Piezo Manufacturing Corp.

National Labor Relations Board - Board DecisionsSep 14, 1962

138 N.L.R.B. 568 (N.L.R.B. 1962)

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the reasons stated in our dissenting opinions in Quaker City -Life Insurance Company, 134 NLRB 960, Metropolitan Life Insur- ,ance Company, 138 NLRB 512, and Equitable Life Insurance Com- pany, 138 NLRB 529, we would find the unit sought inappropriate, and dismiss the petition. Piezo Manufacturing Corp. and District #15, International Association of Machinists. Case No. 2-CA-6367. September 14, 1962 SUPPLEMENTAL DECISION AND ORDER On December 10, 1959, the Board issued a Decision and Order in the above-entitled case,' finding, inter alia, that the Respondent had laid off certain employees in violation of Section 8(a) (1) of the Act, and ordering it to make them whole for any loss of pay suffered by reason of its discrimination against them. The Board's Order was enforced by the United States Court of Appeals for the Second Cir- cuit on May 8,1961.2 On September 29, 1961, the Regional Director for the Second Region issued a backpay specification, and, on October 24, 1961, the Respondent filed an answer thereto. Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner Paul Bisgyer for the purpose of determining the amounts of backpay due the claimants. On May 7,1962, the Trial Examiner issued his Supplemental Inter- mediate Report, attached hereto, in which he found that the claimants were entitled to specific amounts of backpay. Thereafter, the General Counsel filed exceptions to the Supplemental Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Supplemental Intermediate Report, and the exceptions and brief, and hereby adopts the findings,' con- clusions, and recommendations of the Trial Examiner. 1125 NLRB 686. N L.R B. v. Piezo Manufacturing Corporation , 290 F. 2d 455. s In its brief , the General Counsel argues, in effect , that the Trial Examiner erred in considering the Respondent 's decline in business in determining the amounts of backpay due the claimants More specifically , the General Counsel contends that Respondent's loss of large Government contracts after January 23, 1050, "as a result of being removed from an approved Government contractor list," was caused by the discrimination against 138 NLRB No. 69. PIEZO MANUFACTURING CORP. ORDER 569 On the basis of the foregoing Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Piezo Manufacturing Corp., its officers, agents, successors, and assigns, shall pay the employees involved in this pro- ceeding as net backpay the following amounts: Frank Larson_____________________________________ $247.60 John J. Serpico___________________________________ 922.40 The Estate of Vincent Reierson, deceased 4__________ 1, 416.96 Frank Wetmore___________________________________ 1,163.71 Neil J. Hayes_____________________________________ 753.00 William A. Willock________________________________ 827.67 Raymond C. Loony________________________________ 1,016.08 Jacob DuBarry____________________________________ 62.80 Frank DeMarco___________________________________ 152.00 the claimants and therefore should not be considered in determining the claimants' back- pay. However, we cannot find, on the basis of the record before us, that the Respondent was in fact removed from an approved contractor list because of its discrimination against the claimants . For this reason , apart from the considerations mentioned by the Trial Examiner, we find no merit in the General Counsel's position As the record indicates that Vincent Relerson died on December 4, 1959, the amount due him will be paid to his estate. SUPPLEMENTAL INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was instituted by the Regional Director for the Second Region for the purpose of determining the amount of backpay, if any, due certain employees whom the National Labor Relations Board previously found were unlawfully laid off in violation of Section 8(a) (1) of the National Labor Relations Act.' The Board's Order, which included other remedial provisions, was enforced in full by decree of the United States Court of Appeals for the Second Circuit.2 Pursuant to appropriate notice, a hearing was held in New York City, New York, from Decem- ber 11 through 15, 1961, inclusive, before Trial Examiner Paul Bisgyer. The General Counsel and the Respondent, Piezo Manufacturing Corp., were represented by their attorneys and were given full opportunity to examine and cross-examine witnesses and to introduce evidence pertinent to the issues. At the close of the hear- ing, the parties argued their positions orally. Thereafter, briefs were filed. Upon consideration of the pleadings, the briefs, and the entire record in this case,3 and from my observation of the only witness in this backpay proceeding, I make the findings and conclusions noted below. 1. Board's Decision and Order ; the court 's enforcement decree ; pleadings On December 10, 1959 , the Board , adopting in toto the findings , conclusions, and recommendations of Trial Examiner William F . Scharnikow , found that the Re- spondent , among other things, violated Section 8 ( a)(1) of the Act by laying off on January 23, 1959, 9 of its 25 production and maintenance employees , viz, Frank Larson, John J. Serpico , Vincent Reierson , Frank Wetmore, Neil P . Hayes, William A. Willock, Raymond C . Loony, Jacob DuBarry , and Frank DeMarco, in order to discourage and defeat the employees ' attempt to organize and bargain collectively through the Charging Union4 In reaching this conclusion the Board rejected the 1125 NLRB 686 N.L R B. v Piezo Manufacturing Corporation , 290 F 2d 455 1 This includes the record in the original unfair labor practice proceeding which the parties agreed is before me in the instant proceeding. * The Board found it unnecessary to determine whether this conduct was also violative of Section 8(a)(3) of the Act since the appropriate remedy of reinstatement with back- pay for the Section 8(a) (1) violation was the same. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent 's economic defense that the layoff was dictated by a decline in business and that the laid-off employees were the least qualified employees in the shop, point- edly observing (125 NLRB at 696) : . That Ligh [the Respondent's vice president] should have spent only 2 hours estimating his manpower needs for the next 6 months, determining which of his employees he could best lay off, and deciding, solely upon these economic considerations, that almost a third of his staff should immediately be laid off, is incredible. Even if it be assumed that the Respondent's business had fallen off to the extent that Ligh testified it had, there was obviously no need for the ex- treme haste with which Ligh acted in making such a drastic cut in his staff. To remedy these unfair labor practices, the Board directed the Respondent to rein- state the unlawfully laid-off employees, except DuBarry and DeMarco who had previously been recalled on February 2 and 8, 1959, respectively, and to make all of them whole, including the latter two employees, for any loss of pay suffered by reason of the Respondent's unlawful conduct (125 NLRB at 688). On May 8, 1961, the Court of Appeals for the Second Circuit enforced the Board's Order, finding that the Board was justified in rejecting the Respondent's contention that the layoffs were economically motivated (290 F. 2d at 456). Because of the inability of the parties through informal negotiations to agree upon the amount of backpay due the laid-off employees under the Board's Order and court decree, the Regional Director on September 29, 1961, pursuant to the Board's Rules and Regulations issued a backpay specification, analyzing the sums of money owed to the claimant-employees. The specification sets forth in detail for each claimant the backpay periods broken down by calendar quarters, the specific figures and basis for computation as to gross backpay, interim earnings , and the net backpay due. In particular, it fixes the backpay periods for DuBarry and DeMarco as January 23, 1959, the date of the unlawful layoff, to February 2 and 8, 1959, the respective dates when they were recalled, and computes the amount of backpay owing on the basis of the normal 40-hour week at their regular rate of pay. For the other claimants the specification alleges the backpay period as beginning January 23, 1959, and, except for Hayes, as terminating on October 31, 1959, when the Respondent went out of business. As Hayes was reemployed by the Respondent on July 11, 1959, the specification fixes that date as the terminal date for his backpay. With respect to the determination of gross backpay due these seven claimants, the specifica- tion alleges that the appropriate measure is the average number of hours each worked per week , including overtime , during the corresponding quarter in 1958 ,5 computed at the rate of pay he received just prior to his layoff. In its amended answer , as clarified at the hearing , the Respondent does not question the accuracy of the figures used in the specification , or the statement of interim earn- ings but affirmatively alleges that the proposed measure of gross backpay based on earnings in 1958 is inappropriate because no work was available for the backpay claimants on and after January 23, 1959, the date of their layoff, and hence they suffered no loss of earnings. 2. Alleged unavailability of work as a defense It is axiomatic that a backpay order is a reparation order designed to vindicate the public policy of the Act by making injured employees whole for losses resulting from an unfair labor practice.6 Accordingly, it has been the Board's uniform policy in determining the amount of backpay due such employees to take into account a decline in the employer's business and the possibility that these employees might have been laid off in a subsequent nondiscriminatory reduction in force and therefore not to award them backpay they would not have earned during such periods.7 Were it otherwise, the Board's action would manifestly be punitive rather than remedial and beyond its power to take. The General Counsel urges, however, that the defense of lack of work is not available to the Respondent under the circumstances of this case for the reason that 6In the case of Willock, who was not employed by the Respondent during the first quarter of 1958, the specification alleges an appropriate measure of earnings during the first quarter of 1959 to be 40 hours , which represents both the normal workweek and the number of hours worked per week by Loony, the employee whose hours most closely approximate those worked by Willock during the remaining three quarters of 1958. 6 Phelps Dodge Corp. v. N L R B , 313 U S. 177, 197. 'Id at 198; Benton and Company , Inc, 131 NLRB 965, 966; Jack G . Buncher d/b/a The Buncher Company, 131 NLRB 1444, 1445. PIEZO MANUFACTURING CORP. 571 whatever loss of business it experienced was caused by its own unfair labor practices. In support of his position, the General Counsel relies on the testimony of David R. Ligh, the Respondent's vice president, that a few days after the January 23 layoff a Navy production control officer advised him that the Respondent was no longer on the list of approved Government contractors because it was involved in a labor dispute (apparently resulting from its unfair labor practices) and that it therefore discontinued bidding for "large" Government contracts which comprised approxi- mately 85 percent of its business. Consequently, the General Counsel reasons, the Respondent's asserted unavailability of work subsequent to the layoff would be at- tributable to its own unremedied unfair labor practices. Although this argument has surface appeal, I find it without merit. There is no question that the decision to disqualify the Respondent from receiving Government contracts was not made by the Respondent. Presumably, it was the application of Government policy that deprived the Respondent of the status of an approved contractor. Secondly, even assuming that the Respondent had remained an approved contractor and bid for Government work, it is highly speculative whether the Respondent would have been awarded any contracts. Finally, there is no evi- dence, nor is it even contended, that the Respondent willfully curtailed its operations by rejecting Government work as a part of a deliberate plan to defeat the employees' desire for representation. Indeed, in this latter respect, the Monroe Feed case,8 relied upon by the General Counsel, is plainly inapplicable to the facts of the present case. There the Board found such a "deliberate design" and refused to abate backpay for lack of work on that account. In view of the foregoing, I find, contrary to the General Counsel, that whatever loss of earnings the laid-off employees sustained by reasons of the Respondent's loss of Government contracts, it is too remote and speculative to justify imposing such liability on the Respondent. The Respondent, on the other hand, resists awarding any backpay to the claimants on the ground that at the time of their layoff and thereafter, its business was in continuous decline, necessitating the layoff of the nine claimants whom the Board found in the original unfair labor practice proceeding were not selected because of their union membership.9 However, apart from the fact, as I find below, that the Respondent has not borne its burden of proving that work was unavailable at these times for the claimants the fatal weakness of the Respondent's argument is that it ignores the Board's and court's determination that the layoffs were motivated by antiunion, and not legitimate economic, considerations and that, even if the latter considerations did exist, these individuals would have nevertheless continued their employment were it not for the Respondent's determination to get rid of the Union. For this reason alone, the Respondent is precluded from questioning the laid-off employees' right to be reimbursed for loss of earnings, which the Board and the court found was necessary to effectuate the policies of the Act.'() The Respondent's re- liance on the Board's holding in the Robinson Freight Lines " is clearly misplaced. There, unlike here, the Board held that economic strikers, who were discriminatorily denied reinstatement on their unconditional application, were not entitled to have their backpay computed-from the date of application because at that time no work was available for them. In the present case, the Board and the court have already determined that the backpay claimants would have continued to work were it not 8 Monroe Feed Store, 122 NLRB 1479. 1483-1484. O Although in the original unfair labor practice proceeding the Board found that there was no evidence that Ligh was aware that these individuals had joined the Union (125 NLRB at 697 ), it nevertheless reached the conclusion which the court expressly ap- proved ( 290 F. 2d at 456), that the layoffs were motviated by a desire to discourage membership in the Union in violation of Section 8(a) (1) of the Act. In addition, it is noted that Hayes and Reierson were not even initially included in the group of laid-off employees but that they had invited their own layoff when they joined the others in pro- testing the Respondent 's action. 10 Contrary to the General Counsel's contention, I find that the Respondent is not fore- closed under the doctrine of res judicata, from proving that at some date subsequent to the unlawful layoff but before May 28, 1959, the date when the initial unfair labor prac- tice hearing closed, work was unavailable for the employees in question and that they would have been laid off for that reason. Although the Respondent produced evidence of its business condition in that proceeding, the Board made no determination that, absent discrimination, the laid-off employees would have continued working until the close of the hearing . For this reason , the present case is distinguishable from Monroe Feed Store, supra, at 1484, cited by the General Counsel. "Jack C. Robinson, d/b/a Robinson Freight Lines, 129 NLRB 1040, 1041-1042 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Respondent's unfair labor practices. However, this does not dispose of the critical and perplexing question-obviously a matter of hindsight-of when before the Respondent's termination of its operations on October 31, 1959, it would have laid off the claimants for the legitimate reason of lack of work. 3. Measure of gross backpay It is well settled that, in making backpay determinations, the Board is vested with broad discretion which must not be exercised in an arbitrary, unfair, or unreasonable manner, without regard to the policies of the Act.12 It is not necessary, however, that the formula devised by the Board achieve mathematical precision. Once the fact of damage is shown, "[c]ertainty as to the amount goes no further than to require a basis for a reasoned conclusion." 13 Accordingly, with due regard for the facts of each case, the Board, as the Supreme Court has recognized, "has not used stereotyped formulas but has availed itself of the freedom given it by Congress to attain just results in diverse, complicated situations." 14 That the situation here presented is complicated cannot be denied. In fact, in its brief the Respondent characterizes this problem as a "dilemma." Yet, it is a dilemma in which it has placed itself but which may not be used as a vehicle for escaping from its obligation to indemnify the claimants for loss of earnings sustained as a result of its wrongful conduct. The General Counsel, on the other hand, would resolve this dilemma by adopting a gross backpay formula based on the claimants' prior years' earnings, including overtime. This appears to me to be unrealistic in failing to take account of the declining and unprofitable nature of the Respondent's business,15 and the possibility that sufficient work might not have been available for the claimants at some date during the backpay period which might have resulted in their legitimate layoff. As indicated previously, the extent of the claimants' loss of earnings depends upon a determination in hindsight of the time when work was no longer available for them and they would have been laid off for this reason. Since knowledge of these material facts is peculiarly within the Respondent's possession and it is obviously in a better position to know when in the regular course of its business it would have laid off the claimants for a nondiscriminatory reason, it is only fair, and it has so been held,15 that the burden of proving as an affirmative defense, or at least of going forward with adequate evidence of these facts, rests upon the Respondent wrongdoer. Recognizing this burden, the Respondent urges alternatively that had it retained the claimants in its employ on January 23, 1959, it would have laid them off for lack of work a few days later when it was informed by a Navy production control officer that it was no longer on the list of approved Government contractors because it was involved in a labor dispute. In any event, it further asserts, the claimants would have been laid off in early March when it first became aware that it could not produce water-tight doors under a subcontract arrangement with Continental 13 Phelps Dodge Corp. v. N L R.B., 313 U S. 177, 197; Nathanson v N.L R.B., 344 U.S. 25, 99 ; N.L R B. v. Ozark Hardwood Company, 282 F. 2d 1, 7 (C.A. 8) ; N.L.R.B. V. East Texas Steel Castings Company, Inc., 255 F. 2d 284 (C.A. 5) ; N L R.B. v. Kartarik, Inc, 227 F. 2d 190, 192-193 (C.A. 8). 13 Palmer v. Connecticut By & Lighting Co., 311 U S. 544, 561, cited in N.L R B v. Kartarik, Inc., supra, at p. 193; W. C. Nabors d/b/a W. C. Nabors Company, 134 NLRB 1078. U Phelps Dodge Corp. v. N.L.R.B., supra , at 198. 15 The record shows that for the fiscal year ending October 31, 1957, the Respondent's taxable gross income was $403,735 37 and its taxable income was $1,725 78; for fiscal year ending October 31, 1958, the gross income was $275,489 48, resulting in a loss of $15,190.68; and for the fiscal year ending October 31, 1959, when the plant was closed, the gross income was $142,896.84, resulting in a loss of $17,285 17. The latter figure is taken from the Respondent's brief which called attention to the typographical error in the official transcript of testimony. The General Counsel has not questioned this asserted error . In addition to the foregoing, the Respondent has no prospect of acquiring Govern- ment contracts constituting approximately 85 percent of its business in 1958, which is later discussed. 16 Mastro Plastics Corp. and French-American Reeds Manufacturing Co., Inc , 136 NLRB 1340; N.L.R.B. v. Cambria Clay Products Company, 215 F. 2d 48, 56 (CA. 6) ; see also N.L.R B. v. Reed & Prince Manufacturing Company, 130 F. 2d 765, 768 (C.A. 1). PIEZO MANUFACTURING CORP. 573 Equipment Company at a competitive price. It appears that in November or December 1958, the Respondent installed in its plant a large machine to manufacture such doors, which, after several test runs, became operative the following January. It is clear that the January date of asserted legitimate layoff is purely hypothetical. Had the Respondent not discriminatorily laid off the claimants, obviously there would have been neither a labor dispute nor the occasion for the removal of its name from the approved list of Government contractors. Moreover, I am not con- vinced that the Respondent experienced a change of heart to prevent the Union from organizing its employees so soon after its unfair labor practices.17 In addi- tion, the record does not establish that work was unavailable for the claimants at that time in the face of overtime being performed by the retained employees. Sim- ilarly, the Respondent has not shown that there was insufficient work on hand to warrant the claimants' layoff in March of 1959.18 It is not enough to justify de- priving the claimants of their remedial rights for the Respondent to assert that on the hypothetical dates there was a scarcity of work which the claimants were capable of performing which would have resulted in their nondiscriminatory layoff, without corroboration by other evidence.19 In these circumstances, I reject the Respondent's proposed dates when, absent discrimination, the claimants would have been laid off. Except as indicated above, the Respondent does not challenge the General Coun- sel's proposal that the backpay due DuBarry and DeMarco be computed on the basis of a 40-hour week at their prelayoff rate of pay until the dates of their rehire on February 2 and 8, respectively. I find this method of computation reasonable and appropriate. As for the other claimants, I have previously found that neither the General Counsel's nor the Respondent's proposals adequate to effectuate the make-whole provisions of the Board's Order and court decree. After carefully considering the evidence in this and the original unfair labor practice proceedings, particularly the testimony and the summaries and analyses of the amount and nature of the work in the plant during the 40-week period from the date of discrimination to the date of the termination of plant operations, and the number of regular and overtime hours actually worked in the various departments during this period, I find that a reasonable and equitable formula for computing backpay is one based on a 40-hour week at a rate of pay each claimant earned just before his layoff. It appears to me to be only fair, under the circumstances of this case, to assume that, absent discrimination, the Respondent would have retained his entire staff and would have conducted its business in this manner until it completed its contracts. I further find, on the state of the record before me, that the Respondent had sufficient work available for both the laid-off and retained employees for at least the period ending the second quarter. In arriving at this conclusion , I have evaluated the Respondent's payroll records which show that in the small machine shop where claimants Serpico, Wetmore, Willock, and Loony worked before their layoff, the Respondent retained five employees and DuBarry,20 all of whom worked a total of 9,0681/4 regular and overtime hours during this 40-week period. In particular, these employees worked "It is noted that in the unfair labor practice proceeding the Board found that Hayes and Reierson were not even included in the original group of laid-off employees and that they invited their layoff when they protested the Respondent 's action. 18 See Trial Examiner Scharnikow 's analysis of the evidence produced by the Respond- ent in the unfair labor practice proceeding which the Board, in effect , adopted (125 NLRB at pp. 695-696 ). Although the Respondent there broke down the estimated man- hours required in each department to complete certain contracts on hand on January 23, 1959 , it did not furnish similar detailed information respecting the work on hand on the dates it hypothetically would have lawfully laid off the claimants or at any other times. Moreover , the evidence shows that overtime was being worked at these times by the retained employees. 16 Cf N L R B. v. Reed & Prince Manufacturing Company, 130 F. 2d 765, 768 (C.A. 1). 20 I include in this group of retained employees DuBarry , who was recalled shortly after his layoff. Vice President Ligh testified that DuBarry worked about 2 or 3 weeks in the large machine shop when he was recalled but that his time was charged to the small machine shop . Because of the irregular and inconsequential nature of their employment, I have excluded from this group the following employees whose names also appear on the Respondent 's payroll records for the small machine shop : Melvor , who worked 120 hours in the third quarter and 46 hours in the fourth quarter ; Nelson , who worked 3 hours in the second quarter; and Dowling, who worked 373f hours in the second quarter and 4 In the third quarter. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1,872 hours in the first quarter, 3,3593/4 in the second quarter, 2,6421/4 in the third ,quarter, and 1,1941/4 in the fourth quarter. As indicated previously, the Respondent did not produce any documentary evidence of the amount of work on hand for this department at any time except January 23, 1959, the date of the discrimination, which would disclose that any substantial amount of work performed in the third or fourth quarter could not have been performed before those periods if the claim- ants had not been unlawfully laid off. Indeed, the contrary appears. Thus, be- ginning with the third quarter until the Respondent ceased operations on October 31, 1959, the Respondent received only $17,182.99 in new orders21 Vice President Ligh testified that when the plant closed down the Respondent had on hand approxi- mately $11,500 in orders, of which about $9,800 were not ready for production because of design changes or other reasons beyond his control. The balance that was ready for production, according to his testimony, required about 120 man- hours' work in the small machine shop, which was performed by other companies. In sum, by dividing the total of 9,068 hours worked in the small machine shop during the 40-week period between the discrimination and the plant closure among both the retained and the laid-off employees, I find that, absent discrimination, Serpico, Wetmore, Willock, and Loony would in all probability have worked roughly 23 40-hour weeks before being terminated. This closely approximates the 22.4 weeks in the first and second quarters. Turning to claimant Larson, a concededly capable and skilled welder, he was employed in the welding and fabrication department before his layoff. At the latter time the Respondent retained two welders in its employ and recalled DeMarco 2 weeks later. The payroll records show that during the 40 weeks the plant was in operation after the discrimination, the retained employees and DeMarco worked a total of 4,8201/4 in regular and overtime hours as follows: 1,0823/4 in the first quarter, 1,6861/4 in the second quarter, 1,4271/2 in the third quarter, and 6233/4 in the fourth quarter. Apportioning the total number of manhours among Larson, DeMarco, and the two retained employees'22 it is clear that Larson would have worked about 30 weeks on a 40-hour weekly basis23 As for Hayes and Reierson, it must be remembered that they were not even included in the original group of laid-off employees. Although they were placed in an unclassified category for payroll purposes, Hayes performed general labor jobs and some assembly work, while Reierson performed principally shipping, packing, and receiving duties. In addition, Reierson had the longest tenure in the plant since about 1945, and enjoyed access to corporate records.24 It is also conceded that before Hayes' layoff, the Respondent planned on giving him other functions to perform. At the time of the layoff, the Respondent retained only one employee in the unclassified category who together with Hayes, who was recalled July 11, 1959, worked a total of 2,3033/4 in regular and overtime hours. Broken down, this num- ber includes 3521/4 in the first quarter; 4801/4 in the second quarter; 1,039 in the third quarter; and 4321 in the fourth quarter.25 It is also reasonable to infer that Y1 Broken down in monthly periods, these orders were in the following amounts: July, $12 , 543.03; August , $1,562 . 12; September , $1,567 . 28; October $ 1,510 56. See also the analysis of Trial Examiner Scharnikow of the Respondent 's exhibit in the original unfair labor practice proceeding entitled "Current Work -In-Progress Status as of May 22, 1959" (125 NLRB at p. 695). 12 I have excluded from this group Castillano who worked only 41,E hours during the first quarter. 2 It is of no moment that Larson 's period of probable employment would have extended beyond the second quarter as no backpay is requested for any quarter other than the first one. Under the General Counsel's formula , Larson's interim earnings exceeded the amount of gross backpay for the other quarters. 24 Reierson was also regarded by Vice President Ligh as a prospective member of his family. 25 This includes 8 hours worked by an individual in the second quarter . It is also noted that certain shipping, maintenance , and other work, much of which some of the claimants were capable of performing , was performed by individuals not on the Respondent 's regu- lar unclassified payroll . Thus, the record reveals that after the layoff, Robinson and PIEZO MANUFACTURING CORP. 575 more work would have been available for the retained and laid-off unclassified employees, if the Respondent had operated with a full production complement, as discussed above. In these circumstances, I find that Hayes and Reierson, like the other claimants, would have been employed on a 40-hour week for at least the first two quarters.26 5. Computation of backpay On the basis of the foregoing, I find that the claimants should be made whole for loss earnings, as set forth below: Weekly rate (com- Number Gross Interim Net Name puted on of weeks backpay earnings backpay a 40-hour basis) Frank Larson----------------------------- $76 00 9 4 $714 40 $466 80 $247 60 John J. Serpico---------------------------- 66 00 22 4 1,478 40 •556 00 922 40 Vincent Reierson-------------------------- 70 40 22 4 1,576 96 "160 00 1,416 96 Frank Wetmore--------------------------- 70 40 22 4 1,576 96 °413 25 1,163 71 Nell J Hayes----------------------------- 70 00 1 i 9 4 658 CO 142 50 515 50 2 13 910 00 672 50 237 50 Total due Hayes-------------------- ------------ ------------ ------------ ------------ 753 00 William A Willock----------------------- 70 00 1 i9 4 658 00 229 26 428 74 2 13 910 00 511 07 398 93 Total due Willock------------------- ------------ ------------- ------------ ------------ 827 67 Raymond C Loony----------------------- 59 20 r 9 4 556 48 9 CO 547 48 l 2 13 769 00 301 00 468 60 Total due Loony-------------------- ------------ ------------ ------------ ------------ 1,016 08 Jacob DuBarry---------------------------- 62 80 1 62 80 0 62 80 Frank DeMarco--------------------------- 76 00 2 152 00 0 152 00 'Represents interim earnings in the second quarter. There were no such earnings in the first quarter. I First quarter. 2 Second quarter. [Recommendations omitted from publication.] Jones spent about 3 days doing some shipping work, making boxes, and packing water- tight doors. In addition, for an unspecified time they built a storage platform. Sebastlano devoted about 101 hours over a period from July to October 31, 1959, also constructing a storage platform Yotl'redo worked approximately 106 hours painting a crane and truck from June to September 26, 1959. Barco spent about 233 hours doing maintenance work and preparing the plant for shutdown. Finally, Ligh and others performed shipping and receiving duties, estimated by Ligh of about an hour a day, previously performed by Reierson. 201 find that the Respondent 's proposals for determining gross backpay either by dis- tributing the overtime worked in the various departments among the claimants who were last employed there, or by apportioning the work performed in the various departments on a quarterly basis among the retained employees and the claimants previously working there are clearly inequitable and inadequate to compensate the claimants for the earnings they were deprived of by the Respondent 's unfair labor practices.