California Dental Care, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 29, 1986281 N.L.R.B. 578 (N.L.R.B. 1986) Copy Citation 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD California Dental Care, Inc. and Dentists, Physi- cians and Related Professional Unions, AFL- CIO. Case 20-CA-17381 SUPPLEMENTAL DECISION STATEMENT OF THE CASE 29 September 1986 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 24 March 1986 Administrative Law Judge Jay R. Pollack issued the attached supplemental de- cision.' The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, California Dental Care, Inc., Roseville, California, its officers, agents, successors, and as- signs, shall satisfy its obligation to make whole Doctors Ted Brush and Juan Delgado by payment of net backpay in the amounts as set forth in the Order as modified. Substitute the following as backpay for Delgado "Dr. Juan Delgado $97,725.61." i The Board 's Decision and Order is reported at 272 NLRB 453 (1984) 2 The Respondent has excepted to some of the judge 's credibility find- ings . The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cu. 1951). We have carefully examined the record and find no basis for reversing the findings. We note several inadvertent computation errors in the judge 's backpay computations for Delgado Under "Net Backpay, 3rd Qtr 1982," the figure should be $10,348.63 ; under "Net Backpay , 2nd Qtr 1983," the figure should be $9,135 14; and under "Net Backpay , 3rd Qtr 1984," the figure should be $4,026.50. Thus, we find the correct total net backpay due Delgado is $97,725.61. The Order has been modified accordingly Nancy E. Watson, Esq., and Laurie A. Gray, Esq., for the General Counsel. Robert L. Rediger, Esq. (Hubbert, Shanley & Lee), of Sac- ramento, California , for the Respondent. JAY R. POLLACK, Administrative Law Judge. On No- vember 21, 1984, the National Labor Relations Board issued a Decision and Order in the above-captioned case (272 NLRB 453) finding that California Dental Care, Inc. (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act. The Board's Order re- quires Respondent, inter alia, to make whole Dr. Ted Brush Jr. and Dr. Juan Delgado for any loss of earnings they may have suffered by reason of Respondent's un- lawful discharge of them. A dispute having arisen over the amount of backpay due under the Board's Order, the Regional Director for Region 20 of the Board issued on July 10, 1985, a backpay specification, which was amend- ed at the hearing, alleging the amount of backpay due under the Board's Order. Respondent filed a timely answer and the matter was heard by me in Roseville, California, on October 18 and 21, 1985. On the entire record, from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs of the parties, I make the following FINDINGS AND CONCLUSIONS A. Introduction The Board found that Respondent violated Section 8(a)(3) and (1) of the Act by issuing a disciplinary warn- ing to Dr. Brush on May 24, 1982, and discharging him on June 18, 1982, because of his union and protected concerted activities. Respondent, in the underlying unfair labor practice proceeding, urged that Dr. Brush was dis- charged, among other reasons, for reducing his work- week in order to commence his own practice in Folsom, California, 30 miles from Respondent's Sacramento office where Brush worked. The Board rejected this defense and found that Dr. Brush's union activities, and not his pursuit of his own dental practice, were responsible for the discharge. Regarding Dr. Delgado, the Board found that Re- spondent violated Section 8(a)(3) and (1) of the Act by issuing disciplinary warnings to Dr. Delgado on June 24 and July 1, 1982, and discharging him on August 27, 1982, because of his union and protected activities. In de- fending the discharge, in the underlying unfair labor practice proceeding, Respondent relied, inter alia, on cer- tain complaints by dental assistants relating to Dr. Delga- do's treatment of patients. The Board found that Re- spondent had condoned Delgado's treatment of the pa- tients because Delgado was the highest income produc- ing dentist employed by Respondent, and only used this reason as a pretext in an attempt to justify Dr. Delgado's illegally motivated discharge. The Board ordered Respondent to offer Dr. Brush and Dr. Delgado immediate and full reinstatement to their former positions or, if such positions no longer existed, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any employees hired to replace them and to make them whole for any loss of pay that they may have 281 NLRB No. 93 CALIFORNIA DENTAL CARE suffered by reason of Respondent 's unlawful discharge of them. B. The Formula for Gross Backpay There is a significant dispute between the General Counsel and Respondent concerning the formula for de- termining the amount of backpay Brush and Delgado would have earned had they not been discharged. The General Counsel contends that the proper formula is an average based on a full 11 -month period prior to the dis- charges . Respondent, on the other hand , contends that the proper formula for gross backpay should be based on the earnings of the replacement employees who worked in jobs similar to the discriminatees during the backpay period. Respondent's replacement formula would sub- stantially reduce the gross backpay due both Brush and Delgado , for the reason that the dentists that replaced Brush and Delgado earned significantly less than the av- erage earnings of Brush and Delgado. It is well established that the Board is not required to attain mathematical precision in its formula for determin- ing gross backpay . "Any formula which approximates what discriminatees could have earned if they had not been discriminated against is acceptable if it is not unrea- sonable or arbitrary in the circumstances." Am-Del-Co, 234 NLRB 1040, 1042 (1978); Boyer Ford Trucks, 270 NLRB 1133, 1138 (1984). All that is required is that the formula be reasonably designed to arrive at as close an approximation of the amount of backpay due as possible. Rikal West; Inc., 274 NLRB 1136 (1985); Master Slack, 269 NLRB 106, 109 (1984), enfd . 773 F.2d 77 (6th Cir. 1985). See also NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir . 1963); Mastell Trailer Corp., 273 NLRB 1190 (1984). While employed by Respondent, Delgado and Brush were the highest and second highest earners among Re- spondent 's dentists . Respondent 's dentists were paid based on a percentage of their production. The dentists were not paid on an hourly nor salary basis but, in effect, were paid on a piece-rate or commission basis . It is for this reason I am most reluctant to utilize the replacement formula. Brush had worked for Respondent for over 4 years and was one of Respondent's most senior dentists. Del- gado had worked for Respondent for over 2 years at its Modesto office . In November 1981, in a meeting with all of its dentists, Respondent distributed a document show- ing the earnings of its 12 dentists for October 1981. That chart revealed that Delgado and Brush , respectively, produced 27 to 71 percent and 20 to 67 percent, more than the other dentists in Respondent 's employ. In fact, Delgado and Brush , respectively , produced 27 percent and 20 percent more than McKay , the next highest earner in Respondent's employ. Regarding McKay, the General Counsel established that McKay earned an aver- age of $416 per day during the year 1982 and an average of $427.77 per day in 1983 (through April 1983, when McKay left Respondent's employ). It is most important that McKay continued his high level of production and earnings, for 10 months after Brush was discharged and 8 months after Delgado was discharged , because Respond- ent argues that the lesser earnings of the replacement 579 dentists were based on a decrease in business rather than the relative skills of the replacements. According to Respondent , Delgado was replaced by Payne, Ory, Danckert , and Rosenbaum. Of these four dentists, Payne, Ory, and Danckert left Respondent's employ within 6 months of being hired . Thus, they did not have the time to build up clientele as Delgado had done. Further, Payne was hired by Respondent directly out of dental school , indicating that Payne was not a rep- resentative employee for establishing Delgado 's backpay. Brush was replaced by Coffman , who earned signifi- cantly less than Brush. In arguing that Coffman was a representative employee for determining Brush 's back- pay, Respondent argues that it made no difference that it took Coffman 6 days to perform the work that Brush performed in 4 days . I find that argument self-defeating. There were simply not enough days in a month for Coff- man to earn as much as Brush had earned . Respondent paid its employees on a piece-rate or commission basis, not on a salaried or hourly basis . That method of pay- ment does not treat employees as equal , but rather meas- ures the employees' skills and abilities . Accordingly, the formula for gross backpay should measure the employ- ees' skills and abilities. Ashen, Respondent 's managing partner, admitted that the production figures of a particular dentist are based at least in part on the skill the dentist brings to the practice. However, Ashen testified that after 2 weeks a dentist fresh out of dental school would be able to assume the dental practice as efficiently as a more experienced den- tist. I fmd this testimony carries its own death knell. Ex- perience tells us that it takes more than a few weeks to obtain professional skills and experience . Further, Ashen testified that Respondent 's business was discount dentist- ry and depended on a high volume of business . Thus, a dentist's ability to work quickly and efficiently was key to both Respondent's and that dentist's income. To support its backpay formula , Respondent argues that all of its dentists are equally qualified and perform the same type of general dentistry . Respondent contends that the only difference is the amount of time it takes a dentist to adjust to a dental office. Respondent 's argu- ment fails to address the difference in earnings of the various dentists and the reason for payment on a com- mission basis. If the dentists were equal as Respondent contends, their earnings would be equal over the long run. However, the facts reveal to the contrary; the earn- ings of the dentists were not equal . Brush and Delgado consistently earned more than the other dentists. This difference can only be attributed to their skills. Just as with salesmen paid on a commission basis , it appears to be more equitable to base backpay on their average earn- ings rather than on the earnings of less skillful replace- ments. See DeLorean Cadillac, 231 NLRB 329 (1977), enfd. in relevant part 614 F.2d 554 (6th Cir. 1980); Boyer Ford Trucks, supra. Cf. Folk Chevrolet, 176 NLRB 277, 279-280 (1969).1 1 I find the cases cited by Respondent to be inapposite. Those cases, in which the replacement formula was utilized, all involve employees paid on an hourly or weekly basis. Not one of those cases involved employees paid on a commission or piece-rate basis. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contends that the failure of the replace- ments to earn as much as Brush and Delgado is based on a decline in business . Although Respondent did suffer a decline in business , Respondent should not benefit nor should Brush and Delgado suffer as a result of a decline in business which resulted in part by the illegal termina- tions of Brush and Delgado . As noted earlier, McKay, who earned less than Brush and Delgado, did not suffer any loss of earnings during the time period when Re- spondent's business declined. Accordingly, for all the reasons stated above, I find the average earnings formula requested by the General Counsel to be fairer and more equitable than the replace- ment formula urged by Respondent. I, therefore, use the average earnings formula in calculating gross backpay for Brush and Delgado. C. Dr. Ted Brush Jr. Brush began work for Respondent in 1978. He worked at Respondent's Stockton Boulevard clinic in Sacramen- to, California, as a dentist and when he was discharged in June 1982 was Respondent 's most senior dentist. He was second among Respondent's dentists in productivity. Brush's backpay period begins on June 18 , 1982, the date of his discharge . Respondent contends that Brush's back- pay period terminated that same date . This contention is based on an alleged offer of full -time employment to Brush at the time of his unlawful discharge. Ashen testified that on approximately June 16 he told Brush that Brush could not work only 2 days a week for Respondent but could continue in Respondent 's employ on a full-time basis . According to Ashen, Brush declined full-time employment . This evidence was offered at the original unfair labor practice hearing . The trier of fact, Administrative Law Judge Jerrold H. Shapiro , rejected Ashen's version of this conversation and instead credited Brush's version of their conversation. Brush credibly testified that he was phoned at his home by Ashen and told that Ashen had learned that Brush was only scheduled to work 2 days a week for the next several weeks. Brush acknowledged this fact and when Ashen asked why he was only working 2 days a week, Brush replied that he had some personal business that needed his attention . Ashen stated he did not know how that would work out and further stated that he "would have to think about it ." That evening Ashen's as- sistant, Linda Bucknell , telephoned Brush at home and informed him that he was being terminated . Brush re- sponded that he intended to be at work Monday, June 21, 1982, to treat the patients who had already been scheduled to see him. On Friday , June 18, 1982, Ashen telephoned Brush at home and told him that he had been discharged and that Ashen had canceled all his patients' appointments so that there would be no need for him on Monday to come to the office . On Monday , June 21, 1982, Brush went to the Stockton Boulevard clinic where he was met by Ashen who gave him a check con- taining the moneys owed him by Respondent and told Brush that he was discharged. Thus, it is clear that Ashen 's alleged offer of employ- ment to Brush had been litigated in the underlying unfair labor practice case and expressly rejected by the Board. I am bound by that fording as the law of the case.2 Ac- cordingly , based on the Board 's findings in the underly- ing unfair labor practice case , there is no factual basis here on which to terminate backpay in 1982 as contend- ed by Respondent. After leaving Respondent 's employ, Brush attempted to secure employment on a part -time basis through the California Dental Association . However , the timing of this venture was unfortunate . Recent graduates had just secured almost all the job opportunities . Brush was unable to find part-time employment. Brush worked in his own practice 3 days a week. At the outset, there was not sufficient work for 3 full days of employment, however Brush stretched his schedule to cover 4 days. Keeping the office open 4 days a week in- creased Brush's ability to maintain the office . During those slow times, Brush did professional reading , market- ing, and other office and administrative duties . After a period of 6 months , Brush kept his office open 5 days a week. Brush's practice picked up gradually over a period of time after his discharge by Respondent. The General Counsel seeks backpay for Brush for only 6 months . For the first 3 months, the General Counsel seeks backpay based on the assumption that Brush would have worked 3 days a week in his own practice and 2 days a week for Respondent . 3 For the next 3 months, the General Counsel seeks backpay for only 1 day a week. The theory is that Brush could have worked for Re- spondent in addition to establishing his fledgling practice. Respondent contests these allegations but offers no evi- dence to show that Brush could not have worked both for Respondent and in his own practice . The Board's finding that Brush 's reduction of his workweek from 4 to 2 days was a pretext supports the General Counsel's po- sition . Again the Board 's finding is the law of the case. Thus, I must ford Brush could have worked 2 days a week for Respondent while maintaining his own prac- tice . The record convinces me that Brush could have maintained that basis for at least the 3 months claimed by the General Counsel . Thereafter , Brush's practice in- creased and the General Counsel only seeks backpay for 1 day. There is nothing in the record which establishes that Brush could not have reduced his employment to 1 day a week. The two 3-month periods chosen by the General Counsel, although far from exact, seem reasona- ble and not unduly harsh to Respondent . Respondent, on the other hand, has offered nothing to overcome the General Counsel's formula for establishing Brush 's gross backpay. Respondent argues that Brush did not mitigate his loss of income by seeking interim employment. However, there is no evidence to support that contention.4 The 2 See NLRB v Laredo Packing Co., 730 F.2d 405 (5th Cir 1984) See also Overseas Motors, 277 NLRB 570 (1985). s At the time of his unlawful discharge, Brush had arranged his sched- ule so that he could work for Respondent 2 days a week and could work in his own practice 3 days a week 4 The burden of proof is on the employer to show that the employee willfully incurred a loss by an unjustified refusal to take desirable new employment. Phelps-Dodge v. NLRB, 313 U.S. 177, 197-200 (1941); NLRB v. Reynolds Box Co, 399 F 2d 668, 669 (6th Cir 1968). See also Neeley's Car Clinic, 255 NLRB 1420 (1983); Southern Household Products Co, 203 NLRB 881 (1973) CALIFORNIA DENTAL CARE record establishes that Brush attempted to fmd part-time employment but could not do so . An employee does not willfully incur a loss of earnings when he makes a good- faith effort to obtain interim employment . Thus, success or failure in securing interim employment is not a meas- ure of the sufficiency of the employee's search for inter- im employment; rather, the law "only requires an honest good faith effort ." NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955); Heinrich Motors v. NLRB, 403 F.2d 145, 148-149 (2d Cir. 1968). The reasonableness of a search for work is not determined by the success of the effort. Sioux Falls Stockyards Co., 236 NLRB 543 (1979). Nor does the fact that no interim earnings were obtained tend to show a backpay claimant failed to make a reason- able search for work . Highview, Inc., 250 NLRB 549, 553 (1980). Brush was not obligated to seek full-time employ- ment because his employment with Respondent , if not in- terrupted by the unlawful discharge , would have been on a part-time basis. D. Dr. Juan Delgado Juan Delgado was employed by Respondent as a den- tist in its Modesto, California office from May 1, 1980, until his unlawful discharge on August 27, 1982 . Delgado was the top income producer among Respondent's den- tists. Respondent contends that Delgado's backpay period ended on January 31, February 10 and 16, or March 6, 1983 , dates on which Delgado allegedly de- clined offers of reinstatement. Delgado received a written offer of reinstatement from Respondent's attorney about January 24, 1983 . Delgado telephoned Respondent's attorney and was instructed to call Ashen about the details of the offer . On February 10, Delgado telephoned Ashen to arrange for his return to work. Ashen offered Delgado employment to Re- spondent's Stockton, California office citing hard feelings between the dental assistants and Delgado as the reason for offering Stockton as opposed to Modesto , Delgado's former office . Delgado wanted to return to the Modesto office for two reasons: (1) Delgado had built a consider- able clientele in the Modesto office , and (2) Delgado in- tended to start a private practice of his own in Stockton. Delgado would not likely be able to remain in Respond- ent's employ if he had a competing practice in Stockton while working in Stockton. However , Modesto was a sufficient distance from Stockton to permit Delgado to work in Modesto and maintain a practice in Stockton. Delgado said he would get back to Ashen. Within 1 week, Delgado again called Ashen regarding the offer of reinstatement. Ashen reiterated that the offer was for reinstatement for the Stockton office and not the Modesto office . Delgado asked Ashen what would happen if Delgado started his own office but continued to work for Respondent the "exact same days" that he worked before his discharge and if the new practice was in a "totally different town ." Ashen said that if Delgado started his own practice , he would be terminated. Del- gado asked why other dentists were permitted to work for Respondent and have a noncompeting practice of their own. Ashen admitted that he had permitted a Knip- per to do so but declined to allow Delgado the same privilege . Delgado said he would again call Ashen after 581 he had thought the matter over. In their next telephone conversation Delgado said that he was planning to open his practice in the near future and did not want to start working for Respondent if he was only going to be ter- minated again when his practice opened. According to Ashen, Delgado mentioned that he would soon be starting up his own practice. Ashen then questioned whether it would make any sense for Del- gado to return to Respondent if he was going to be leav- ing in a short time . Delgado and Ashen agreed that Del- gado would call Ashen again when he had more infor- mation regarding his purchase of a private practice. Del- gado 's version of these events is found to be more reli- able than that of Ashen. A series of letters was then exchanged between Re- spondent's attorney and Delgado. Delgado took the posi- tion that he was only offered reinstatement at Stockton and not a position in Modesto to which he was entitled. Respondent's attorney took the position that the offer was not limited to Stockton. Based on the credited testi- mony of Delgado, and the admission by Ashen that he sought to persuade Delgado to accept employment at Stockton , I fmd consistent with Delgado's version of the events that Delgado was only offered employment at Stockton and not reinstatement to his former position at Modesto. Ashen's reliance on the alleged differences with the dental assistants was never explained . More important, the Board found that the complaints of the dental assist- ants regarding Delgado had been condoned by Respond- ent because of Delgado's high production . Respondent later seized on these complaints to justify Delgado's un- lawful discharge because of his union activities. 5 Certain- ly, it was clear to both Ashen and Delgado that Delgado could maintain his present practice and work for Re- spondent if Delgado worked at Respondent 's Modesto office but not its Stockton office. I draw the inference that Ashen was attempting to extinguish Respondent's reinstatement obligation by offering employment in Stockton which Ashen knew Delgado was unlikely to accept . In any event , Ashen's offer did not comply with the Board's Order requiring reinstatement to Delgado's former position or, if such position no longer existed, to a substantially equivalent position. Delgado 's former po- sition at Modesto was still in existence and Respondent's offer of another less desirable position cannot serve to terminate Respondent 's reinstatement or backpay obliga- tion to Delgado. Respondent further contends that Delgado's reinstate- ment rights were extinguished by his failure to respond to its letter of March 14, 1983. The evidence reveals that Delgado did not receive this offer of reinstatement until March 29, 1983. The letter was sent certified mail. The postal service left Delgado a notice to pick up the letter at the post office. The letter was picked up on March 29, 1983 . Thereafter , Delgado wrote a letter dated April 6 6 Such alleged personality conflicts are an insufficient justification for refusing to remstate discriminatees to their otherwise available former po- sitions . See NLRB v. Retail Store Employees Union , 570 F.2d 586, 593-594 (6th Cir. 1978); Trustees of Boston University v. NLRB, 548 F.2d 391, 393- 394 (1st Cr. 1977). 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and mailed that date or the day after by Mrs . Delgado. Respondent's attorney received the letter on April 11, 1983 . In this letter, Delgado again took the position that Ashen had only offered him employment at the Stockton office and that Delgado was entitled to reinstatement to his former position at the Modesto office . Based on these facts, I find no basis to extinguish Delgado's rights to re- instatement or backpay due to the delay in the mail. Re- spondent chose this method of communication and, therefore, assumed the risks of any delays inherent there- to.6 Moreover, there is no basis for inferring that the offer to which these letters referred to was any different from the insufficient offer of reinstatement to the Stock- ton office . The offer of reinstatement to another location, particularly here where Delgado had good reasons, known to Ashen , for desiring reinstatement to his former location, is not sufficient to toll backpay. Seligman & As- sociates, 273 NLRB 1216 (1984); M. J. McCarthy Motor Sales Co., 147 NLRB 605, 612 (1964). E. Dr. Delgado's Interim Earnings Following his unlawful termination by Respondent on August 27, 1982 , Delgado began working as a dentist at the Sunrise Mall Dental Group . During the fourth quar- ter of 1982, he also earned income for employment with a dentist named Dr . Johnson . Respondent contends that Delgado's interim earnings during the fourth quarter should be increased by an amount of $8900 due to two payments he received from his corporation. The uncon- tradicted testimony of Delgado establishes that the pay- ments were advances to him by his corporation out of retained earnings . The earnings were accrued during Delgado's employment with Respondent . Pursuant to Delgado's agreement with Respondent , Delgado's corpo- ration (rather than Delgado himself) was paid for Delga- do's services. Beginning in the second quarter of 1983 , Delgado began his own practice, with two partners, known as the Weberstown Mall partnership . Respondent seeks to in- crease Delgado's interim earnings, and therefore decrease net backpay, by utilizing an accrual accounting basis rather than the cash basis utilized by the partnership and Delgado . Further , Respondent seeks to increase Delga- do's interim earnings by eliminating depreciation as an al- lowable expense. Self-employment does not in and of itself indicate withdrawal from the labor market. Heinrich Motors, 166 NLRB 783, 784-785 (1967); Carter's Rentals, 250 NLRB 344, 351 (1980). The rationale is that self-employment is consistent with the obligation to mitigate damages. Thus, the Board treats self-employment the same as other inter- im employment . In this case, Delgado earned substantial amounts of money in his own practice.? As noted earlier, interim income from self-employment is treated like any other income. Boilermakers Local 27 (Daniel Construction), 271 NLRB 1038, 1041 (1984); Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980). Only the net profits from self-employment ought to be included as interim earnings . The claimed deprecia- tion expense is an "ordinary and necessary expense" of Delgado's business and was properly deducted from in- terim earnings . See Daniel Construction , supra, 271 NLRB at 1041, and Kansas Refined Helium, supra, 252 NLRB at 1161 . Further, the deduction of depreciation is a recognized expense for accounting and income tax pur- poses. Similarly , the use of a cash basis rather than an accrual basis is a recognized method of accounting for profes- sional partnerships . Further, the Internal Revenue Serv- ice permits utilization of a cash basis . Therefore, I reject Respondent 's argument that Delgado 's interim earnings should be increased by his proportionate share of the partnership 's accounts receivable. I do find merit , however, in Respondent 's argument that Delgado's share of the undistributed income of the partnership should be included in his net profits for the interim self-employment. Thus, I have adjusted the inter- im earnings admitted by the General Counsel to reflect Delgado's share of the profits (and losses) for the last quarter in each relevant year of the backpay period. F. Computation of Backpay Yr./Qtr. Gross Interim Offsets to Interim NetBack-Backpay Earnings Earnings Pay 1982/2 ................... $ 1,805.80 0 0 $ 1,805.80 1982/3 ................... 10, 834.86 0 0 10, 834.86 1982/4 ................... 5,417.40 0 0 5 ,417.40 1983/1 ................... 902.90 0 0 902.90 Total .......... $ 18,960.96 Yr /Qtr Gross Interim Offsets to Interim Net. . Backpay Earnings Earnings Backpay 1982/3 ............. $11,061.85 $ 758.32 $ 45.10 $11,494.68 1982/4 ............. 28,760.82 5,427.76 294.87 23,627.93 1983/1 ............. 28,760.82 15,305.29 615.00 14,070.53 1983/2 ............. 28,760.82 19,625.68 0 9,132.14 1983/3 ............. 28,760. 82 9,380.14 0 19,380.68 1983/4 ............. 28,760.82 13,127.54 0 15,633.28 1984/1 ............. 28,760.82 30,916.45 0 0 1984/2 ............. 28,760. 82 28,170.52 0 590.30 1984/3 ............. 28,760.82 24,734.32 0 4,026.52 1984/4 ............. 28,760.82 33,246.54 0 0 1985/1 ............. 28,760.82 40,712.59 0 0 1985/2 ............. 6,847. 80 5,935 . 18 0 912.62 Total.... $98,868.68 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed8 6 Carruthers Ready Mix, 262 NLRB 739, 740 ( 1982), J. H. Rutter-Rex., 8 All outstanding motions inconsistent with the recommended Order 158 NLRB 1414, 1524 (1966). are denied. If no exceptions are filed as provided by Sec 102 46 of the 9 Dr. Delgado also earned more than the other two partners in the Board 's Rules and Regulations , the findings, conclusions, and recom- Weberstown Mall practice Continued CALIFORNIA DENTAL CARE 583 ORDER It is ordered that the Respondent, California Dental Care, Inc., forthwith pay to Ted Brush Jr. and Juan Del- gado backpay in the amounts set opposite their names: mended Order shall, as provided in Sec . 102.48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all purposes. Ted Brush Jr. $18 ,960.96 Juan Delgado 98 ,868.68 plus interest computed in the manner prescribed in Flori- da Steel Corp., 231 NLRB 651 (1977),9 until payment of all backpay due, less withholdings required by Federal and state law. 9 See generally Isis Plumbing Co., 138 NLRB 716 (1962). Copy with citationCopy as parenthetical citation