Webco Industries

National Labor Relations Board - Board Decisions

Aug 28, 2003

340 N.L.R.B. 10 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10
Webco Industries, Inc. and United Steelworkers of
America, AFL–CIO. Cases 17–CA–19047 and
17–CA–19120
August 28, 2003
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On December 28, 2001, Administrative Law Judge
Albert A. Metz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Supplemental Decision
and Order.
In an earlier proceeding, the Board found that the Re-
spondent committed numerous unfair labor practices,
including discharging Charles Thornton in retaliation for
his union activities.1 The Board ordered the Respondent
to offer to reinstate Thornton and to make him whole for
any loss of earnings and benefits suffered as a result of
the unlawful discrimination. The United States Court of
Appeals for the Tenth Circuit enforced the Board’s deci-
sion.2 The Respondent reinstated Thornton on Septem-
ber 25, 2000. This proceeding concerns the amount of
make-whole relief that Thornton should recover.
The Regional Director issued a compliance specifica-
tion setting forth the length of the period for which back-
pay was claimed, the estimated amounts that Thornton
would have received from the Respondent in wages,
safety and attendance bonuses, profit sharing, and contri-
butions to a 401(k) plan, and his interim earnings3 and

1 Webco Industries, 327 NLRB 172 (1998).
2 217 F.3d 1306 (2000).
3 The Respondent complains it was not able to verify the amount of
Thornton’s interim earnings set out in the compliance specification
because it did not receive the following documents from the Region:
quarterly earnings reports from Thornton to the Region for the third
quarter of 1999 and the first three quarters of 2000, Thornton’s W-2
form for 2000, and Thornton’s tax returns. The record indicates the
Region did not have the quarterly reports or W-2 form. Nevertheless,
we find the Respondent had sufficient information and opportunity to
verify the interim earnings claimed. The Region provided the Respon-
dent with all the quarterly earnings reports and, apparently, W-2 forms
Thornton provided to the Region. The Respondent also received
Thornton’s tax returns as well as the compliance officer’s notes detail-
ing the information on which he relied in computing the amounts set
forth in the compliance specification. Finally, both Thornton and the
compliance officer testified and were available for examination by
Respondent’s counsel.
expenses.4 The specification also asserted that, if Thorn-
ton was pushed into a higher tax bracket as a result of
receiving his backpay in a lump sum, the Respondent
should be required to reimburse him for the added tax
burden. The judge approved all of the claims in the
specification, as modified to account for $72 in interim
earnings that were not included. We agree with the
judge’s findings,5 with two exceptions.

Relying on the quarterly reports it did receive, the Respondent con-
tends that the compliance specification understates Thornton’s interim
earnings for four quarters of the backpay period, particularly so for the
second quarter of 1998, where the amount of interim earnings listed in
Thornton’s report to the Region was more than twice the amount listed
in the specification for that period ($5184.04). The judge rejected this
argument, citing the compliance officer’s testimony that backpay claim-
ants often mistakenly report year-to-date rather than quarterly earnings
when filling out earning reports. From our review of Thornton’s reports
for the first three quarters of 1998, it seems clear that is exactly what
happened here. Thornton worked in the same job for the same interim
employer in each quarter. The amount reported by him for the second
quarter ($11,285) is out of all proportion to the amounts reported for the
other two quarters ($6188.03 and $7753.89). However, if the amount
reported for the first quarter is subtracted from the amount reported for
the second quarter, the remainder of $5097 is much more in line with the
reported earnings of the other quarters. With respect to other quarters
where there are discrepancies between Thornton’s reports and the com-
pliance specification, it appears from the compliance officer’s notes,
which the Respondent introduced into the record as its own exhibit, that
these slight discrepancies are explained by the fact that the interim earn-
ings admitted in the specification are based on a review of actual check
stubs instead of Thornton’s summary reports.
4 We agree with the judge that the General Counsel established
Thornton’s interim expenditures on work clothes and gloves through
Thornton’s credited testimony. Contrary to Member Schaumber’s
contention, we are not engaging in speculation here. We are adopting
the judge’s factual finding, which he based on Thornton’s persuasive
demeanor on the witness stand, that Thornton incurred the claimed
expenses as he testified and that those expenses were reasonable. We
reject our colleague’s suggestion that such testimony should be found
to be unworthy of belief, absent corroborating documentation—a view
that is contrary to Board law. As our colleague concedes, Board prece-
dent does not require the General Counsel to produce receipts for such
expenditures or to explain why receipts are unavailable. Coronet
Foods, Inc., 322 NLRB 837 (1997), modified on other grounds 158
F.3d 782 (4th Cir. 1998).
5 The judge found that the Respondent failed to prove that it would
have lawfully laid Thornton off as part of a mass layoff in October
1998. In affirming that finding, we note that although Thornton had not
taken as many classes to upgrade his job skills as most other employ-
ees, there were three other employees who had not completed all of the
courses and were not laid off, and there is no showing that they were
superior to Thornton. Moreover, the record establishes that many of
the technological improvements at the Respondent’s facility, which the
Respondent contends necessitated skills upgrading by employees, were
made in 1998, long after Thornton was fired. Had he not been unlaw-
fully discharged, Thornton would have been eligible to enroll in addi-
tional classes to improve his skills.
In affirming the judge’s finding that the Respondent failed to meet
its burden of proving Thornton did not make a reasonable search for
interim work, Member Schaumber finds no need to rely on Black
Magic Resources, 317 NLRB 721 (1993), or Alaska Pulp Corp., 326
NLRB 522 (1998), cited by the judge.
340 NLRB No. 1
WEBCO INDUSTRIES 11
1. Attendance and Safety Bonuses. In August 1996,
the Respondent implemented a program under which
bonuses were paid in each quarter to employees with
perfect attendance and safety records during the previous
quarter. An employee with a perfect attendance record
received a 10-cent hourly bonus, and an employee with a
perfect safety record received a 15-cent bonus. An em-
ployee who earned both attendance and safety bonuses
received an additional 5-cent hourly bonus.
The compliance specification claimed the attendance
and safety bonuses on Thornton’s behalf for each quarter
of the backpay period. The judge agreed. He found that
Thornton had a good attendance and safety record while
working for the Respondent. He also reasoned that, as
the wrongdoer, the Respondent should not be allowed to
profit from any uncertainties resulting from its unlawful
conduct.
In its exceptions, the Respondent repeats its argument
to the judge that whether Thornton would have qualified
for either bonus is entirely speculative. With respect to
the attendance bonus in particular, the Respondent argues
that Thornton did not qualify for it in each quarter before
he was terminated, and therefore that, even if Thornton is
entitled to the bonuses, he should not receive the atten-
dance bonus for every quarter in the backpay period.6
We find merit in the exception, but only as it pertains
to the attendance bonuses. As the judge stated, when
uncertainty arises concerning the appropriate amount of
make-whole relief, the uncertainty is normally, and ap-
propriately, resolved in favor of the injured party and
against the respondent, as the wrongdoer. Kansas Re-
fined Helium Co., 252 NLRB 1156, 1157 (1980), enfd.
sub nom. Angle v. NLRB, 683 F.2d 1296 (10th Cir.
1982). Qualifying for the attendance and safety bonuses,
however, was a matter almost entirely within Thornton’s
control. Indeed, qualifying for the attendance bonus was
entirely within his control (or, at least, entirely out of the
Respondent’s control). And, as the Respondent points
out, the record establishes that Thornton did not qualify
for the attendance bonus throughout the period leading
up to his discharge.
In these circumstances, although we cannot be sure
whether Thornton would have qualified for the bonuses
had he continued in the Respondent’s employ, we think it
inappropriate to resolve our uncertainty by assuming that
he would have qualified for both bonuses in all backpay
quarters. We think the more appropriate approach is to

6 The Respondent states that there were two quarters prior to his dis-
charge for which Thornton could have qualified for the attendance
bonus, and that he qualified in only one quarter. The record, however,
reflects that there were three such quarters and that Thornton qualified
in two of them.
base our assumptions on Thornton’s actual past job per-
formance.7 Thus, because Thornton qualified for the
attendance bonus in only two of three quarters before he
was fired, we shall assume that he would have qualified
for the attendance bonus in only two-thirds of the quar-
ters in the backpay period. By contrast, the record estab-
lishes that Thornton qualified for the safety bonus in
each quarter before he was fired. We therefore assume
that he would have qualified for the safety bonus
throughout the backpay period.
Our finding that Thornton should be reimbursed for at-
tendance bonuses in only two-thirds of the quarters in the
backpay period will require that his backpay be reduced
commensurately. It will also require a reduction in both
the amount of profit sharing payable to Thornton and in
the contributions to Thornton’s 401(k) plan, because
those amounts were based on employees’ gross wages,
including attendance and safety bonuses.
Although we are assuming that Thornton would have
qualified for the attendance bonus in two-thirds of the
quarters in the backpay period (until the bonuses were
eliminated in August 2000), there is no way of identify-
ing the specific quarters in which he would have quali-
fied. We could, of course, select quarters at random, but
because the amounts of gross backpay claimed vary sig-
nificantly by quarter, our selections could affect, some-
what, the amount of relief afforded. Moreover, although
eligibility for the bonuses was determined on a quarterly
basis, the quarters used by the Respondent (August–
October, November–January, February–April, May–
July) were not the same as the calendar quarters (Janu-
7 See, e.g., La Favorita, Inc., 313 NLRB 902 (1994), enfd. mem. 48
F.3d 1232 (10th Cir. 1995) (backpay formula should be representative
of the discriminatee’s employment history and take into account inter-
mittency of employment); Wayne Trophy Corp., 254 NLRB 881, 883
(1981) (purpose of traditional backpay formula, based on average hours
of prediscrimination employment, is to account for absences, lost hours,
or other factors that could reasonably be expected to recur during the
backpay period).
Contrary to Member Schaumber, we find that the General Counsel was
not required to introduce evidence concerning Thornton’s attendance and
safety records from his interim employment in order to qualify for atten-
dance and safety bonus moneys. That argument was not raised by the
Respondent. More to the point, we find no reason to believe that Member
Schaumber’s approach would more accurately predict whether Thornton
would have qualified for the bonuses had he not been unlawfully dis-
charged. Thus, for example, if Thornton’s interim workplaces were more
dangerous than the Respondent’s facility, he might not have had an un-
blemished safety record at his interim employment. Similarly, if his
interim employers did not offer attendance bonuses, Thornton may not
have been as regular in attendance as he was while in the Respondent’s
employ. (Presumably, attendance bonuses are given to encourage good
attendance.) In either case, then, given differences in working conditions,
it would be improper to infer from Thomas’ record during his interim
employment that his attendance or safety record would have fallen off had
he not been unlawfully terminated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12
ary–March, April–June, July–September, October–
December) used in the compliance specification. For
these reasons, we find it impractical to attempt to recom-
pute Thornton’s earnings on a quarter-by-quarter basis.
We shall, instead, simply reduce Thornton’s gross
earnings by 5 cents per hour (7.5 cents for overtime
hours), or 0.4 percent, from the beginning of the backpay
period through July 31, 2000, when the bonuses were
eliminated.8 (Arithmetically, reducing earnings by 5
cents for the entire backpay period is equivalent to reduc-
ing them by 15 cents—the sum of the 10-cent attendance
bonus and the 5-cent bonus for qualifying for both the
attendance and safety bonus–for one-third of the backpay
period.) Because profit sharing and 401(k) contributions
were based on gross wages, we shall reduce them by 0.4
percent through July 31, 2000, as well. Our computa-
tions are set forth in the appendix.9
2. Tax Compensation. The judge found that if Thorn-
ton incurs higher income tax liability as a result of re-
ceiving his backpay in a lump sum, the Respondent
should be required to reimburse him for the additional
taxes that result. The Respondent has excepted, and we
find merit in the exception.
The General Counsel did not seek this relief in the un-
derlying case, and the Board’s Order in that case con-
tained no provision such as the one the General Counsel
now seeks. That Order has been enforced by the court of
appeals. To provide the requested remedy at this stage
would require the Board to amend its Order and possibly
to return to court to seek enforcement of the amended
Order. We think that this is not the time to raise this is-
sue; the General Counsel should have made this argu-
ment to the Board in the earlier proceeding. Accord-
ingly, we shall delete this provision from the judge’s
recommended Order.10
ORDER
The National Labor Relations Board orders that the
Respondent, Webco Industries, Inc., Sand Springs, Okla-
homa, its officers, agents, successors, and assigns, shall

8 The compliance specification claims overtime at 1.5 times the
$12.50 hourly wage rate, which includes the bonuses: 1.5 times 5 cents
equals 7.5 cents, which is 0.4 percent of the $18.75 overtime rate.
The base wage rate increased by 25 cents in November 1998. Five
cents per hour is 0.3921 percent of the higher rate, which we have
rounded to 0.4 percent in the interest of simplifying our computations.
9 We have used the compliance specification’s figures for interim
earnings and expenses. We have also used the profit sharing factors
and 401(k) contribution rates claimed in the specification. Like the
judge, we are adding $72 that Thornton received from the Union in
1997 to his interim earnings.
10 Member Liebman agrees that this relief was not timely sought but
nonetheless believes that this form of relief would be appropriate if
timely sought.
pay Charles Thornton the amounts set forth below, as
summarized in the compliance specification and as modi-
fied in the decision of the administrative law judge and in
this decision. The Respondent shall pay the listed net
amounts, less tax withholding required by Federal and
State laws, with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).

Backpay $18,030.13
Profit Sharing 3,128.03
401(k) Contributions 16,849.38

MEMBER SCHAUMBER, dissenting in part.
I join my colleagues in all but two aspects of their de-
cision: one, before awarding Thornton any bonuses for
attendance and safety, I would require the General Coun-
sel to introduce evidence of Thornton’s attendance and
safety record during his interim employment; and two, I
would not award Thornton moneys for his claimed
weekly purchases of work clothes without some evidence
substantiating that claim, either in the form of receipts, a
credible explanation why the receipts are unavailable, or
some corroborative evidence of the need and the cost.
My colleagues disagree. In doing so they reach might-
ily to preserve unnecessary uncertainty in the measure of
damages. I respectfully suggest that the Board is not at
liberty to do so. The Act permits the Board to order
make-whole remedies; it is prohibited from engaging in
speculation when doing so. As the Supreme Court made
clear to us in Sure Tan, Inc. v. NLRB, 467 U.S. 883, 900
(1984):
[I]t remains a cardinal, albeit frequently unarticulated
assumption, that a backpay remedy must be sufficiently
tailored to expunge only the actual, and not merely
speculative, consequences of the unfair labor practice.
Thus, in the remedy phase, it is incumbent on the
Board to lessen the degree of uncertainty in the calcula-
tion of damages whenever it is possible to do so. That is,
damages should be calculated with such certainty as the
nature of the case allows. 22 Am. Jur. 2d, Damages, Sec-
tion 488 (2003). The evidence I would require aims at
accomplishing this result.
Thornton claimed that his interim work was such that he
needed new work clothes—a shirt and new gloves—every
week. He presented no evidence to substantiate that claim.
A witness for the Respondent took issue with Thornton’s
claim that he needed to purchase gloves each week. I be-
lieve under these circumstances, Thornton should be re-
quired to substantiate these interim expenditures with re-
ceipts, a credible explanation as to why the receipts are
unavailable, or some other corroboration of this weekly
clothing need. Indeed, I would require such evidence in
every backpay case involving a claim for interim expenses
WEBCO INDUSTRIES 13

for which receipts are customarily given. My colleagues
take issue with such a minimal requirement but do not say
why except to rely on Board precedent that does not say
why. See Coronet Foods, Inc., 322 NLRB 837 (1997),
modified on other grounds 158 F.3d 782 (4th Cir. 1998). I
am of the view that unless the Board can provide some
justification for not tailoring our evidentiary requirements
to avoid unnecessary uncertainty in the computation of
damages such precedent should not be relied on but over-
ruled. I am prepared to do just that.
With regard to the attendance and safety bonuses, as
mentioned above, I would require the General Counsel to
introduce evidence of Thornton’s attendance and safety
record during his interim employment. My colleagues
do not require this evidence because it might not accu-
rately predict whether Thornton would have qualified for
the bonuses. They hypothesize that if Thornton’s interim
work was more dangerous, and if his interim employer
did not reward attendance, the evidence I would require
might not be dispositive. It can hardly be contested,
however, that Thornton’s safety and attendance records
with his interim employer is probative of what his record
would have been with the Respondent. If other evidence
exists that weakens the inference, fine—but that specula-
tive possibility is not a reason not to require the introduc-
tion of concededly probative evidence. With all due re-
spect to the majority, we do not fulfill our obligations
under the Act by objecting to the introduction of readily
available relevant evidence on the basis of hypothetical
situations which could conceivably make the evidence
less compelling where, as here, the evidence may lessen
the degree of uncertainty in the measure of damages.
All of this is not to say that the wrongdoer can avoid
“the risk of uncertainty which his own wrong has cre-
ated.” See Bigelow v. RKO Radio Pictures, Inc., 327 U.S.
251, 257 (1946) (citation omitted). It is to say, however,
that the computation of damages must be “a just and rea-
sonable estimate of the damage, based on relevant data.”
Id at 257.1 It is the latter, I believe, we, the Board, must
require.
1 In this case, it cannot be said that the “wrongdoer’s misconduct has
rendered [more accurate data] unavailable.” Bigelow v. RKO Radio
Pictures, Inc., supra, 327 U.S. at 257.

APPENDIX

Quarter/ Gross Net Interim Net Profit 401(k) Contri-
year backpay Earnings Backpay Sharing butions
Employee

Employer
I/97 $640.62 $0 $640.62 $76.87 $9.61
II/97 $9,043.81 $2,167.00 $6,876.81 $83.92 $1,085.26 $135.66
III/97 $8,727.76 $5,094.26 $3,633.50 $373.37 $1,047.33 $130.91
IV/97 $8,710.33 $5,401.64 $3,308.69 $238.66 $1,045.24 $130.66
I/98 $8,728.70 $4,637.36 $4,091.34 $488.81 $1,047.44 $130.93
II/98 $8,468.80 $5,029.04 $3,439.76 $874.83 $1,016.26 $127.03
III/98 $8,944.09 $7,913.68 $1,030.41 $701.21 $1,073.29 $134.16
IV/98 $9,370.37 $7,295.01 $2,075.36 $367.23 $1,124.44 $140.56
I/99 $8,310.63 $6,230.84 $2,079.79 $997.27 $124.66
II/99 $8,534.45 $8,340.66 $193.79 $1,024.14 $128.02
III/99 $9,972.67 $7,423.52 $2,549.15 $1,196.72 $149.59
IV/99 $8,921.83 $6,947.52 $1,974.31 $1,070.62 $133.82
I/00 $9,021.91 $8,351.59 $670.32 $1,082.63 $135.33
II/00 $8,770.65 $10,254.32 $0 $1,052.48 $131.56
III(1)/00 $2,590.84 $310.90 $38.86
III(2)/00 $6,052.80 $8,128.13 $515.51 $726.34 $90.79
TOTAL $33,079.36
($72.00) (received from
Union in 1997)

$33,007.36 $3,128.03 $14,977.23 $1,872.15
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
Frank Molenda, Esq., for the General Counsel.
David E. Strecker, Esq., for the Respondent.
SUPPLEMENTAL DECISION1
ALBERT A. METZ, Administrative Law Judge. The issue
presented is the Respondent’s liability for the backpay of em-
ployee Charles Thornton. On November 30, 1998, the National
Labor Relations Board (Board) issued its Decision and Order in
this case (327 NLRB 172) directing that the Respondent make
Thornton whole for any loss of earnings and other benefits
suffered as a result of its discrimination against him. On July
11, 2000, the Board’s decision was enforced by the United
States Court of Appeals for the Tenth Circuit (217 F.3d 1306).
A dispute arose between the Board and the Respondent as to
the backpay due Thornton. On April 30, 2001, the Board’s
Regional Office issued a compliance specification setting forth
the General Counsel’s contention of the amount owed. The
Respondent duly filed its answer to the specification disputing
the accuracy of certain of the Board’s calculations.
I. MAKE-WHOLE PERIOD
The principal dispute between the parties is the length of
Thornton’s make-whole period. The General Counsel claims
that Thornton was out of work from March 15, 1997, the date
the Respondent unlawfully suspended him, until September 25,
2000, the date the Respondent reinstated him to employment.
The Respondent asserts the appropriate backpay period is lim-
ited to March 15, 1997, until October 7, 1998—a date it claims
Thornton would have been laid off.
On October 7, 1998, the Respondent laid off several workers
in various classifications. Subsequent to that layoff the Board
issued its decision in Webco Industries, 334 NLRB 608 (2001)
(enforcement pending, Webco II). In that decision the Board
found that the Respondent violated the Act by unlawfully dis-
criminating against some of the employees it selected for the
October 1998 layoff. Three of those laid off were maintenance
technicians, the same classification that Thornton had been
working in at the time of his discharge. The Respondent argues
that Thornton also would have been laid off in October 1998
because of his lack of skills.
A total of 53 employees were selected for the October 1998
layoff. These employees worked in various classifications in-
cluding production, administrative, clerical, and management.
The Respondent presented evidence that employees were con-
sidered for retention or layoff based on who possessed multiple
talents and skills. Director of Maintenance John Bayliss was
responsible for designating who would be laid off in the main-
tenance department. Bayliss was not directed to lay off any
particular number of maintenance department employees but he
was told to determine which employees possessed the best
skills to keep production running.
Bayliss chose maintenance employees Charley Casey,
Robert Warden, and Robert Shepard for layoff. Bayliss testified
he selected these employees because they did not have the
technical knowledge and skills required for retention. A consid-
eration in their selection was the fact that they had not attended

1 This case was heard at Tulsa, Oklahoma, on October 23, 2001.
vocational training classes to enhance their skills. The Respon-
dent made classes in welding, mechanical, motor control and
programmable logic available to employees at a local voca-
tional institution. Bayliss testified that Casey was chosen for
layoff because he could not read or write. The Respondent had
tried to give him assistance in these skills but he had rejected
the efforts. He did not possess the skills to pass the vocational
school’s qualification assessment. Bayliss picked Shepard be-
cause he refused to attend vocational school training and had let
Bayliss down on several occasions with his inability to perform
assigned tasks. Warden was laid off because he was physically
tired all the time due to working on his farm during the day and
working for the Respondent at night. Bayliss found that
Shepard was “sleeping most of the time.” Bayliss also noted
that Warden was a “pretty illiterate type of guy.”
Bayliss testified that he would have also chosen Thornton
for the October 1998 layoff if he worked for the Respondent at
that time. Bayliss based this retrospective appraisal on his view
that Thornton did not have the required technical skills and
knowledge to be retained. Bayliss testified that he took into
consideration the fact at the time of the lay off Thornton had
not completed all of the vocational school courses.
Respondent’s Exhibit 5 shows that Casey, Shepard, and
Warden had not attended any of the four maintenance depart-
ment vocational classes. Thornton, in contrast, had successfully
completed two of the four classes when he was unlawfully
terminated in March 1997. That termination occurred over 1-
1/2 years before the October 1998 layoff. Thus during that 19-
month period Thornton was not eligible to attend the other
vocational classes. This lack of opportunity is directly attribut-
able to the Respondent’s discriminatory discharge of Thornton.
Bayliss testified that he only retained those employees that
could best serve the needs of the Respondent and thus he would
have also laid off Thornton. The record does not sustain that
conclusion. The record does not support a conclusion that
Thornton was deficient of knowledge, skills, or abilities as
compared to the three laid-off maintenance employees. Thorn-
ton is not illiterate. Thornton was not shown to have slept on
the job. The Respondent did not demonstrate that Thornton
failed to complete assigned work. Thornton attended vocational
classes to improve his skills. Thornton was a senior employee
possessed of recognized welding skills. Bayliss did not reduce
the maintenance department beyond the three noted employees.
After the layoff the Respondent hired two additional mainte-
nance employees. Thornton was subsequently reinstated in
accordance with the order of the court of appeals and has suc-
cessfully worked for the Respondent since. The Respondent’s
brief concedes that following reinstatement, “Mr. Thornton was
placed in the Fabrication Shop, a position where he could use
his welding skills.” It is clear that there was work for Thornton
on his return that he could and did perform. See EDP Medical
Computer Systems, 302 NLRB 54, 55 (1991). The Board and
court of appeals have found that the Respondent discriminato-
rily discharged Thornton because of his protected union activi-
ties. Bayliss’ retrospective assessment that Thornton would
have been laid off, when measured against the factual back-
ground of this case, is speculation built on a defective founda-
tion of unlawful discrimination. Finally, it cannot be ignored

WEBCO INDUSTRIES

15
that the Board held in Webco II that the Respondent continued
its unlawful conduct when it selected certain employees for
layoff in October 1998. In sum, I find that the Respondent has
failed to prove that Thornton would have legitimately been laid
off on October 7, 1998. I conclude that the compliance specifi-
cation correctly sets forth Thornton’s backpay period as being
from March 15, 1997, to September 25, 2000.
II. SEARCH FOR WORK
The Respondent argues that Thornton’s search for work was
deficient. On March 15, 1997, the Respondent told Thornton
that he was suspended from work and by a letter dated April 11,
1997, notified him that he was discharged. Thornton’s job
search report (R. Exh. 1) shows he had started looking for work
prior to being notified of his termination. The report shows he
applied for employment at 13 employers between March 31 to
May 9. He was hired by Interfab and started work on May 23.
He testified that he probably looked for other work in the pe-
riod May 9 to 23 but could not recall specifics. The Respondent
asserts that Thornton should have more diligently looked for
work even before being notified of his discharge and should be
penalized for not having looked for work between May 9 and
the May 23 start of his employment with Interfab.
“It is well settled that to be entitled to backpay a discrimina-
tee must make reasonable efforts to secure interim employment
which is substantially equivalent to the position from which he
was discharged.” EDP Medical Computer Systems, 302 NLRB
54 (1991). The burden is on the Respondent to show the facts
necessary to establish that the discriminatee neglected to make
reasonable efforts to find interim work. Black Magic Re-
sources, 317 NLRB 721 (1995). The record shows that Thorn-
ton sought employment even to the extent of contacting poten-
tial employers prior to being informed by the Respondent that
he was discharged. He exercised reasonable diligence by seek-
ing work at numerous firms and found employment soon after
his discharge. I find that the Respondent has failed to meet its
burden of showing that Thornton did not make a reasonable
search for work. Alaska Pulp Corp., 326 NLRB 522, 534–535
(1998); ABC Automotive Products Corp., 319 NLRB 874, 877
(1995); and Retail Delivery Systems, 292 NLRB 121, 125
(1988).
III. INTERIM EARNINGS
The Respondent raises several points concerning Thornton’s
interim earnings. The Respondent argues that the compliance
specification is inaccurate because some of the quarterly earn-
ings information that Thornton provided was conflicting. The
Board’s compliance officer, Robert Fetsch, testified that dis-
criminatees sometimes mistakenly list year-to-date earnings
rather than actual quarterly earnings when filling out quarterly
report forms. Fetch testified that he used W-2 forms, social
security records, Thornton’s submissions and all similar evi-
dence available to him to calculate the compliance specifica-
tion. The Respondent submitted no documentary evidence that
showed Thornton had earned greater interim earnings than were
stated in the compliance specification.
The Respondent argues that the record shows that Thornton
worked for Red Hawk Industries in the interim. There are no
interim earnings shown for an employer of that name. The re-
cord, however, does reflect Thornton’s earnings for Interfab.
Thornton testified without contradiction that Interfab was
bought out by Red Hawk Industries.2
The Respondent raises the point in its brief that the quarterly
back pay reports indicate January 1997 as the “date of unlawful
discrimination.” (See box 2, R. Exh. 1.) Compliance Officer
Fetsch testified the compliance specification used the correct
date of March 15, 1997, to accurately reflect the commence-
ment of the unlawful discrimination involving Thornton. The
Respondent does not show how the reference to “January 1997”
caused the compliance specification to be inaccurate. I find that
the January reference in the backpay reports is of no legal sig-
nificance and did not lead to any miscalculation of Thornton’s
backpay.
The General Counsel called Thornton as its witness at the
hearing and he was cross- examined by the Respondent. The
Respondent’s brief, however, contends it was not given all of
Thornton’s records and he refused to submit to a voluntary
interview with the Respondent. The Respondent argues “[The
Respondent] has no way of confirming his gross interim earn-
ings.” This argument ignores the point that it is the Respondent
who has the burden of proving facts that diminish a discrimina-
tee’s backpay. Florida Tile, 310 NLRB 609 (1993) (The em-
ployer who committed the unfair labor practice has the burden
to establish facts that reduce the amount due for gross back-
pay.); Arlington Hotel, 287 NLRB 851, 855 (1987) (The burden
of showing the amount of any interim earnings, or a willful loss
of interim earnings, falls to the Respondent.). The Respondent
could have subpoenaed witnesses and evidence and made a full
inquiry into the matter. The Respondent decided not to take
advantage of this due process right. The Respondent cannot
now rely on that omission as an excuse for failing to meet its
burden of proof.
Compliance Officer Fetsch conceded that in 1997 Thornton
received the sum of $72 from the Steelworkers Union and that
amount was not considered in his interim earnings. I find that
the calculations of Thornton’s interim earnings must be modi-
fied to take account of this overlooked $72 amount. With the
single exception of the noted $72 amount, the Respondent has
failed to show that Thornton’s interim earnings were not accu-
rately calculated. I find that the percent’s compliance specifica-
tion, with the noted exception, does accurately list Thornton’s
interim earnings.
IV. INTERIM EXPENSES
The Respondent questions the calculation of Thornton’s in-
terim expenses. The compliance specification states that Thorn-
ton had interim expenses of $155 per quarter. This amount
covers the purchase of work clothes and gloves for Thornton’s
interim employment. The Respondent concedes that it provided
Thornton with work clothes during his employment but points
out that there was an optional laundry service charge of $4.50
per week that he elected to receive. The Respondent argues that

2 I hereby order that the transcript be corrected to accurately reflect
the following missing testimony. There are notations at p. 42, ll, 4 and
5, that words are “inaudible.” I find that the inaudible testimony was in
each instance the words “Red Hawk.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
Thornton’s interim expenses should be offset by the amount he
would have paid each quarter ($53.95) had he still been em-
ployed by the Respondent. Thornton testified that his wife
laundered his work clothes during his interim employment. I
find that Thornton’s interim earnings shall not be offset for the
cost of the laundry service charge.
Thornton did not have receipts for his interim work clothing
purchases but estimated that the pants and shirts cost approxi-
mately $20 a piece. He testified that he purchased approxi-
mately 52 pairs of gloves per year at $5 per pair. The Respon-
dent questions these expenses absent some documentary evi-
dence to support the estimates.
Interim expenses serve as an offset to interim earnings, in-
cluding expenses for clothing and uniforms. NLRB Compliance
Manual, Section 10544. It is clearly desirable that a discrimina-
tee have documentation to support his claims but he is not abso-
lutely required to have receipts. Master Slack, 269 NLRB 106,
116 (1984). A discriminatee’s claims for reimbursement may
be based on credible estimates. Aircraft & Helicopter Leasing,
227 NLRB 644, 645 (1976). In the absence of documentation
corroborating the interim expenses of clothing and gloves, I
must make a finding based on my assessment of the credibility
of the discriminatee. Coronet Foods, Inc., 322 NLRB 837
(1997). I found Thornton to be forthcoming in his testimony
and he was persuasive in his demeanor. I credit his testimony,
conclude his interim expense claims are reasonable and find he
is entitled to reimbursement for his interim expenses as set
forth in the compliance specification.
V. SAFETY AND ATTENDANCE BONUSES
The compliance specification states that Thornton’s pay rate
for the make-whole period is comprised of the base rate and
team pay earned by Respondent’s similarly situated employees.
Additionally, the specification asserts that Thornton is entitled
to safety and attendance bonuses that Respondent awarded to
employees who achieved perfect attendance and safety records.
The Respondent does not contest Thornton’s entitlement to
base and team compensation. It does dispute his right to receive
safety and attendance bonuses, as they are items “Thornton
would have had to earn by meeting additional criteria above
and beyond the general requirements of his employment.”
The bonus program was implemented in August 1996 and it
was discontinued in August 2000. In order to qualify for safety
and attendance bonuses an employee had to have a perfect at-
tendance and accident history during the previous fiscal quarter.
The attendance bonus was 10 cents per hour and the safety
bonus was 15 cents per hour. If an employee earned both the
attendance and safety bonuses, he received an additional 5
cents per hour, making the total bonus 30 cents per hour.
Compliance Officer Fetsch testified that his review of Respon-
dent’s records established that Thornton received the bonuses
in two out of the three-quarters prior to his discharge. The Re-
spondent points out that Thornton failed to qualify for the at-
tendance bonus during the first quarter the program was im-
plemented. He then qualified for the attendance bonus the next
quarter. The Respondent argues that Thornton, at best, should
only be entitled to an attendance bonus during one-half of the
quarters during his backpay period.
Robin Robinett, the Respondent’s corporate director of per-
sonnel services, testified that safety incidents could not be pre-
dicted. No evidence was produced to demonstrate that Thornton
was an unsafe worker.
It is axiomatic that as the Respondent is the wrongdoer who
caused the discriminatee’s unemployment, any ambiguities,
doubts, or uncertainties about backpay are resolved against it
because a respondent is not allowed to profit from any uncer-
tainty caused by its discrimination. Alaska Pulp Corp., 326
NLRB 522, 523 (1998); Ryder System, 302 NLRB 608 (1991),
enfd. 983 F.2d 705 (6th Cir. 1993); Kawasaki Motors Mfg.
Corp., U.S.A. v. NLRB, 850 F.2d 524, 527 (9th Cir. 1988); and
Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980),
enfd. 683 F.2d 1296 (10th Cir. 1982). Thornton has had a good
attendance and safety record while working for the Respondent.
It was not arbitrary or unreasonable to include the safety and
attendance bonuses in his backpay. I find that Thornton is enti-
tled to receive full reimbursement for both the safety and atten-
dance bonuses as set forth in the compliance specification.
VI. PROFIT SHARING
The Respondent paid its employees a quarterly profit-sharing
bonus during part of the backpay period. Employees’ profit-
sharing amounts were calculated by multiplying their quarterly
wages by the profit-sharing factor established by the Respon-
dent. The Respondent concedes that the compliance specifica-
tion uses the correct factors to calculate the profit-sharing al-
legedly owed Thornton. The Respondent, however, disputes
that Thornton was entitled to the full amount because his back-
pay was calculated including safety and attendance bonuses. I
have found that Thornton was entitled to the safety and atten-
dance bonuses. I therefore reject the Respondent’s argument
concerning a diminution of his profit-sharing entitlement. I find
that Thornton is entitled to receive a full payment of the profit
sharing as set forth in the compliance specification.
VII. CONTRIBUTIONS TO 401(K) PLAN
The Respondent argues that it is not possible to determine
what if any contributions the Respondent should have to make
to Thornton’s 401(k) plan. This argument is based on
Robinett’s testimony that a new plan administrator and plan
were selected in August 1998 and expanded options were of-
fered to employees at that time. The Respondent thus says there
is no certainty as to what option choices or amount of contribu-
tions, if any, Thornton would have made. Thornton testified
that he contributed 12 percent of his earnings to the 401(k) plan
prior to his discharge. On reinstatement he commenced con-
tributing 15 percent to the plan. The compliance specification
calculates the Respondent’s liability for payments to his 401(k)
plan based on his 12-percent contribution rate. The Respondent
did not introduce any evidence showing that Thornton partici-
pated in any 401(k) plan during his backpay period.
The Board and courts have applied a broad standard of rea-
sonableness in approving numerous methods of calculating
gross backpay. Any formula that approximates what the dis-
criminatee would have earned had he not been discriminated
against is acceptable if not unreasonable or arbitrary in the
circumstances. La Favorita, Inc., 313 NLRB 902, 903 (1994),

WEBCO INDUSTRIES

17
enfd. mem. 48 F.3d 1232 (10th Cir. 1995). As noted above, the
Respondent as the wrongdoer cannot profit from any uncer-
tainty caused by its discrimination. Alaska Pulp Corp., 326
NLRB 522, 523 (1998). Thornton’s record of contributions to
his 401(k) is clear. The compliance specification sets a reason-
able 12-percent contribution rate during the backpay period. I
find that Thornton shall be paid on the basis of his 12-percent
rate of contribution as set forth in the compliance specification.
VIII. TAXES
The General Counsel asserts that Thornton is entitled to re-
imbursement for any extra Federal and State income taxes that
may result from his lump sum receipt of backpay:

Under current tax laws, discriminatees who receive lump-sum
backpay awards covering a multi-year backpay period are
likely to incur higher federal and state income taxes than they
would have had they received their wages in due course. This
is because the Internal Revenue Service (IRS) considers back
pay awards to be taxable income earned in the year the award
is paid, rather than over the previous years in which a dis-
criminatee would have earned the wages but for the unlawful
discrimination. [G. C. Brief, p. 13.]

The Respondent denies it has an obligation to pay additional
tax amounts that Thornton may incur because of the discrimina-
tion against him. The Respondent, however, does not dispute
the General Counsel’s interpretation of the tax implications of
Thornton receiving backpay compensation. A purpose of the
Court of Appeals’ enforcement order is to make Thornton
whole in light of the Respondent’s unlawful discrimination
against him. I find that it is consistent with that order that the
Respondent compensates Thornton for any increased amounts
of Federal and State income taxes he may incur because of his
being made whole.3
[Recommended Order omitted from publication.]

3 The Respondent filed an unopposed posthearing motion to correct
the record concerning certain specified errors. I grant the Respondent’s
motion and receive it into evidence as R. Exh. 12