Falls Stamping & Welding Co. v. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America

ORDER

CONTIE, District Judge.

Presently pending before the Court in the above captioned matter is defendants’ motion for action upon the Special Master’s report and upon objections thereto.

1

Also pending is their motion for the Court to reconsider its refusal to grant interest on the back-pay awards to individual employees. Upon consideration and for the reasons stated below, the motion for action on the Special Master’s report shall be granted, and defendants’ motion for reconsideration shall be denied. The Master’s report shall be accepted with certain modifications. Plaintiff’s objections to the report shall be sustained in part and overruled in part, and defendants’ objections shall be overruled.

The procedural history of this case is long and complex. As relevant to the present motions, the Court has received a Special Master’s report that was prepared upon matters submitted to the Special Master by the Court’s Order of May 15,1979, pursuant to Rule 53, Federal Rules of Civil Procedure. The damage issue, specifically a determination of the amount of back pay and fringe benefits owed individual defendant employees by the plaintiff company, was referred to the Master for appropriate findings of fact and conclusions of law.

Upon the motions before it, the Court must determine whether the Master’s factual findings and legal conclusions are correct. In reviewing the report, “the court shall accept the master’s findings of fact unless clearly erroneous.” Rule 53(e)(2). Although not given the same weight as jury findings, the Master’s findings of fact are treated with high regard by the trial court. C. Wright & A. Miller, Federal Practice and Procedure § 2614 (1971).

See also

5A Moore’s Federal Practice ¶¶ 53.12[1], at 3002, and 53.12[4], at 3008-13 (rev. 2d ed. 1979). The Court may adopt the Master’s factual findings, and if the Court does so the findings will be treated as the Court’s. Rule 52(a). The Master’s conclusions of law

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are another matter. Although the Master’s conclusions of law are taken into consideration, the Court makes its decision on its own legal conclusions.

The Court notes that it has determined by its Order of September 18, 1978 that the company’s failure to reinstate the employees had resulted in loss or damage to them. In order to avoid injustice, those employees are entitled to back pay, including fringe benefits, from the date of termination (June 8, 1976), to the date of actual reinstatement (June 8, 1978), or to the date of the employee’s participation in an economic strike that was held against the company.

Each employee had a duty to mitigate his or her damages by obtaining comparable employment during the period of absence from the plaintiff company. Any earnings from that interim employment reduce the amount of the back-pay award.

See

D. Dobbs, Remedies § 3.6, at 183 (1973). In the present case, the union, on behalf of the employees, must establish initially the damages, i. e., the amount owed each claimant by the company. Although the duty to mitigate is on the discharged or terminated employee, and although the union, which acts on behalf of the employee, must establish damages, the company must prove an amount, if any, by which the back-pay award should be reduced for failure to mitigate.

See, e. g., McAleer v. McNally Pittsburgh Mfg. Co.,

329 F.2d 273, 275-76 (3d Cir. 1964);

Taylor v. Tulsa Tribune Co.,

136 F.2d 981, 983 (10th Cir. 1943); Dobbs,

supra

§ 3.7, at 189, and § 12.25, at 925.

Accord, McCann Steel Co. v. NLRB,

570 F.2d 652 , 655 n. 4 (6th Cir. 1978) (National Labor Relations Board practice).

I

The plaintiff raises objections to the Master’s findings of fact as well as to his conclusions of law. The Court will first address challenges to the factual findings. The Master conducted hearings, reviewed files, and reported on 110 claimants. The plaintiff raised specific objections to the Master’s findings in 43 of the 110 cases.

One of the recurring objections pertains to the date on which any given individual employee began to participate in an economic strike against the company. The Court, by Orders of January 9, 1979 and June 19, 1979 ruled that a claimant who had participated in the strike would lose back pay as of the first date of participation. To aid in the determination of the date of participation, the Master considered evidence from three company witnesses. In addition, the Master accepted into evidence lists maintained by Mr. Lange, who was one of the three witnesses and president of the company. The lists contained names of persons involved in certain strike incidents on various dates. It was primarily on these lists that the Master relied when determining the dates of individual participation in the strike. Plaintiff objects to the reliance on the lists in cases where the witnesses put the claimants at the strike site before the date stated on the lists. The Court, however, will not disturb the Master’s findings. The Master made his findings on credible evidence, and the Court will not find that his giving the lists more weight than oral testimony was clearly erroneous. Furthermore, the burden was on the plaintiffs to establish the date on which strike participation by individual former employees began. Plaintiffs evidently were not able to establish dates with enough certainty to satisfy the trier of fact.

A second recurring objection deals with the Master’s calculations of back pay in cases where the claimant is entitled to only part of a given year’s salary and fringe benefits. The Master multiplied the calculation of the full year’s award (including base pay rate, incentive pay, vacation, shift differential, leadman rates) by the percentage of the year that was worked. Plaintiff argues that this “mechanistic method” works to its disadvantage inasmuch as this approach does not account for variation throughout the year in such items as base pay rates, weekly percentage increase of vacation pay, and allocation of holiday pay. The Court will not disturb the Master’s

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findings in this instance. What the plaintiffs essentially request is a review of the Master’s method of calculating the awards. One of the reasons that the Court referred this matter to a Special Master was to alleviate the Court of the time-consuming task of determining the amount owed each claimant. The Court, in viewing the entire report, believes that the Master made careful and reasoned decisions regarding specific calculations based on all of the available evidence. Unless the plaintiff can show that the method of computation that was utilized by the Master was unreasonable and worked a manifest unfairness, there is no basis for disturbing the Master’s technique.

Plaintiff also objects to findings that certain employees had adequately mitigated their damages. Plaintiff argues, inter alia, that an aggressive search for interim employment was not conducted, that reasons for quitting a job were not adequate, or that quitting a job in fact amounted to a total failure to mitigate. Once again, the Court will not disturb the Master’s findings unless these findings are clearly erroneous. The Master was in a position to evaluate the credibility of claimants as they testified to their activities. He was further justified in taking into consideration factors such as age, safety, and previous training. After a review of the record the Court concludes that the Master based his findings on the totality of the circumstances surrounding each case, and the Court accepts those findings.

Another recurring objection of the plaintiff concerns the refusal of the Master, when calculating the award, to reduce the amount by funds that certain claimants had received from or through public assistance, social security, unemployment compensation, union assistance (including payment of insurance premiums), part-time work, or a second job. Inasmuch as these objections deal more with legal conclusions concerning whether the items should serve to reduce the award than with findings of fact, the Court reserves discussion of this issue to a subsequent portion of the Order.

The Court feels compelled to address six of the cases to which the plaintiff has raised objections:

# 12 BASIL BUSCH. At page 1113 of the Master’s Report (“Findings of Fact”), the Master states in relevant part:

The claimant also suffered two periods of disability during 1976, an appendectomy in September which kept him out of the job market for six weeks, and an auto accident immediately thereafter in October, 1977, which required a few months of recuperation. Thus, commencing in early September, 1977, through the end of the year, the claimant was not seeking employment.

Later in the Report, at page 1152 under “Determination of Damages,” the following appears:

Basil Busch used reasonable diligence in seeking interim employment prior to September, 1976, and was fully employed in 1977 and 1978. However, he was disabled for four months during 1976, which requires an adjustment in 1976 gross back pay. . . . During a four-month period in 1976, Mr. Busch was out of the job market and was not mitigating his loss.

Plaintiff, identifying the apparent inconsistencies between the above statements, maintains “that the disability period covers six weeks in 1976 and 15 weeks in 1977.” Plaintiff’s Objections to Master’s Report, at 11. Upon a review of the record, the Court finds that all of the available evidence as contained in the union's statement, the answers to interrogatories, and the transcript of the hearings indicates that Mr. Busch was out of the work force for 6 weeks in 1976 and for 31/2 months in 1977. The claimant’s gross back pay ($21,654.49) should be reduced for a 6 week disability in 1976 and a 14 week (31/2 months) disability in 1977. Consequently, the Court reduces the claimant’s gross back pay award by a percentage equal to the percentage of the base period that the claimant was disabled. The gross back pay should be reduced by $1,228.46 for 1976 and by $2,932.14 for 1977, totalling a $4,160.60 reduction. The adjusted gross back pay award ($17,493.89) should

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be reduced by actual interim earnings ($11,-545.39). The claimant is owed $5,948.50.

# 13 JANE CARLTON. The company argues that the claimant’s entire search for employment was conducted prior to the back pay period. The Master, however, had to balance the company’s assertion with the claimant’s testimony that she looked for work “all the time” until 1978, applying for employment that was listed with the Bureau of Employment Services. Inasmuch as the company did not offer information to support its position, the Master’s findings that the claimant is entitled to back pay to the time of her strike participation will not be disturbed.

# 39 WILLIAM FEARS. All parties and the Master agree that the deduction for claimant’s 1976 interim earnings should be calculated on the basis of working 40 hours a week at $2.30 an hour for 17 weeks. The Master reached $1,472 — clearly an error in computation. The correct deduction for 1976 interim earnings should be $1,564.

# 44 WILLIAM GWEEN. Plaintiffs argue that the Master did not include in his calculations for interim earnings wages earned by the claimant through Manpower in 1977. Claimant’s deposition at page 11 would indicate that he had indeed worked through Manpower in 1977, but nothing in the rest of the file would support such a finding. The file contains W — 2 forms and/or statements from employers, including a statement from Manpower for the 1976 employment, but there is no record that the claimant had worked for Manpower in 1977. Furthermore, the plaintiff does not offer the Court any support for the allegation that the claimant had earned an additional $756 from Manpower in 1977. The Master’s findings will not be disturbed.

# 73 PAUL MOYER. The Master determined that the claimant is entitled to back pay until June 17, 1977, the date of his strike participation. The Master calculated the amount of back pay for 1977 on the basis of 25 weeks. As noted by the company, January 1 through June 17 covers only 24 weeks. Applying the formula used by the Master, the Court finds that the claimant’s award for 1977 should be $5,006.39. The claimant’s total adjusted gross back pay ($11,040.78) must be reduced by his interim earnings ($4,799.44). The claimant is owed $6,241.34.

# 86 BETTY RUCKER. The company raised the same objection to the 1977 calculation for this claimant as was raised for # 73. Calculating the back pay for 24 instead of 25 weeks, the Court finds that the claimant’s 1977 award should be $3,482.41. The total back pay award is $7,789.64.

II

The Master has correctly identified the sources of law that are applicable in the resolution of issues in an action involving a breach of a collective bargaining agreement. As Justice Douglas articulated in

Textile Workers Union v. Lincoln Mills,

353 U.S. 448, 456-57 , 77 S.Ct. 912, 918 , 1 L.Ed.2d 972 (1957), the substantive law should be

federal law, which the courts must fashion from the policy of our national labor laws. . . . The Labor Management Relations Act expressly furnishes some substantive law. . . . Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of that legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem.

In addition, the Court may look to applicable state law.

Id.

Under the above directive of the Supreme Court, the Master, in reaching conclusions of law concerning back-pay awards, looked to cases that had been tried 1) under NLRB practices, 2) under Title VII of the Civil Rights Act of 1964, 3) under state law, and 4) by labor arbitrators.

Reviewing the Master’s conclusions of law, the Court has found them to be consistent with its own conclusions. The Court finds no purpose to be served by reiterating the Master’s thorough and cogent resolution

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of the legal issues. The Court does, however, address specific objections that the plaintiff raises relative to the legal support for the Master’s method of calculating damages.

The general contract rule for determining damages was stated by the Supreme Court in

Wicker v. Hoppock,

73 U.S. (6 Wall.) 94, 99 , 18 L.Ed. 752 (1867):

[W]hen a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.

In the employment contract context, the employee is entitled to the amount of money he would have received if he had continued to work for the company. The amount owed under the contract or collective bargaining agreement must be reduced by the income that the employee received from substitute employment or by the amount that he or she would have received if a reasonable effort had been made to find interim employment.

See

Dobbs,

supra

§ 12.25, at 925.

Some of the claimants who mitigated their damages by obtaining full-time employment found additional part-time work, or in one case, additional full-time work. The Master did not reduce the back-pay awards by the amount of income from the supplemental employment. The rationale was that if the claimant had been reinstated under the original arbitration award, the claimant could have been working part time in addition to fulfilling full-time obligations with the plaintiff. Likewise, if an employee maintained a second, full-time position that would not have interfered with full-time work for the plaintiff, income from the second position should not reduce the back-pay award. In each of the situations where the claimant had already mitigated damages by obtaining full-time employment, the back-pay award will not be reduced by income that the claimant received from supplemental employment during the back-pay period.

The Master also refused to offset the back-pay awards by the value of benefits that had been received from collateral sources. The international union paid over $150,000 in emergency benefits to various claimants who had not obtained interim employment.

2

The union also paid insurance premiums on behalf of some of the claimants so that the insurance coverage that had been provided by the company would not lapse. Some claimants received funds from unemployment compensation, welfare, and social security. If the claimant had mitigated damages to an extent that satisfied the Master, he did not reduce the back-pay award by the amount received from or through the collateral source.

Plaintiff maintains that funds from sources other than interim earnings should reduce the amount of the back-pay award. Plaintiff argues that if such a reduction is not made, the claimant is made more than whole and that in some cases double recovery would ensue. A similar issue was addressed in

NLRB v. Gullett Gin Co.,

340 U.S. 361 , 71 S.Ct. 337 , 95 L.Ed. 337 (1951). In that case, the Court had to decide whether the NLRB had to deduct state unemployment compensation payments from a back-pay award to a discharged employee. The Supreme Court held that the NLRB in its discretion could effect a policy whereby it refused to deduct unemployment compensar tion payments when computing back pay.

Id.

at 364 , 71 S.Ct. at 339 . In dictum, the Court continued as follows:

To decline to deduct state unemployment compensation benefits in computing back pay is not to make the employees more than whole, as contended by respondent. Since no consideration has been given or should be given to collateral

losses

in

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framing an order to reimburse employees for their lost earnings, manifestly no consideration need be given to collateral benefits which employees may have received.

Id.

(emphasis in original).

This Court finds the

Gullett

reasoning to be persuasive in resolving the issue at bar. The Supreme Court’s reasoning applies by analogy to all collateral sources that have been addressed in the present case, not just to unemployment compensation benefits.

3

This Court realizes that it is not bound by NLRB policy. The NLRB was established to “vindicate public, not private rights,”

Virginia Electric & Power Co. v. NLRB,

319 U.S. 533, 543 , 63 S.Ct. 1214, 1220 , 87 L.Ed. 1568 (1943), but to the extent that the. issues presented in NLRB cases are similar to other labor cases in federal court, and to the extent that both the NLRB and the courts seek to make deserving claimants whole, this Court gives deference to the NLRB model for awarding back pay.

Plaintiff calls the Court’s attention to

Satty v. Nashville Gas Co.,

522 F.2d 850 (6th Cir. 1975),

modified on other grounds,

434 U.S. 136, 139 , 98 S.Ct. 347, 350 , 54 L.Ed.2d 356 (1977). In

Satty,

a Title VII case, the Sixth Circuit Court of Appeals upheld a reduction of back wages by “unemployment insurance.”

Id.

at 855. The Second Circuit Court of Appeals cited

Satty

with approval in a discussion concerning the deduction of public assistance funds from a back-pay award in another Title VII case.

EEOC v. Enterprise Association Steamfitters,

542 F.2d 579, 591 (2d Cir. 1976),

cert. denied

430 U.S. 911 , 97 S.Ct. 1186 , 51 L.Ed.2d 588 (1977). The plaintiff urges the Court to adopt the policy of reducing the awards by amounts equal to the funds that were received from collateral sources, as permitted by the Sixth Circuit in

Satty.

The Court recognizes the affinity between Title VII and the NLRB model for back-pay awards.

See Albemarle Paper Co. v. Moody,

422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975) (Title VII case) (Supreme Court highlighting the NLRB policy of awarding back pay). In Title VII cases the Sixth and Second Circuits choose not to follow NLRB policy in calculating the award. But this Court finds no reason to apply Title VII back-pay policy to a labor case when there is a clearly delineated labor policy. Accordingly, the Court, consistent with judicially approved NLRB policy, holds that back pay for the claimants will be reduced only by interim earnings that were or should have been received.

Ill

Defendants have filed a motion to reconsider the Court’s refusal by its Order of September 18,1979 to grant interest on the back-pay damage awards. Upon consideration, the Court declines to modify its order and the motion will be denied.

Defendants have also filed objections to the report of the Special Master. They contend that the plaintiff has failed to prove by clear evidence that claimants had participated in the strike before December, 1977. As stated above, the Court will not disturb the Master’s findings of fact unless those findings are clearly erroneous. The Court is satisfied that the evidence upon which the Master relied was sufficient to establish strike participation by various employees. Defendants’ objections will therefore be overruled.

Accordingly, the defendants’ motion for court action is hereby granted; defendants’ motion to reconsider is hereby denied; the Special Master’s report is hereby approved, adopted in its entirety, and incorporated herein with the modifications made by the within Memorandum; plaintiff’s objections

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to the report are hereby sustained in part and overruled in part; defendants’ objection is hereby overruled.

IT IS SO ORDERED.

EXHIBIT A

SPECIAL MASTER’S REPORT

To the Honorable United States District Court for the Northern District of Ohio, the Report of Roger I. Abrams, Special Master:

I. INTRODUCTION

A.

The Appointment of the Special Master

By its Order of May 15,1979, as amended May 22,1979, the District Court determined that the resolution of the remaining remedy issues in this action

would clearly require an undue expenditure of judicial time and effort. Thus the Court finds that the damage issue herein is complex and that the circumstances of this action in that regard are exceptional. In view thereof, the Court concludes that the resolution of the damage issue requires reference to a Special Master in accordance with Rule 53, Federal Rules of Civil Procedure.

The Court appointed the undersigned as Special Master and charged the Special Master to make a determination of “the specific amount of back pay and fringe benefits owed each individual affected employee” pursuant to the Orders of the Court of September 18, 1978 and January 9, 1979. The Special Master was authorized to “take testimony” and “direct the submission of briefs and memoranda”. The Special Master’s Report, containing “appropriate findings of fact and conclusions of law,” was to be filed with the Court on or before July 16, 1979, later extended by Court Order to October 31, 1979.

B.

Factual Setting and Prior Proceedings

A brief preliminary recitation of the factual setting and prior proceedings in this action' would be useful. Over four years ago the unionized employees of Falls Stamping & Welding Company (herein, the “Company”) went on strike in protest against certain disciplinary action taken by the Company. The strike occurred during the term of a collective bargaining agreement, effective May 20, 1974 to May 19, 1977, entered into by the Company and the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and its Local Union No. 1194 (herein, the “Union”). Second-shift employees * went on strike on September 9, 1975, and were discharged by the Company the following day. First-shift employees went on strike on September 10, 1975. The following day the District Court granted the Company's request for a temporary restraining order enjoining the strike. When these employees failed to return to work, they were also discharged by the Company on September 16, 1975. In total, over 110 employees were discharged by the Company. Thirteen of the dischargees were immediately rehired by the Company as “new employees”, without their accumulated seniority rights. The grievances filed concerning the Company’s actions were brought to arbitration under the procedures set forth in the collective bargaining agreement. On May 28, 1976, after extended hearings and accompanied by a lengthy opinion, the Arbitrator rendered his Award, ordering the reinstatement with seniority of the discharged employees, but without back pay. Two employees, Francis Koslik and Dorothy Dale, were ordered reinstated with seniority and back pay from October 1, 1975. The Award was to be effective not later than five working days from the receipt of the Award.

On June 7, 1976, the Company initiated the present action to vacate and/or modify the Award of the Arbitrator. The Union

1

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counterclaimed for enforcement of the Award and for compensatory and punitive damages against the Company “for its willful refusal to implement the terms of the arbitrator’s decision”. In its Memorandum Opinion and Order of July 6, 1976, the District Court vacated the Arbitrator’s Award as constituting an abuse of the Arbitrator’s authority under the collective bargaining agreement in light of the contract language granting the Company the right to discharge employees who strike during the term of the contract. Because the Award was vacated, the Court concluded that the Union’s counterclaim for enforcement and damages was meritless.

2

The Union appealed. Almost two years later, by a per curiam opinion, the United States Court of Appeals for the Sixth Circuit reversed the judgment of the District Court and remanded the case with instruction to reinstate the Award of the Arbitrator.

3

Pursuant to the mandate of the Circuit Court, the District Court reinstated the arbitration decision in its Order of September 18, 1978. In that Order it addressed the Union’s claim for “back pay with interest and any other economic entitlements due them from June 8, 1976 to the date of actual reinstatement.” In its earlier Memorandum Opinion and Order of July 6, 1976, the Court determined that the defendants’ counterclaims were meritless in. view of its decision vacating the Arbitrator’s Award. Although the defendants did not appeal the counterclaims determination, the District Court found “good cause” to depart from its prior determination in light of the Circuit Court’s action. The District Court determined that “its prior conclusion that de-: fendants’ counterclaims were meritless to be now without a sound legal foundation and substantially erroneous.” The failure of the Company to reinstate the employees pursuant to the Award of the Arbitrator “has resulted in loss or damage to said employees.” In order to avoid “a grave or manifest injustice,” the District Court determined that the employees ordered reinstated by the Arbitrator’s Award of May 28, 1976 “are entitled to the back pay and other fringe benefits they would have earned from June 8, 1976 until their actual reinstatement. Such damage award, however, must be diminished by the amount actually earned by the employees elsewhere during said period. Further, the employees are not entitled to interest on the back pay damages award.”

4

Prior to the entrance of this Order, the Company had on June 8, 1978, offered reinstatement to all the discharged employees.

The Company later moved the Court to amend its Order of September 18, 1978 to. include the statement prescribed by 28 U.S.C. § 1292 (b), thereby certifying the Order for an interlocutory appeal to the Circuit Court. By its Order of January 9, 1979, the Court granted the Company’s motion, but the Circuit Court declined to hear the interlocutory matter. In its Order of January 9, 1979, the Court also dealt with two additional remedy issues on which it had earlier called for the submission of briefs by ¿the parties. The first issue addressed was the question of whether the back pay determination was properly within the jurisdiction of the Court or, rather, was subject to arbitration. The parties by stipulation agreed that “the issue of the amount of back pay due pursuant to the Court’s Order of September 18, 1978 is

*1107

properly before this Court and not arbitra-ble pursuant to the applicable collective bargaining agreement.” In view of the stipulation, the Court determined that it had authority with regard to this matter.

The second issue the Court characterized as presenting a “difficult question”. As noted above, the parties to this action were parties to a collective bargaining agreement, effective May 20, 1974 until May 19, 1977. Subsequent to the discharge of the employees in September, 1975, the Company continued to operate under that agreement with an almost entirely new workforce. The agreement expired by its terms after the parties failed to reach a new agreement through collective negotiations. On June 10, 1977, the Union commenced an economic strike against the Company.

5

It was the Company’s contention to the District Court that the termination of the collective bargaining agreement precludes the allowance of any back pay to the 1975 dischargees reinstated by the Arbitrator's Award after June 10, 1977, the date of the economic strike. The Court, in its Order of January 9, 1979, rejected the Company’s argument in its broadest form. The Court was not

inclined to assume that such employees would have participated in the economic strike of 1977 had they been immediately rehired pursuant to the arbitrator’s award in June, 1976. Such assumptions would be purely speculative on the basis of the record presently before the Court.

Therefore, the Court concludes that, under the subject collective bargaining - agreement, the employees reinstated under the arbitration award entered May 28, 1976 are entitled to back pay beyond the termination of said agreement and until their actual reinstatement absent any clear showing that they actually participated in the economic strike of 1977. Thus to the extent plaintiff can demonstrate that any affected employee did participate in any manner in such strike, the amount of back pay owed such individual shall be limited to that accruing prior to June 10, 1977.

During the course of the proceedings before the Special Master, a disagreement arose between the parties concerning the interpretation of this Order. Upon motions of the parties, the District Court on June 27, 1979 reaffirmed its Order of January 9, 1979 as applying to “all employees of plaintiff who were improperly discharged in 1975 and ordered reinstated under the arbitration award entered May 28,1976.” With regard to the limitation on the extent of back pay, the Court clarified its earlier Order and concluded that

in the interest of justice . . . the amount of back pay owed any affected employee who is shown by plaintiff to have participated in the economic strike shall be limited to that accruing prior to the first day of his actual strike participation. Thus, back pay to said affected employee shall not automatically terminate as of June 10, 1977, but rather shall end as of the day upon which they actually participated in the economic strike.

Therefore, where plaintiff can establish that any employee discharged in 1975 and reinstated under the arbitration award took part in any manner in the economic - strike which commenced June 10, 1977, the back pay owed such employee shall be limited to the amount accruing prior to the date of such activity. In other words, each affected employee who picketed plaintiff and received strike benefits therefore or otherwise actively participated in the economic strike which apparently continues today is not entitled to back pay beyond the time he engaged in strike activity.

The Court reasoned that the conduct of the discharged employees in taking part in the 1977 economic strike “demonstrates that, if reinstated prior to the expiration of the collective bargaining agreement, they would not have worked beyond the day they took part in the strike.”

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On August 8, 1979, over three weeks subsequent to the close of hearings before the Special Master, the Company filed a motion with the District Court seeking the dismissal of the Union’s counterclaim for damages on behalf of its members based upon the grounds that the Union lacks sufficient standing to claim individual monetary amounts for these persons and, alternatively, that the counterclaim may not be maintained as a class suit. . On August 27, 1979, the Company moved to stay the proceedings before the Special Master pending determination of its motion to dismiss, arguing that in the event that the motion to dismiss is granted by the District Court “the time and effort spent by the Special Master unfortunately will have been for naught.”

The District Court, on August 81, 1979, denied both Company motions. The motion to dismiss was denied on two alternative grounds. The Court found that the Company “waited too long to raise these contentions” and thus the claim was barred under the equitable doctrine of laches:

In the instant case the Unions, the individual claimants, the Court and the Special Master have invested their time and energy to conclude this litigation. The Court finds that under the circumstances, the plaintiff’s delay was unreasonable and that it has prejudiced the other parties to the action.

Alternatively, the Court concluded that the Company’s motion must be denied on the merits. The Court noted that the Unions in this action were not proceeding as class representatives in a class action, and thus the requirements of Rule 23, Federal Rules of Civil Procedure, were inapposite. Likewise, the standing argument was rejected: “Where, as here, the Union seeks monetary damages for the employees based on the collective bargaining agreement, the Union can properly proceed on behalf of the individual claimants.

Kroger Co. v. International Brotherhood of Teamsters,

380 F.2d 729 (6th Cir. 1967); 17.

A. W. v. Textron, Inc.,

312 F.2d 688 (6th Cir. 1963).” In light of its ruling on the Company’s motion to dismiss, the Court denied as moot the Company’s motion for a stay of proceedings before the Special Master.

C.

Proceedings Before the Special Master

Commencing June 1, 1979, the Special Master met with the parties to this action and conducted hearings pursuant to the Court’s Order of May 15, 1979. Testimony was taken from 50 witnesses during the six dates of hearing ending July 16, 1979. In addition, four separate meetings were held with counsel and with the parties. During the course of these extensive discussions with the parties, many difficult issues were resolved informally by mutual agreement. The parties proceeded in good faith to resolve in an expeditious manner the complex factual and legal issues referred to the Special Master. Considering the arduous road traveled by this case over the years, the parties are to be complimented on the manner in which they facilitated the task of the Special Master.

The Special Master directed that the parties submit briefs on legal issues on July 20, 1979, with a complete submission on each individual claimant

6

to follow. While there was some delay in filing the individual submissions, much of it was justified by the complexity of the task involved.

D.

The Reference to the Special Master

As noted above, the Court’s reference of this matter to the Special Master extends “to a determination of the amount of back pay and fringe benefits owed” to each of the claimants. The Court’s Orders specify that the claimants are entitled to back pay and fringe benefits they would have earned from June 8, 1976 until they were actually offered reinstatement with the Company.

7

The parties are in agreement that reinstatement was offered as of June 8, 1978, and thus the “back pay period” runs for two years. Findings of fact will be made below

*1109

as to the amounts each claimant would have earned had he or she been reinstated pursuant to the Arbitrator’s Award, i. e. the “gross back pay”, which would have been received during the back pay period.

8

The Court’s Order of September 18, 1979 expressly states that damage awards “must be diminished by the amount actually earned by the employees elsewhere during said period” and that the employees are not entitled to interest on the back pay damage award. It is apparent from a close study of the Court’s Orders in this action that it is the basic goal of the Court that the claimants be made whole for the loss suffered as a result of the Company’s refusal to reinstate them as directed by the Arbitrator. •The “make-whole principle” is a familiar one in many areas of national labor policy, and it is a guiding standard as well in ordinary employment contract law. The interim earnings of a claimant are deducted because the individual employee is entitled to recover from the Company his loss in pay; nothing more, nothing less. In addition, under the “make-whole principle” amounts are to be deducted which a claimant

could

have earned in interim employment if he had used reasonable efforts to obtain such employment. A failure to mitigate damages increases the injury received by the employee, and “he cannot recover judgment for the amount of this avoidable and unnecessary increase. The law does not penalize his inaction; it merely does nothing to compensate him for the loss that he helps to cause by not avoiding it.” 5 Corbin,

Contracts,

§ 1039, at 243 (1964). The parties are in agreement that in computing the amounts owed individual claimants, deductions should be made not only for actual interim earnings but also for amounts the employee could have earned through the use of reasonable diligence during the back pay period. Thus, the findings of fact will include discussion of both actual interim earnings of the claimants during the back pay period and the efforts each individual made to seek and maintain employment during the period June 8, 1976 until June 8, 1978.

In its Order of January 9,1979, the Court ruled that the mere fact that the collective bargaining agreement between the parties expired and the Union went out on strike on June 10, 1977 did not mean that individual claimants were entitled to no back pay after the termination of the agreement. The Court found that the “parties must have reasonably contemplated and intended that the remedies of the reinstatement and back pay . . . would be available under the agreement” and it construed the “agreement as providing for reinstatement and back pay subsequent to its termination”. The Court indicated that the affected employees “would probably have been reinstated but for plaintiff’s actions . prior to the termination of the subject collective bargaining agreement. Additionally, although they could have been discharged immediately after the agreement expired, the Court is unwilling to assume that plaintiff would have discharged them after the agreement was terminated by the union.” After the agreement terminated, the Union launched an economic strike

*1110

against the Company. The Court ruled in its Orders of January 9, and June 19, 1979 that individual claimants clearly shown by the Company to have actually participated in any manner in the 1977 economic strike would lose their rights to back pay as of the first day of their participation. Thus, findings of fact will be made concerning actual strike participation and the date on which such participation began.

9

As stated above, 13 claimants were immediately rehired by the Company as new employees after their discharge in September, 1975, and continued to work for the Company until the economic strike on June 10, 1977.

10

The parties are in agreement that these persons are entitled to no back pay, but, since they were not rehired with their full seniority, they are entitled to the increment in pro-rated vacation pay, bonuses, and leader pay which they would have received had they been restored to their full seniority rights from June 8, 1976 until June 10, 1977. The Union makes no claim for any amounts for these persons after the commencement of the 1977 economic strike in which they participated. Findings of fact will be made below concerning the amounts that these claimants would have earned during the subject period.

The Company contends that certain additional monies received by the claimants during the back pay period should be deducted from gross back pay. These include significant amounts of assistance received by many claimants from the International Union, welfare benefits, unemployment compensation and social security payments. Findings of fact will be made as to whether an individual claimant received these various monies during the back pay period and in what amount. The question whether these amounts should be deducted from the amounts due the claimants will be addressed at length in the conclusions of law.

On June 27, 1979, after full discussion with the parties, the Special Master issued an Interim Report concerning certain individual claimants in this action. As set forth in more detail in that Interim Report, these claimants did not complete affidavits containing information concerning interim earnings as- required by the Court’s Order of September 18, 1978; nor did they appear at depositions properly noticed by the plaintiff; nor did they reply to Interrogatories properly served by the plaintiff. Thus, the Special Master concluded that the total failure of these claimants to supply any information acted to forfeit any entitlement they might have to recovery of back pay. Findings of fact will be made concerning the claimants included in this category.

11

II. FINDINGS OF FACT

Pursuant to the Order of the Court of May 15, 1979, the Special Master conducted hearings in this proceeding. A transcript of the testimony received on this reference is filed herewith. In addition, the record includes claimants’ affidavits, answers to interrogatories and depositions and various exhibits entered into evidence. The complete record is also herewith transmitted to the Court. Having considered all the evidence in the record, my findings of fact with regard to the individual claimants are as follows:

1. MOLLY ANDERSON, 39,

12

was successful in obtaining employment from three separate employers during the back pay period. In 1976 she worked for Crawford

*1111

Bindery and earned $577.07 until she was laid off. On December 27, 1976 she began work for Empire Manufacturing Company, where she earned $102.80 in 1976 and $772.78 in 1977. She had to quit her employment with Empire on February 23,1977 because she lost her transportation out to the plant. After a number of months of searching for work, applying to a number of employers in Canton and Barberton (such as Timken) but without success, Ms. Anderson was able to return to Crawford Bindery on June 20, 1977, where she earned $859.37 until she was again laid off. In 1978, the claimant worked for Akron Selle Co., earning $2,759.76 during the back pay period of that calendar year. The claimant did receive unemployment compensation and welfare benefits, but the record does not indicate the amounts of these payments. The claimant’s gross back pay figures (i. e., the amounts she would have earned from the Company had she been reinstated in accordance with the Award of the Arbitrator) have been calculated as follows: $4,122.28 in 1976, $7,627.09 in 1977, and $3,703.14 in 1978. Ms. Anderson participated in the 1977 economic strike activity. Three Company witnesses testified to the claimant’s participation and her name appears on Mr. Lange’s list of June 17, 1977.

2. GREG BALMER did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

3. BOBBY BELL, 29, began his search for work from the very beginning of the back pay period, applying for positions at various machine shops, such as Logan Machine, and at Alside, an aluminum siding company. When his search for work proved unsuccessful, the claimant went on active duty with the Armed Forces from August 5, 1976, until November 23, 1976. During his time of service, of course, he did not seek interim employment. After being honorably discharged, the claimant again took up his search for work, looking for jobs as a power lift operator or a machine operator; he applied at Aero Tool & Die, Massey-Ferguson and other similar shops on a regular once-a-week basis. If the claimant heard there was a job available, he testified that he would “go and seek it out.” Finally, Mr. Bell was successful in obtaining- employment on May 5, 1977, at Western Reserve Psychiatric Rehabilitation Center, where, during the back pay period, he earned $5,222.40. in 1977, and $5,302.40 in 1978. The claimant received $450.00 in Union assistance. His back pay calculations are as follows: $5,215.00 for 1976, $9,298.13 for 1977, and $4,612.61 for 1978 (total, $19,-125.74).

4. JUANITA BEIRLAIR, 33, was employed in three jobs during the back pay period. Her Answers to the Company’s Interrogatories list eight additional places where she sought employment and notes that she applied at other employers whose names she cannot recall. The claimant was employed from November, 1976 until March, 1977 by Kent Industries, where she earned $619.28 in 1976 and $528.00 in 1977. She quit her job at Kent after receiving a call from Stouffer’s in Solon telling her she “would be going to work on the following Tuesday, but they had to check out [the claimant’s] references”. (Dep. pp. 4-5) When they checked her reference, Falls Stamping and Welding Company, they sent the claimant a letter telling her they were sorry but they did not need her. She again began the search for work, applying at General Electric, Anne Marie Nursing Home in Aurora, Container Corporation in Ravenna, Oak Rubber, White Rubber, Alert Stamping, Samuel Moore Paint Company, plus many more. “I was out practically daily putting in applications.” (Dep. p. 11) She finally obtained a position with Alert Stamping on June 22, 1977 and worked there until October, 1977, earning $1,114.04. From October, 1977 through the end of the back pay period, the claimant worked at Hunter Manufacturing, earning $1,075.44 in

*1112

1977 and $3,622.57 in 1978. The claimant participated in the 1977 economic strike activity. Her name appears on Mr. Lange’s list of June 17, 1977. The claimant’s gross back pay figures are as follows: $5,009.14 for 1976, $8,651.59 for 1977, and $4,338.36 for 1978. She received $1,100.00 in Union assistance, and the Union paid $607.32 in insurance premiums for the claimant.

5. HARRY BLAKNEY, 29, was not employed during the back pay period, and the record indicates that he made only a few sporadic attempts at seeking employment. He received $4,266.00 in Union assistance, and the Union made payments of $850.25 in insurance premiums for the claimant during the back pay period. The claimant’s back pay figures are as follows: $4,348.31 for 1976, $7,815.20 for 1977, and $3,987.78 for 1978. The claimant’s Answers to the Company Interrogatories list three places where he sought employment, all within a single two-week period around March, 1977. In his deposition testimony, the claimant listed two additional places where he sought employment in 1978. In general, the claimant’s attitude as evidenced in his testimony was either that he was unsure whether he had the training or skill for certain jobs (such as being a short-order cook) or that he wanted to make more money than certain jobs would offer. He did not seek out employment opportunities, even though, as he testified in his deposition, “I knew there were openings.” (Dep. p. 17) This claimant participated in the 1977 economic strike activity as of July 14th, when his name appears on Mr. Lange’s list. Three Company witnesses testified to his strike participation and the claimant admits such participation, but would date its commencement as of December, 1977.

6. PAUL BOXLER was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $613.67 in 1976, $582.77 in 1977, and $392.43 in 1978. He received a total of $219.60 in vacation pay as a new employee. In addition, Mr. Boxler’s pro-rated Christmas bonuses are $62.48 for 1976 and $43.50 for 1977. He received a single bonus of $10.00 as a new employee.

7. HOWARD BROCKMAN, 28, was employed during the entire back pay period by Teledyne Monarch Rubber Company, where he earned $10,548.98 during 1976, $23,034.74 in 1977, and $12,534.70 in 1978. His gross back pay from the Company amounts to $6,615.40 in 1976, $11,860.45 in 1977, and $5,872.63 in 1978.

8. RONALD BROUSE, 28, used extraordinary effort in seeking interim employment during the back pay period. He was finally successful in July, 1977 in obtaining a position with the Summit County Engineer. He filed written applications with 37 companies and made visits to over 100 other companies who would not even accept applications. The Company acknowledges that the claimant “was very diligent in seeking alternative employment.” His total gross back pay figure is $22,111.66, and his actual interim earnings were $8,316.00. Brouse received $2,940.00 in Union assistance.

9. JOYCE BULLARD, 40, also used extensive efforts to seek and maintain employment during the back pay period. She was employed by Stop-n-Go from September 15,1976 until August 13,1977, when she obtained a position with Patcher Rubber Company, where she was employed for the rest of the back pay period. In addition, the claimant listed 15 companies where she sought employment and testified in her deposition that she sought employment “at about every factory in Summit and Wayne County.” (Dep. p. 6) Her actual interim earnings were $1,148.00 in 1976, $5,005.37 in 1977, and $1,734.00 in 1978. Her gross back pay is calculated as follows: $6,280.97 in 1976, $11,030.18 for 1977, and $5,560.00 for 1978. She received $2,080.00 in Union assistance. Ms. Bullard was clearly shown to have participated in the 1977 economic strike activity as of July 7th, when her name appears on Mr. Lange’s list.

10. BOBBY BULLARD, 41, was, as the Company admits, “very diligent in seeking

*1113

employment” during the back pay period. He listed 14 places where he unsuccessfully sought employment in 1976 and 1977 prior to obtaining employment at Trusco, Inc. on November 3, 1977, where he worked through the end of the back pay period. In his interim employment the claimant earned $1,409.63 in 1977 and $4,877.16 in 1978. He received $3,000.00 in assistance from the International Union. The claimant’s gross back pay figures are: $4,725.88 for 1976; $8,737.40 for 1977, and $3,928.68 for 1978 (total $17,391.96). Three Company witnesses placed the claimant on the picket line during June to December, 1977. Mr. Lange recalled seeing him there during “warmer weather”, but his name did not appear on Mr. Lange’s list. When asked during his deposition about picketing,, the claimant twice flatly denied participation, and the matter was not pursued further, either in his deposition or in his hearing testimony.

11. STEPHAN BUNNER, 23, was -employed at three different jobs during the back pay period. • At the commencement of the back pay period in June, 1976, claimant held a part-time position with Sohio, earning $2.65 an hour. From Sohio, the claimant earned $4,642.42 in 1976 and $1,282.26 in 1977. According to the claimant he quit his job with Sohio because he was not earning enough to support his family. Apparently when he quit Sohio in early 1977, the claimant knew he had a job opportunity with Little Tykes, but that he would have to wait a while for that position to- open. He was unemployed for approximately six weeks. Around April, 1977, the claimant hired in to Little Tykes, where he was making $3.18 an hour for a full 40-hour week. It is estimated that he worked there for some 14 weeks; his earnings were $1,780.80. He quit his job at Little Tykes, again because the pay was too low, and, after a month wait (which involved an excursion to Florida), obtained a position at C & C Machine, where he earned $2,811.34 in 1977 and $3,596.95 in 1978. His gross back pay is calculated to be $5,006.80 in 1976, $8,942.59 in 1977, and $4,329.67 in 1978 (total, $18,-279.06).

12. BASIL BUSCH, 28, obtained two jobs during the back pay period, a brief part-time job with Sohio in January, 1977, where he earned only $20.00 and then a full-time position with Consolidated Mold and Die, starting February, 1977, where he earned $6,691.36 in 1977 and $4,834.03 in 1978. Prior to obtaining employment, Mr. Busch made an extensive search for work. The evidence indicates that during 1976 he sought employment from at least 10 different named employers. The claimant also suffered two periods of disability during 1976, an appendectomy in September which kept him out of the job market for six weeks, and an auto accident immediately thereafter in October, 1977, which required a few months of recuperation. Thus, commencing in early September, 1977, through the end of the year, the claimant was not seeking employment. His gross back pay figures were calculated to be as follows: $5,851.27 for 1976, $10,525.73 for 1977, and $5,277.49 for 1978 (total, $21,654.49). His total interim earnings were $11,545.39. The claimant received $1,600.00 in Union assistance.

13. JANE CARLTON, 58, was unable to obtain interim employment during the back pay period, although the record indicates that she did make attempts at seeking work. The claimant testified that she looked for work once or twice a week during the time she maintained her registration for unemployment compensation, although it is unclear in the record when that period began or ended. In her testimony before the Special Master, the claimant said that she “looked for work all the time” until 1978. She applied for positions at Wolfe Grinding, Rogers Manufacturing and Logan Machine, and also sought reemployment with the Company. She received $4,545.00 in Union assistance. Mrs. Carlton participated in the 1977 economic strike activity, commencing on June 23, 1977, when her name appears on Mr. Lange’s list. Three Company witnesses testified to seeing the claimant participating in the strike activity, and the claimant admits such activity in her deposition testimony. The claimant’s gross

*1114

back pay figures have been calculated as follows: $5,418.50 in 1976, $9,100.45 in 1977, and $4,712.63 in 1978.

14. JANET CARR, 31, was employed from September, 1976 through the end of the back pay period. She first obtained a part-time position with the Quik Shop in Canal Fulton, where she earned $667.80 for some seven weeks’ work, and then left this employment to take more suitable employment with the Canal Fulton Public Library, where she earned $407.00 in 1976, $2,377.20 in 1977, and $1,287.00 in 1978. The position with the Library was also on a part-time basis, but the claimant continued to seek full-time employment, applying at the Akron, Cuyahoga Falls, Stow and Barberton Public Libraries and with the Federal Bureau of Investigation. She received $3,810.00 in Union assistance, $285.00 in welfare and $120.00 in food stamp assistance. The Union paid $816.25 in insurance premiums for the claimant. Her gross back pay calculations are as follows: $4,750.77 for 1976, $8,356.13 for 1977, and $3,947.93 for 1978. The claimant participated in the 1977 economic strike in June of that year by her own admission in her deposition testimony and in her testimony at the hearing before the Special Master.

15. VICTOR CARUSO, 65, was employed by the Company for 46 years prior to his discharge in 1975. During the back pay period he was able to obtain only one job, with Heepe Florists, which lasted from September, 1977 until January, 1978, when the claimant quit because, according to his testimony, the job interfered with his picketing activities. He earned $1,500.00 in this interim employment. Mr. Caruso received $5,320.00 in Union assistance and the Union paid $850.25 in insurance premiums for the claimant. His gross back pay calculations are as follows: $5,158.73 for 1976, $8,893.92 for 1977, and $4,802.39 for 1978. Mr. Caruso searched for work during the back pay period, but found that his age was a severe disability in obtaining employment. The claimant was also physically handicapped; a serious injury to his hand resulted from an industrial accident at the Company years before. The evidence shows that the claimant sought work with Forest City Precast and Custom Mold in Kent. With the help of his sons, he looked for work with employers in the Akron area. As he testified, he would “walk in the place — they just look at you: ‘No help wanted. Goodbye’ ”. (Dep. p. 14) After he left Heepe Florists in 1978, he did not seek further employment. Mr. Caruso by his own admission participated in the 1977 economic strike activity. His name first appears on Mr. Lange’s lists as of June 17, 1977. Three Company witnesses testified to the claimant’s strike participation.

16. CLARENCE CHADWELL did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

17. ANTHONY CIARALLO, was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10,1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $663.53 in 1976, $594.40 in 1977, and $463.20 in 1978. He received a total of $161.60 in vacation pay as a new employee. In addition, Mr. Ciarallo’s prorated Christmas bonuses are $53.71 for 1976 and $42.00 for 1977. He received a single bonus of $10.00 as a new employee.

18. JAMES CLEMENTE, 58, was employed by Melch Foods Products, Inc. from the last week of October, 1976, through the end of the back pay period. He earned $2,299.37 in 1976, $9,443.91 in 1977, and $4,492.05 in 1978. Prior to obtaining this position with Melch Foods, the claimant did not seek work. He received $1,700.00 in unemployment compensation during 1976. His gross back pay figures are as follows: $7,748.50 for 1976, $14,096.89 for 1977, and

*1115

$6,978.69 for 1978. Company witnesses testified to seeing the claimant participating in the 1977 economic strike activity, but the claimant’s name does not appear on Mr. Lange's lists. Mr. Lange testified that he saw the claimant there “occasionally”, without specifying when he began participating during the June-December, 1977 period.

19. JERRY CONNER was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $97.31 in 1976 but no vacation pay for 1977 or 1978 because he did not meet the threshold work eligibility requirement.. He received no vacation pay from the Company. Mr. Conner would not have received Christmas bonuses for either 1976 or 1977, although he actually received a bonus of $10.00 from the Company, apparently in error.

20. ROBERT CREEK was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $163.61 in 1976, $276.77 in 1977, and $199.33 in 1978. He received a total of $186.80 in vacation pay as a new employee. In addition, Mr. Creek’s pro-rated Christmas bonuses are $14.03 for 1976 and $10.40 for 1977. He received a single bonus of $10.00 as a new employee. Mr. Creek would also have received 15 cents per hour leader pay which amounts to $273.01.

21. CHRISTOPHER CRIM was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10,1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $340.46 in 1976, $480.02 in 1977, and $361.21 in 1978. He received a total of $207.60 in vacation pay as a new employee. In addition, the claimant’s prorated Christmas bonuses are $53.86 for 1976 and $41.25 for 1977. He received a single bonus of $10.00 as a new employee.

22. DANIEL CRIM was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $353.97 in 1976, $319.71 in 1977, and $353.76 in 1978. He received a total of $205.20 in vacation pay as a new employee. In addition, the claimant’s pro-rated Christmas bonuses are $14.69 for 1976 and $11.00 for 1977. He received a single bonus of $10.00 as a new employee.

23. ANDREW CSONKA, 22, supplied only the barest amount of information regarding his interim employment activities by way of a single-page affidavit. He did not appear at his noticed deposition, nor did he file Answers to the Interrogatories. During the hearings, this claimant was in California and thus was unavailable to testify. Nonetheless, certain facts are in the record and they demonstrate, at least up until October, 1977, a continuous record of employment at various employers in Lisbon and Akron, Ohio. While the claimant supplied only his hourly rates of pay, it can be estimated that in the period June, 1976 until October, 1977, he earned $10,796.00. His post-October, 1977 efforts or successes in obtaining employment are unknown since the claimant totally failed to respond to the Company’s other discovery attempts. Apparently, Mr. Csonka (a 22-year-old young man) took Mr. Greeley's advice and “went West”. (His affidavit was signed in Nevada.) The gross back pay figures for this claimant are $3,510.42 for 1976, $6,271.45 for 1977, and $3,111.85 in 1978 (total $12,-893.72).

24. TIMOTHY CURTIS, 22, was employed continuously throughout the back pay period, and the Company acknowledges that the claimant mitigated his damages. He was employed at Kayo Oil in 1976, where it can be estimated he earned $2,650.00. From November 30, 1976 until

*1116

February 1, 1978, the claimant worked for Staubs Trucking, earning an estimated $472.50 in 1976, $5,460.00 in 1977, and $420.00 in 1978. In 1978 he was employed at the Rex Humbard Foundation (earning $1,082.64) and Ascot Machine (earning $899.16). The claimant’s gross back pay figures are as follows: $3,646.92 for 1976, $6,501.69 for 1977, and $3,229.88 for 1978. Mr. Curtis participated in the 1977 economic strike activity. Two Company witnesses testified to his participation and his name appears on Mr. Lange’s first list of June 17, 1977, as participating at 5:45 a. m.

25. DOROTHY DALE, 55, is one of two employees entitled to back pay dating from October 1, 1975, because she was reinstated

with

back pay under the Award of the Arbitrator, later enforced by the District Court. The claimant would have earned $18,986.84 in gross back pay during her extended back pay period, and the Union paid $724.25 in insurance premiums for the claimant. The claimant held two jobs during the back pay period: at Columbus Bus Service International, where she earned $176.55 in 1975 and $518.70 in 1976 (when she was fired for an alleged theft); at Ford Motor Company, where she earned $4,979.90 in 1976 and $13,679.26 in 1977. She was employed at Ford through the end of the back pay period; although her exact earnings during 1978 were not ascertained, her deposition indicated that her rate was over $7.00 an hour, substantially higher than her rate would have been at the Company during 1978. Using as a reasonable estimation a rate of $7.25 an hour, her interim earnings during the back pay period in 1978 amount to $6,670.00. Thus, her total interim earnings amounted to $26,024.41. She received $280.00 in Union assistance.

26. MARTHA DeCHURCH, 59, unsuccessfully sought interim employment. She applied for employment with at least eight companies, often on more than one occasion. Her gross back pay figures are as follows: $6,888.13 for 1976, $11,300.92 for 1977, and $5,965.86 for 1978. The Union paid $850.25 in insurance .premiums for the claimant. The claimant received $4,226.00 in Union, assistance. She admitted participating in the 1977 economic strike activity, beginning in December of that year. However, four Company witnesses placed her on the strike line much earlier, and her name appears on Mr. Lange’s list of June 23, 1977.

27. ANDREW DeRITA was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike June 10,1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $1,078.00 in 1976 and $989.71 in 1977. He received a total of $215.60 in vacation pay as a new employee. In addition, the claimant’s pro-rated Christmas bonus is $64.21 for 1976. He received a single bonus of $10.00 as a new employee. The claimant, would have received leader pay of 15 cents per hour, amounting to $296.97.

28. DAVID DeRITA, 54, was employed by Chrysler Corporation as of August 9, 1976 and from then on through the back pay period. He earned substantial sums in his interim employment: $9,881.72 in 1976, $30,302.57 in 1977, and $8,769.80 in 1978. He received $405.00 in Union assistance. The Company did not submit gross back pay figures on this claimant, arguing that precise calculations were unnecessary due to the fact that the claimant clearly earned more in interim employment than his gross back pay from the Company. In its initial calculation sheet submitted to the Court in 1978 which used a “very best case” approach to calculating back pay — and not the method later agreed to by the parties — the Union claimed $37,596.56 was a “grand total” for this claimant. While this estimate is clearly too high, this claimant in fact earned $48,954.09 in interim employment, over $10,000.00 more than this inflated gross back pay figure. There was some evidence that this claimant participated in the 1977 economic strike activity, but his name does not appear on Mr. Lange’s lists.

29. DQROTHY DeRITA, 54, was unable to obtain interim employment during the back pay period. The evidence indicates that she sought employment from numer

*1117

ous companies, including Logan Machine Company, Gay-En Corporation, M & J Company, Reichold Chemical Company, Sun Plastic Company, and other places whose names she could not recall. She received $4,635.00 in Union assistance, and the Union paid $850.25 in insurance premiums on her behalf. Her gross back pay figures are as follows: $4,505.18 for 1976, $6,994.99 for 1977, and $3,973.58 for 1978. By her own admission, she began picketing as of December, 1977, but three Company witnesses place her at the strike line much earlier. The claimant’s name appears on Mr. Lange’s list of June 17, 1977, shortly after the economic strike began.

30. JOHN DIMMICK, 52, was briefly employed during the back pay period. He worked for Leisure Time, Inc. during October, 1976, where he earned $77.83 and for the Village of Munroe Falls in November and December, 1976, where he earned $268.50. He was laid off from Leisure Time when it closed at the end of the season, and he left his job with Munroe Falls because he was physically unable to do the walking to read the water meters which the job required. In January, 1977, Mr. Dimmick moved to Florida for health reasons and stopped seeking employment. (Mr. Dimmick later started a campground in Florida, but his testimony indicates that this activity occurred after the end of the back pay period.) In addition to the two jobs which the claimant held, he also sought employment at Rogers Manufacturing and Hamlin Steel Products. The claimant received $3,245.00 in Union assistance. The claimant’s gross back pay figures are as follows: $4,746.89 for 1976, $8,213.34 for 1977, and $4,154.49 for 1978. Three Company witnesses testified that Mr. Dimmick participated in the 1977 economic strike. The claimant’s name appears on Mr. Lange’s list of June 10, 1977, and is also noted on the July 14, 1977 list.

31. CLEOPHUS DIXON, 31, was employed throughout the back pay period beginning August 20, 1976, by Consolidated Freight where he earned $7,412.10 in 1976, $18,575.65 in 1977, and $8,138.26 in 1978 (total, $34,126.01). The Company, in its submission on this claimant, did not supply gross back pay figures, arguing that it is clear that Mr. Dixon earned more in his interim employment than he would have earned with the Company. However, the computer sheets earlier submitted by the Company do allow for a calculation of gross back pay. (There was an error in the calculation of the projected number of hours the claimant would have worked during the back pay period. His average number of projected hours of work per year should be 1,569.09 and not 1,297.7 as indicated on the printout.) The claimant would have earned $4,600.38 in 1976, $7,897.38 in 1977, and $3,903.33 in 1978 (total, $16,401.09). Mr. Dixon received $250.00 in Union assistance.

32. JOSEPH DOLGAS, 56, stopped applying for jobs in December, 1976 when he went on welfare. In 1976 he was briefly employed at a few jobs, then held a position at Fairlawn Chateau from November 15, 1976 until he was discharged on December 17, 1976. His total actual interim earnings in 1976 were $1,432.47. When offered reinstatement by the Company in June, 1978, the claimant returned to work. The claimant’s gross back pay figures are $5,048.66 for 1976, $9,245.37 for 1977, and $4,613.92 for 1978 (total, $18,907.95). He received $2,025.00 in Union assistance, $1,131.00 in welfare payments, and the Union paid $720.74 in insurance premiums for the claimant. In 1976, during periods when the claimant was not employed, he actively sought work, filing applications with a number of employers, including Suffield Publishing, L-K Restaurant, St. Thomas Hospital, and Akron University. After his discharge from Fairlawn Chateau, Mr. Dol-gas ceased looking for work. The claimant was not in good health during the back pay period, although he did testify that his health did not interfere with his search for work. Two Company witnesses testified that Mr. Dolgas participated in the 1977 economic strike at least at some time during the period June — December, 1977. However, in his deposition testimony, the claimant flatly denied participation and said he did not picket because he would have lost

*1118

his welfare. He was not asked about his strike participation during his testimony before the Special Master.

33. JOHN DOSHAK, 35, was employed throughout the back pay period by Logan Metal Stampings,- Inc. He earned $16,-695.93 in this interim employment. (The Company calculates a higher figure by prorating the claimant’s W-2 earnings. However, the record includes a letter from the claimant’s employer indicating precisely what amounts were earned between the relevant back pay period dates. Earnings may vary from week to week based on various factors, e. g. hours worked, incentive, and thus, the more precise employer’s figures are better evidence of actual earnings than pro-rated W-2 figures.) The claimant’s total gross back pay from the Company was calculated to be $23,820.56. Although one Company witness testified to seeing the claimant participating in the strike, the Company has apparently abandoned that claim in its submission to the Special Master concerning the claimant.

34. KENNETH DOUGLAS, 25, was employed throughout the back pay period by McDonald’s in Akron, where he earned a total of $16,314.42. His gross back pay for the entire period has been calculated to be $22,617.46. The claimant held a part-time position at McDonald’s since 1972, and the Union estimates that while working part-time the claimant was earning about $1,500.00 a year. After his discharge from the Company, the claimant assumed full-time status with McDonald’s.

35. STEVEN EDWARDS, 22, filed only a “bare bones” affidavit in this proceeding which makes the calculation of an award of damages virtually impossible. The claimant was employed by Canteen Corporation during some part of 1976 and 1977, where he earned a total of $2,504.35. In March, 1977, Mr. Edwards entered active duty with the Armed Forces, where he remained through the end of the back pay period. He was unavailable to the Company for testimony either by way of deposition or at the Special Master’s hearings. He did not file his Answers to the Company’s Interrogatories. He received $650.00 in Union assistance. The Company calculates that Mr. Edwards’ gross back pay prior to his entry into active duty amounts to $7,425.37.

36. ROBERT' ELLIS, 29, did not seek interim employment during the back pay period. For some time during the two-year period, Mr. Ellis was incarcerated in the Columbus Correctional Facility and thus, he was out of the job market. He received $4,000.00 in Union assistance.

37. ERNEST FARR, 56, was employed throughout the back pay period by Akron University, where he earned $3,054.40 in 1976, $7,225.60 in 1977, and $5,701.48 in 1978 (total, $15,981.48). The claimant’s gross back pay figures are as follows: $5,811.76 for 1976, $10,160.29 for 1977, and $5,111.76 for 1978 (total, $21,083.81).

38. NORMAN FEARS, 32, was unsuccessful in obtaining interim employment until January, 1978, when he began work for the City of Akron through the C.E.T.A. program. He earned $5,768.86 in that job in 1978. In his search for work, the claimant applied at Osborne Machine, Mohawk Tire, General Tire, Firestone, Goodyear, Chrysler, Ford and B & W. As he testified in his deposition, he applied “all over town”. The Company would have the Special Master discredit the claimant’s deposition testimony because he was merely naming “obvious employers”, and when pressed to supply other names, he responded by saying, “How many do I need?” However, the Company did not call the claimant as a witness in the hearings before the Special Master to further explore what it claims now was a fabricated story of a job search. While Mr. Fears appears to have been somewhat adversarial in his deposition, there was no inconsistency in his testimony and, of course, the Special Master cannot assess witness demeanor from the bare pages of a deposition. The claimant received $4,350.00 in Union assistance, and the Union paid $2,308.22 in insurance premiums for the claimant. In his deposition, the claimant admitted participating in the picketing at the Company in 1977 during the economic strike. He acknowledged picketing when

*1119

the strike began on a once-a-week basis for about six months.

39. WILLIAM FEARS, 36, was employed by O’Neil’s from September, 1976 through the end of the back pay period. He earned $1,472.00 in 1976, computed on’ the basis of his wage rate of $2.30 per hour at 40 hours per week for 17 weeks. His W-2 form for 1977 indicates earnings of $6,018.60 and his affidavit indicates earnings for 1978 of $3,014.38. Mr. Fears received $4,000.00 in assistance from the International Union. The evidence shows that the claimant sought employment at Firestone, Goodyear, Chrysler, Rockwell in Barberton, and B & W, but there is a question as to when these attempts to find work were made. In his deposition, the claimant clearly and repeatedly asserted that these searches for work occurred

after

he was employed by O’Neil’s apparently seeking to better his employment opportunity. Although in his testimony before the Special Master he altered his prior testimony concerning the timing of this search for employment, the Special Master does not credit the new version. Mr. Fears would have earned from the Company the following amounts during» the back pay period: $4,682.35 in 1976; $8,417.42 in 1977; and $4,271.67 in 1978 (total, $17,371.44).

40. RUSSELL FOTI was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $889.38 in 1976, $727.97 in 1977, and $480.64 in 1978. He received a total of $182.40 in vacation pay as a new employee. In addition, the claimant’s pro-rated Christmas bonuses are $60.26 for 1976 and $38.25 in 1977. He received a single bonus of $10.00 as a new employee.

41. GERALDINE FULTON, 60, who served with the Company for 35 years prior to her discharge, made extensive efforts to obtain interim employment during the back pay period. Her efforts at seeking work did not begin until August 7, 1976, when her records indicate she applied for a position with Acme-Click. Her Answers to the Company’s Interrogatories list 11 places where she applied for employment in 1976 and 1977, and in her testimony she referred to other places where she sought work. She was only successful in obtaining a job in February, 1978, with Acme Machine Co., where she earned $1,885.24 before the end of the back pay period. Ms. Fulton admitted participating in the economic strike starting in December, 1977. In January 1978, the claimant was hospitalized for a two-week period. Her gross back pay has been calculated as follows: $4,337.68 for 1976, $6,553.51 for 1977, and $3,659.23 for 1978. She received $3,470.00 in Union assistance, and the Union paid $2,125.62 in insurance premium payments for the claimant.

42. RICHARD GINN, 51, maintained employment throughout the back pay period. He held a security position with the Cathedral of Tomorrow on a part-time basis during 1976 (earning $1,159.50), and on a full-time basis during 1977 (earning $5,762.25) and 1978 (earning $4,142.25). On July 27, 1976, the claimant obtained a full-time position with Phillips Machine, where he earned $2,411.99 during 1976 and $1,646.75 in 1977, until he left the position on April 8, 1977. Thus, during the first 14 weeks of 1977, the claimant held

two

full-time jobs. During three weeks in April, 1978, the claimant also worked for Manpower, earning $142.11. The claimant received $150.00 in Union assistance and $180.00 in welfare aid, although it is unclear whether this latter benefit was received prior to or during the back pay period. In addition to the positions held by the claimant, he also sought employment from Akron Selle, Chrysler Stamping, and Massey-Ferguson. The claimant’s gross back pay figures are as follows: $7,827.83 for 1976, $13,580.46 for 1977, and $6,933.97 for 1978. Mr. Ginn participated in the 1977 economic strike activity. All four Company witnesses testified to seeing the claimant participating, and his name appears on Mr. Lange’s list of June 21, 1977.

*1120

43. WENONA GREEN, 54, was employed throughout the back pay period. She held a position at Phillips Machine until August 26,1977, where she earned $3,514,35 in 1976 and $4,189.09 in 1977. She was then employed by Heritage Fireplace Equipment Company, where she earned $2,982.87 in 1977 and $3,627.69 in 1978. Ms. Green paid her own premiums to continue her insurance coverage during the back pay period, and the record includes copies of her checks tendering payment to the insurance carriers. The premium amounts expended were $238.56 in 1976, $408.96 in 1977, and $170.40 in 1978 (total, $817.92). (Ms. Green was the only claimant to submit such records.) The claimant’s gross back pay figures are as follows: $4,978.95 for 1976, $8,463.95 for 1977, and $4,548.04 for 1978. There was some evidence concerning the claimant’s participation in the 1977 economic strike activity. Two Company witnesses testified to seeing the claimant participating on an irregular basis. The claimant’s name does not appear on Mr. Lange’s lists. When the claimant testified before the Special Master, she was not asked any questions concerning any possible strike activity. The record is devoid of any evidence to establish a date when the claimant commenced participation.

44. WILLIAM GWEEN, 28, obtained three jobs during the back pay period. He worked for Manpower, earning $3,162.12 in 1976. The claimant was then employed by Salem’s Potato Chips, where he earned $1,630.15 in 1977. Finally, beginning in June, 1977, and lasting through the end of the back pay period, the claimant was employed by Logan Machine Company, where he earned $4,413.08 in 1977 and $4,029.57 in 1978. The Company does not claim that Mr. Gween failed to use reasonable efforts to obtain interim employment and the record shows he made application to numerous places of employment in addition to the employers where he was able to find work. The claimant would have earned the following amounts in gross back pay: $5,410.35 in 1976, $9,716.02 in 1977, and $4,806.66 in 1978 (total, $19,933.03).

45. THOMAS HEFFERNAN, 43, was President of the Local Union until December 9, 1977, when he resigned to take a full-time position with Retail Grocery Inventory Service (R.G.I.S.). The claimant had worked for R.G.I.S. on a part-time basis briefly in 1976 (earnings, $27.70) and during 1977 (part-time earnings, $1,392.08). The claimant’s full-time earnings in December, 1977 amounted to $750.00, and he earned $5,750.00 in 1978. The claimant’s deposition indicates that he made numerous attempts to find employment, looking at Hamlin Steel, Crown Industries, Boise-Cascade, Ford, Chrysler, Terex, the Akron rubber shops, Massey-Ferguson, General Tire, Rogers Manufacturing and others, before he was successful in obtaining full-time employment with R.G.I.S. He testified that he looked for work throughout the back pay period, and the evidence supports that claim. The claimant received $3,250.00 in Union assistance, and the Union paid $100.80 in insurance premiums for the claimant. He received $1,144.00 in unemployment compensation during 1977. The claimant’s gross back pay figures are as follows: $6,792.93 for 1976, $11,621.62 for 1977, and $6,020.30 for 1978. Mr. Heffer-nan participated in the 1977 economic strike activity. His official duties brought him to the strike line twice or three times a week. All four Company witnesses testified that the claimant participated, and the claimant admitted his presence on the picket line. The claimant’s name appears on Mr. Lange’s list of June 22, 1977.

46. GREGORY HENDERSON, 24, did not obtain interim employment during the back pay period until November, 1977, when he began work with Forest City Dillon Precast Systems, where he earned a total of $7,290.09 through the end of the back pay period. Prior to obtaining employment, the claimant applied for positions with Chrysler and Ken-Tool (and McNeil Machine Shop in 1975 before the back pay period began). He obtained the job at Forest City with the aid of his younger brother who worked there. The claimant received $2,920.00 in Union assistance. The claimant’s gross back pay figures are as follows:

*1121

$2,437.37 for 1976, $4,462.89 for 1977, and $2,202.88 for 1978. The Union paid $680.20 in insurance premiums for the claimant. During his deposition the claimant wavered in his response to inquiries whether he participated in the 1977 economic strike activity, but finally admitted to picketing on two occasions. No Company witness identified Mr. Henderson as being among the strike participants, and his name does not appear on Mr. Lange’s lists.

47. STEVEN HENDERSON, 27, moved to California shortly after his discharge by the Company in 1975. He did not obtain a job, however, until July 11, 1977, when he was employed by C B C Industries. He held this position through the end of the back pay period, earning $4,293.55 in 1977 and an estimated $3,726.00 in 1978. The evidence in the record indicates that during his year and one-half in California prior to obtaining employment (13 months of which fell within the back pay period), the claimant applied to Rockwell International and Northrup Corporation for positions. While it is, of course, possible that he looked elsewhere as well, the claimant in his deposition could recall the names of no other places where he sought work. The claimant’s back pay figures are as follows: $3,499.19 for 1976, $6,230.50 for 1977, and $3,098.57 for 1978.

48. ROBERT HUTCHINSON, 28, held six different jobs during the back pay period. The evidence in the record indicates that at some time in the back pay period, Mr. Hutchinson also made application for employment to Hamlin Steel, Logan Machine, Galehouse Lumber, and numerous gas stations. His only extended period of unemployment began after he quit Diem-er’s Exxon in January, 1977. He was next employed six months later. There is no evidence in the record which justifies the claimant’s quitting his employment in January, 1977. On other occasions during the back pay period when the claimant quit employment he was able to immediately obtain new employment and thus, mitigate his loss. However, the January, 1977 quit from Diemer’s was followed by a six-month period of unemployment. Had he kept the job at Diemer’s he would have earned an additional $1,455.20. The claimant’s gross back pay figures are as follows: $3,757.75 in 1976, $6,442.34 in 1977, and $3,189.21 in 1978 (total, $13,389.30). His actual interim earnings were $2,311.88 for 1976, $4,682.39 for 1977, and $5,292.00 for 1978 (total, $12,-286.27). He received $750.00 in Union assistance. Company witnesses testified that they saw this claimant participating in the 1977 economic strike activity. The claimant in his testimony before the Special Master denied any such participation. The Company has offered no evidence fixing the date when any strike participation began. The claimant’s name does not appear on Mr. Lange’s lists.

49. LEE JACKSON, 81, did not obtain interim employment until July, 1977, when almost simultaneously he found two jobs, one with the C.E.T.A. program (where it can be estimated he earned a total of $120.00) and another with Bearfoot Corporation, where he remained employed through the end of the back period. He earned $400.56 from Bearfoot in 1977, and at least an equivalent amount for 1978. (The record does not include the claimant’s actual earnings for 1978, but he testified that he worked at Bearfoot until he left to return to the Company in June, 1978, and his rate of pay substantially increased in 1978 over his rate in 1977.) The claimant was discharged from the C.E.T.A. job for tardiness. The claimant received $5,220.00 in Union assistance and an estimated $650.00 in welfare payments. While Mr. Jackson’s deposition testimony is somewhat circuitous, it can be determined that after receiving welfare aid beginning in January, 1977, and prior to obtaining work in July, 1977, the claimant did not look for work. The claimant’s gross back pay figures are as follows: $4,121.90 for 1976, $7,187.54 for 1977, and $3,420.03 for 1978. The Union paid $850.25 in insurance premium payments for the claimant.

There is much evidence in the record concerning the claimant’s participation in the 1977 economic strike activity. During his deposition, the claimant was asked, “Did

*1122

you do any picketing in June, 1977 on the economic picket line, the legal strike?” He responded, “I would have to say yes to that.” While there may be some ambiguity in this exchange as to when the claimant’s participation began, the timing is made clear when he was later asked whether he

continued

to picket after he “went to Bear-foot”. The answer again was “Yes”. Since the claimant began at Bearfoot in July, 1977, he began picketing (as the answer to the earlier question suggests) prior to July, 1977. During his testimony before the Special Master, the claimant flatly denied any participation in the 1977 economic strike. In light of the extensive discussion of this issue in his deposition and his repeated ac-knowledgement of strike participation, this retraction cannot be credited.

50. WILLIAM JORDAN, 30, earned a total of $303.60 during the entire back pay period, working Christmas time, 1977 at Little Tykes. He received welfare assistance for about a year (although the record does not indicate the amount) and $4,703.00 in Union assistance. In his deposition, the claimant stated that he could not name one place where he applied for employment during the back pay period. He did use the Ohio Bureau of Employment Services in Akron and Canton and recalls going to some kind of steel company in Canton. The claimant’s gross back pay figures are as follows: $4,159.06 for 1976, $7,616.73 for 1977, and $3,687.77 for 1978. During his deposition testimony, the claimant admitted picketing during the 1977 economic strike on a weekly basis from June, 1977 until June, 1978. (Dep. p. 6) Two Company witnesses also testified to Mr. Jordan’s strike participation.

51. LOUIS KARAMAS, 29, was employed throughout most of the back pay period. In 1976 he worked for A & H Drywall Company, where he earned $4,412.91. He was laid off from that position and received approximately $1,200.00 in unemployment compensation. The claimant next worked for E. S. Worthing-ton Company, where he earned $5,635.76 in 1977 and $2,492.96 in 1978. In addition to holding the two positions, the claimant applied for work at Hamlin Steel, B & C Machine, East Ohio Gas, Akron Sandblasting, Sun Plastic, City Machine and Wheel, Castle Apartments, and Kestler Bakery. Mr. Karamas was encumbered in his search for work by the fact that he can neither read nor write. The claimant’s total gross back pay for the entire period amounts to $18,793.20.

52. GLEN KELLY, 26, held three jobs during the back pay period. In October and November, 1976, he was employed at a L-K Restaurant, where he earned $349.36. He quit because, as he testified, he was never paid on time. He then drove a cab on the 2:00 p. m. to 1:00 a. m. shift for City Yellow Cab, where he earned $419.25 in 1976 and $848.78 in 1977. He quit this job in March, 1977, because, as he testified at his deposition, the position was too dangerous. (One of his fellow workers driving the same shift had been shot on the job.) The quit was certainly justified based upon these working conditions. Between March and July, 1977, Mr. Kelly searched for work, using the assistance of employment agencies and even going through the telephone book to find names of employers where he might apply. Among other places, he applied to Massey-Ferguson, Phillips Machine and Logan Machine during this period. Finally, he obtained a position at Phillips Machine in July, 1977, where he worked through the end of the back pay period. He earned $2,877.40 in 1977 and $2,859.22 in 1978 while working at Phillips Machine. The claimant’s gross back pay figures have been computed as follows: $2,948.90 for 1976, $5,421.36 for 1977, and $2,687.08 for 1978 (total, $11,057.34).

53. FOY KING, 66, retired prior to June 8, 1976, and he began receiving his pension from the Company on April 1, 1976. He also received social security payments, starting in January, 1976. Mr. King did not seek employment during the back pay period.

54. JOHN KING, 38, held two jobs during' the back pay period. He worked for about a month during the summer of 1976

*1123

for Spring Hill Apartments, earning $460.00 until he was laid off. The claimant received welfare payments amounting to some $1,800.00 during 1976 prior to and after his job. In January, 1977 he obtained unemployment compensation of $352.00. In February, 1977 the claimant began work for the First National Bank of Akron, where he was employed throughout the rest of the back pay period. He earned $4,951.28 in 1977 and $3,412.51 in 1978. During the six months or so when he was not employed, the claimant made considerable effort at seeking employment, applying for positions at Aero Tool & Die, Rogers Manufacturing, a number of Holiday Inns, and at rubber and machine shops in the Akron area. He also examined newspaper help wanted ads in his search for work. The claimant’s gross back pay figures are as follows: $6,229.86 for 1976, $10,887.86 for 1977, and $5,455.95 for 1978.

55. FRANCIS KOSLIK, 36, was employed continuously by Flaherty Potato Chip Company from February, 1976 through the end of the back pay period. She earned $6,040.56 in 1976, $6,830.44 in 1977, and $3,659.19 in 1978. Ms. Koslik did not look for work prior to February, 1976 because she was hoping to get her job back with the Company. The claimant participated in the 1977 economic strike activity. Three Company witnesses testified that she participated, and her name appears on Mr. Lange’s list of June 22, 1977. Under the Court’s Order, Ms. Koslik’s back pay period commences October 1, 1975, since she was ordered reinstated

with

back pay by the Arbitrator. The claimant’s gross back pay from October 1,1975 until her strike participation was calculated to be $14,101.52.

56. JOHN LATCHAW did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

57. BERNARD LAWSON, 30, was employed throughout the back pay period by Packaging Corporation of America. He earned $4,284.33 in 1976, $8,582.59 in 1977, and $3,627.70 in 1978 (total, $16,494.05). His total gross back pay figure is $14,-115.85.

58. ALFRED LEE, 41, was unsuccessful in obtaining interim employment during the back pay period, although the record indicates that he made many efforts at seeking employment. He applied to Phillips Machinery and Tool, Logan Metal Stamping, Hamlin Steel Products, Alside, Teledyne, Massey-Ferguson, and Gentzler Tool and Die. He was also referred by the Bureau of Employment Services to a job in Massillon and also applied for a clean-up type job with a machine company. Mr. Lee checked newspaper help-wanted ads in his search for work. (With regard to some of these efforts, it is difficult to determine precisely when the claimant made the attempt to seek employment. He did testify in his deposition that he looked at two of three places a week. Even if some of the named employers were visited only in 1978, the entire record of the claimant’s efforts, evidences that a continuous effort was made.) The claimant testified that he had great difficulty obtaining employment because of his prior employment with the Company. The claimant received $4,186.00 in Union assistance. The claimant’s gross back pay figures are as follows: $4,920.47 in 1976, $8,687.93 in 1977, and $4,345.58 in 1978. The claimant admitted picketing as part of the 1977 economic strike activity. His name does not appear on Mr. Lange’s list and does not appear on the notes made by picket captain Graham until February and March, 1978. The claimant admitted picketing as of December, 1977.

59. LARRY LEMON did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to interrogatories

*1124

which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

60. ROSELLA LEWIS, 46, was unable to obtain interim employment during the back pay period. She applied for positions with Lawson’s, Rogers Manufacturing, Wright Tool and Forge, Anderson Rubber Company, Connie Shop and many other places in the Barberton area. Mrs. Lewis lost her husband in March, 1976. She testified in her deposition that she started looking for work a few months after her husband’s death, which would place the commencement of her search at about the beginning of the back pay period. The claimant received $4,186.00 in Union assistance. Mrs. Lewis was not working on a full-time basis for the Company in the year after hiring into the Company and prior to her discharge. Thus, because her projected hours of work during the back pay period are low, her gross back pay figures are low. The figures are as follows: $839.03 for 1976, $1,798.27 for 1977, and $724.96 for 1978. The Union paid $850.24 in insurance premiums for this claimant. The claimant admitted participating in the 1977 economic strike activity. Two Company witnesses testified to her participation, and her name appears on Mr. Lange’s list of June 21, 1977.

61. HUBERT MANN, 35, was employed throughout the back pay period by Packaging Corporation of America. The claimant failed to file an affidavit, as required by an Order of the Court, setting forth his interim earnings, nor did he respond to the Company’s Interrogatories. Thus, his precise interim earnings are not stated in the record. It can be inferred, however, that the claimant’s continuous employment as a stock handler and press operator would have resulted in interim earnings in excess of $16,-000.00 (assuming a rate of $4.00 an hour). In his deposition, moreover, the claimant indicated that he was only interested in receiving his vacation and holiday pay, again suggesting he obtained high interim income. The claimant’s gross back pay figure (which, of course, includes the vacation and holiday pay) is calculated to be $15,-799.20.

62. DAVID MARSH was employed in six different jobs throughout the back pay period. In 1976, he worked for Kayo Oil ($592.25 earnings), Hamlin Steel ($182.91 earnings), Demak Chinese Food Store ($30.63 earnings), and Manpower ($128.20 earnings). In 1977, he was employed by Thermo-Rite ($866.83 earnings). In 1978, he worked for Standard Oil ($1,213.94 earnings). His total interim earnings were $3,014.76. The Union paid $2,024.40 in insurance premiums for the claimant. The claimant’s gross back pay figures are as follows: $5,376.69 for 1976, $9,494.17 for 1977, and $4,795.50 for 1978 (total $19,-666.36). Mr. Lange testified that the claimant participated in the 1977 economic strike as of June-July, 1977. He fixed the date based upon his recollection of a conversation he had with Jim Gish concerning the claimant’s working as a wheel welder at Hamlin Steel. Based upon the coincident conversation, the date of the claimant’s strike participation can be established.

63. RAY MARZELLA did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

64. WILLIAM MARKS did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18,1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

65. THOMAS MAUL, 22, held four jobs during the back pay period. In addition, he

*1125

applied for work with nine other named employers. He received $582.00 in unemployment compensation. The Company does not claim that Mr. Maul failed to use reasonable efforts in seeking to mitigate his damage, and the Company’s concession is amply supported by the record. The claimant was employed by Stow Star Market in 1976 and 1977, Duff Truck Lines in 1977, Roadway Express in 1977 and 1978 and Spector Freight in 1978. He earned $3,350.75 in 1976, $4,171.73 in 1977, and $8,657.80 in 1978 (total, $16,180.38). The Company’s computer printout erroneously calculates Mr. Maul’s projected yearly hours during the back pay period at 1,740.1. The correct figure is 1,708.45 hours per year. Thus, the claimant’s gross back pay calculation for the entire period is not $16,930.66, but rather $16,622.72.

66.. JUSTIN MAXWELL, 27, was employed continuously by Amoco Plastic Products Company from August 26, 1976 through the end of the back pay period. He earned $1,983.04 from Amoco in 1976, $8,559.36 in 1977, and $4,279.50 in 1978. Prior to his employment at Amoco, the claimant worked one day at Falls Electric, earning $28.19. He searched for work with various employers, including Alside, Terex and others. The claimant’s total gross back pay figure is $15,592.34.

67. JOHN MILAN, 36, held three jobs during 1977. He was employed by May Company in January, 1977 (earning $243.80), but left to take a better position with Roadway Express. He only earned $594.40 with Roadway Express before he was laid off. He then received some $500.00 in unemployment compensation. The claimant was next employed by Kar-man Rubber Company during the summer of 1977, where he earned $295.71. The claimant quit his job with Karman Rubber because the job required the handling of very hot molds. Prior to obtaining these three interim positions, the claimant searched for work in 1976 with B. F. Goodrich, Chevrolet, Children’s Hospital and General Motors in Lordstown. Prior to the commencement of the back pay period, the claimant had also looked for work with B & W, Ford, Chrysler, Sieberling Rubber and General Tire. In 1977, after his layoff from Roadway Express, the claimant looked for jobs with a number of car washes and at least two shoe stores. The claimant suffered from alcoholism during the back pay period and testified in his deposition that he was disabled by this condition as of December, 1977. He testified that after December, 1977 he was mostly ill and unable to work, suffering from blackout spells. For at least a two-week period in March-April, 1978, the claimant was hospitalized for his condition. The claimant received $3,425.00 in Union assistance and $2,088.00 in welfare assistance. His gross back pay figures are as follows: $4,591.83 for 1976, $7,989.15 for 1977, and $3,792.95 for 1978.

68. ANTHONY MILLER, 26, obtained employment at four different establishments during the back pay period. At the beginning of the back pay period he was holding two jobs: a full-time position at Logan Metal Stampings (where he earned $4,149.99 during the back pay period portion of calendar year 1976) and a part-time job at Cardinal Maintenance, Inc. (where he earned $891.92 during the same period). After he was laid off from the full-time position around November, 1976, he continued to hold the part-time job until recalled to Logan Metal in May, 1977. His 1977 interim earnings were $6,137.67 at Logan Metal and $998.75 at Cardinal Maintenance (where he worked until May, 1977). He was laid off at Logan Metal again in February, 1978 and held two other jobs in 1978, at Stolitzka & Sons ($539.51 earnings) and K-Mart ($1,091.28 earnings). The claimant’s gross back pay figures are: $5,780.92 for 1976, $10,282.10 for 1977, and $5,119.50 for 1978. He was not called by the Company to testify either by deposition or at the hearing. The claimant participated in the 1977 economic strike activity, and the Company has made a clear showing to that effect as of July 7, 1977 when “Tony” Miller’s name appears on Mr. Lange’s list of strike participants.

69. CHARLES MILLER, 28, held a job with O’Neil’s from January 11, 1977 until

*1126

March 3,1977, earning $772.80. He quit his employment because the pay was too low. Prior to obtaining this employment, the claimant sought work from Alside (and at Terex and Chevrolet prior to the beginning of the back pay period). After leaving O’Neil’s, the claimant stated that he looked for work, but he could only recall the name of one employer (Brown-Graves) where he sought employment during the remaining one year and three months of the back pay period. He received $4,450.00 in Union assistance, and the Union paid $2,429.28 in insurance premiums for the claimant. His gross back pay figures are as follows: $4,046.94 for 1976, $7,618.58 for 1977, and $3,694.77 for 1978. Mr. Miller admitted participating in the 1977 economic strike activity, but the date when he began picketing is uncertain. Only one Company witness testified to the claimant’s strike participation.

70. LEE MILLER, 51, presents a very complex fact situation. He held two jobs during the back pay period and during portions of 1976 and 1977, he held both jobs at the same time. He was employed in a part-time job at Harmon and Reudy Motors during 1976 ($6,869.00 earnings) and 1977 ($5,128.15 earnings). The claimant had been working for this employer on a part-time, but continuous, basis since 1962, working around 35-36 hours a week. (Dep. p. 8) While the claimant looked for other employment in 1975, he did not search for a supplement to his substantial part-time employment during the June-September, 1976 period. In October, 1976, the claimant obtained a full-time position at Hamlin Steel, where he earned $430.76 in 1976, $12,465.33 in 1977, and $5,670.10 in 1978. On November 22, 1976, after working 30 days for Hamlin Steel, the claimant decided to have an operation for a double hernia condition which he had had for many years. He did not return to Hamlin Steel until around February 1, 1977, although he did work some three weeks for Harmon and Reudy Motors, apparently in January, 1977. The claimant would have received the following amounts in gross back pay: $8,430.86 in 1976, $14,-692.17 in 1977, and $7,490.84 in 1978. The claimant participated in the economic strike of 1977 as of June 21, 1977, when his name appears on Mr. Lange’s list. The claimant’s name also appears on the list of July 14, 1977.

71. CLARENCE MITCHELL did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

72. ROBERT MONTGOMERY, 37, was not employed during the back pay period. The evidence shows that he sought work at Goodyear Aerospace, Hamlin Metal, Perkins Diesel, Massey-Ferguson, Chrysler, Ford, General Tire and an electrical concern. The intensity of the claimant’s search is evidenced by his testimony concerning an all-night wait at General Tire in 1977 to be among the first 100 to receive an application. Like his other efforts, this venture proved unsuccessful. Mr. Montgomery is divorced from his first wife, and during the back pay period he was required to make alimony payments to her of almost $50.00 a week. Mr. Montgomery testified that he could not take a low paying job, meet the alimony payment and live at the same time. (The Company has submitted in evidence an Order of the Common Pleas Court of Ohio, Domestic Relations Division, ordering the Company to make any and all back pay payments due Mr. Montgomery directly to the Court.) His gross back pay figures are as follows: $5,747.53 for 1976, $10,296.99 for 1977, and $4,913.16 for 1978. He received $4,450.00 in Union assistance. Mr. Montgomery admitted participating in the 1977 economic strike activity as of December, 1977.

73. PAUL MOYER, 64, worked for the C.E.T.A. program from before the beginning of the back pay period through January, 1977. He earned $4,485.04 in 1976 and $314.40 in 1977. After he was laid off from

*1127

that job, he received unemployment compensation of $1,704.00 and applied for social security retirement benefits of $264.00 per month, which he received through the end of the back pay period. While Mr. Moyer technically “retired”, he continuously searched for work throughout the rest of the back pay period, applying for positions with Oak Rubber, Colonial Rubber, Enduro Rubber, White Rubber, Jet Rubber, Crest Rubber, Hamilton Kent Company and various supermarkets. All these efforts proved unsuccessful. The claimant’s gross back pay figures are as follows: $6,034.39 for 1976, $10,883.44 for 1977, and $5,409.69 for 1978. Mr. Moyer participated in the 1977 economic strike activity. Three Company witnesses testified to his participation,- and the claimant’s name appears on Mr. Lange’s list of June 17, 1977.

74. FERENE NEMETH did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

75. GEORGE ORAVECZ was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10,1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $890.65 in 1976, $716.44 in 1977, and $540.11 in 1978. .He received a total of $184.40 in vacation pay as a new employee. In addition, Mr. Oravecz’s prorated Christmas bonuses are $59.05 for 1976 and $44.25 for 1977. He received a single bonus of $10.00 as a new employee.

76. JACK PANTON, 41, was not employed during the back pay period. The Company argues, “If there ever was a case of willful idleness, Mr. Panton exemplifies it.” The record amply supports the Company’s characterization of this claimant’s lack of efforts at seeking interim employment. During a major portion of the back pay period, the claimant was able to live on monies received by his girlfriend from welfare and a settlement from her car accident. He testified in his deposition “at the time I really didn’t need to go to work . we just kind of made it” on these amounts. While he apparently did make a few applications in the two-year period, he would do so, according to his deposition, only when he “would get the ambition to go out and look . .” The claimant’s gross back pay figure for the entire back pay period is $14,948.43.

77. BEN PARTIN, 22, was employed throughout the back pay period by Dinner Bell Foods, Inc., where he earned $7,360.67 in 1976, $8,014.69 in 1977, and $7,034.63 in 1978. His precise gross back pay figure was not calculated by the Company, but was said to be “less than $20,000.00”. The evidence in the record, including the claimant’s base wage rates, supports a finding that the claimant’s total gross back pay figure is less than $20,000.00.

78. CASPER PHILLIPS, 55, lost the sight in his right eye in 1976. He did not seek employment during the back pay period. The claimant had a hernia operation and eye surgery in 1978. Although the claimant failed to make any effort to look for work during the back pay period, he did return to work at the Company on a full-time basis when reinstated in June, 1978. His gross back pay figures are as follows: $7,526.74 for 1976, $13,048.56 for 1977, and $6,668.28 for 1978. There was some testimony concerning the claimant’s participation in the 1977 economic strike activity, but his name does not appear on Mr. Lange’s lists. The claimant denied any participation.

79. EDWARD PIECZYNSKI, 66, retired in early 1976 prior to the commencement of the back pay period, and he received social security payments throughout the period. The evidence shows that he made one attempt to find part-time employment in a dishwashing job. The claimant’s back pay figures are as follows: $5,942.99

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for 1976, $10,195.51 for 1977, and $5,410.10 for 1978. The Union paid $2,530.50 in insurance premium payments for the claimant. He also received $5,220.00 in Union assistance. The claimant admitted participating in the 1977 economic strike activity, and three Company witnesses testified to that participation. The claimant’s name appears on Mr. Lange’s list as of June 21, 1977.

80. RICHARD POWELL, 34, was continuously employed by Chemtrol Adhesives, Inc. throughout the back pay period. He actually earned $6,500.21 in 1976, $12,914.65 in 1977, and $6,474.33 in 1978 (total, $25,-889.19). From the Company, the claimant would have earned $5,976.40 in 1976, $10,-736.82 in 1977, and $5,373.90 in 1978 (total, $22,087.12).

81. WILLIAM REES was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $362.80 in 1976, $309.00 in 1977, and $313.13 in 1978. He received a total of $206.40 in vacation pay as a new employee. In addition, Mr. Rees’ pro-rated Christmas bonuses are $25.22 for 1976 and $39.00 for 1977. He received a single bonus of $10.00 as a new employee.

82. ARMOND RICCHIUTO, 61, was unable to obtain interim employment, but it was not for lack of trying. Mr. Ricchiuto had been employed by the Company for 36 years prior to his discharge. The evidence shows that the claimant sought work with J & M on State Road, F & C Machine, Forte Machine, Ace Machine, Chrysler, Massey-Ferguson, Independent, Logan Machine, an elastic company in Cuyahoga Falls, and other employers. His gross back pay figures are as follows: $7,222.81 for 1976, $12,-350.22 for 1977, and $6,524.56 for 1978. He received $4,266.00 in Union assistance, and the Union paid $95.76 in insurance premiums for the claimant. The claimant admitted participating in the 1977 economic strike activity, but would place the commencement of that activity on December 8, 1977. Three Company witnesses would place the commencement of the participation at an earlier date, and the claimant’s name appears on Mr. Lange’s list of June 20, 1977.

83. GILBERT RICE, 30, was employed throughout the back pay period by Eastern Central Motor Carriers, where he earned $3,736.65 in 1976 ($128.85 per week for 29 weeks), $9,800.39 in 1977, and $7,341.68 in 1978 (total, $20,878.72). His calculated gross back pay is as follows: $6,077.79 in 1976, $10,633.52 in 1977, and $5,259.78 in 1978 (total, $21,971.09). Although Mr. Rice was a Union official during the back pay period, only one of the four Company witnesses testified that this claimant participated in the 1977 economic strike, and his name did not appear on Mr. Lange’s lists.

84. JOHN ROBERTS, 25, was not employed during the back pay period. His gross back pay calculates to $4,740.87 in 1976, $8,442.74 in 1977, and $4,263.04 in 1978. Mr. Roberts testified that he began picketing in the economic strike activity in December, 1977. None of the four Company witnesses who testified concerning strike participation placed this claimant on the picket line prior to December, 1977. While his deposition testimony is somewhat ambiguous as to when he began picketing, it does not contradict his later hearing testimony. During his deposition the claimant was never asked to state precisely when he commenced picketing. According to his Answers to the Interrogatories, Mr. Roberts’ unsuccessful efforts to obtain interim employment included application at two places: Maleo Company, where he applied in 1978 shortly before the end of the back pay period, and Wilkerson Machine Shop, where he apparently sought employment three months earlier, again in 1978. Mr. Roberts had some vague recollections of seeking employment elsewhere, although it is unclear when these few other ventures were made. He received $5,160.00 in Union assistance and $236.00 per month in welfare payments (totaling $5,664.00 over the two-year back pay period). The Union also paid

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$2,530.50 in insurance premium payments for the claimant.

85. JOSEPH ROBINSON; 62, was employed throughout the back pay period at the University Club in Akron as a dishwasher. He earned $2,987.73 in 1976, $3,910.12 in 1977, and $1,833.03 in 1978. He received $3,110.00 in Union assistance. The claimant’s gross back pay figures are as follows: $4,993.34 for 1976, $8,744.63 for 1977, and $4,402.31 for 1978. Mr. Robinson admitted participating in the 1977 economic strike activity. Two Company witnesses testified to his participation, and the claimant’s name appears on Mr. Lange’s list of June 17, 1977.

86. BETTY RUCKER, 45, unsuccessfully searched for work during the back pay period. The record concerning Mrs. Rucker includes the names of 16 different places where she applied for work. The Company does not claim that she failed to use reasonable diligence in mitigating her damage. The claimant’s gross back pay figures are as follows: $4,307.23 for 1976, $7,570.44 for 1977, and $3,853.35 for 1978. She received $5,320.00 in Union assistance. Mrs. Rucker admitted participating in the 1977 economic strike activity as of December, 1977, but three Company witnesses place her participation as beginning at an earlier date. The claimant’s name appears on Mr. Lange’s list of June 17, 1977.

87. ROBERT SALATA did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

88. WILLIAM SANTANGELO was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $757.23 in 1976, $619.94 in 1977, and $515.28 in 1978. He received a total of $181.60 in vacation pay as a new employee. In addition, Mr. Santangelo’s pro-rated Christmas bonuses are $49.99 for 1976 and $40.50 for 1977. He received a single bonus of $10.00 as a new employee.

89. MICHAEL SEHIKA, 28, was employed at two positions during the back pay period. He was first employed by City Yellow Cab Company from November, 1976 to October, 1977 and earned $413.92 in 1976 and $2,219.24 in 1977. (The Company would add 15% to these figures as estimated tips. However, the claimant clearly testified in his deposition that he reported tips to his employer, and they were included in his W-2 earnings. The claimant’s income figures are those reported on the W-2 forms.) The claimant was next employed by Shott Metal Products, where he earned $1,622.70 in 1977 and $1,221.90 in 1978. The claimant received unemployment compensation in 1976 of $66.00 per week, although the record is unclear as to precisely when these benefits commenced and how long they lasted. The claimant’s total gross back pay figure is $19,035.64, and the Union paid $1,923.60 in insurance premiums payments for the claimant.

90. ROGER SEYMOUR, 29, was employed continuously throughout the back pay period. In 1976 he earned $3,619.13 in interim employment at M H E Corporation and Waltco Truck Equipment Company. At Waltco in 1977 he earned $10,639.22 and in 1978, $5,024.49. The claimant underwent surgery of an unspecified nature in August, 1977, and the Company claims that it should be entitled to “at least” two months set-off in back pay because of this fact. There is no evidence at all in the record that this surgery interfered with the claimant’s interim employment at that time with Walt-co, and the Company did not seek further evidence by way of deposition and/or hearing testimony. Apparently there was a strike at Waltco in December, 1976, and the claimant received $35.00 in strike benefits from the Teamsters Union. He received no assistance from the International Union in

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volved in the present proceeding. Mr. Seymour’s gross back pay figures are as follows: $6,112.88 in 1976, $11,033.67 in 1977, and $5,436.05 in 1978 (total, $22,-582.60).

91. BARRY SHAFFER, 42, held two positions during the back pay period. During the latter part of 1976 he worked at Young’s Restaurant, earning $2,544.00. He worked at Young’s for six weeks in. 1977, earning an estimated $636.00. In 1977, he worked at the Elks Club in Massillon, earning $4,200.24. He continued his employment with the Elks through the end of the back pay period, earning an estimated $2,608.20 during 1978. While not employed, Mr. Shaffer, although hampered by lack of education, searched for work with Polsky’s in the Canton Mall, Timken Mercy Hospital (on several occasions), Green Cross Hospital, St. Thomas Hospital, Market Street Hospital, the Summit Mall and a machine shop on Kenmore Boulevard. The claimant received $1,640.00 in Union assistance, and the Union paid $578.17 in insurance premiums for the claimant. The claimant’s total gross back pay figure is $16,967.08.

92. DONALD SHOWMAN, 36, was employed throughout the back pay period by Hamlin Steel Products, where he earned $6,875.16 in 1976, $11,886.06 in 1977, and $4,922.78 in 1978 (total, $23,684.00). His gross back pay from the Company has been calculated to be $6,969.57 for 1976, $12,-044.52 for 1977, and $6,058.24 for 1978 (total, $25,072.33). Two witnesses for the Company testified that they saw Mr. Showman on the picket line sometime between June and December of 1977; another witness, however, stated clearly that he did

not

see the claimant participate in strike activity. Mr. Showman’s name does not appear on Mr. Lange’s lists.

93. LLEWELLYN SIMMONS, 35, was employed by Edward DeBartolo Corporation, beginning July 16, 1976 through the end of the back pay period. Prior to obtaining this position, the claimant searched for employment with Kent Machine, Massey-Ferguson, and Logan Metal. He earned $3,286.47 in 1976, $8,155.86 in 1977, and $4,444.40 in 1978. The claimant was also employed for two days in 1977 with Cornwell, earning $35.92. The claimant’s gross back pay figures are as follows: $6,307.38 for 1976, $11,137.95 for 1977, and $5,616.25 for 1978. The claimant received $200.00 in Union assistance. Two Company witnesses testified to seeing Mr. Simmons participating in the 1977 economic strike activity. His name does not appear on Mr. Lange’s lists. The Company argues that Mr. Simmons never denied participating. Mr. Simmons was never asked.

94. BERNARD SLIDER, 28, held three jobs during the back pay period. His first position was with Arby’s working full-time starting October 16, 1976. He earned $1,003.92 in this position in 1976. Prior to obtaining this position, the claimant searched for work with Rogers Manufacturing, Alside, Weather-Tite, General Hospital, Green Cross Hospital, Austin Machine, Ewart-Ohlson, T. J. Karg, and a number of small machine shops. In January, 1977, the claimant obtained a full-time position with Austin Machine, where he worked until August of that year, earning $3,935.50. At the same time, he continued working part-time on weekends with Arby’s, earning $263.36 in 1977. From August, 1977 through the end of the back pay period, the claimant was employed by Pneumatic Parts, earning $3,278.44 in 1977 and an estimated $3,680.00 in 1978. The claimant’s gross back pay figures are as follows: $3,019.77 in 1976, $5,535.30 in 1977, and $2,740.70 in 1978. The Union paid $2,024.00 in insurance premiums for the claimant, and he received $1,350.00 in Union assistance.

95. JOSEPH SPALDING, 56, did not find employment during the back pay period. He searched for work mainly with the aid of the Ohio Bureau of Employment, applying at Dietz Marine and Warner’s as a boat motor mechanic, the line of work he was in prior to hiring into the Company in 1965. He also applied at several Goodrich plants, and sought any work which was available at Sears, Roebuck and Clicks. The claimant received $4,266.00 in Union assistance, and the Union paid $724.55 in

*1131

insurance premiums for the claimant. The claimant’s gross back pay figures are as follows: $6,986.84 in 1976, $12,194.21 for 1977, and $6,102.88 for 1978. Mr. Spalding participated in the 1977 economic strike activity by his own admission. Three Company witnesses testified to that participation, and the claimant’s name appears on Mr. Lange’s list of June 20, 1977.

96. MARIE SPRAGUE was discharged from the Company in September, 1975, but the evidence shows that she died prior to the issuance of the Award of the Arbitrator.

97. NED STALLWORTH, 28, held two jobs during the back pay period. He was employed in a part-time position in July and August, 1977 by the Community Action Council, where he earned $530.40. He was next employed by the Brown Derby, starting October 10, 1977, where he earned $1,075.00 in 1977 and an estimated $1,160.00 in 1978. Mr. Stallworth made an extensive search for employment during the back pay period. Although he acknowledged that his efforts were ‘"on and off”, he did look for work with Montgomery Ward, O’Neil’s, Fa-zio’s, Pat’s Rubber, numerous filling stations, City Laundry and Dry Cleaning, Te-rex, P P & G, Kroger’s, Polsky’s, General Motors, Best Products, the United States Post Office, the City of Akron Police Department, and the City of Akron Service Department. The claimant also testified in his deposition that he would return to many of these employers on several occasions looking for work. The claimant’s gross back pay figures are as follows: $3,914.70 for 1976, $7,201.92 for 1977, and $3,496.35 for 1978. He received $5,270.00 in Union assistance, and the Union paid $2,404.50 in insurance premiums for the claimant. Mr. Stallworth admitted participating in the 1977 economic strike activity from the time the picket lines went up. (Dep. p. 9) Three Company witnesses testified to his participation, and his name appears on Mr. Lange’s list of June 20, 1977.

98. STEVEN STARKS, 30, was not employed during the back pay period until May 15, 1978, when he began work for City of Akron Water Pollution Control. He earned $760.84 in this job, which he obtained through the C.E.T.A. program. During the two-year period prior to his' obtaining this position, the claimant applied for work at Children’s Hospital, O’Neil’s, a factory in Medina, and Roadway Express. The claimant received $3,860.00 in Union assistance. The claimant’s gross back pay figures are as follows: $4,020.90 for 1976, $7,143.85 for 1977, and $3,454.35 for 1978. The claimant admitted participating in the 1977 economic strike activity, but the Company acknowledges that his testimony is ambiguous as to when the participation began. No Company witness testified that Mr. Starks participated in the strike, and his name does not appear on Mr. Lange’s lists.

99. HOWARD STRICKER did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18,1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

100. DIÑO TAMBINI was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s Award and reinstated the claimant’s seniority, he would have received vacation pay of $1,010.00 in 1976, $803.10 in 1977, and $565.78 in 1978. He received a total of $202.00 in .vacation pay as a new employee. In addition, Mr. Tambini’s pro-rated Christmas bonuses are $59.99 for 1976 and $40.50 for 1977. He received a single bonus of $10.00 as a new employee. The claimant would have received 15 cents per hour leader pay amounting to $299.52.

101. STEVE TATAR was immediately rehired by the Company in September, 1975 as a “new” employee without seniority, and went on strike on June 10, 1977. If the Company had complied with the Arbitrator’s' Award and reinstated the claimant’s

*1132

seniority, he would have received vacation pay of $364.54 in 1976, $360.57 in 1977, and $251.38 in 1978. He received a total of $205.20 in vacation pay as a new employee. In addition, Mr. Tatar’s pro-rated Christmas bonuses are $15.87 for 1976 and $11.20 for 1977. He received a single bonus of $10.00 as a new employee.

102. DEAN TITTLE did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

103. CHARLES TREVASKIS, 27, unsuccessfully sought employment during the back pay period until November 1, 1977, when he obtained a job with Hamad Tire Company. He earned $977.50 in 1977 and $2,594.50 in 1978. Prior to the commencement of the back pay period, the claimant briefly held a position with Dermak Chinese Foods. The record indicates that he was unjustly discharged from that position after two days. Mr. Trevaskis sought employment with Akron Welding & Spring Company, Central Welding, Waltco Tailgate Company, Hut Manufacturing, and James C. Herrot Company prior to the commencement of the back pay period. After June, 1976, he searched for work with gas stations (a trained welder, Mr. Trevaskis testified that he was getting desperate), a welding company on Arlington and Johnston Streets, Wadsworth Machine, Akron Standard Mold, and General Tire. The claimant acknowledged spending a great deal of time working on his old Volvo during 1976 and 1977. At the end of his deposition the claimant offered to supply further names of employers where he sought work during the back pay period if he could be given another 10 or 15 minutes to think. The Company’s attorney responded: “I think if we think we need some more, we can call you back.” The Company did not call the claimant back for further deposition testimony, nor was he called to testify before the Special Master. The claimant received $4,226.00 in Union assistance. The claimant’s gross back pay figures are as follows: $4,523.47 for 1976, $8,318.29 for 1977, and $4,011.14 for 1978. Mr. Trevaskis admitted participating in the 1977 economic strike activity. All four Company witnesses testified to his participation, and the claimant’s name appears on Mr. Lange’s list of June 17, 1977.

104. JAMES WALDRON did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18,1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

105. WILLIAM WATTS, 35, was successful in obtaining employment during the back pay period as a trackman with Conrail, where it is estimated he earned $1,800.00 in 1976 and $2,200.00 in 1978. He was first employed at Conrail from September to November, 1976, when he was laid off. His second tour with Conrail began in April, 1978 and continued through the end of the back pay period. He also worked for a construction company in 1977, where he earned $1,200.00 and did odd jobs for relatives and neighbors (painting, cutting grass), earning some $300.00 in 1977. His total interim earnings for the back pay period were $5,500.00. During his periods of unemployment, this claimant made numerous attempts at finding employment: at car lots (Cavalier Olds, Thompson Chevrolet, Buick on Exchange Street); at Conrail; he looked throughout the period for additional odd jobs in the neighborhood; applied at a car wash on Maple Street; applied to Manpower (and obtained a brief job at a warehouse); applied at Ford Motor Company. He also worked on a trash truck for a few days in 1978. The claimant received $600.00 in Union assistance and $600.00 in unemployment compensation.

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Mr. Watts was disabled by a non-work-related ankle injury and was unable to seek employment from December, 1977 until April, 1978, during which time he would have earned $2,261.44 from the Company had he been reinstated in accordance with the Award of the Arbitrator. The claimant’s total gross back pay amounts to $13,-232.30: $3,564.76 in 1976, $6,433.40 in 1977, and $3,234.14 in 1978. The Union paid $2,024.40 in insurance premiums for the claimant.

106. MARY WHITE, 49, was Vice President of the Local Union until December, 1977, when she assumed the duties of President. She was employed from before the beginning of the back pay period until November 1976 by Columbus Cleaning, earning $1,762.50. She was ordered by her physician to leave the job because it required heavy lifting, but she immediately began a thorough search for suitable employment. She sought work at Pioneer Machine, H & H Machine, Terex, Ford, Massey-Ferguson, Summit Plastic, Cardinal Maintenance, Rogers Manufacturing, Hamlin Steel, a pizza shop near her home, and other places. The claimant received unemployment compensation, although the record is unclear as to the amount received. She received $2,820.00 in Union assistance, and the Union paid $126.00 in insurance premiums. In addition, the claimant paid medical insurance premiums through the Company amounting to $936.00 to Prudential Insurance during the back pay period. The claimant’s gross back pay figures are as follows: $6,422.94 for 1976, $11,025.30 for 1977, and $5,799.98 for 1978. Mrs. White participated in the 1977 economic strike activity. Three Company witnesses testified to her participation, and the claimant’s name appears on Mr. Lange’s list of June 23, 1977.

107. TERRANCE WHITE, 28, began work at Hamlin Steel Products on September 9, 1976, and worked there continuously through the end of the back pay period. His interim earnings were $3,006.68 for 1976, $14,069.00 for 1977, and $6,550.77 for 1978 (total, $23,626.45). His gross back pay was calculated by the Company to be $3,602.06 for 1976, $5,605.11 for 1977, and $2,847.70 for 1978 (total, $12,054.87). This calculation seriously underestimates Mr. White’s projected gross back pay. Although his base rates for the calendar years of the back pay period were comparatively high ($4.59, $4.75, and $4.91), the Company’s projected hours of work for the claimant are markedly low. The supporting data submitted by the Company indicate that Mr. White worked no hours for the Company in 1973, 942.6 hours in 1974, and 1,488.55 hours in the nine months in 1975 prior to discharge. From this data the Company then projects the claimant’s average hours at 884.0 per year (2,431.1 2.75). This seriously underestimates the number of hours the claimant would have worked during the back pay period. Mr. White was working at least a 37-hour week with the Company when he was discharged. The lower number of hours worked in 1974 and the zero hours worked in 1973 suggests that the claimant was not working regularly for the Company until mid-year, 1974. Thus, his gross back pay figures must be modified to eliminate the distortion caused by including the non-working time of the claimant prior to mid-1974 in the projected hours calculation. The Company projection is that the claimant would have worked 884 hours in a calendar year during the back pay period; his 1975 experience (1,488.55 hours until the September discharge) indicates that he would have worked 1,984.73 hours during a calendar year, 2.25 times the Company figure (using the Company’s method of considering actual hours worked in 1975 as .75 of a year). Readjusting the claimant’s gross back pay figures using the correct hour projections (multiplying times 2.25) gives the following results: $8,068.61 for 1976, $12,555.44 for 1977, and $6,378.84 for 1978 (total, $27,002.89). The claimant received $250.00 in Union assistance, and the Union paid $2,024.40 in insurance premiums for the claimant. Prior to successfully obtaining employment at Hamlin Steel, the claimant sought employment at numerous places: Carport in Macdeonia, Terex Company, W. G. Lockhart Construction Compa

*1134

ny, J & T Bearing in Solon, and a drafting company in Solon. One Company witness testified that he saw Mr. White participating at some time in the 1977 economic strike. The claimant’s name does not appear on Mr. Lange’s lists.

108. DON WILLIAMS did not complete an affidavit containing information concerning actual earnings during the back pay period as required by the Court’s Order of September 18, 1978; nor did he appear at his deposition properly noticed by the Company; nor did he reply to Interrogatories which were properly served by the Company. Thus, the claimant has totally failed to supply the information essential to the determination of a damage amount.

109. WILLIAM WOLFE, 30, sought work from the beginning of the back pay period and was finally successful in obtaining part-time employment from April until August, 1977 with Hatten Corporation, where he earned $1,340.50. The claimant searched for work with Chrysler, Ford, Goodyear, the City of Akron, Wilkerson Company, Apple Creek Mental Hospital, Hawthornden State Hospital, Massey-Ferguson, the AFL-CIO, the Urban League, and others. The Company does not claim that Mr. Wolfe failed to mitigate his damage. The claimant received $4,146.00 in Union assistance, and the Union paid $724.25 in insurance premiums for the claimant. The claimant’s gross back pay figures are as follows: $3,997.68 for 1976, $7,466.74 for 1977, and $3,817.20 for 1978. Mr. Wolfe admitted participating in the 1977 economic strike activity, although he would place the commencement of his participation around Christmas, 1977. Three Company witnesses testified to the claimant’s participation at an earlier date, and the claimant’s name appears on Mr. Lange’s list of July 7, 1977.

110. BERNARD WYNE, 32, was employed throughout the back pay period, first at Hamlin Steel Products and then at Seib-erling Rubber Company. His total gross back pay figure is $31,598.36. His actual earnings from the two interim jobs were $45,135.13.

III. CONCLUSIONS OF LAW

A.

Sources of Law

The parties have done a thorough job of canvassing the relevant federal and state decisions in this area. While they have not come up empty-handed, the grains of directly applicable precedent are few indeed. There are numerous reported decisions at all federal levels reviewing arbitration awards providing for back pay, but as the Supreme Court has plainly stated in the

Steelworkers’ Union v. Enterprise Wheel & Car Corp.,

363 U.S. 593, 597 , 80 S.Ct. 1358, 1361 , 4 L.Ed.2d 1424 (1968), the scope of review of such awards is narrow indeed. Thus, while this precedent might give some guidance as to what is

permissible

for an arbitrator to do, it does not specify what is required of a district court (or, as in this case, a special master) in situations where the arbitration process is not employed to make the initial determination as to back pay.

In its germinal decision in

Textile Workers Union v. Lincoln Mills,

353 U.S. 448, 456-457 , 77 S.Ct. 912, 918 , 1 L.Ed.2d 972 (1957), the Supreme Court, through Justice Douglas, stated the general principles which should guide the search for the applicable law in a case such as the present action involving an alleged breach of a collective bargaining agreement. The substantive law to be applied in suits of this kind should be

federal law, which the courts must fashion from the.policy of our national labor laws. . . . The Labor Management Relations Act expressly furnishes some substantive law. . . . Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem.

State law may also be looked to to find the rule that will best effectuate the federal

*1135

policy.

Id.

Thus, the teaching of

Lincoln Mills

is that the search for sources of law must be conducted both in the .body and the spirit of federal labor statutes, as well as in any useful state precedent. While it is apparent that

Lincoln Mills

left much to the creative discretion of district courts, such discretionary choices are not left to a court’s “inclination, but to its judgment; and its judgment is to be guided by sound legal principles.”

United States v. Burr,

25 F.Cas. 30, 35 (C.C.Va.1807) (No. 14, 692d) (Marshall, C. J.).

The major source of federal labor law experience on the issue of calculating back pay is the Labor Board’s practice under the National Labor Relations Act, 29 U.S.C. § 141 , 160(c) (1974). The Labor Board has dealt with these types of issues for almost 45 years. It is, of course, correct that the Labor Board seeks to “vindicate public, not private rights,”

Va. Elect. & Power Co. v. N.L.R.B.,

319 U.S. 533, 543 , 63 S.Ct. 1214, 1220 , 87 L.Ed. 1568 (1943), but it does so not by imposing fines or other penalties, but rather by seeking to make discriminatees whole, precisely the same goal that guides this action. The Labor Board over the years has dealt with every corner of the back pay problem, and it would be illogical to ignore the Board’s acquired knowledge and experience in developing “sound legal principles” to adjudicate the present action, as long as the reasoning of the Board is sound and the standards it applies effectuate the goals of the present proceeding.

13

Other more recent experience under Title VII of the Civil Rights Act of 1964 may also be a useful source of law. Federal courts increasingly have had to wrestle with difficult damages questions, and the product of their work should not be ignored, if the principles they have developed will effectuate the purposes of this action. Again, the goals of this proceeding and a Title VII proceeding are coincident. “It is also the purpose of Title VII to make persons whole for injuries suffered . . . .”

Albe-marle Paper Co.

v.

Moody,

422 U.S. 405, 418 , 95 S.Ct. 2362, 2372 , 45 L.Ed.2d 280 (1975).

14

Common law precedent will also be examined, where applicable. While the Supreme Court has plainly stated that “a collective bargaining agreement is not an ordinary contract,”

John Wiley & Sons v. Livingston,

376 U.S. 543, 550 , 84 S.Ct. 909, 914 , 11 L.Ed.2d 898 (1964),

Lincoln Mills

allows for resort to state law which will effectuate the purposes of national labor policy. Thus, traditional principles which guide damage determinations in a common law employment contract action will also provide assistance.

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Finally, a potential source of applicable principles lies in the reported opinions of labor arbitrators. While the parties here have stipulated to the Court’s jurisdiction to determine the remedy issues in this action, ordinarily that task would fall to an arbitrator if the parties were unable to resolve the back pay issue privately. While the Supreme Court has stated that the “ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed,”

Steelworkers’ Union v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 582 , 80 S.Ct. 1347, 1353 , 4 L.Ed.2d 1409 (1960), there is a good reason for a special master (or a court) to seek what guidance is available in arbitral jurisprudence in order “to locate ‘a just result’ in light of the circumstances peculiar to the case.”

Langnes v. Green,

282 U.S. 531, 541 , 51 S.Ct. 243, 247 , 75 L.Ed. 520 (1931).

B.

Gross Back Pay

Under the Order of the Court, each claimant is to receive “back pay and fringe benefits” from which interim earnings are to be deducted.

15

Gross back pay for each claimant is the projected amount the claimant would have earned from the Company during the period June 8, 1976 through June 8, 1978 (the “back pay period”) had the Company complied with the Award of the Arbitrator and reinstated the claimant.

16

The process of calculating gross back pay is labyrinthine; the Company compensated employees in various ways, through a base hourly wage system, plus an incentive system, with Christmas bonuses, shift differentials, overtime premium pay, and earned vacation pay. All forms of compensation are, of course, to be included in computation of gross back pay. See, e. g.,

Meadows v. Ford Motor Co.,

510 F.2d 939, 948 (6th Cir. 1975). The parties are in agreement, in large measure, as to the method to be used in this process.

17

The objective in ascertaining a gross back pay figure for each claimant was to make as fair an estimation as was reasonably possible of the amount the claimant would have earned in the back pay period. “Unrealistic exactitude is not required.”

Pettway v. American Cast Iron Pipe Co.,

494 F.2d 211, 260 (5th Cir. 1974). As the Sixth Circuit said in

Meadows v. Ford Motor Co., supra,

at 948, a court must ascertain back pay “within the realm of

*1137

reasonable probability (and no more can be asked here).”

The Company made use of a computer to calculate the amount of gross back pay for each claimant and the Union raised no objection to most of the results achieved. The calculations did include some errors, and the Special Master has resolved any computational discrepancies in accordance with the agreed-to method of calculation. Under the Court’s Order, the claimants are also to receive all “fringe benefits” they would have earned during the back pay period. All but one of these fringe benefits have been included in the gross back pay equation. The remaining benefit to which the claimants are entitled is health and life insurance. “Frequently the employee’s fringe benefits are of great importance, and such benefits as life insurance have a worth that can be valued and for which damages can be awarded if proof is sufficient.” D. Dobbs,

Remedies,

927. The Labor Board and Title VII courts have included such benefits in back pay awards. See, e. g.,

Willett v. Emory & Henry College,

427 F.Supp. 631, 636 (W.D.Va.1977) aff’d 569 F.2d 212 (4th Cir. 1978). The evidence showed that during the back pay period the International Union offered to make insurance premium payments on behalf of any claimant in need of such assistance so as to continue the same coverage they had had when employed by the Company. Thirty claimants received this Union assistance. Thus, there is evidence in the record as to the cost of the insurance for these 30 claimants, and the proof concerning the valute of the fringe benefit they lost is sufficient. With regard to those claimants who chose not to have the International Union pick up their insurance premium, proof is lacking as to the value of the lost fringe benefit. The collective bargaining agreement does not specify the value of this fringe benefit and no other evidence was proffered which would enable the Special Master to estimate the value of this contractual benefit. Where such evidence is absent, the Special Master will not speculate as to the amount of damage suffered, and no award can be made as to this fringe benefit.

18

Certain claimants were rehired by the Company as new employees immediately after their discharge in September, 1975. The parties are in agreement that these claimants are not entitled to back pay, but they are owed certain damages. These persons were rehired' as new employees without their accumulated seniority. Under the Award of the Arbitrator, these persons were to be reinstated with seniority. Thus, in this proceeding they are entitled to recover the vacation pay, Christmas bonuses and, in three instances, the leader pay they would have received had the Company reinstated their full seniority in accordance with the Arbitrator’s Award.

19

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C.

Actual Interim Earnings

Under the Order of the Couft, gross back pay “must be diminished by the amount actually earned elsewhere” during the back pay period. It is well established that actual interim earnings should be deducted from each claimant’s damages. In a common law action for breach of an employment contract, a claimant’s “damage claims are reduced by what he makes in his new job.” D. Dobbs,

Remedies,

925 (1973). Since its earliest days, the Labor Board has deducted actual interim earnings from back pay awards.

Phelps Dodge Corp. v. N.L.R.B.,

313 U.S. 177, 197-198 , 61 S.Ct. 845, 853-854 , 85 L.Ed. 1271 (1941);

Matter of Pusey, Maynes & Breish Co.,

1 N.L.R.B. 482 , 488 (1936), and labor arbitrators likewise set off interim earnings. See, e. g.,

Universal Producing Co.,

57 LA 1072 (Arb. Sembower, 1971). Under the express language of Title VII of the Civil Rights Act of 1964, “[i]nterim earnings . . . shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e-5(g) (1970). While in some instances the information supplied by claimants concerning interim earnings was inexact, for example, including only wage rates and length of interim employment, effort has been made to reconstruct each claimant’s employment history during the back pay period using the available evidence.

A major issue concerning the method of computing deductions of actual interim earnings is raised by the Company. The parties had agreed at their first meeting with the Special Master that deductions from gross back pay would be made on a calendar-year basis, i. e. 1976, 1977 and 1978. Thus, 1976 interim earnings of a claimant (after June 8, 1976) would be deducted from the gross back pay that the claimant would have received from the Company during the same period; likewise, the same method would be used for the full year 1977 and the 23 weeks of 1978 which fall within the back pay period. Using this calendar-year method of calculation, an employee who earned more in interim employment during a calendar year than his computed gross back pay during the same year would be entitled to no back pay from the Company for that calendar year. However,

*1139

the surplus earnings over and above the gross back pay figure would not be carried over and deducted from the gross back pay due in any other calendar year.

The Company argues that this method of calculation unfairly penalizes the Company since certain claimants obtained high-paying jobs during 1977 or 1978 and, in fact, in some instances earned more during the back pay period considered as a whole than they would have earned from the Company; nonetheless, under the calendar-year method of calculation they would be entitled to additional back pay. The Company makes a persuasive argument that the back pay period should be considered as a whole and, upon reflection, the Special Master has decided to accept the Company’s position. The central goal of this proceeding is to make the claimants whole: nothing more and nothing less. The Court’s Order requires that gross back pay be diminished by actual interim earnings and not just part of actual interim earnings.

It is true that Labor Board practice since 1950 has been to calculate back pay on a calendar-quarter basis under the

Woolworth

formula,

F. W. Woolworth Co.,

90 N.L.R.B. 289 (1950), and the Supreme Court found the Board’s approach permissible in

N.L.R.B. v. Seven-Up Bottling Co.,

344 U.S. 344, 348 , 73 S.Ct. 287, 289 , 97 L.Ed. 377 (1953). Before 1950 the Labor Board calculated loss of earnings over the entire back pay period. The Board found, however, that employers delayed offering reinstatement to dischargees they knew had obtained other high-paying employment, since the monies earned at a higher rate would reduce the amounts owed by the offending employer in back pay. See, Fuchs, Kelleher, and Pye, “Back Pay Revisited”, 15

B.C. Ind. & Comm.L.Rev.

227, 258 (1973). The

Woolworth

formula has been challenged as being punitive, and not a purely remedial sanction.

Id.

at 259. In any case, the policy of discouraging delay reinstatement offers to discriminees which underlies the Labor Board’s shift to a quarterly basis for computation is inapposite to the present proceeding. The Company here offered reinstatement to all the claimants over three months prior to the Court’s Order of September 18, 1978. There is not the slightest indication in the record that the Company delayed reinstatement so as to reduce the amounts it owed claimants in back pay because those claimants had belatedly obtained high-paying positions.

While the Special Master is troubled that an earlier arrangement on methodology is altered, there is good reason to do so. It appears clearly at this writing, now that gross back pay and interim earnings have been calculated, that under the make-whole principle, a claimant who did in fact earn more in interim employment than he or she would have earned from the Company during the back pay period has suffered no loss of pay and is entitled to no award of damages. Further, excess actual earnings during one calendar year should be considered to reduce any gross back pay owed by the Company in any other calendar year. Thus, in calculating the amount owed each claimant, total interim earnings will be deducted from total gross back pay.

Another issue is raised by the Union with regard to the deduction of actual earnings that a few claimants obtained in part-time employment during the back pay period. The practice of the Labor Board is not to deduct earnings from a part-time job if the claimant had held that job prior to his discharge.

N.L.R.B. v. Miami Coca-Cola Bottling Co.,

360 F.2d 569, 573 (5th Cir. 1966). The problem with this approach is that the holding of the part-time job is often the only evidence of reasonable efforts to mitigate damages by a claimant. (See discussion below.) In such instances, while maintaining the part-time job will constitute reasonable mitigation efforts, the amounts received in part-time earnings should be deducted from gross back pay. The Board’s practice when a full-time and a part-time job are held simultaneously is to only deduct earnings received from the full-time position.

Id.

The Special Master will follow that practice, since such a claimant could have held the part-time job at the same time he was being employed by the Company during the back pay period. •

*1140

D.

Burden of Persuasion

In the first instance, the Union in this action bears the burden to prove the amount each claimant would have earned from the Company during the back pay period, but did not earn as a result of the failure of the Company to comply with the Award of the Arbitrator. The evidence in the record of this proceeding is sufficient to allow for the calculation of this amount with reasonable probability. However, the burden of persuasion lies with the Company when it seeks to reduce the amount it owes a claimant by reason of actual interim earnings by a claimant or the failure of a claimant to mitigate his loss. “If the employee has obtained a substitute job, or could have obtained one by reasonable effort, he is chargeable with the income he obtains or could reasonably obtain in this fashion, but only if the employer sustains the burden of proving these facts.” D. Dobbs,

Remedies,

925 (1973); see, e. g.

McAleer v. McNally Pittsburgh Mfg. Co.,

329 F.2d 273 (3d Cir. 1964). In

Taylor v. Tulsa Tribune Co.,

136 F.2d 981, 983 (1943), a case relied on by the Company in its Memorandum, the Tenth Circuit stated “the burden rests [up]on the employer to show the amount received or which might have been received with reasonable diligence”. The practice of the Labor Board and under Title VII is much the same. See, e. g.

McCann Steel Co. v. N.L. R.B.,

570 F.2d 652, 655 , ft. 4 (6th Cir. 1978);

DiSalvo v. Chamber of Commerce,

568 F.2d 593, 598 (8th Cir. 1978). The burden is on the employer “to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability.”

N.L.R.B. v. Brown & Root, Inc.,

311 F.2d 447, 454 (8th Cir. 1963).

The record contains sufficient evidence of actual interim earnings, e. g. I.R.S. W-2 forms and tax returns, to allow for the computation of actual interim earnings to be deducted from gross back pay. The focus of a good portion of the testimony received in this proceeding has been on the issue of mitigation of damages. Forty-three claimants were called to testify; 95 affidavits and 85 Answers to Interrogatories were filed containing information concerning mitigation. The Company argues that it cannot bear the burden of proving a failure to mitigate because the relevant facts “are peculiarly within the knowledge” of the claimants. This argument must fail. The Company was given every opportunity to obtain any and all facts it needed to meet its burden and to explore every facet of the “knowledge” of the claimants.

In certain instances, however, claimants totally failed to respond to discovery measures. In an Interim Report of June 26, 1979, the Special Master recognized that these claimants have forfeited any entitlement to back pay by virtue of their total non-cooperation: they failed to complete affidavits containing information concerning interim earnings as required by the Order of the Court of September 18, 1978; they did not appear at depositions properly noticed by the Company; they did not reply to Interrogatories properly served by the Company. This outright failure to afford discovery made it impossible for the Company to bear its burden of persuasion on mitigation. Their failure to cooperate in any way in this proceeding forfeits any entitlement to damages. Cf.

National Hockey League v. Metropolitan Hockey Club, Inc.,

427 U.S. 639 , 96 S.Ct. 2778 , 49 L.Ed.2d 747 (1976);

Milewski v. Schneider Transportation Co.,

238 F.2d 397 (6th Cir. 1956).

20

On the other hand, with regard to the other claimants where mitigation is in issue, the Company has had the fullest opportunity to meet its burden. It is not disadvantaged by being obligated to prove those facts which diminish the damages which flowed from its breach of contract.

The Company further contends that some claimants responded to inquiries as to their efforts in seeking interim employment by stating that they had in fact sought such employment, but they could not remember

*1141

where.

21

While it is very likely that a person would not remember every place where he sought employment two or three years after the fact, it is difficult to forget

all

the places where one sought employment. Thus, the blanket assertion by a claimant that, “I looked for work” is subject to question. Where such a vague response as to efforts to seek employment is not credited, the opposite inference of a lack of reasonable diligence is warranted and the Company has met its burden. On the other hand, the scales of credibility resolution are tipped in one direction or th

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