- employment Insurance Division to find out if he was eli- gible and made no attempt to utilize the facilities of its placement service to try to find a job. Thomas did believe he was eligible for social security retirement benefits, and filed for those . He explained that he did so in order to obtain a steady income without having to run to the agency every morning for a rela- tively uncertain income. (That testimony also under- mined the General Counsel 's argument that he limited his effort to get work to visits to the agency because that was the only way he knew how.) When Thomas was offered reinstatement by Interstate, he declined the offer. He testified that the reason he de- clined the job was because he was discouraged with Marriott, inasmuch as he had been fired after he had worked hard for Marriott. If this were true, his failure to accept reinstatement would not necessarily disqualify him from receiving backpay. However, I find his testi- mony in this regard unpersuasive and incredible , by itself and in view of his testimony, given subsequently , that he found it too much of a hardship to run to the agency every morning only to be sent out on an occasional basis. Accordingly, I find that the claimant, Malcolm Thomas, is not eligible for backpay. 26. Mary Towey It is alleged that the sum of $3697 is owing to Mary Towey as net backpay for the period February 27 to June 29, when she received the mailgram from Interstate offering reinstatement and declined to accept the posi- tion. Respondents' objection rests on the fact that though she made a number of employment inquiries , she did not follow them up and she expressed lack of interest in a number of job opportunities that Respondents claim she could have had if she had wanted to work. However, Towey testified as to the reasons why she did not follow up certain apparent job opportunities or why she de- clined them after obtaining more detailed information about them. Her testimony was specific with respect to each instance. Her reasons appeared to be sound in every case. Thus, she turned down a job that would have pro- vided her with a net income considerably less than what she had earned at Marriott; she declined a position in Manhattan that required night work and travel by subway; she declined a position with a caterer that would have required her to work through the night; and, in a number of instances, she made inquiries of prospec- tive employers only to discover that there were no job openings. Her willingness to work is apparent from her 12-year work history at Continental and her completely credible testimony. Accordingly, I find Mary Towey entitled to backpay, reduced by the amount of $261 severance pay that she received, and calculate the same in the net amount of $3436 as set forth in Appendix A. 27. Lila Victorio The backpay specification for Lila Victorio , as amend- ed at the hearing, alleged net backpay owing in the amount of $2484, for the period February 27 to August 7, when, Victorio testified, she obtained a job at Manda- lay Caterers on Staten Island . The Respondents contend that her backpay period should be tolled as of sometime prior to July 1, when she ceased to be available for em- ployment. The Respondents asserted that she was offered reinstatement to an equivalent position at the same loca- tion with the same hours as her former job. During and after the time she worked for Marriott, Victono attended the Parsons School of Design in New York City. She had classes 2 days a week from 3 to 8 p.m. At Continental, she was an executive dining room waitress. She testified that she searched unsuccessfully for similar employment throughout the backpay period, making inquiry of a number of concerns located in Man- hattan, Queens, and Staten Island, where she lived. She testified that she also attempted to obtain a position as a layout artist with the Staten Island Advance . However, she could not accept the position because the hours con- flicted with her school schedule. She collected unem- ployment insurance benefits until she commenced work at Mandalay Caterers. She reported to the New York State Placement Service, which referred her to a position with the Queensborough Public Library on one occasion. She did not accept the job because it would have in- volved 6 hours of traveling each day . When she received the mailgram from Interstate offering reinstatement, she went in for an interview and was offered a position in which the working hours were from 9 a.m to 4 p.m. Her work hours at Continental had been from 10 a.m. to 2:30 p.m. She testified that she explained to Leslie Karen, the Interstate interviewer, that the conflict with her school schedule prevented her from taking the job and also told the interviewer that she was contemplating taking a va- cation in Florida, where her parents resided, and that she would not return to New York until September. Ronald Gerstein testified that he was the one who interviewed Victorio and that he offered her a job with the same hours at Continental that she had previously worked, but that Victorio declined the offer with the ex- planation that she might not be available until September as she was probably going to Florida for the summer. Gerstein testified that he was left with the impression that she would call him if she changed her mind. Elaine Hickey had worked with Victorio prior to their termination, and for a time had shared living quarters with Victorio. She testified that while employed at Con- tinental, Victono had also worked nights at a cafe on Staten Island and that she continued working there after the Continental layoff. I reject Respondents' contention that this affects the merits of her case, either from the standpoint of entitlement or from the standpoint of the amount of backpay owing. The additional job existed prior to the layoff and did not supercede the employ- ment from which she had been barred by the layoff. The earnings from her extra employment are therefore not an offset against any backpay entitlement . However, before the existence of the second job had been disclosed in the CONTINENTAL INSURANCE CO. hearing, Victorio had testified that she told the Interstate representatives on July 9 that she was immediately avail- able for employment and did not have another job. (Ac- tually, the interview at Interstate occurred on July 1.) Her credibility is thereby brought into question. Other aspects of the evidence raised further doubts about her credibility. Besides the testimony that Victorio said she was not available for employment during the summer of 1981, the evidence establishes that she did not attend summer school at the Parsons School of Design during that summer. The spring term having ended in mid -May, she was available for the job offered by Gerstein because there was no class schedule with which its hours might conflict. While she was entitled to an offer of employ- ment at hours and pay comparable to those of her former job, there is no requirement that the offer be of a precise- ly identical job, and the circumstance that she was not in fact attending school destroys her credibility in ascribing reasons for her rejection of the Interstate employment offer and that circumstance also contradicts her stated reason for declining the job at the Staten Island Ad- vance. On the job application that she filed with Interstate on July 1, she stated flatly that she was not available for work until September 1, 1981. The Respondents argue that this casts doubt on her availability at any period prior to July 1. This is pure speculation, and it would be just as easy to speculate that she made the decision to go to Florida on that very date and had therefore been available and able to work up to July 1. Such speculation is unnecessary. Legitimate doubts about her asserted ef- forts to obtain interim employment in the preceding months are raised by the other evidence in the record and the contradictions in her own testimony. On the application filed with Interstate, Victorio indi- cated that she had a job as of July 6. The Respondents contend that this negates the possibility that her employ- ment with Mandalay Caterers began as late as August 7. She was making this statement as of July 1. While it is possible that her arrangements underwent a change, it would appear that had there been any change she would have notified Interstate if she were interested in obtain- ing employment. Falsehoods contained in her written statement respect- ing her efforts to obtain employment cannot be over- looked. Respondents have pointed out that she listed, as one of the places to which she had applied for employ- ment, the cafe where, according to her roommate, she was actually already working. That written statement also omits any mention of the job applications with the Staten Island Advance and the Queensborough Public Library. The inconsistencies in Victorio's testimony and her de- meanor while testifying convinced me that she was not being truthful about her efforts to obtain interim employ- ment. In this instance, it may reasonably be argued, in the light of all the other circumstances, that her income from her second job and the unemployment insurance benefits that she collected seemingly removed the stress from her period of unemployment and lessened her moti- vation to seek interim employment. She testified candidly 601 that she contemplated spending the entire summer in Florida, possibly even seeking employment down there. I cannot find on this record that she was available for em- ployment throughout the backpay period at the same hours that she had previously worked, or that she made reasonable efforts to obtain employment in a job calling for her to work similar hours. Accordingly, I find that Lila Victorio is not eligible for backpay. 28. Leonora Vilabrera Leonora Vilabrera was allegedly owed $1422 net backpay for the period February 27 to May 5, when she obtained a job. The matter has been tried on the basis of a cutoff date of May 5, with no interim earnings, though she accepted an offer of reinstatement from Interstate and returned to work for Interstate on July 6. There is no data respecting her earnings from May 6 through July 3, her backpay period being deemed to end with May 5. Besides asserting that gross backpay should be reduced by the amounts of severance pay and vacation pay that Leonora Vilabrera received, the Respondents advance the argument that unemployment insurance benefits that she collected should be deducted from backpay because she rejected what they characterize as suitable employ- ment. In the first week after the layoff, Vilabrera visited Interstate at the Chase Bank on William Street in down- town Manhattan. She spoke to the manager and told him she was looking for the same type of job that she had had at Continental. There she had worked from 6 a.m. to 2:30 p.m., 5 days a week. He called her a few days later and offered her a part-time job, 4 hours a day. She turned it down because the money was insufficient; in fact, it amounted to less then her unemployment insur- ance benefits. The Respondents assert on the basis of this testimony that, because she never inquired as to the pay rate and could not therefore be certain that her earnings would be less than the unemployment insurance benefits, the amount of those benefits should be deducted from gross backpay. This argument fails because I credit her testi- mony that she assumed that Chase would start her at the minimum hourly wage rate. She was entitled to make that assumption, for that is what had happened when she began work at Marriott. She was receiving approximate- ly $90 per week in unemployment insurance benefits. The job that she was offered involved working half the number of hours of her former job, 20 hours instead of 40. She could reasonably concluded that the job would make her economic position worse instead of better. Unemployment insurance benefits are not interim earn- ings and are not normally offset against backpay liability. No reason to apply a different rule has been demonstrat- ed in this case. The sincerity of the claimant's efforts to find interim employment is manifest from the fact that she found a permanent job and started on it on May 5, substantially reducing the Respondents' backpay liability. Accordingly, I find that Leonora Vilabrera is entitled to the net backpay a alleged in the specification, reduced 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by severance pay that she received in the amount of $158. Accordingly, I calculate her net backpay at $1264 as set forth in Appendix A. 29. Simona Vilabrera Simona Vilabrera is alleged to be owed net backpay in the amount of $3888 for the period February 27 to July 6, when she returned to work on Interstate's offer of re- instatement. The Respondents contend that her testimony respecting efforts to obtain interim employment is not credible. They unquestionably have plenty of ammuni- tion with which to work, but my own appraisal of her overall testimony leads me to accept it as credible. There are a number of points about Vilabrera's testi- mony that the Respondents rightly point to as raising questions. After testifying that she did not speak to other Marriott ex-employees prior to testifying at the hearing, she admitted she had discussed the case with some of them. She appeared to be evasive about the manner in which she had obtained a copy of the backpay specifica- tion and about the date when she first saw it. First she testified that she saw it posted on a bulletin board; then she testified that she received it in the mail, but was unable to furnish a lucid explanation of how that had come about. She appeared also to have contradicted her- self specifically with respect to whether she had dis- cussed her testimony with Rupert Cayenne, another backpay claimant. There was also a contradiction be- tween her testimony and that of Cayenne respecting a conversation they had. She testified that he obtained a job as a chef and told her that there was no position open for her in the place where he was working. He tes- tified that he did not find work until 2 weeks before he was called back by Interstate and that the job he ob- tained was in a paper factory. Some of her testimony appeared to me to be improb- able, such as her testimony that the General Counsel did not prepare her in any way for her appearance at the hearing in this backpay proceeding. She later modified that testimony. The items of testimony that I have just cited and Simona Vilabrera's demeanor while testifying convinced me that she was not a completely truthful witness with respect to those matters. However, the troublesome por- tions of her testimony, to which I have just alluded, were given along with a great deal of creditable testimo- ny, and those portions of her testimony, while vague with respect to some particulars, created a believable picture of reasonably diligent effort to obtain interim em- ployment. Significantly, almost all that testimony was uncontroverted. Simona Vilabrera testified that she was a second cook. She asked Carol Kramer about another job with Marri- ott. Though she could not remember Kramer's response, it was apparently not encouraging and Kramer, who tes- tified at the hearing, said nothing that contradicted Simona Vilabrera's testimony. The first week of her un- employment she telephoned the manager of the new op- eration at Continental at 80 Maiden Lane, New York City, to see if there was any work, and was advised that there were no openings. She followed newspaper ads in the New York Times and the New York Daily News and made telephone calls. She made a long subway trip to investigate a babysitting job, which she turned down because the pay was insufficient. She spoke to other former Marriott employees and to her friends, Cayenne and Ermine Blades, asking for their help in finding a job. At the suggestion of another friend, she put in an appli- cation at the new Hyatt Hotel in New York City. At the suggestion of yet another friend, she applied for a job at a hospital on Jamaica Avenue in Queens, New York (she could not recall the name of the hospital but later re- ferred to it as a nursing home). She went to only one employment agency, in April. She paid a $20 fee and was sent out to be interviewed for two nonexistent jobs and, after great difficulty, obtained refund of the fee. She applied to Consolidated Edison. She applied for, and received, unemployment insur- ance benefits. Here again, her testimony raised, as well as answered, questions. She asserted that she went out look- ing for a job two or three times a week. That should have created a substantial job-hunting history at the Un- employment Insurance Division which, even if not di- rectly available, should have left a lot of information in her own memory. She testified that she reported her ef- forts to find employment to the interviewers at that agency. However, her recollection was that the unem- ployment insurance interviewers only asked her if she had been looking for work and did not ask where she had looked. The entire conversation would consist of her being asked if she had been looking and her affirmative reply; there was no curiosity on their part as to where she had looked or as to the identity of the firms to which she had made application. Careful consideration of Simona Vilabrera's testimony indicates to me that most of the problems with it result from her extreme vagueness respecting dates and the substance of conversations. There are, as I have stated, some actual contradictions in her testimony. Neverthe- less, vagueness as to details is not synonymous with falsehood, and not all contradictions mean that the wit- ness was lying. For example, the claimant gave addition- al testimony that I think clarified seeming inconsistencies regarding her conversation with Cayenne and the manner in which she had been prepared for the hearing by the General Counsel. She testified that the General Counsel had told her to try to remember the past and to tell the truth and to remember where she had gone to apply for jobs. That testimony seemed altogether reason- able and truthful. As to her testimony about the conver- sation with Cayenne, it is to be noted that her testimony that he had a job cooking was actually given after she had stated several times that she was vague about the kind of work he was doing. In response to a question put to her as to whether he had told her he had obtained a job, she first answered simply that he had told her that "he had something," but she did not know what it was, but thought it was in cooking. She did not even know whether he was working full time or part time. Although this may seem surprising, considering that Cayenne and Blades were friends of hers to whom she spoke frequent- ly, it is apparent that her testimony became contradicto- ry as to immaterial details under repeated questioning CONTINENTAL INSURANCE CO. and an apparent desire on her part to supply answers, rather than as a result of any deliberate attempt to distort the truth. The claimant's testimony as a whole is imprecise, but not incredible. Almost all of it is uncontroverted. In its important details it was consistent and remained unsha- ken on cross-examination . She collected unemployment insurance benefits throughout the entire backpay period, and Respondents conceded that the procedure followed by the Unemployment Insurance Division of the New York State Department of Labor is to inquire periodical- ly of recipients of unemployment insurance benefits whether they have made efforts to find employment and to refer them to a State-operated placement bureau to be sent out on job prospects. I do not find that the claim- ant's credibility regarding the main issue has been at all eroded. I find that she made the efforts to find employ- ment to which she testified and I find that those were reasonably diligent efforts to secure interim employment, and that she is therefore eligible to receive backpay. I note again that in this backpay proceeding, doubts are resolved in favor of the claimant and against the Re- spondents, and that the burden of showing failure to make reasonable efforts to find interim employment is on the Respondents. The claimant received a severance payment in the amount of $216. Accordingly, I have calculated her net backpay in the sum of $3672 as set forth in Appendix A. THE REMEDY The Respondents' obligations to the backpay claimants will be adequately discharged by their payment to the claimants of the respective amounts set forth in the at- tached Appendix A, which is based on the amounts set forth in the specification, as amended by the General Counsel and as modified by me in accordance with my findings. Interest, computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962), shall be payable on such amounts, commencing with the last day of each cal- endar quarter of the backpay period on the amount due and owing for such period, as set forth in Appendix A, and continuing until the date of payment thereof. There shall be deducted from such payments and taxes required to be withheld pursuant to Federal, state, and local laws. Appendix A sets forth the gross backpay, interim earn- ings, and severance pay, and net backpay for each claim- ant whom I have ascertained to be entitled to payment of backpay. No claimant who had interim earnings sub- mitted evidence respecting expenses incurred in connec- tion therewith, and therefore the earnings figures pre- sented represent net earnings. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 2 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 603 ORDER The Respondents, Continental Insurance Company, Division of Continental Corporation; Marriott Food Service, Inc., a Division of Marriott Corp.; and Inter- state United Corporation, and their officers, successors, and assigns, shall make whole the following named back- pay claimants involved in this proceeding by payment to them of the following amounts of net backpay set forth opposite their names together with interest to be comput- ed in the manner set forth in the remedy section of this decision, minus tax withholding as required by Federal, state, and local laws: Eric Allen Lewis Barbee Marie Bellisi Ermine Blades Angelo Bonomo Rupert Cayenne Phillip Deutsch Bertha DePalma Alice Fox Louise Fuller Gerald Furby Nicholas Graham Esther Gutnick Curtis Hailey Eddie Hall Celia Hassett Elaine Hickey Geoffrey Hill Jenny Irizarry Anna Jankunis Tina Lindsey Evelyn Major Bridget McNamara Betty McPherson Catherine Moran Sheila Nelson Cornelius Noonan Octavio Parra Blanca Schauer Elenora Sukovich Gregory Taylor Mary Towey Maria Unterreiner Leonora Vilabrera Simona Vilabrera George Whitehead $3,468.00 1,360.00 960.00 168.00 5,779.00 4,100.00 2,527.00 2,416.80 210.00 900.90 2,312.00 672.00 188.00 2,252.00 2,172.00 1,001.00 1,944.00 292.00 204.00 560.24 1,285.00 2,186.00 238.00 1,620.00 2,718.00 3,536.00 2,312.00 1,260.00 1,836.00 250.00 164.00 3,436.00 39.00 1,264.00 3,672.00 65.00 It having been determined that the backpay claimant, Octavio Parra, incurred liabilities for medical expenses that, as of July 5, 1983, amounted to $10,762.75, in an ill- ness covered by the Marriott Corporation Medical Bene- fits Plan (the Plan), and that the said amount is the net amount owing after payment of the sum of $1650 by the Plan and payment of the sum of $5,328.10 by a Medicaid allowance, it is further Ordered: (a) That the compliance officer ascertain whether any further deductions should be made from the aforesaid sum of $10,762.75 to comply with deductibles provided for in the Plan or to allow for coordination with pay- 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments that have been made by reason of coverage under any Federal or state medical insurance programs, and compute the net balance thereof that shall be promptly paid by the Respondents to the backpay claimant, Octa- vio Parra. (b) That the compliance officer ascertain the amount of any medical expenses incurred by Octavio Parra since July 5, 1983, which are covered by the Plan, and the amount of any deductibles or payments made pursuant to any other private or governmental insurance coverage, and compute the net balance thereof, which shall be promptly paid by the Respondents to the backpay claim- ant, Octavio Parra. (c) That the compliance officer retain oversight to de- termine what additional sums , if any, become owing to Parra from the Respondents as he continues his treat- ment, to ensure that coordination of benefits with gov- ernmental coverages is implemented and that payment to Parra of the net balances due is promptly made by the Respondents. The Regional Director for Region 2 is directed to place in escrow for a period of 1 year from the date of this Order the total amounts of backpay plus interest, without excluding tax withholdings required by Federal, state, and local laws, awarded Lewis Barbee, Ermine Blades, Betty McPherson, and George Whitehead and to make suitable arrangements for examination of these four claimants by the Respondents and the General Counsel respecting their interim earnings and efforts to procure interim employment during the backpay period. In the event the Respondents choose to conduct such examina- tion and any of the said former employees fail to submit to such examination or cannot be located within the escrow year, the amount of backpay placed in escrow for such employee shall be returned to Respondents. Re- garding those employees who appear and submit to ex- amination, the Regional Director shall make a final de- termination whether such employee had interim earnings or received any other moneys that are deductible from the backpay award of the claimant, such determination to be made in accordance with existing Board precedent. On such determination, the Regional Director shall make such deductions as are appropriate , return the amounts deducted to the Respondents, and pay the net backpay to the claimant. The Regional Director is further directed to report to the Board when these matters have been fully resolved but in no event later than 1 year from the date of the Board's Supplemental Order, the status of these cases at such time. Claimant Yr. & Qtr. Gross Backpay Severance Pay Net Interim Earnings Backpay Net Eric Allen 1981-1 $ 898.00 $204.00 None $ 694.00 1981-2 2,652.00 None 2,652.00 1981-3 122.00 None None 122.00 Total $3,468.00 Lewis Barbee 1981-1 $598.00 $136.00 Unknown $462.00 1982-2 898.00 - Unknown 898.00 Total $1,360.00 Mane Bellisi 1981-1 $ 810.00 $184.00 None $626.00 1981-2 2,392.00 - $2,076.00 316.00 1981-3 110.00 92.00 18.00 Total $960.00 Ermine Blades 1981-1 $ 364.00 $196.00 Unknown $ 168.00 Angelo Bonomo 1981-1 1,478.00 336.00 None 1,142.00 1981-2 4,637.00 - None 4,637.00 Total $5,779.00 Rupert Cayenne 1981-1 $1,056.00 $240.00 None $1,056.00 1981-2 3,120.00 - $88.00 3,032.00 1981-3 144.00 132.00 12.00 Total $4,100.00 Phillip Deutsch 1981- 1 $ 686.00 $156.00 None $ 530.00 1981-2 1,997.00 - None 1,997.00 Total $2,527.00 Bertha DePalma 1981-1 $ 627.00 $114.00 None $ 513.00 1981-2 1,852. 50 - None 1 ,852.50 CONTINENTAL INSURANCE CO. 605 Claimant Yr. & Qtr. Gross Backpay Severance Pay Net Interim Earnings Backpay Net 1981-3 85.50 - None 51.30 Total $2,416.80 Alice Fox 1981- 1 $324.00 $114.00 None $ 210.00 Louise Fuller 1981-1 210.60 117.00 None 93.60 1981-2 456.30 - None 456.30 1981-3 351.00 - None 351.00 Total $900.90 Gerald Furby 1981-1 $ 598.00 $136.00 None $ 462.00 1981-2 1,768.00 - None 1,768.00 1981-3 82.00 - None 82.00 Total $2,312.00 Nicholas Graham 1981-1 $704.00 $160.00 None $544.00 1981-2 128.00 - None 128.00 Total $672.00 Esther Gutnick 1981-1 $ 376.00 $188.00 None $ 188.00 Curtis Hailey 1981-1 686.00 156.00 None 530.00 1981-2 2,028.00 - $400.00 1,628.00 1981-3 94.00 - None 94.00 Total $2,252.00 Eddie Hall 1981-1 $ 766.00 $160.00 None $ 606.00 1981-2 1,566.00 - None 1,566.00 Total $2,172.00 Celia Hassett 1981-1 $234.00 $130.00 None $104.00 1981-2 507.00 - None 507.00 1981-3 390.00 - None 390.00 Total $1,001.00 Elaine Hickey 1981-1 $ 367.20 108.00 None $ 259.20 1981-2 1,404.00 - None 1,404.00 1981-3 280.80 - None 280.80 Total $1,944 Geoffrey Hill 1981-1 $438.00 $146.00 None $292.00 Jenny Irizarry 1981-1 408.00 204.00 None 204.00 Anna Jankunis 1981-1 475.00 108.00 None 367.00 1981-2 108.00 - None 108.00 ' 85.24 Total $560.24 Tina Lindsey 1981-1 $449.00 $102.00 None $347.00 1981-2 1,306.00 - $938.00 93800 Total $1,285 Evelyn Major 1981-1 $ 568.00 $13600 None $ 43200 1981-2 1,677.00 - None 1,677 00 1981-3 77.00 - None 77.00 Total $2,186 Bridget McNamara 1981- 1 $ 346.00 $108.00 None $ 23800 Betty McPherson 1981-1 475.00 108.00 Unknown 367.00 1981-2 1,253.00 - Unknown 1,253 00 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Claimant & Qtr Yr Gross Backpay Severance Pay Net Interim Backpay Net . . Earnings Total $1,620.00 Catherine Moran 1981-1 $ 567.60 $120.00 None $ 447.60 1981-2 1,496.40 - None 1,496.40 1981-3 774.00 - None 774.00 Total $2,718.00 Sheila Nelson 1981-1 $ 915.00 $208.00 None $ 707.00 1981-2 2,704.00 - None 2,704.00 1981-3 125.00 - None 125.00 Total 3,536.00 Cornelius Noonan 1981-1 $ 598.00 $136.00 None $ 462.00 1981-2 1,768.00 - None 1,768.00 1981-3 82.00 - None 82.00 Total $2,312.00 Octavio Parra 1981-1 $792.00 $180.00 None $612.00 1981-2 648.00 - None 648.00 Sub Total $ 1,260.00 Medical Expenses 10,762.75 Total $12,022.75 Blanca Schauer 1981-1 $ 475.00 $108.00 None $ 367.00 1981-2 1,404.00 - None 1,404.00 1981-3 65.00 - None 65.00 Total $1,836.00 Elenora Sukovich 1981-1 $ 375.00 $125.00 None $ 250.00 Gregory Taylor 1981-1 328.00 164.00 None 164.00 Mary Towey 1981-1 957.00 261.00 None 696.00 1981-2 2,740.00 - None 2,740.00 Total $3,436 Maria Unterriner 1981-1 $233.00 $194.00 None $ 39.00 Leonora Vilabrera 1981-1 695.00 158.00 None 537.00 1981-2 727.00 - None 727.00 Total $1,264.00 Simona Vilabrera 1981-1 $ 950.00 $216.00 None $ 734.00 1981-2 2,808.00 - None 2,808.00 1981-3 13000 - None 130.00 Total $3,672.00 George Whitehead 1981-1 $ 59800 $136.00 $ 577.00 1981-2 1,768.00 - 1,706.00 $62.00 1981-3 82.00 - 79.00 3.00 Total $65.00 1 Health insurance APPENDIX B Hospital Room and Board: Plan Benefits pay up to confinements continuing beyond a 60 day period the semi-private room rate for up to 60 days for may be covered by Major Medical Benefits. each necessary hospital confinement. Necessary CONTINENTAL INSURANCE CO. If a participant is in a private room or in the in- tensive or coronary care unit of a hospital, the Plan will pay a daily rate equal to the hospital's average room and board charge for a semi-private room. If confined in an intensive or coronary care unit, or in a private room because of contagious disease, the difference between the average semi-private room rate and the charge for the private room will be covered by Major Medical Benefits. If a participant re-enters the hospital for treat- ment of the same or related condition within 90 days following the initial discharge, it will be con- sidered the same continuous period of confinement. Otherwise, readmission will be treated as a new confinement. Other Hospital and Anesthesia Expenses: For any one hospital confinement period. Basic Plan Benefits cover up to the first $500 in expenses for the fol- lowing: 1. operating room, recovery room, surgical sup- plies, anesthesia supplies, drugs, dressings, oxygen, and antibiotics: 2. diagnostic tests, radiology services, and physi- cal therapy: 3. anesthesiologist's services: and In most cases, after payment of the yearly de- ductible, Major Medical Benefits pay 80% of the next $5000 and 100% of almost all other covered expenses incurred during each Plan Year. The Plan year is the same as the Company's fiscal year, which ends on the Friday closest to December 31. The yearly deductible is the first $100 for cov- ered medical expenses not included in Basic Plan Benefits. While it applies separately to each covered family member, the maximum deductible a family must pay is $200. With Major Medical Plan Benefits on top of Basic Plan Benefits, the most you would have to pay for any one member of your family each year is $1,100 of covered medical expenses (the $100 deductible, plus 20% of the next $5000). Major Medical Bene- fits provide up to $1,000,000 in coverage for each participant. Major Medical Benefits for psychiatric care, however, are limited to a lifetime maximum of $5000 per person. What expenses are covered by Major Medical Plan Ben- efits? Major Medical Plan Benefits provide coverage for the reasonable and customary charges for the following services, supplies and treatment when rec- ommended as medically necessary by a doctor for the care and treatment of a covered illness or injury. (Covered Major Medical expenses do not in- clude charges eligible for or reimbursed by Basic Plan Benefits.) 607 Hospital Expenses: 1. Hospital room and board expenses , including any excess in the daily room rate for coronary or intensive care units over the average semi-private room rate. Additional charges for a private room are not covered unless required by health regula- tions due to contagious disease. 2. Other hospital and anesthesia expenses over $500 per confinement. (Covered services, supplies and treatment are described under "Other Hospital and Anesthesia Expenses.") 3. Services, supplies, and treatment rendered by a hospital's outpatient facilities or an ambulatory sur- gical center. Professional Expenses: 1. Diagnosis, treatment, and surgery by a doctor in connection with a covered illness or injury. This includes oral surgery performed by a Doctor of Dental Surgery, which (1) results from an acciden- tal injury occurring after the patient's effective date of participation in the Plan or (2) is due to a non- dental impairment requiring hospitalization for dentalsurgery. 6. Private duty nursing services directed by the attending physician. Other Covered Expenses: 2. Prescription medication: 4. Medical laboratory tests ordered by a doctor. 5. Oxygen, including the rental of equipment for administration: The Plan has a "coordination of benefits" provi- sion designed to reduce Plan costs to you and the Company by preventing the duplication of benefits payments. The term "other plan or plans" includes (1) Parts A and B of the Federal Medicare program: If charges are subject to deductibles under the Medical Benefits Plan, the deductibles must be paid before Plan benefits are payable. The coordination of benefits provision applies separately to each type of service and date of treatment. If more than one plan covers a particular charge, responsibility for payment will be assigned in the following order: If the other plan or plans either (1) do not have a coordination of benefits provisions, or (2) is the Federal Medicare program . . . its benefits will be applied to the charges first before payments can be made from the Medical Benefits Plan. . .