Cornwell Co., Inc.

National Labor Relations Board - Board Decisions

May 13, 1968

171 N.L.R.B. 342 (N.L.R.B. 1968)

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cornwell Company , Inc. and Maynard N. Whitney
and United Furniture Workers of America,
AFL-CIO. Cases 25-CA-1912, 1952, 2106, and
2185
May 13, 1968
SUPPLEMENTAL DECISION AND ORDER
On June 10, 1966, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding,' finding, inter alia, that
Respondent violated Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended, by failure
to rehire June Hopper, and to recall Joy Longest
after layoff, and by discharging and refusing to rein-
state Ernest Dale Edwards and Troy Kennedy,
because of their union affiliation and activity. The
Board ordered reinstatement with backpay for the
four discriminatees.
Pursuant to a backpay specification and ap-
propriate notice issued by the Regional Director for
Region 25, a hearing was held before Trial Ex-
aminer Robert Cohn on April 4 and 5, 1967, for
the purpose of determining the amounts due the
four claimants.
On July 21, 1967, the Trial Examiner issued the
attached Supplemental Decision, in which he
awards backpay to the four claimants. Thereafter,
the General Counsel filed exceptions, with support-
ing briefs, to the Trial Examiner's Supplemental
Decision, and the Respondent filed an answering
brief.
The Board has reviewed the rulings of the Trial
Examiner made at the backpay hearing and finds
that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has con-
sidered the entire record in these cases, including
the Trial Examiner's Supplemental Decision, the
exceptions and the briefs, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified herein.'
1. The backpay period of Joy Longest runs from
November 12, 1964, to September 6, 1966. Lon-
gest reported weekly at the Indiana Employment
Security Division Office (I.E.S.D.) in English, Indi-
ana, from the day after she was laid off, Oct 'ber 7,
1964, until April 27, 1965. On or about May 27,
1965, Longest applied for work at two companies
in New Albany, Indiana, and also called at the
I.E.S.D. office where she requested factory work. In
June 1965, she returned to New Albany where she
.gain sought employment at the same two compa-
nies and also once more called at the employment
office. In April 1966, she applied for employment
at the English Furniture Company in English, Indi-
ana. On the basis of this evidence, the Trial Ex-
aminer recommended that Longest be awarded
backpay for November 1964 through June 1965
and for the month of April 1966, to which the
Respondent does not except.
The Trial Examiner found, however, that there
was no substantial evidence that Longest sought
work from July 1965 until April 1966, and there-
fore recommended tolling backpay for the last two
quarters of 1965 and the first quarter of 1966. The
Trial Examiner found further that Longest did not
diligently pursue her search for alternative employ-
ment after April 1966, and he recommended that
backpay also be tolled from May 1966 to August
24, 1966, when Respondent offered to reinstate
her.
The General Counsel excepts to the Trial Ex-
aminer's failure to award backpay for the periods
from July 1965 to April 1966, and from May 1966
to August 24, 1966. We find merit in these excep-
tions for the reasons set out below, and award
backpay for the entire period of November 12,
1964, to September 6, 1966.
Regarding her search for work during the period
from July 1965 to April 1966, Longest testified as
follows: She applied for work at Hoffman Products
in Orleans, Indiana, during the winter of 1965.
Three or four weeks after her initial application,
she returned and was told there was still no open-
ing, but that she would probably be called soon.
Several weeks later Longest informed her daughter,
who worked at Hoffman, that she had been to Hoff-
man in an attempt to secure employment. Her
daughter said she would talk to her boss to see if
she could obtain a job for Longest. Her daughter
made inquiry of Hoffman and was told that Hoff-
man was going to hire some employees in its
cabinet room. Upon being so informed, Longest
went to Hoffman for a third time, but was told that
Hoffman still did not have a place for her. Some-
time after this last visit to Hoffman, Longest asked
her union agent about openings at the Paoli Chair
Factory, but he told her that Paoli Chair was not
hiring women at that time.
The Trial Examiner did not discredit Longest's
testimony regarding her search for employment
159 NLRB 42
z The Trial Examiner states in his decision that " the rule appears to
be that generally it is the responsibility of the General Counsel to produce
the discriminatees and have them to testify with respect to their search for
employment during the backpay period " However, the rule, as
adopted by the Board, is that the General Counsel's function in producing
backpay claimants for examination by Respondent is merely advisory and
cooperative Brown and Root, Inc , 132 NLRB 486, enfd 327 F 2d,958
(C A 8), Mooney Aircraft, Inc, 148 NLRB 1057, enfd. 366 F 2d 809 (C A
5), Florence Printing Company, 158 NLRB 775, enfd 376 F 2d 216 (C A
4)
171 NLRB No. 43
CORNWELL COMPANY, INC. 343
during this period of time, but nevertheless found,
incorrectly in our opinion, that "there is no sub-
stantial evidence in the record" that a search for
work was made from July 1965 to April 1966.
Moreover, by this finding, the Trial Examiner ap-
pears to have relieved the Respondent from the
burden which the law imposes on it to prove a will-
ful loss of earnings and to have incorrectly shifted
to the General Counsel the burden of establishing
the contrary. As the Board stated in Mastro
Plastics:
[ W ]bile the general burden of proof is upon
the General Counsel to establish the damage
which has resulted from Respondent's
established discriminatory discharge, i.e., the
gross backpay over the backpay period, the
burden of proof is upon the Respondent as to
diminution of damages, whether from the will-
ful loss of earnings by the failure to either look
for or keep a substantially equivalent job or
from the unavailability of a job at Respon-
dent's plant for some reason unconnected with
the discrimination.3
In this case, it is clear that the General Counsel
has carried his burden of establishing the gross
backpay over the backpay period, and Respondent
does not except to the Trial Examiner's findings in
that regard. Therefore, the burden passed to the
Respondent to establish that the gross backpay
should be diminished due to a willful loss of
earnings by the discriminatee. And if the theory as-
serted to prove the necessity for diminution of
backpay was that Longest was chargeable with will-
ful loss of earnings through failure to look for suita-
ble alternate employment, it was incumbent upon
Respondent to demonstrate by a fair preponde-
rance of evidence that Longest did not make
reasonable efforts, when considered in the light of
all the surrounding circumstances, to seek out work
that might have been available to her. On the
record taken as a whole, we find that Respondent
has not met that burden.
We note preliminarily that the Trial Examiner
tolled backpay for specific quarters in which he
found that there was "no substantial ev;:... nce that
Longest applied for work." But in treating each
quarter as a completely severable period, divorced
from all others, for the purpose of determining the
reasonableness of Longest's job seeking efforts, the
Trial Examiner adopted and applied an incorrect
standard. From the fact alone that in a given
quarter a discriminatee has made no specific job
application, it does not necessarily follow that the
discriminatee during that particular quarter has
abandoned efforts to find suitable employment and
in effect has withdrawn from the labor market. A
discriminatee who has otherwise made reasonable
efforts to seek out new employment is not required
in each specific quarter to repeat job applications
which from her past efforts she knows are
foredoomed to futility in order to protect her claim
of backpay for that particular quarter. Rather, the
entire backpay period must be scrutinized to deter-
mine whether throughout that period there was, in
the light of all surrounding circumstances, a
reasonable continuing search such as to foreclose a
finding of willful loss.
Looking at the entire backpay period, we are
unable to conclude on the strength of the evidence
recited above that Longest did not make a reasona-
ble search for work during that entire period, or
during any part thereof. The record shows that at
intervals throughout that period Longest made
recurrent but fruitless efforts to find employment.
The reasonableness of her efforts must be assessed
in the context of the conditions affecting her search
for work. Considering that Longest was a woman of
61 years of age at the time4 and that she resided in
an area in which, as found by the Trial Examiner,
there was a lack of employment opportunities open
to women with her particular skills and experience,
it appears to us that she made as reasonable an ef-
fort as could be expected under the circumstances.5
On all the record we are of the opinion that the
claim of willful loss in Longest's case has not been
affirmatively established by a preponderance of the
evidence. Accordingly, we reverse the Trial Ex-
aminer to the extent he found otherwise and award
Longest backpay for the entire period of November
12, 1964, to September 6, 1966. Thus, we find the
backpay due Longest to be $7,523.12.6
2. The Trial Examiner found that discriminatee
a Mastro Plastics Corp, 136 NLRB 1342, 1346, enfd 354 F 2d 170 (C.A
2J, cert denied 384 U S 972
The Trial Examiner found that Longest was 63 years old in the spring of
1965 The evidence shows that she was 61 at that time and 63 at the time of
the hearing
5 Mastro Plastics , supra, W C Nabors Co , 134 NLRB 1078
6 The following chart shows the backpay due Longest
Gross Net Net
BaT Interim Bacuay
1964-IV $ 347.49 -0- $ 347.49
1965-I 890.64 -0- 890.64
Gross Net Net
Backp Interim Backnay
1965-11 1186.34 -0- 1186.34
1965-M 885.87 -0- 885.87
1965-IV 983.89 -0- 983.87
1966-I 1082.95 -0- 1082.95
1966-II 1236.04 -0-
vcn 144.00
8 4 -0- 1380.04
1966-111 76 .90 765.90
344 DECISIONS OF NATIONAL
June Hopper (Clark) sought alternate employment
from the beginning of her backpay period (October
1, 1964) through June 1965 and recommended that
she be awarded backpay for this period. No excep-
tions were filed to this finding and recommenda-
tion, and they are hereby adopted. However, the
Trial Examiner found further that the testimony
respecting her search for work during the last half
of 1965 and the first quarter of 1966 was vague and
indefinite, and recommended that she be denied
backpay for such period, to which the General
Counsel excepts. The Trial Examiner noted, how-
ever, that Hopper could recall "for certain" that
she applied at Hoffmans in July 1965. This
testimony was neither discredited nor contradicted.
Although we agree with the Trial Examiner that
the record evidence is too vague and indefinite to
warrant awarding backpay to Hopper for the entire
period of July 1965 to April 1966, in light of our
determination that a strict quarterly approach
should not be followed in determining willful loss,
we, in disagreement with the Trial Examiner, find
that the evidence that she did search for employ-
ment in July warrants an award of backpay for at
least that month. Accordingly, we also award
backpay for the month of July 1965 in the amount
of $278.76.'
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Cornwell Company, Inc., Paoli, Indiana, its officers,
agents, successors, and assigns, shall pay to the em-
ployees involved in this proceeding, as net backpay,
the amounts set forth in the Trial Examiner's
Recommended Order, as modified hereinabove.
' This figure represents gross backpay for 4 weeks ($906 divided by 13
equals 69.69 times 4).
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: On June 10,
1966, the National Labor Relations Board issued its
Decision and Order in this case ' in which , inter alia,
it ordered the Cornwell Company, Inc., Respon-
dent herein , to offer to Ernest Dale Edwards, Troy
Kennedy , Joy Longest, and June Hopper immediate
' 159 NLRB 42.
2 The Trial Examiner notes the following errors in the transcript as being
worthy of correction : p. 41, 1. 13, change Sept. 26 to Sept . 6; p. 133, 1. 24,
change formal to former.
9 The Respondent disclaimed knowledge of some of the discriminatees'
LABOR RELATIONS BOARD
and full reinstatement to their former positions, and
to make them whole for any loss of pay they may
have suffered by reason of the discrimination
against them.
A controversy having arisen over the amount of
backpay due, the Regional Director of the Board
for Region 25, pursuant to authority conferred
upon him by the Board, did on February 17, 1967,
issue a backpay specification and notice of hearing,
and caused it to be served on the Respondent. By
its duly filed answer, Respondent admitted certain
allegations of the backpay specification particularly'
insofar as such specification identified the backpay
periods, job classifications, and gross backpay of
the discriminatees. Respondent disclaimed
knowledge regarding the interim earnings and ex-
penses alleged, and affirmatively averred that it was
not obligated to make the net payments alleged
because " the discriminatees failed to make
reasonable attempts to secure interim employment
during their respective backpay periods, they were
unavailable for such employment, and in various
ways failed to mitigate their damages as required."
Upon the issues so stated, a hearing was held be-
fore me in Orleans, Indiana, on April 4 and 5,
1967, in which all parties participated, were af-
forded full opportunity to examine the witnesses,
and to introduce evidence pertinent to the issues.
At the close of the hearing; all parties waived oral
argument. Posthearing briefs have been received
from the General Counsel and the Respondent,
which have been extremely helpful in the con-
sideration of the evidence and resolution of the is-
sues.
Upon the entire record2 and from my observation
of the demeanor of the witnesses while testifying, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE ISSUE
As previously noted, the only issue to be
resolved, with respect to each discriminatee, is
whether he or she made a reasonably diligent
search for alternative, desirable employment during
his or her respective backpay period, the Respon-
dent not having contested: (1) the Regional
Director's method of computing gross backpay or
(2) the length of the backpay periods.3 On this is-
sue, the law is well settled that, after gross backpay
has been shown by the General Counsel, the bur-
den shifts to the Respondent ". . . to establish facts
which would negative the existence of liability to a
given employee or which would mitigate that liabili-
ty. "4 Stated another way, the rule appears to be
claimed interim expenses which would normally be deducted from any in-
terim earnings.
' United States Air Conditioning Corporation, 141 NLRB 1278, 1280, and
cases cited.
CORNWELL COMPANY, INC. 345
that generally it is the responsibility of the General
Counsel to produce the discriminatees and have
them testify with respect to their search for employ-
ment during the backpay period, but " . . . the bur-
den of proof is upon the Respondent as to diminu-
tion of damages, whether from the willful loss of
earnings by the failure to either look for or keep a
substantially equivalent job or from the unavaila-
bility of a job at Respondent's plant for some
reason unconnected with the discrimination."5
With the foregoing principles in mind, we ap-
proach the evidence in this case respecting each
discriminatee:
II. ERNEST DALE EDWARDS
It was stipulated by the parties that this em-
ployee's backpay period began March 15, 1965,
and ended September 6, 1966.6
On March 16, 1965, Edwards, accompanied by
discriminatee Troy Kennedy, registered with the In-
diana Employment Security Division at Salem, Indi-
ana. However, neither received an offer of employ-
ment at that time. On March 22, 1965, both men
went together to New Albany, Indiana, and secured
employment at a company named Breese Plywood.
However, after working there one night, they
figured that the low wage scale extant at that com-
pany, taken with the relatively long-distance driv-
ing, would not pay them to continue employment
there , so they quit the same night.
The record establishes that Edwards diligently
sought employment during the remainder of the
first quarter of 1965, but was unsuccessful. He
secured employment at Hoffman Products Com-
pany in Orleans, Indiana, on April 12, 1965, com-
mencing work on April 13 . He worked there until
May 28, 1965, at which time he left to secure a
more remunerative job with Bolin Industries, a
small woodworking plant located approximately 4
miles west of Paoli, Indiana.8
Edwards worked continuously at Bolin from June
1, 1965, until August 18, 1966, at which time he
left under circumstances which vary according to
whose testimony one believes; i.e., whether he quit
as contended by Respondent or whether he was ter-
minated as contended by General Counsel. In any
event, he was not further employed until he
received his offer of reinstatement and returned to
work for the Respondent on September 6, 1966.
Respondent does not contend that Edwards' gross
backpay should be tolled for failure to seek work
prior to his employment at Bolin; rather, its conten-
tion is that he incurred willful losses in that: (1) he
did not work full time while there; and (2) he quit
his employment on August 18, 1966.
The record (Resp. Exh. 10) shows that Edwards,
performed no work: (1) during the weekly payroll
period ending July 24, 1965; (2) during the 7-week
period from September 18 through October 30,
1965; and (3) during the weekly payroll period
ending April 16, 1966.
Respondent further contends that additional
deductions from gross backpay should be made as a,
result of Edwards' "willful failure to work Saturday
mornings while employed at Bolin Industries, and
his highly irregular attendance." The available
record evidence shows that Bolin regularly
scheduled a 44-hour workweek (8 hours for 5 days
and 4 hours on Saturday).10 The record further
establishes that during the 64 weeks of his employ-
ment Edwards worked only 5 Saturdays although
Mr. Bolin, owner of the company, credibly testified
that Edwards was regularly asked to work, but sel-
dom complied."
It is true that Edwards had difficulty reaching his
employment at Bolin because he lived in an essen-
tially rural community and, as previously noted,
Mastro Plastics Corporation, 136 NLRB 1342, 1346, enfd. on this point
354 F.2d 170 (C.A. 2), cert. denied 384 U.S. 972 The Second Circuit set
forth in fn 3 of its opinion its concept of what constitutes a willful loss of
earnings:
What constitutes a willful loss of earnings is a concept that has been
developed in a large number of cases since the Phelps Dodge decision
It is accepted by the Board and reviewing courts that a discriminatee is
not entitled to back pay to the extent that he fails to remain in the
labor market , refuses to accept substantially equivalent employment,
fails diligently to search for alternative work, or voluntarily quits alter-
native employment without good reason.
0It was further stipulated that all four discrimmatees ' backpay ter-
minated on September 6, 1966 , since the Respondent , on August 23, 1966,
mailed to each a letter offering reinstatement to take effect as of Sep-
tember 6 , and that this letter was received by all the claimants on August
24,1966.
' The distance one way from Edward' s home in Hardinsburg , Indiana, to
New Albany is approximately 30 miles
' At Bolin , Edwards received a starting salary of $1.75 per hour ( as con-
trasted with $ 1 46 per hour at Hoffman ), which was raised to $2 per hour
on July 5, 1965.
The record established that the reason for the failure to perform work
from September 18 through October 30, 1965, was due to a back injury,
the record is silent as to the reason for failure to work the other 2 weeks
General Counsel , in his brief, concedes that gross backpay should be disal-
lowed for the 7 weeks Edwards was unavailable due to a back injury.
10 The payroll records of Bolin indicate that on only 8 of the 64 weeks in
which Edwards was employed were there no employees who worked on
Saturday
71 General Counsel contends that I should not credit Bolin because of
certain contradictions between his testimony and the records. While Bolin
impressed me as a person who was given to some exaggeration , it is per-
fectly natural that his recollection would not always correspond exactly
with the figures depicted on his records, and he otherwise impressed me as
being a candid and forthright witness On the other hand , while Edwards
appeared generally truthful with respect to the other aspects of his
testimony regarding seeking of employment, expenses , etc., he appeared
quite reluctant and evasive with respect to the reasons for his clear failure
to work on Saturday and the circumstances of his exit interview. I have also
considered , as bearing upon the reliability of Bolin's testimony , that regu-
larly he asked Edwards to work on Saturday, the fact that Edwards was a
"spray man" and was the sole employee of Bolin in this classification ex-
cept for his leadman or supervisor. It is therefore entirely reasonable and
consistent with Bolin 's testimony that Edwards would be requested to
come to work on Saturdays along with the other employees. Finally, I
have considered, as bearing upon the reliability of the testimony con-
cerning Edwards' propensity for working on Saturday, the finding of the
Trial Examiner in the principal case that Edwards was absent from work
on 4 of the last 6 Saturdays prior to his discharge. (See TXD at section
111, C, 7, paragraph 3 )
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bolin Industries was located approximately 4 miles
west of Paoli, Indiana. During the first 9 weeks of
his employment there, he rode with an employee
(who came out of his way to pick him up) at a cost
of $5 a week. After that, until April 1966, when the
employer helped him to purchase a car, Edwards
rode from his home with an employee who worked
at Respondent ( also in Paoli), and from there he
either had to catch a ride or a taxicab, the latter
which cost him a dollar a trip each way.12 This
rather hazard means of reaching work no doubt was
a causative factor resulting in Edwards' not working
a full 40 hours during many of the weeks of his em-
ployment at Bolin . Another causative factor, as
testified to by President Bolin , related to Edwards"
problem with alchohol which, indeed, was directly
responsible for Edwards' ceasing work at Bolin.
Thus, on August 18, 1966, according to Edwards'
testimony, his termination came about in the fol-
lowing manner:
I was sick that morning, and I worked up
until nine o'clock, went to him and asked him
if I could go to a doctor, and he made a
wisecrack, if I went to the doctor, he would
just pay me off, and I said I was going to a doc-
tor because I didn't feel like working, so he
went and wrote my check out and that ended
it.
On the other hand, Bolin testified:
Well, he had been off the week before. I
don't remember exactly how many days, but he
had been off and about 10:00 in the morning at
break-time he came to me and asked if I would
loan him some money to go to the doctor, and
I had a five, three ones, and a 20 dollar bill in
my pocket, and when he asked me for money
to go to the doctor, well, I asked him what was
the matter with him and he said he was cramp-
ing and he was sick, and I said the same thing
that makes you sick makes me sick, makes
everybody sick, referring to his drinking; and I
held the money out and was going to give him
eight dollars. I thought that was enough to take
him to the doctor.
He reached over my hand and took the 20
dollar bill out and I just reached out and
grabbed his arm and took the 20 dollar bill
away from him and he didn't like that.
I told him that I would give him the money,
the money that I wanted him to have. I thought
I was giving him enough money to go to the
doctor with, eight dollars, and he told me what
12 He estimated his average expenses during this period as $ 8 per week
In my computation (infra ), I have given him credit for all traveling expen-
ses to his interim employment , as per his testimony , to the extent to which
such expenses exceeded his traveling expenses while working at Respon-
dent's (The Richard W Kaase Company, 162 NLRB 1320, TXD section 11,
E)
" In addition to other factors, I consider persuasive Respondent 's argu-
ment that President Bolin had done everything in his power to retain Ed-
wards as an employee, including assisting him in the purchase of an au-
I could do with the rest of that money, and he
left.
For reasons heretofore cited, I credit Bolin's
testimony respecting this conversation. 13
Concluding Findings as to Edwards
As heretofore noted, I agree with Respondent
that Edwards' failure to work regularly on Saturday
mornings at Bolin on his own volition constitutes
willful loss of earnings. Thus I agree with the Com-
pany's contention that "it should not be charged
with gross backpay based on a 5-1/2-day work
schedule on the one hand and not be credited with
Edwards' refusal to work Saturday mornings for
Bolin on the other." However, the record is not
clear that work was available for Edwards on every
Saturday during his employment at Bolin, or, in-
deed, that he was requested to work on every Satur-
day. Under all circumstances, I am in agreement
with the formula proposed by Respondent that it is
reasonable to conclude that Edwards would have
been asked to work, and should have worked, on
every Saturday when at least three employees of
Bolin actually worked. I therefore will recommend
that the backpay of Edwards be docked 4 hours for
all weeks in which at least three or more Bolin em-
ployees worked Saturday mornings, and which Ed-
wards failed to work.14
On the other hand, I am unable to agree with
Respondent's contention that Edwards should be
charged an additional 139 hours of work for the 16
weeks he worked for Bolin in which he worked less
than 40 hours. In the first place, the gross backpay
figures were a computation based on average
earnings of comparable employees at Respondent's
plant during the backpay period. The raw figures
which were used to compute these averages are not
in the record, but it may be reasonably assumed
that since they are "averages," the workers whose
workweeks formed the basis for the computations
also probably worked less than 40 hours during
some workweeks. Thus, the knife cuts both ways:
that is to say, I have heretofore agreed with
Respondent that it should not be charged with Ed-
wards' failure to work a 44-hour week when the
gross backpay was computed on a 44-hour week
basis; Respondent should neither reap the benefit
of charging Edwards with working less than a 40-
hour week when the averages upon which gross
backpay was computed might very well contain in-
stances when the workers worked less than a 40-
hour week.
tomobile, and therefore I consider it highly unlikely that such a person
would tell a sick man that he could not go to the doctor , as Edwards would
have us believe I therefore find that Edwards' unemployment from August
18 through August 23 constituted a willful loss of earnings
14 This amounts to 32 weeks computed as follows
3 weeks, 4 hours at $ 1 75 per hour $21 00
18 weeks, 4 hours at $2 00 per hour 144 00
11 weeks, 4 hours at $3 00 per hour 132 00
Total $297 00
CORNWELL COMPANY, INC.
Moreover, the record further establishes, through
testimony of both General Counsel's and Respon-
dent's witnesses , that Edwards' failure to con-
sistently work a regular 40-hour week was not a
result of malingering but rather a result of natural
causes emanating from the location of the plant
relative to his house and the failure of his being
able to secure adequate and reliable transportation
at all times . Clearly, his attempt to get to work by
various means which included hitchhiking, the tak-
ing of taxicabs, and finally the purchase of an au-
tomobile does not reflect an intent of willfully
refusing to regularly perform services on the basis
of less than 40 hours per week. Accordingly, I re-
ject Respondent's contention in this regard and find
that it has not sustained its burden of proof of Ed-
wards' willful loss of earnings in this respect.
Respondent further contends that Edwards'
backpay should be denied during the period from
August 24 to September 6, 1966 (the period fol-
347
lowing receipt of Respondent's offer of reinstate-
ment), because of "General Counsel's failure to
make a prima facie showing of a diligent search for
work ...."15 I do not agree. It seems highly un-
realistic and certainly not in accord with industrial
practice to require an applicant for employment to
seek alternative work when he knows in advance
that the time limitation on his retention of such
work is a period of 2 weeks. Clearly, any such em-
ployment opportunity would be limited to the most
sporadic or highly seasonal type of work which
would not be appropriate or relevant to the circum-
stances here involving a skilled employee in the
woodworking industry. I therefore conclude that
Edwards' backpay should not be diminished for the
period between August 24 and September 26,
1966.16
In summary, I find the backpay due Edwards to
be $2,003.34, computed as follows:
Calender Gross Interim Interim Net
'Quarter Backpay Earnings Expenses Backpay
1965 - I $ 209.30 $ 13.97 $ 8.00 $203.33
1965 - II 1,451.17 680.64 21.50 792.03
1965 - III 762.79 1/ 784.00 40.50 19.29
1965 - IV 835.84 2/ 608.00 47.30 275.14
1966 - 1 1,188.36 936.00 63.80 316.16
1966 - II 1,459.27 3/ 928.00 11.00 542.27
1966 - III 720.12 4/ 568.00 152.12
Total $2300.34
Less overtime
not worked 297.00
Backpay due $2,003.34
1/ This represents the gross backpay of $1,101.83 less average earings for
week of July 24, 1965, and the last 3 weeks of the quarter, when Edwards
was unable to work. (Respondent's computation of amounts to be deducted
from gross backpay in quarters 1965 --- III and IV, and 1966 --- II and
III /see its brief at p. 31/ appear to be erroneous.)
2/ This represents the gross backpay of $1,207.32 less average earnings
for the first 4 weeks of the quarter, when Edwards was unable to work.
3/ This represents the gross backpay of $1,580.88 less average earnings
for the week of April 16, 1966, when Edwards was unable to work.
4/ This represents the gross backpay of $800.12 less average earnings for
the 1 week (August 18 --- 24), which elapsed between the time Edwards quit
and the offer of reinstatement by the Respondent.
15 Resp . brf., pp . 29-30. Respondent argues in its brief that certain moving expenses of Edwards
16 See , e.g., Mastro Plastics Corporation , 136 NLRB 1342 at 1352 ( Sgwl- set forth in the specification ( third quarter , 1966) should not be allowed.
lante ). In any event , it appears from Edwards ' testimony that he , in fact , General Counsel concedes to his brief that these expenses were not proved
looked for work during this period but was not interrogated as to specifics. and therefore should not be allowed I so find
This could hardly be equivalent to a showing of lack of diligence or willful
loss.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. TROY KENNEDY I cannot agree with Respondent on leis issue.
The Board has held, with court approval, that the
mere acceptance of a "so-called permanent job"
does not, without more, toll backpay; the dis-
criminatee is still "entitled to the difference
between what he earns at the new job and what he
would have earned at Respondent's plant; neither
the policy nor the letter of the Act deprives him of
his claim. Only if the evidence supports a finding
that the claimant would have left Respondent's
plant for the same reason that he left the interim
ob or in order to obtain this particular new job is
his claim from that time disallowed."17
Applying the foregoing principles to the facts in
this case, Kennedy left his employment at the
powerline company for the job at the Feed Mill, al-
beit at a lower rate per hour, because the latter of-
fered more regular employment. This is certainly a
justifiable reason for changing jobs, and industrial
experience teaches that he may very well have had
to indicate to his new employer that he considered
the job permanent in order to secure it. In any
event, he had been discharged (discriminatorily)
for a period exceeding a year, and, absent a more
expressive and direct indication of waiver, I find
that he was (`entitled to a valid offer of reinstate-
ment from the Employer before making an election
as to whether he would return to the [Respondent]
or earn a living in some other field.""' Accordingly,
I find and conclude that Kennedy's backpay should,
not be tolled on May 9, 1966, but should continue
until September 6, 1966.
In summary, I find the amount of backpay due
Kennedy to be $1,779.87, computed as follows:
It was stipulated by the parties that this em-
ployee's backpay period began March 15, 1965,
and ended September 6, 1966 . He did not accept
the Respondent 's offer of reinstatement.
Kennedy commenced his search for employment
the day following his discharge on March 15, 1965,
and succeeded in securing several jobs during the
backpay period , as reflected in the specification.
Respondent does not contend that Kennedy failed
to make a diligent search for work but argues: (1)
that gross backpay should be diminished from Au-
gust 6 , 1965, to September 7, 1965 , when Kennedy
was unable to work due to an injury ; and (2) that
he should be disqualified for backpa y from on or
about May 9, 1966 , when he quit a job at a power-
line company to accept work at Magic Feed Mills,
Paoli , Indiana , where he was still employed at the
time of the hearing herein . General Counsel agrees
with the Respondent with respect to the former but
disagress as to the later.
Concluding Findings as to Kennedy
Respondent contends that the disqualification on
May 9 should be effected because it was on that
date that Kennedy commenced work at the Feed
Mill upon the representation that he would be a
permanent employee, thereby evidencing an intent
not to return to work for Respondent. The fact that
Kennedy subsequently refused the August 23 offer
of reinstatement , argues Respondent , confirms this
theory of waiver.
Calendar Gross Interim
Quarter Backpay Earnings
1965 - I $ 166.81 $ 13.97
1965 - II 1,181.40 688.40
1965 - III 659.97 */ 373.91
1965 - IV 1,023.00 864.26
1966 - I 988.76 851.17
1966 - II 1,225.50- 1,066.36
1966 - III 678.37 772.12
Interim Net
Expenses Backpay
$ 3.00 $155.84
93.50 **/ 586.50
70.40 356.46
104.00 262.74
104.00 241.59
17.60 176.74
None None
Total $1,779.87
*/ This figure represents gross backpay of $953.29 less average weekly
earnings for 4 weeks during the quarter when Kennedy was unable to work.
**/ This figure (and subsequent figures in the Interim Expenses column)
represents the difference in mileage (16 miles per day or 80 miles per
week) which Kennedy was required to travel to Hoffman than to Respondent's
plant. Kennedy is entitled to 10 cents per mile for this mileage. See The
Richard W. Kaase Company, 162 NLRB No. 122, section II, E of the TXD.
" Mastro Plastics Corporation , 136 NLRB 1342 , 1349-50. See also East manent it was not necessary for him to make a final choice between the two
Texas Steel Castings Company, Inc., 116 NLRB 1336, 1344 , enfd . 255 F. 2d employments until he had been offered reinstatement.
284 (C.A. 5), in which the Board found that although a discriminatee " See The Richard W. Kaase Company , 162 NLRB 1320, section 11, H, 1,
(Jones ) began to entertain an idea of making his interim employment per- paragraph 9, of the Trial Examiner 's Decision
IV. JOY LONGEST
CORNWELL COMPANY, INC. 349
Longest's backpay period runs from November
12, 1964 (the date of Respondent's discriminatory
refusal to recall her from layoff), until September
6, 1966. She had been employed by Respondent as
a "wash coat sander" at a rate of $1.44 per hour,
and was laid off on October 7, 1964. On the follow-
ing day she registered with the Indiana Employment
Security Division in English , Indiana . She thereafter
reported at the employment office weekly until
April 27, 1965, and on each occasion the person at
the unemployment office asked her if she was able
and available for work and if she had had any
earnings for that week . She responded affirmatively
to the first question and negatively to the latter
question on each occasion . She did not apply for
work at any company during this period.
On or about May 27, 1965, Longest traveled to
New Albany , Indiana , where she applied for work
at two companies neither of which offered her em-
ployment . She also , on that day , visited the Indiana
Employment Security Division office at New Al-
bany requesting factory work. She was told that the
only positions open at that time were for telephone
operators or office work , and that most of the fac-
tories had an age limit of 35 to 45 . 19 The lady at the
unemployment office advised Longest that if any
jobs for which she was qualified came up they
would let her know . However , she has not heard
from the employment office since that time.20 The
following month , in June 1965 , she returned to
New Albany and again sought employment at the
same two factories there and stopped by the unem-
ployment office . However , she was unsuccessful in
securing employment at either location.
The record contains no substantial evidence that
Longest applied for work from that time until April
1966.21 At that time, Longest, having read a
newspaper advertisement that the English Furniture
Company in English , Indiana , was taking applica-
tions for women employees (for the first time in its
history ), placed an application there . However, she
was not hired 'either on that occasion or when she
returned to that company around the last of April
or the first part of May. This was the last applica-
19 Longest was 63 years old at the time.
20 Longest testified that , in all of her work experience , she had never
been a telephone operator or worked in an office.
" She testified that she applied at Hoffman Products Company in Orle-
ans, Indiana , during her backpay period . However, when asked when she
applied there she answered:
I don't know . I believe that was back in '65, along up in in the
winter . I just don 't remember the date it was I was there.
Although she testified that she filed a new application for work while she
was there , the personnel supervisor of Hoffman Products testified that
there were no applications on file from her. However , the supervisor also
indicated that such applications are periodically destroyed, accordingly, I
do not impeach Longest 's credibility on that particular point. Nevertheless,
I find the evidence , under all the circumstances , insubstantial with respect
to Longest 's seeking employment from June 1965 until April 1966.
" She testified that on one occasion she asked her union agent if they
were hiring any women at the Paoli Chair Factory, but he answered in the
negative . On another occasion her daughter , who worked at Hoffman
tion for employment that Longest made prior to her
receipt of the offer of reinstatement from Respon-
dent in August 1966.22
Concluding Findings as to Longest
The essential issue to be resolved with respect to
backpay due Longest is whether or not, under all
circumstances, she made a diligent search for alter-
native, desirable employment during the backpay
period. In reaching a conclusion on this issue I have
credited Longest as to the efforts she made and the
locations she visited seeking employment. I have
considered with respect to the availability of such
employment the essentially rural character of her
environs in that section of Southern Indiana and the
resulting, relative lack of employment opportunities
for women factory workers, especially for women
past 60 years of age.23 Although Respondent, in its
brief, calls my attention to an Indiana statue24
which makes it an unfair employment practice to
refuse to employ a person "solely because of his
age if such person has attained the age of 40 years
and has not attained the age of 65 years," I find
more relevant to the facts of industrial life the
statement of the agent of the Indiana employment
office who told Longest that most factories had an
age limit of from 35 to 45 years.
Thus given Longest's infirmity resulting from her
age, plus the relative lack of employment opportu-
nities in the- immediate area open to women with
her particular skills and experience (practically all
of which related to the woodworking industry), it
could not be accurately said that there was an
abundance of employment opportunities open to
such a person .25 Nevertheless , I do not believe that
she was reasonably diligent in seeking employment
during all of her backpay period, as hereafter
detailed.
Respondent argues that she should receive no
backpay during the period from November 12,
1964, through April 2, 1965, when her sole effort
in seeking employment was registration at the Indi-
ana unemployment office . It is true that in Southern
Silk Mills, Inc., 116 NLRB 769, the Board receded
from its earlier position taken in Harvest Queen
Products, volunteered to inquire from her supervisor concerning employ-
ment for Longest, but nothing came of that
23 Although one employer called as a witness by Respondent testified
that he did not regard age as per se disqualifying , another employer testified
that none of the women employed at his plant were over 60 years of age
24 Ind . Acts 1965, c 386, Burns ' Ind Ann Stat 1965, §40-2319
sa Respondent , in its brief (pp 35-37), points to a number of plants in
the surrounding area (some of which are somewhat remote from the im-
mediate vicinity of Longest 's home ) which assertedly hire women It argues
therefore that Longest's (and Hopper 's) failure to apply at these plants
reflects a failure on their part "to make a reasonable search for employ-
ment " Such a contention has previously been advanced and rejected in W
C. Nabors Company, 134 NLRB 1078, 1093.
The fact that Adams did not exhaust every job possibility , even assum-
ing that he would be qualified or eligible or that he was aware of every
job possibility , does not necessarily disqualify him. The criterion here
is not success, it is whether , all factors considered, the individual in-
volved made an honest good-faith effort [Citing cases. ]
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mill & Elevator Company, 90 NLRB 320, that regis-
tration with the United States Employment Service
or a similar State office shall be conclusive
evidence that a reasonable search for employment
has been made. In Southern Silk, the Board stated:
. we shall no longer give conclusive weight
to registration with such agencies in determin-
ing the issue of reasonable search, but shall
treat such registration as a factor to be given
greater or less weight depending upon all the
circumstances in each case.26
Respondent, in his brief, relies on two cases27 in
support of its argument that "registration and
nothing more" does not fulfill the obligation of
making a reasonable search for work. Although, as
previously noted, Respondent's position accurately
reflects existing law, I find the factual situation in
both of those cases to be distinguishable from that
in the case at bar. Thus, in Rice Lake Creamery, the
Trial Examiner found that the discriminatee (Carl
Wicken), although registering at a State employ-
ment service during the critical period involved,
removed himself, in effect, from the labor market
inasmuch as during such period he not only did not
seek other employment, but, at the same time,
picketed the Respondent's plant and repaired his
house for sale in preparation for moving from
Wisconsin to Seattle, Washington. The Trial Ex-
aminer rejected the Respondent's contention that
Wickert was not entitled to backpay after the move
to Seattle, finding that ". . . Wicken promptly un-
dertook a search for employment, and thus reen-
tered the employment market." The Trial Examiner
further found that Wicken did not regard registra-
tion with the State employment service "as an ef-
fort to obtain employment." There is no evidence
here that Longest did not regard registration with
the employment service as a quest for employment,
or that she engaged in any activities during registra-
tion from which an inference might be reasonably
drawn that she did not regard such registration as a
means of seeking employment. Indeed, as previ-
ously noted, she visited the employment offices in
New Albany on the same day she called upon two
other factories in the area seeking employment,
thus indicating that she regarded the employment
service as a source of possible work.28
In Missouri Transit, the Trial Examiner found
that the discriminatee (Wagner), a physically fit,
42-year-old male, made only two definite steps dur-
ing his entire backpay period to secure employ-
ment. These were registrations at the United States
Employment Service and at his union office. The
Trial Examiner, considering the success of other
claimants similarly situated with respect to finding
26 Id at 770
2] Rice Lake Creamery Company, 151 NLRB 1113, and Missouri Transit
Company, Inc, 125 NLRB 1316
28 I have not overlooked the contention of Respondent that one of the
employer witnesses testified that his company seldom contacts the employ-
ment service in an effort to fill positions However, I do not think it
reasonable to expand this evidence of a single instance into a generalization
of experience in the industry in this locality Moreover , the record reflects
work and Wagner's admission "of willful indif-
ference," found that the Respondent sustained its
burden of proof. However, those facts are substan-
tially different from the instant case where there is
no evidence of "willful indifference" on the part of'
Longest, or the success in securing employment by
some other female of similar age, ability, and ex-
perience.
In sum, after a consideration of all of the forego-
ing factors, including particularly the relative lack
of alternative employment opportunities available
in the area to a person of her age, capacities, and
infirmities, I find that Longest's registration at the
Indiana Employment Security Division was in
furtherance of a search for employment, and that,
under the particular circumstances of this case, the
Respondent did not sustain its affirmative burden of
proving that the period of Longest's registration at
the Division represented either a failure on her part
to "remain in the labor market" or to fail "diligently
to search for alternative [employment] . . . ." 29
I also find that Longest made a reasonable search
for alternative employment during the months of
May and June 1965. However, there is no substan-
tial evidence in the record that she made a quest
for work from July 1965 until April 1966 and I will
therefore recommend that backpay be tolled during
the last two quarters of 1965 and the first quarter
of 1966. I find that, by applying for work at the En-
glish Furniture Company in April 1966, she reen-
tered the labor market, but thereafter did not
diligently pursue her quest for alternative employ-
ment until the end of her backpay period. I will
therefore recommend that backpay be tolled as to
her from May 1966 until August 24, 1966, when
she received the offer of reinstatement from
Respondent.
In summary, I find the backpay due Longest to
be $3,101.97, computed as follows:
Gross
Net
Interim Net
Backpay Earnin ;,s Backpay
19,4 - IV $ 347.49 $ 347.49
19:5 - I 890.64 890.64
1965 - II 1,136.34 1,186.34
1965 - III None
1965 - IV None
1966 - I None
19(6 - II plus 380.32 */ 524.32
vcn. 144.00
524.32
1966 - III 153.18 **/ 153.18
$3,101.97
*/ This figure represents gross backpay for 4 weeks ($1,236 divided by
13 equals 95 08 times 4)
**/This figure represents gross backpay for 2 weeks (765 90 di-
vided by 10 equals 76 59 times 2)
that the Indiana employment service did refer some of the discriminatees
herein to employment opportunities
29 N L R B v Mastro Plastics, 354 F 2d at 174 Like the Board in the
cited case , I regard Longest 's search for work during this period as reflect-
ing "as reasonable an effort to obtain employment as could be expected
from a [woman ) of [her] age " 136 NLRB at 1347 See also W C Nabors
Company, 134 NLRB 1078, 1097 (McNeese), enfd 323 F 2d 686 (C A
5)
CORNWALL COMPANY, INC.
V. JUNE HOPPER (CLARK) 30
Hopper's backpay period extended from October
1, 1964, until September 6, 1966. Her previous em-
ployment at the Respondent had been in the job
classification known as "packer," at an hourly wage
rate of $1.57.
Hopper's registration card at the Indiana Em-
ployment Security Division indicated that she re-
gistered on October 1, 1964, and, beginning Oc-
tober 13 of that year, continued to register weekly
through March 9, 1965. During this period of time
she also applied for employment at Hoffman
Products and Robert's Brass Company, as well as at
the Respondent's plant, without success. At the
time she drew her last unemployment check (in
March 1965), Hopper was advised by the agent of
the Indiana Employment Security Division that the
Radio Corporation of America at Bloomington, In-
diana, was giving tests for employment at that loca-
tion. However Hopper testified that her husband
refused to allow her to go to Bloomington because
"it was too far and too dangerous. "31
In the light of all the foregoing circumstances, I
find that, contrary to Respondent's contentions,
Hopper made a reasonable effort to secure alterna-
tive, desirable employment during the last quarter
of 1964 and the first quarter of 1965.32
During the second quarter of 1965, I find that
Hopper sought employment, albeit unsuccessfully,
at Hoffman Products, at Robert's Brass , at Corn-
well (the Respondent), and at Smith Cabinet.33
However, Hopper's testimony respecting her search
for work during the last half of 1965 and the first
quarter of 1966 is quite vague and indefinite. Thus,
during this whole period of time the only place she
could recall "for certain" where she applied for
'0 It was stipulated among the parties that the June Hopper named in the
backpay specification is now named June Hopper Clark. However, for pur-
poses of this Decision I shall refer to this person as she was named in the
Board Decision and in the backpay specification.
" The standard highway map indicates that Bloomington is approximate-
ly 30 miles from Hopper 's home at Mitchell , Indiana.
" I do not agree with Respondent 's contention that Hopper improperly
rejected possible future employment at RCA by acquiescing in her
husband 's desire that she not travel that far in order to take the test for em-
ployment . Respondent argues that Bloomington was not substantially
farther from Hopper 's home than Salem , Indiana , where she applied for a
job at Smith Cabinet Company. However the mileage as shown by a stan-
dard automobile map indicates that Bloomington is approximately 30 miles
from Mitchell while Salem is approximately 20. Under all the circum-
stances , including the possible disruptive effect on family relationships that
might have ensued had Hopper made the application for the test (cf
Florence Printing Company v. N.L.R.B., 376 F.2d 216 (C.A. 4),1 find that
Hopper did not forfeit her right to backpay by declining to take the RCA
351
work was at Hoffman's in July 1965. I do not con-
sider this one application to be sufficient to satisfy
the obligation to make a reasonable and diligent
search for alternative employment during this
period. I will therefore recommend that Hopper's
gross backpay be tolled during the last half of 1965,
the first quarter of 1966, and the first 3 weeks of
the second quarter of 1966.34
In summary, I find the backpay due Hopper to be
$3,282.88, computed as follows:
Gross Interim Net
Backpay Earnings Backpay
19(4 - IV $ 570.30 $ 570.30
1965 - I 935.97 935.97
1965 - II 1,149.43 1,149.43
1965 - III None
19(5 - IV None
1966 - I None
1966 - II plus 918 .76 35/ 534.19
vcn. 108.00
1,026.76
492.57
1966 - III 751.81 581.20 134.61
Total $3,282.88
RECOMMENDED ORDER
Upon the basis of the foregoing findings and con-
clusions , it is ordered that the Respondent, Corn-
well Company, Inc., its officers, agents, successors,
and assigns , shall pay to the employees involved in
this proceeding, as net backpay,36 the amounts set
forth opposite their names:
Ernest Dale Edwards $2,003.34
Troy Kennedy 1,779.87
Joy Longest 3,101.97
June Hopper (Clark) 3,282.88
test
" The foregoing findings are based upon Hopper's credited testimony. In
the absence of a showing that Hopper's efforts to secure work at Respon-
dent were frivolous and not in good faith, I cannot agree with Respondent's
contention that I may not consider such efforts as evidence of Respon-
dent 's refusal to rehire her since this was "the basis of the discrimination
finding in the first place" (Resp brf., p. 36, fn 15)
" She applied for and secured employment at Robert's Brass Company
on or about April 25, 1966, and continued to work there throughout the
remainder of the backpay period.
"This figure represents gross backpay of $1,194.37 less average
earnings for 3 weeks prior to Hopper 's making application for, and secur-
ing, employment at Robert 's Brass Company.
" Interest is to be added at the rate of 6 percent per annum on the
respective amounts of backpay, computed quarterly, in the manner
prescribed in Isis Plumbing & Heating Co, 138 NLRB 716. The net
backpay awards are to be reduced by such tax withholdings as are required
by Federal and State laws