Full opinion text
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. 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 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 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 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 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. 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 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. 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 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 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. 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. 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.” 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 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. 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.” 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 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. 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 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. 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 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. 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. 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. 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, was successful in obtaining employment from three separate employers during the back pay period. In 1976 she worked for Crawford 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 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 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 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 $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 se