Harvest Queen Mill & Elevator Co.

National Labor Relations Board - Board Decisions

Jun 12, 1950

90 N.L.R.B. 320 (N.L.R.B. 1950)

In the Matter of HARVEST QUEEN MILL & ELEVATOR COMPANY and-
AMERICAN FEDERATION OF LABOR
Case No. 16-C-1580
SUPPLEMENTAL DECISION
AND
RECOMMENDATION
June 1 2,1950
On September 28, 1948, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
proceeding , which was thereafter enforced by a consent decree entered
on October 12, 1948, by the United States Court of Appeals for the
Fifth Circuit. The decree provided, inter alia , that certain persons,
herein called the claimants , who had been discriminatorily discharged
by the Respondent , were entitled to back pay to be paid by the Re-
spondent for the period of the discrimination against them. In ac-
cordance with a consent order entered by said Court on May 24, 1949, a
hearing was held before Trial Examiner James A. Shaw , for the pur-
pose of determining the amount of back pay due to each claimant.
On December 5, 1949, the Trial Examiner issued his Intermediate
Report, and subsequently on December 9, 1949, an erratum thereto
copies of which are attached hereto, finding that 14 of the claimants are
entitled to unspecified amounts of back pay, after having determined
the earnings that they would have made but for Respondent's discrim-
ination against them and the earnings that they made elsewhere during
the period of such discrimination. Thereafter, the Respondent filed,
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief filed by the Respondent, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial. Examiner with the following addi-
tions and modifications.
90 NLRB No. 32.
320
HARVEST QUEEN MILL &; ELEVATOR COMPANY 321
In determining whether or not the claimants were entitled to hack
pay, one of the factors considered by the Trial Examiner related to
the question of whether the claimants made reasonable efforts to obtain
desirable new employment. The Trial Examiner relied on the Ohio
Public Service case 11 in permitting and considering evidence with re-
spect to this matter. In that case, the Board stated that :
In determining whether an employee discriminatorily dis-
charged has wilfully incurred a loss of earnings subsequent to his
discharge, for which he should not be reimbursed, we have hereto-
fore generally followed a policy of restricting the scope of our
inquiry to the question of whether the dischargee has been guilty
of an "unjustifiable refusal to take," or has given up, desirable new
employment. In view of the exigencies of war, the current man-
power shortage, and present employment opportunities, we shall,
for the duration of this war, permit employers to adduce evidence
not only on whether a dischargee has unjustifiably refused to
accept, or has given up, desirable new employment, but also on
whether he has made a reasonable effort to obtain such employ-
ment.
In view of the availability of United States Employment Serv-
ice offices as a medium for seeking and obtaining employment, we
shall regard registration with such an office as conclusive evidence
that a reasonable search for employment has been made, and,
where such registration is shown, the employer will then be re-
stricted to proof that the dischargee, without good cause , rejected
an offer of, or gave up, desirable new employment. If the em-
ployer adduces evidence showing a failure to register with the
United States Employment Service, he may then proceed to prove
that no other reasonable effort to obtain desirable new employment
has been made. In determining whether there has been such a
reasonable effort, we shall consider all the evidence, including cir-
cumstances which would explain the failure to make such effort.
[Emphasis supplied.]
In view of the limited application of the doctrine enunciated in the
above case, we have reconsidered its import. We. are of the opinion
that the requirement set forth in the Ohio Public Service case, that
claimants make reasonable efforts to secure desirable new employment,
is a sound rule, without regard to the special wartime conditions of
September 1943, which were adverted to in the quoted portion of the
decision. So that an employer's back-pay obligation may be mitigated
' Ohio Public Service Company, 52 NLRB 725, 729, enforced 144 F. 2d 252 (C. A. 6),
cert. denied 324 U . S. 857.
903847-51-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as much as possible, the requirement should be met by claimants under
today's conditions as well.
As facilities equivalent to the United States Employment Service
are maintained by the various States as a medium for seeking employ-
ment, we shall regard registration with such State offices or with the
United States Employment Service as conclusive evidence that a
reasonable search for employment has been made. As we held in the
Ohio Public Service case, where such registration has been established,
any party urging a diminution of a back-pay award will be restricted
to the introduction of evidence showing that the claimant, without
good cause, rejected an offer of, or gave up, desirable new employ-
ment. If evidence showing a failure of registration is adduced, addi-
tional evidence may then be presented to prove that no other reason-
able effort to obtain desirable new employment has been made. In
determining whether there has been such reasonable effort, we shall
consider all the evidence, including circumstances which explain the
failure to have done so.
The pay that the claimants would have earned at the Respondent's
plant, but for their discharge, will be referred to as gross back pay;
and the period during which they were discriminated against will
be referred to as the back-pay period.2 Their earnings made else-
where during the back-pay period will be referred to as interim
earnings.
A. Gross back pay. The Trial Examiner found, and we agree,
that the claimants would have been employed on a 52-week year basis
but for the Respondent's discrimination against them and that their
average weekly earnings would have been $59.21. The Respondent
excepted to this finding, contending that during the back-pay period
the claimants would not have received more than 381/2 weeks of em-
ployment. As pointed out by the Trial Examiner, the Respondent's
own payroll records, which are digested in Appendix A of the Inter-
mediate Report, adequately refute this contention .3
2 The back-pay period Is the Interval between August 7, 1947, when the claimants
were discharged, and August 17, 1948, when the Respondent agreed to reinstate them
or place them on a preferential hiring list . With respect to one claimant , Alvin M.
McGaugh, the back-pay period is from December 2, 1947, to August 17, 1948. Most of the
claimants , however, are not entitled to gross back pay for the entire back-pay period be-
cause, as hereinafter appears , they were unavailable for employment during portions of
that period.
3 These records show that during the period from August 7, 1947 , to August 17, 1948,
the number of employees per week, in the same job classification as the claimants , ranged
from a high of 43 , for the week ending August 22, 1947, to a low of 15 , for the week of
March 12, 1948 . In view of the Respondent's failure to show which of the claimants would
have been laid off during the back-pay period and as there are only 14 claimants herein
entitled to back pay , the variation described above is not significant. N. L. R. B. v.
Remington Rand, Inc., 94 F. 2d 862 ( C. A. 2), cert . denied 304 U. S. 576. Moreover, in
arriving at the average weekly earnings , it was not assumed that the employees who
were not laid off worked every day of the gross back -pay period. This average was de-
HARVEST QUEEN MILL & ELEVATOR COMPANY 323
The Trial Examiner did not credit gross back pay to claimants who,
during the back-pay period, were willfully idle, sick,4 or on vacation.
These findings were based on the claimants' detailed testimony of
their activities during the period in question. We find no merit in
Respondent's contention that the testimony of James Freeman, a
former employee of the Texas Employment Commission, was disre-
garded or should have been given more probative value than that of
the claimants.5
During the back-pay period, some of the claimants were self-em-
ployed. The Trial Examiner considered self-employment as tanta-
mount to unavailability for employment and consequently did not
credit gross back pay to such claimants. The Board has held, how-
ever, that claimants who are self-employed during the back-pay period
are entitled to gross back pay less their net earnings during such'pe-
riod s Accordingly, the appropriate corrections will be made in our
computations.
B. Interim earnings. The Trial Examiner noted, in specific
amounts, the total earnings of each claimant during the back-pay
period. In some instances, reasonable expenses which were incurred
by claimants in seeking new employment were, in accord with estab-
lished Board policy, deducted from their interim earnings.' While
we substantially agree with the figures set forth in the Intermediate
Report, in view of the Trial Examiner's conclusions with respect to
self-employment and certain clerical errors, we find it necessary to
revise his computations.
C. Net back pay. The net back pay to which each claimant is en-
titled is set forth below. This amount represents the difference between
the gross back pay to which each claimant is entitled and his net
interim earnings. To explain the bases in arriving at the net back
termined by computing the average weekly earnings of the employees actually employed
during the gross back -pay period . It therefore reflects absences of various types including
layoffs as well as slack periods when less than the normal hours per week were worked.
See Empire Worsted Mills, Inc., 53 NLRB 683, 692.
, As to one of the claimants , J. D. Dowdy, the Trial Examiner credited gross back pay
for 2-weeks illness because the claimant was paid therefor. The record does not show
that the Respondent had a paid sick leave policy . It follows , therefore , that had the
claimant been sick while employed by the Respondent , he would not have received any
earnings . Accordingly , we find that the 2-week period should not be credited to the
claimant 's gross back pay.
'Freeman 's employment did not cover the entire back-pay period , as he left the. Com-
mission in February 1948. None of his testimony specifically referred to any of the
claimants and was contradictory in that he testified that work was always available,
while admitting that there were occasions when the Commission was unable to place
applicants for employment.
O Rathbun Molding Corporation , 76 NT .RB 1019, 1035 ; Columbia Pictures Corporation,
82 NLRB 568 , 584-5 , which case the Trial Examiner did not properly interpret.
° The Trial Examiner referred to such expenses as reimbursable . We wish to make
clear that the term reimbursable does not imply any separate payment by the Respondent.
See Crosset Lumber Company , 8 NLRB 440, 497.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay, we shall show below the actual dates, as corrected, for which
each claimant is entitled to gross back pay, the amount of such gross
back pay, and his net interim earnings, as corrected.
1. Alvin M. McGaugh :
Back-pay period-December 2, 1947, to August 17, 1948:
Gross back pay------------------------------------ $2,200.64
Net interim earnings------------------------------ 1,770.72
Net back pay------------------------------------ 429.92
2. John G. Reimann :
Back-pay period-May 30, 1948, to June 6; 1948:
Gross back pay--------------------------------------- $69.08
Net interim earings ----------------------------------- 40.00
Net back pay--------------------------------------- 29.08
From August 7, 1947, to September 15, 1947, Reimann worked on
his father's farm without remuneration. The Trial Examiner re-
garded such work as analagous to self-employment and therefore did
not credit Reimann with that portion of the back-pay period. The
record indicates, however, that Reimann did riot perform any pro-
ductive work while on the farm, but was biding his time until the
school term resumed. While we agree with the Trial Examiner's
conclusion that Reimann is not entitled to back pay for this period,
our reason for such conclusion is based upon the finding that he was
voluntarily unemployed.
3. Bob Kay :
Back-pay period-August 11, 1947, to August 16, 1947; May
31 to August 17, 1948:
Gross back pay-------------------------------------- $720.39
Net interim earnings--------------------------------- 307.04
Net back pay-------------------------------------- 413.39
The Intermediate Report inadvertently states that Kay was em-
ployed on a certain job from August 7, 1947, to August 16, 1947. The
record shows, however, that he began such job on August 11, 1947,
and that he was voluntarily idle from August 7, 1947, to August 10,
1947. The record also shows that on another job (for a construc-
tion company) Kay worked until August 17, 1948, rather than August
7, 1948, as stated in the Report.
4. J. B. Duncan :
Back-pay period-September 20, 1947, to November 20,1947;
April 1, 1948, to August 17, 1948:
Gross back pay------------------------------------ $1,687.49
Net interim earnings-------------------------------- 989. 7T
Net back pay------------------------------------ 697.72:
HARVEST QUEEN MILL & ELEVATOR COMPANY 325
The interim earnings are inadvertently listed as $96727 in the
Intermediate Report.
5. Barney J. De Busk :
Back-pay period-August 7, 1947, to October 30, 1947; No-
vember 15, 1947, to August 17, 1948:
Gross back pay------------------------------------ $3,059.19
Net interim earnings------------------------------- 1,825.30
Net back pay------------------------------------ 1,233.89
In the Intermediate Report, the interim earnings for one job is
listed as $1,425: De Busk worked on another job where he earned
an additional $400.30.
6. J. C. Wilson:
Back-pay period-August 22, 1947, to October 11, 1947;
October 27, 1947, to August 10, 1948:
Gross back pay ------------------------------------ $2,871.69
Net interim earnings------------------------------- 2,219.42
Net back pay ------------------------------------ 652.27
The above dates are more accurate than the ones set forth in the
Intermediate Report and account for a 1-week period of paid sick
leave to which Wilson is not entitled as a credit towards his back-pay
period." The interim earnings have been adjusted accordingly.
7. J. D. Dowdy :
Back-pay period-August 7, 1947, to August 3, 1948:
Gross back pay------------------------------------- $3,069.06
Net interim earnings------------------------------- 1,872.00
Net back pay ------------------------------------ 1,197.06
The above dates and interim earnings reflect a 2-week period of paid
sick leave.
8. Aulton B. Dowdy :
Back-pay period-August 7, 1947, to August 17, 1948:
Gross back pay------------------------------------- $3,187.48
Net interim earnings------------------------------- 1,520.62
Net back pay ------------------------------------ 11066.S6
The interim earnings exclude an expense item of $8, which was re-
ferred to in the Intermediate Report, but was not deducted from such
earnings.
9. M. M. Cook :
Back-pay period-August 7, 1947, to August 10, 1948:
Gross back pay------------------------------------ $3,128.27
Net interim earnings------------------------------- 1,144.86
Net back pay------------------------------------ 1,983.41
8 Wilson received pay for sick leave while employed by a packing company from November
24, 1947, to July 24, 1948, and not from August 11 to 17, 1948, as stated in the Report.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above dates account for a 1-week period of sick leave; and the
net interim earnings reflect an expense item of $7.14 which was re-
ferred to in the Intermediate Report, but was not deducted from the
figures used therein.
10. Lloyd Voyles:
Back-pay period-August 22, 1947, to August 10, 1948:
Gross back pay----------------------------------- $2,999.98
Net interim earnings------------------------------ 2,059.45
Net back pay_________________________________ ` 940.53
The above dates reflect a period of approximately 1 week of
absenteeism.
11. Buford Carlton :
Back-pay period-August 23, 1947, to August 17, 1948:
Gross back pay____________________________________ $3,049.32
Net interim earnings------------------------------ 2,310. 78
Net back pay----------------------------------- 738.54
12. Elmer Haralson :
Back-pay period-August 24, 1947, to July 27, 1948:
Gross back pay----------------------------------- $2,871.69
Net interim earnings------------------------------ 1,848.24
Net back pay----------------------------------- 1,023.45
The above dates account for a period of 17 weeks while Haralson
was self-employed and a period of 21/2 weeks (from August 7, 1947, to
August 23, 1947) during which period the record shows that Haralson
was voluntarily idle; and also a 3-week period of unpaid sick leave.
The interim earnings reflect those earnings received by Haralson
while self-employed.
13. O. V. gay :
Back-pay period-August 24,1947, to August 17,1948:
Gross back pay----------------------------------- $3,049.32
Net interim earnings------------------------------ 1,561.35
Net back pay----------------------------------- 1,487.97
The above dates include a period of 20 days while Kay was self-
employed.' The interim earnings reflect Kay's earnings during that
period.
14. Ernest Voyles:
Back-pay period-August 22,1947, to August 17,1948:
Gross back pay----------------------------------- $3,059.19
Net interim earnings______________________________ 1,658.29
Net back pay----------------------------------- 1,400.90
HARVEST QUEEN MILL & ELEVATOR COMPANY 327
The above dates include a period of self-employment and the interim
earnings have been adjusted accordingly.
Voyles was employed during November 13, 1947, and April 30, 1948,
a period of about 51/2 months, and earned $895.67 (about $163 a
month). He quit this job to engage in a hay-stacking venture from
May 1, 1948, to August 16, 1948, a period of about 31/2 months, and
earned $387.81 (about $110 a month). Voyles testified that he expected
to make more money when he left the first job. In fact, he made about
$50 a month less. The Respondent contended at the hearing that
Voyles incurred a wilful loss by leaving a higher paying job for a
lower one. We deem it reasonable to assume, absent any special cir-
cumstances, that a person who leaves a job for self-employment expects
to improve his financial position. On the basis of the facts of this case,
we find that Voyles did not incur a will f ul loss.
RECOMMENDATION
Upon the basis of this Supplemental Decision and the entire record
in the proceeding, the National Labor Relations Board hereby respect-
fully recommends to the United States Court of Appeals for the Fifth
Circuit that its decree, entered on October 12, 1948, be amended to
incorporate therein, the respective amounts of net back pay required
to be paid by the Respondent to each of the claimants, as set forth
in Appendix attached hereto.
APPENDIX
Claimant Gross back pay Net interimearnings Net back pay
1. Alvin M . McGaugh _________________________________ $2,200 . 64 $1,770 . 72 $429.92
2. John G . Reiman___________________________________ 69.08 40.00 29.08
3. Bob Kay ____________________________________________ 720.39 307.00 413.39
4. J. B. Duncan ____ 1,687 . 49 989 . 77 697.72
5. Barney J . De Busk 3,059 . 19 1,825 . 30 1,233.89
6. J. C. wilson________________________________________ 2,871 . 69 2,219. 42 652.27
7. J. D. Dowdy ________________________________________ 3,069 . 06 1,872 . 00 1,197.06
8. Aulton B . Dowdy__ _________________________________ 3,187 . 48 1,520 . 62 1,666.86
9. M. M. Cook_ _______________________________________ 3,128 . 27 1,144 . 86 1,983.41
10. Lloyd Voyles_______________________________________ 2,999 . 98 2,059 . 45 940.53
11. Buford Carlton _____________________________________ 3,049 . 32 2,310. 78 738.54
12. Elmer Haralson ____________________________________ 2,871 . 69 1,848 . 24 1,023.45
13. 0. V. Kay__________________________________________ 3,049.32 1,561 . 35 1,487.97
14. Ernest Voyles_ _____________________________________ 3,059.19 1,658.29 1,400.90
Totals____________________________________________ 35,022 . 79 21,127 . 80 13,894.99
ERRATUM TO INTERMEDIATE REPORT
On December 5, 1949, the undersigned issued an Intermediate Report in the
above case . By inadvertence the case number was erronously stated as 16-CA-
1580. It is hereby corrected to read "Case Number 16-C-1580."
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By inadvertence also, the title of said document was erroneously given as a
Supplemental Intermediate Report. It is hereby corrected to read as follows :
"INTERMEDIATE REPORT ON REMANDED PROCEEDING ON ISSUES
OF BACK PAY."
Dated , Washington , D. C., this 9th day of December 1949.
SUPPLEMENTAL INTERMEDIATE REPORT ON REMANDED PROCEEDING
TO REGIONAL DIRECTOR
On June 2, 1949, the Board issued the following "Order Reopening and Remand-
ing proceeding to Regional Director for further hearing" to the Sixteenth
Region, Fort Worth, Texas.
ORDER REOPENING RECORD AND REMANDING PROCEEDING TO REGIONAL DIRECTOR FOR
FURTHER HEARING
The Board having on September 28, 1948, issued a Decision and Order in
the above-entitled proceeding, which Order was thereafter enforced, upon
consent of the parties, in a decree entered on October 12, 1948, by the United
States Court of Appeals for the Fifth Circuit, and the said Court having
on May 24, 1949 entered a consent order remanding the cause to the Board
for the purpose of holding a hearing and determining the amount of back
pay due to be paid by the Harvest Queen :Mill Elevator Company, respondent
herein, to Buford Carlton, Aulton B. Dowdy, Elmer Haralson, O. V. Kay,
Loyd Voyles, M. Al. Cook, J. D. Dowdy, Wyndel Johnson, Ernest Voyles,
J. C. Wilson, Barney J. DeBusk, J. B. Duncan, J. D. Dunlap, Bobby Kay,
John G. Riemann and A. M. McGaugh in accordance with the provisions of
Sections 2 (c) and 2 (e) of the said decree;
IT IS HEREBY ORDERED that the record in the above-entitled proceeding be
reopened for the purpose of taking additional evidence respecting the spe-
cific amounts of back pay clue to the above-listed employees, as provided in
Sections 2 (c) and 2 (e) of the decree, and that a further hearing be held;
and
IT IS FURTHER ORDERED that this proceeding be remanded to the Regional
Director for the Sixteenth Region for the purpose of conducting the further
hearing, and that the said Regional Director be, and he hereby is,- authorized
to issue notice thereof.
Dated, Washington, D. C., June 2, 1949.
By direction of the Board:
FRANK M. KLEILER,
Executive Secretary.
Thereafter the Regional Director issued his notice of further hearing in this
matter. Copies of the Board's order, and notice of hearing were served upon
the parties.
Pursuant to notice a hearing in accordance with the Board's order as set forth
above was held on June 23, 24, and August 16, 1949, in Plainview, Texas, before
the undersigned Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel and the Respondent were represented by counsel at the
hearing and participated therein. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence was afforded all parties.
At the close of the hearing all parties were given an opportunity to argue orally
before the undersigned but did not avail themselves of this opportunity. All
HARVEST QUEEN MILL & ELEVATOR COMPANY 329
parties were also given an opportunity to file briefs. Briefs were received from
the parties on September 8, 1949, and have been duly considered by the under-
signed.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OT FACT
A. The issues
As indicated above in the Board's order the main issue involved herein is
whether or not any of the dischargees named in said order are entitled to back
pay for the period from August 7, 1947, to August 17, 1948. The determination
of this issue necessitates the resolving of other issues. They are as follows :
(1) Did any of the named discharges willfully refuse substantially equivalent
employment ; (2) did any of them give up desirable new employment ; (3) did
they make a reasonable effort to secure substantially equivalent employment;
and (4) were their earnings, if any, during the period involved in excess of or
less than they would have earned but for their discriminatory discharges?
Another issue and a difficult one is the determination of what the dischargees
would have earned at their regular jobs with the Respondent but for their dis-
charges. Testimony in this regard was taken at the hearing herein. In addi-
tion voluminous exhibits consisting of the payroll records of the Respondent's
employees for the period involved herein were offered and received in evidence.
The undersigned has considered the record in this regard and the contention
of the Respondent in its brief that the correct formula to be used in determining
the wages that each dischargee would have earned had he remained in the
employment of Respondent during the period August 7, 1947, and August 17,
1948, should be 61 hours per week for 381/2 weeks. The Respondent bases its
contention on the theory that their business is seasonal, in that its peak is
reached during the harvest season and then slackens off thereafter and is then
dependent on the number of orders it receives for its products.
The undersigned has carefully considered the Respondent's contention in this
regard and rejects it as being without merit, for the following reasons. A thor-
ough examination of the Respondents' payroll records for the period involved
herein reveals that there is little variation between the hours worked per week
during the entire period. Moreover the payrolls show that there was little
variation in the number of employees working each week during this period.
The number of employees per week ranges from a high of 43, for the week ending
August 22, 1947, to a low of 15 for the week of March 12, 1948. The under-
signed has had a chart prepared which is, based on the Respondent's payroll
records which in his considered opinion clearly sets forth the entire employment
history of the Respondent for the period from August 7,1947, to August 17, 1948.
It is attached hereto and marked Appendix A. From the data set forth in
Appendix A, ' the undersigned is convinced and finds that the wages of the dis-
chargees should be computed on a 52-week year, and that their average weekly
wage was $59.21. The record is clear that the Respondent's employees named
on the payrolls, from which Appendix A was drafted all do the same type of
work and earn the same average weekly wage. All are classed as laborers.
Their duties for the most part consist of wheeling and stacking bags of flour,
grain, and feed. The record is also clear that the dischargees while in the
employ of the Respondent were similarly employed.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The leading case touching upon the issues involved herein is the Ohio Public
Service Company, 52 NLRB 725, wherein the Board said at page 729:
In determining whether an employee discriminatorily discharged has
wilfully incurred a loss of earnings subsequent to his discharge, for which
he should not be reimbursed, we have heretofore generally followed a policy
of restricting the scope of our inquiry to the question of whether the dis-
chargee has been guilty of an "unjustifiable refusal to take," or has given
up, desirable new employment. In view of the exigencies of war, the cur-
rent manpower shortage, and present employment opportunities, we shall,
for the duration of this war, permit employers to adduce evidence not only
on whether a dischargee has unjustifiably refused to accept, or has given
up, desirable new employment, but also on whether be has made a rea-
sonable effort to obtain such employment. In view of the availability of
United States Employment Service offices as a medium for seeking and
obtaining employment, we shall regard registration with such an office as
conclusive evidence that a reasonable search for employment has been made,
and, where such registration is shown, the employer will then be restricted
to proof that the dischargee, without good cause, rejected an offer of, or
gave up, desirable new employment. If the employer adduces evidence
showing a failure to register with the United States Employment Service,
he may then proceed to prove that no other reasonable effort to obtain
desirable new employment has been made. In determining whether there
has been such a reasonable effort, we shall consider all the evidence, includ-
ing circumstances which would explain the failure to make such effort.
In a later case Laister-Kaufman Aircraft Corporation, 63 NLRB 1367, the
Board held that a dischargee is not required to accept or seek employment that
is not substantially equivalent to his former position. Nor is an employee re-
quired to accept employment which necessitates his moving from "familiar
surroundings and burdensome commutation to work."' Such a requirement
cannot be termed "substantially equivalent" employment.
In the considered opinion of the undersigned the above-cited cases clearly
set forth the law applicable to the issues herein.
B. Determination of back pay due the individual dischargees
Foreword
The employees involved herein at the time the events herein occurred lived in
and around Plainview, Texas. Plainview, the county seat of Hale County,
Texas, lies in the heart of a great agricultural region. The principal crops
grown are wheat, cotton, alfalfa, and maize. As a result of its geographical
position the principal business carried on in Plainview is the processing of
agricultural products. There are very few, if any, manufacturing plants. How-
ever, there are several pump companies who sell and service pumps for irriga-
tion purposes. In addition there are a few machine shops. In view of this
situation the dischargees herein were limited in their search for reemployment.
As the undersigned interprets the Remand and the Board's Order based there-
on he is only required to find: (1) Whether or not any of the dischargees will-
fully refused substantially equivalent employment; (2) or has given up desir-
able new employment; (3) whether or not the dischargees have made a rea-
sonable effort to secure reemployment; and (4) to determine their net earnings
1 Boss Manufacturing Company, 11 NLRB 432.
HARVEST QUEEN MILL & ELEVATOR COMPANY 331
during the period from August 7, 1947, to August 17, 1948. Again the under-
signed is convinced that it is not incumbent upon him to determine mathe-
matically the specific amount due each dischargee. In his considered opinion
this is a matter for the Board to determine by referring the actual computation
of the specific amounts of back pay due to dischargees to accountants or resort
to facilities available to it.2
As a matter of convenience each dischargee will be disposed of herein in-
dividually.
1. Alvin M. McGaugh
McGaugh was discriminatorily discharged by the Respondent on 'December
2, 1947. On the same date he secured employment elsewhere, and worked for
various employers thereafter up to August 17, 1948. The record shows and the
parties stipulated that McGaugh during the period from December 2, 1947, to
August 17, 1948, worked for six different employers and earned $1,782.72. In
addition to his own self-help in securing employment, he registered with the
U. S. E. S., to protect himself. The record shows that McGaugh in his efforts
to secure employment during the period involved herein made trips to Amarillo
and Lubbock, Texas. The parties stipulated that McGaugh was entitled to $12
expense money to cover the cost of the trips. The record also shows that
except for a few days in between jobs and a week for Christmas 1947, McGaugh
worked steadily during the period December 7, 1947, and August 17, 1948. Mc-
Gaugh testified without contradiction that it was difficult to secure work at that
particular time.
Conclusion as to Alvin M. McGaugh
In view of the above findings the undersigned is convinced and finds that
Alvin M. McGaugh is entitled to back pay for the entire period from December
2, 1947, to August 17, 1948, less his net earnings of $1,782.72. In addition he is
entitled to $12 expense money to reimburse him for his trips to Amarillo and
Lubbock, Texas.
2. John G. Reimann ,
John G. Reimann was discriminatorily discharged on August 7, 1947. From
the latter date to September 15, 1947, he worked on his father's farm without
remuneration and made no effort to secure employment elsewhere. He reentered
school on September 15, and returned home on May 29, 1948. From May 30,
to June 6, 1948, he worked in a grocery store and earned $40. On June 6, he
returned to school and was so occupied on August 17, 1948. Reimann did not
register with U. S. E. S.
Conclusion as to Reimann
In view of the foregoing the undersigned is convinced and finds that under
the circumstances described above Reimann is entitled to back pay for the week
of May 30 to June 6, 1948, less his net earnings of $40. In the considered opinion
of the undersigned Reimann is not entitled to back pay for the period from
August 7 to September 15, 1947. He made no attempt to secure employment
elsewhere, and had no intention of. doing so. He was at his home and his
work was a contribution to his family who were in need of help at the time.
2Atlas Imperial Diesel Engine Company , 64 NLRB 994 , and Intermediate Report on
Remand from the C. A. 7 to determine back pay and expenses incurred.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the considered opinion of the undersigned Reimann's situation in this regard
is analogous to a dischargee who engages in self-employment during the period
after his discriminatory discharge. Under such circumstances he is not entitled
to back pay.'
3. Bob Kay
Bob Kay was discriminatorily discharged on August 7, 1947. He was employed
from the latter date until August 11 when he got a job driving a tractor and
worked at this until August 16 . He earned $42 on this job. He made no attempt
to secure work thereafter nor did he register with the U . S. E. S. On September
8, 1947, he returned to school and returned home on May 28, 1948. From May 31
to June 10 he hauled hay for his brother and earned $81. He was unemployed
from the latter date until July 5, 1948. In the interim he applied for work at
three places in and around Plainview but was unable to secure employment.
On July 5 the went to Oklahoma City and secured employment with a con-
struction company for whom he worked until August 7, 1948 . He earned $240
while on this job. While working for the construction company he stayed
with a sister and paid her $8 a week for room and board . He was there 7
weeks and thus paid out the sum of $56 for living expenses.
Conclusion as to Bob Kay
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds that Bob Kay is entitled to back pay for the period from
August 7, to August 16, 1947, May 29, to August 17, 1948, less his net earnings
of $363, plus the sum of $56 paid out for living expenses while working in
Oklahoma. City. True Kay did not register with the U. S. E. S., but this is not
the sole criterion in determining willfully incurred losses. Under the doctrine
of the Ohio Public Service case, supra, a dischargee if under such circumstances
makes a reasonable and diligent effort to secure employment such action on
his part is sufficient evidence to entitle him to back pay. The record is clear
that Kay made such an effort during the periods set forth above that he was
available for employment. It is also well settled that a discriminatorily dis-
charged employee is entitled to reimbursement for expenses incurred in seeking
employment elsewhere. Hence, Kay is entitled to be reimbursed the sum of
$56 he spent for living expenses while in Oklahoma City.
4. J. B. Duncan
J. B. Duncan was discharged by the Respondent on August 7, 1947. From
that date to September 20, 1947, he was unemployed. At no time during this
period did he register with the U. S. E. S., nor did he make any serious effort
to secure employment in and around Plainview. The only effort Duncan made
to secure employment during the above period was in Amarillo, Texas. He drove
up there and applied for a job on the fire department and was offered one at
$140 per month. He refused to take it because he would of necessity have to
move to Amarillo, and for the further reason he considered the pay inadequate
regardless of the fact that the policy of that city was to grant progressive raises
of $10 per month at stated intervals. He made no effort to secure employment
elsewhere in Amarillo regardless of the fact that at this time the grain elevators
and milling companies were running at capacity. Shortly after Duncan's trip
2 Columbia Pictures Corp., 82 NLRB 568.
HARVEST QUEEN MILL & ELEVATOR COMPANY 333
to Amarillo he went to Fort Worth, Texas, and unsuccessfully applied for a
job at the Burrus Mill and Elevator Company. He made no effort to secure
work elsewhere in Fort Worth, regardless of the fact that he once lived there
and had several acquaintances.
On or about September 20, 1947, Duncan went to work for H. C. Smithee, a
windmill contractor and serviceman. ,His..work with Smithee wasospasmodic
due to conditions beyond his control such as inclement weather and the nature of
the work. As a matter of fact there were many days that Smithee did not have
work of any kind. He left Smithee's service on or about April 1, 1948. While
in Smithee's employee Duncan earned $300. After leaving Smithee, Duncan
went to work for Tom McAlister as a tractor operator on large-scale plowing
operationg, on or about April 3, 1945, and worked for him as such until July 17,
1948. This work was likewise spasmodic. and dependent upon the weather and
presumably upon McAlister's ability to secure contracts from the farmers. The
undersigned's presumption in this regard is based upon the fact that Duncan's
earnings while working for McAlister were only $255.
On July 17, 1948, Duncan secured employment with the South Plains Pump
and Equipment Company. From July 17 to August 17, 1948, he earned $277.27.
On cross-examination Duncan testified that the reason he went to Fort Worth
to secure employment with a mill and elevator company there was because he
liked this kind of work. He admitted however that when he was offered his
old job back by the Respondent on August 17, 1948, he refused to accept it.
Concluding findings as to J. B. Duncan
In view of the foregoing and upon the record as a whole, the undersigned is
convinced that Duncan at no time between August 7, 1947, and July 17, 1948,
made any serious attempt to secure remunerative employment, substantial or
otherwise. The undersigned is also convinced and finds that his trip to Fort.
Worth to secure employment similar to that which he had with the Respondent
at the time he was discharged was a mere junket, and that he is not entitled
to reimbursement for expenses incurred on the trip from the Respondent. The
undersigned is also convinced and he so finds that his trip to Amarillo was like-
wise a junket, and that lie is not entitled to reimbursement for expenses incurred
on that trip for the reason that there were several mills in and around Plainview
that were hiring men at the time he made the trip, particularly the Wes-Tex,
Plainview Wheat Growers, and an alfalfa mill. Duncan at no time between
August 7, 1947, and August 17, 1948, requested employment from any of the
above mills. Moreover, several of the employees who were discharged at the
same time as Duncan secured employment at one or the other of the above mills.
As regards Duncan's work for Smithee for whom he worked from September 20,
1947, to April 1, 1948, the undersigned is convinced that he could have secured
employment elsewhere during the times he obviously was idle since he only
earned $300 during this period, or approximately $54.50 a month. Moreover,
the record shows that during this period there was a demand in and around Plain-
view for labor, either farm laborers or construction workers. It is inconceivable
that a robust young man like Duncan could not have secured a more remunera-
tive, job. In such a state of the record the undersigned is convinced and finds
that Duncan is entitled to 2 months' back pay for this period. As to-the remainder
of the period from December 20, 1947, to April 1, 1948, the undersigned is con-
vinced and finds that he is not entitled to back pay and that any loss of earnings
he may have suffered during this time were willfully incurred or due to illness.
0
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even though Duncan's work for McAlister was seasonal, the undersigned is.
convinced and finds that he incurred no loss in earnings during this period due
to willfullness. In addition to the $255 he earned from April 3 to July 17, 1948,
he received his board which the undersigned estimates to be the equivalent of
$1.50 per day, since the employees cooked their own meals. The undersigned.
has basedohis estimate of a $1.50 per day on the theory that even though the
crew_may have been idle at times during this period due to inclement weather
they still had to be fed by McAlister. Hence the undersigned is convinced and
finds that the sum of $157.50 should be added to Duncan's earnings, making his
total earnings for the period $412.50.
In summation the undersigned is convinced and finds that Duncan is not
entitled to back pay from August 7 to September 20, 1947, and from November
20, 1947, to April 1, 1948, for the reason that any loss in earnings he may have
suffered during these periods was willfully incurred and hence he is not entitled
to be remunerated for said losses by the Respondent. The periods for which
Duncan is entitled to back pay are as follows : from September 20 to November
20, 1947 ; from April 1 to August 17, 1948, less his net earnings which were during
these periods $967.27.
5. Barney J. De Busk
De Busk was discriminatorily discharged by the Respondent on August 7, 1947..
Following his discharge he secured employment at a service station and worked
there until October 30, 1947, at which time he quit to accept other employment.
His earnings during this period were $400.30. De Busk worked for a nursery
company in Plainview from November 15, 1947, to August 17, 1948, and earned
$1,425. From October 30 to November 15, 1947, he took a vacation, and of
course is not entitled to back pay for this period.
There is no evidence in the record that De Busk willfully incurred any loss-
of earnings during the period from August 7, 1947, to August 17, 1948.
Conclusion as to Barney J. De Busk
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds that Barney J. De Busk is entitled to back pay from August 7
to October 30, 1947, and from November 15, 1947, to August 17, 1948, less his
net earnings of $1,425.
6. J. C. Wilson
J. C. Wilson was discharged by the Respondent on August 7, 1947. Following
his discharge he did not attempt to secure employment until August 27. On the
latter date he secured employment at the Plainview Wheat Growers and worked
there until September 18, 1947, and earned $165.75. From September 19
to October 11, 1947, he worked for a construction company and earned
$158. From October 27 to November 22, 1947, he worked for a seed company and
earned $191.67. From November 24, 1947,. to July 24, 1948, Wilson was em-
ployed by a packing company and earned $1,553.91. He was next employed from
July 29 to August 3, 1945, by the Tulia Public School. He also incurred expenses
of $3 for transportation while on this job, and earned $195. His net earnings
during the period from August 7, 1947, to August 17, 1948, were $2,264.33. From
October 12 to'October 27, 1947, he took a vacation, and of course is not entitled
to back pay for this period.
From August 11 to August 17, 1948, he was ill and unable to work, however his
employer paid him for the time he was absent. Under such circumstances, the
0
HARVEST QUEEN MILL c ELEVATOR COMPANY 335
undersigned is of the opinion that he still was in "the labor market" and there-
fore entitled to back pay for this period of his illness.
Wilson at no time from August 7, 1947, to August 17, 1948, registered with the
U. S. E. S.
There is no evidence in the record that Wilson willfully incurred any loss of
earnings from August 7, 1947, to August 17, 1948.
Concluding findings as to J. C. Wilson
In view of the foregoing and upon the record as a whole the undersigned finds
that J. C. Wilson is entitled to back pay from August 27 to October 11, 1947, and
from October 22, 1947, to October 3, 1948, less his net earnings of $2,264.33. He
also is entitled to be reimbursed $3 for transportation to Tulia, Texas, while he
was working there.
7. J. D. Dowdy
J. D. Dowdy was discharged on August 7, 1947. Shortly thereafter he regis-
tered with the U. S. E. S., and on August 11, was sent by that agency to a job
with a construction company. This job only lasted a few hours and his earnings
were around $2.50. Dowdy contacted the U. S. E. S. a few days later and was
offered a job with an oil company at Dumas or Delta, Texas, but he was unable
to take it because he was short of funds and could not pay the transportation
to the job. After that he made several efforts to secure work from various en1-
ployers around Plainview, but was unable to do so. Around September 1, 1947,
Dowdy ran out of funds and was forced to return to his home in Bonham, Texas.
In fact he was so broke at this time that he was forced to unload a truck to earn
his transportation to Bonham. Upon his arrival home he agreed to work for
his father on the farm for $15 cash per week, plus room and board, gasoline for
his car, and an allowance for cigarettes each week. On or about November 14,
1947, his father sold his farm, and moved to Petersburg, Texas, where he opened
up a blacksmith shop. Dowdy continued to work for his father as a welder in
the shop for the same wages he received while on the farm. Dowdy testified
at the hearing herein without contradiction that be considered his actual earn-
ings while working for his father to be the equivalent of $39 per week. He
worked for his father continuously from September 1, 1947, to August 17, 1948.
During this period of time he was sick for approximately 2 weeks. The record
is silent as to whether or not he was paid by his father during this period, but
since he was receiving a flat salary of $15 plus other considerations, the under-
signed is convinced and so finds that he was paid during this period. He
predicates his findings in this regard on the theory that it is universally custom-
ary to pay salaried employees for time lost due to illness.
The Respondent at the hearing herein in effect contended that Dowdy should
have secured work on a farm during the busy seasons, and thus have increased
his earning power. The undersigned regards this contention as being without
merit. In the first place, a discriminatorily discharged employee is not re-
quired to accept employment that is not substantially equivalent to his former
position. Nor is he required to accept employment that requires him to leave his
place of abode and inc it expenses to take such employment.4
There is no substantial evidence in the record that any of Dowdy's loss of
earnings were willfully incurred.
' Ohio Public Service Company , supra; and Atlas Imperial Diesel Engine Company, supra.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding findings as to J. D. Dowdy
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds that J. D. Dowdy is entitled to receive back pay from
August 7, 1947, to August 17, 1948, less his net earnings of $1,950.
8. Aulton B. Dowdy
Aulton B. Dowdy was discharged by the Respondent August 7, 1947. On the
same date he registered with U. S. E. S., and was assigned to a construction job
where he worked for 2 hours, and earned $2. He was unemployed from August 8
to August 21, 1947. From August 21 to September 11, 1947, Dowdy was employed
by the Plainview Wheat Growers and earned $70.88. He was employed as a
construction worker on this job and was laid off when the job was completed.
From September 11 to September 22, Dowdy was unemployed. The record shows
that during this period he contacted numerous employers for work but was
unable to secure employment. He next worked for the Hufford Construction
Company from September 22 to 27, and earned $31. Dowdy was unemployed
from September 27 to October 6. From the latter date to October 18, he, worked
on a farm and earned $75. He was unemployed from October 18 to November 1,
1947. On the latter date he secured employment with the Wes-Tex Grain and
Milling Company and worked for them until February 1, 1948, and earned $451.70.
He was unemployed from February 1 to 27, 1948. On the latter date he secured
employment with a local company and earned $718.04. His next employment
was with a farmer for whom he worked from June 26 to August 17, 1948, and
earned $180. Dowdy's total earnings from August 7, 1947, to August 17, 1948, were
$1,528.62.
According to Dowdy's uncontradicted and credible testimr,ny he went to the
U. S. E. S. three times during the period involved herein mid was offered a job
on two occasions. The first job he secured through the U. S. E. S. was on the
date of his discharge, at which time the agency sent him to Wayland College
where he worked for only 2 hours. On the other occasion -he was offered em-
ployment by the U. S. E. S. but was unable to accept because he did not have
the transportation to go to and from the job. Unable to secure substantially
equivalent employment in Plainview. and vicinity, he went to Oklahoma City, in
February 1948, in an attempt to do so. He stayed in Oklahoma City for 2 weeks.
During his stay there he tried, unsuccessfully, to secure employment with the
following employers : General Mills, Acme Mills, Dobie Mills, and Armour Pack-
ing Company. While in Oklahoma City he stayed with relatives and thus the
only expense incurred by him in this effort to secure employment was his bus
fare of $8.
The record is also clear that throughout the period involved herein that Dowdy
made a diligent effort to secure employment in and around Plainview. The
number of employers for whom he worked during the period from August 7,
1947, to August 17, 1948, bears witness to this.
There is no substantial evidence in the record that Dowdy's loss of earnings.
during the period involved were willfully incurred or due to his leaving desirable
new employment.
Conclusion as to Aulton B. Dowdy
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds that Aulton B. Dowdy is entitled to full back pay from
August 7, 1947, to August 17, 1948, less his net earnings of $1,528.62.
HARVEST QUEEN MILL & ELEVATOR COMPANY 337
At the hearing herein Dowdy was queried extensively by counsel for the
Respondent as to why he did not secure farm work such as chopping and picking
cotton. Dowdy's answer to this was that he did accept such employment on
occasion, but turned it down on others because of transportation difficulties.
In any event he was not required to accept such employment if it required him
to leave his place of -abode or necessitated the expense of transportation to and
from his place of employment. All that a discriminatorily discharged employee
is required to do is to diligently attempt to secure substantially equivalent em-
ployment to satisfy the requirements of the Act as interpreted by the Board and
the courts.
9. M. Ni. Cook
M. M. Cook was discriminatorily discharged by the Respondent on August 7,
1947. At the time of his discharge he had worked for the Respondent for about
2 weeks. About a week after Cook was discharged he registered with the
U. S. E. S. He was employed by the Plainview Wheat Growers from August 21
to August 28, 1947.. He quit his job with that company on the latter date because
the work was physically hard for him to perform. While on this job he earned
$28.51. Cook was unemployed from August 29 to September 19, 1947. In the
interim, however, he called regularly at the U. S. E. S. but was unable to secure
employment. While it is true he was offered on a few occasions a job as a farm
laborer he refused such employment because it would have necessitated moving
his family out of Plainview. Moreover, he was not familiar with farm work,
and had never engaged in such tasks as cotton chopping and picking. Cook
also called on several business firms in Plainview during this period, but was
unable to find employment. On October 4, he secured employment with the
Wes-Tex Grain and Milling Company, through the U. S. E. S. He worked for
them until October 11. He quit this job because the hourly wage of 60 cents
was not sufficient for him and his family to live on. Cook was unemployed from
October 11 to 15. On the latter date he secured employment with the Shutts
Construction Company, as.a laborer at $1 per hour. He worked for this company
until October 15, when he quite because he couldn't get along with the "Boss"
carpenter and other employees. His earnings while with Shutts were $19.
From October 15, 1947, to January 29, 1948, he was unemployed. During this
period he reported regularly at the U. S. E. S. but was unable to secure employ-
ment. He also endeavored ,to secure employment elsewhere in and around
Plainview. From January 29 to April 8, 1948, he was employed by the W. G.
Goyne Drilling Company and earned $499. According to Cook he quit this job
also because he couldn't get along with his supervisor. Cook was unemployed
from April 8 to 12. On the latter date he was employed by one Fred Scoggins
for whom he worked until April 17, 1948. He was discharged from this job
because he refused to work on Sunday. His earnings while working for Scoggins
were $60.52. From April 17 to May 9, he was unemployed. On May 9, he went to
work for the Alfalfa Milling Company, and worked for them until May 20, 1948,
when he quit to take abetter job. His earnings while with the Alfalfa Milling
Company were $74.20. He was unemployed from May 20 to 22. On the latter
date he secured employment with the Carter Thompson Pump Setting Company,
and worked for them until July 9, when he was laid off due to causes beyond his
control. His earnings while with the pump setting company were $232.50. From
July 9 to 14, he was unemployed. He was employed by an ice company from
903847-51-23
0
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July 14 to 24, when his job was abolished. He earned $82.60 while working for
the ice company. From July 24 to 28, lie was unemployed. Cook was employed
from July 28 to August 15, 1948, by the Southern Gas Company, Big Springs,
Texas, and earned $96.15. Cook incurred expenses of $7.14 in moving his family
to Big Springs. He was unemployed on August 16, 1948.
Conclusion as to Al. Al. Cook
In view of the foregoing and the record as a whole, the undersigned is con-
vinced and finds that M. M. Cook is entitled to back pay from August 7, 1.947, to
August 17, 1948, plus any necessary expenses incurred in securing substantially
equivalent employment, less his net earnings of $1,152 plus necessary expenses of
$7.14, incurred in seeking employment elsewhere, less 1 week lost due to illness.
The record shows that Cook on at least one occasion quit a job that paid him
an hourly rate in excess of that which lie earned while in the employ of the
Respondent. His reasons for quitting this job were that he couldn't get along
with other employees. In the considered opinion of the undersigned, it cannot
be said that Cook, by quitting this job willfully incurred a loss in earnings for the
period of unemployment that followed his action in this regard. In this particu-
lar instance from October 15, 1947, to January 29, 1948, it must be remembered that
Cook immediately after quitting his job reregistered with the U. S. E. S., and in
addition endeavored to secure employment from numerous employers in Plain-
view. There is nothing in the Act and its interpretation thereof by the Board and
courts that requires a discriminatory dischargee to work under conditions that are
unbearable or disagreeable to him personally. All that the Act requires is that a
dischargee make a reasonable effort to secure reemployment. The Board's policy
in this regard has been well stated in the Ohio Public Service case, swpra. As the
undersigned interprets the rule laid down -in that case it was to the effect that a
dischargee cannot willfully withdraw himself from the labor market, and sit icily
back in anticipation of accumulated back pay and reinstatement to his former
job. This is the sort of situation the Board had in mind in that case. Such is
not the situation herein. Here, Cook repeatedly went to U. S. E. S., and in addi-
tion resorted to self-help in his efforts to secure substantially equivalent employ-
ment. Under such circumstances the undersigned is convinced and finds that
Cook did not willfully incur any loss of earnings during the period from August
7, 1947, to August 17, 1948.
It will be noted that the undersigned has recommended that Cook be reimbursed
for his loss in earnings from August 7,1947, and not from on or about August 12,
1947, the date he first registered with U. S. E. S. In the considered opinion of
the undersigned, a lapse of a week before registering with the U. S. E. S. is
reasonable and a discriminatorily discharged employee should not be penalized
for it. In fact, the Board has so held on numerous occasions.'
10. Lloyd Voyles
Lloyd Voyles was discharged by the Respondent on August 7, 1947. Accord-
ing to Voyles he made no effort to secure employment following his discharge
until August 22, and testified on cross-examination that he was taking a vaca-
tion during this period.
From August 22, 1947, to August 17, 1948, Voyles worked for various employ-
ers in and around Plainview, and earned $2,059.45. While working for the
5 The Laredo Daily Times, 58 NLRB 458; and Howard Foundry Company, 53 NLRB 65.
HARVEST QUEEN MILL & ELEVATOR COMPANY 339
National Alfalfa Milling Company he lost a total of 51 hours work for personal
reasons. There is no substantial evidence in the record that during the period
from August 7, 1947, to August 17, 1948, that Voyles willfully incurred any
loss in his earnings.
Conclusion as to Lloyd Voyles
In view of the foregoing and the record as a whole, the undersigned is con-
vinced and finds that Lloyd Voyles is entitled to back pay from August 7, 1947,
to August 17, 1948, less his net earnings of $2,059.45, less the period from
August 7 to 22, 1947, less 51 hours he absented himself from work for personal,
reasons while in the employ of the National Alfalfa Milling Company.
11. Buford Carlton
Buford Carlton was discharged on August 7; 1947. According to Carlton,
he made no effort to secure employment elsewhere from the date of his dis-
charge until August 23, and that he was on vacation during this period. From
the latter date to August 17, 1948, lie worked for various employers in Plain-
view, and earned $2,310.78.
There is no substantial evidence in the record that Carlton willfully incurred
any loss of earnings during the period from August 7, 1947, to August 17, 1948.
Conclusion as to Buford Carlton
In view of the foregoing and upon the record as a whole, the undersigned
is convinced and finds that Buford Carlton is entitled to back pay from August 7,
1947, to August 17, 1948, less his net earnings of $2,310.78, and for the period
he was on vacation from August 7 to August 22,1947.
12. Elmer Haralson
Elmer Haralson was discharged August 7, 1947. From August 7 to 24, 1947,
he was self-employed on his farm. Between August 24 and September 17, 1947,
he worked for various individuals in and around Plainview, and earned $41.
From September 17, 1947, to January 3, 1945, he worked for the Western Cotton
Oil Company, and earned $830.51. On January 4, he went to work for the
Farmers' Nursery, and worked for them until March 15, 1948, and earned $300.23.
From March 1.6 to July 31, 1.948, Haralson worked on his farm and in addition
plowed land and did other work for neighboring farmers. The record is not
clear as to the total time he worked for others. However, lie earned $159 during
this period. He owned a tractor and the undersigned estimates that he spent
2 weeks at this work. The undersigned predicates his estimate on the theory
that Haralson earned at least $14 per day when the fact that he furnished his
own tractor to do the plowing is taken into consideration. True, this is mere
speculation, but since no evidence was adduced at the hearing in this regard,
the undersigned has no alternative but to indulge in such under the circum-
stances. The period from March 1.5 to July 31, 1948, consists of 19 weeks. The
record is clear that Haralson farmed his own land during this period, and was
so occupied exclusively except for the 2 weeks he worked for others. Hence,
lie was self-employed for 17 weeks. From August 1 to 17, 1948, he worked but
3 clays and earned $17.50 hoeing cotton.
There is no substantial evidence in the record that Haralson willfully incurred
any loss in earnings from August 7, 1947, to August 17, 1948. In fact the evi-
dence is to the contrary. True, the record indicates that he did not register
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with U. S. E. S., but on the other hand there is substantial evidence to the
effect that he resorted to self-help and solicited work on his own initiative..
Haralson lost 3 weeks on account of illness sometime in the fall of 1947.
Conclusion as to Elmer Haralson
As indicated above Haralson was self-employed on his farm for a period of 17
weeks between March 15 and July 31, 1948, and of course was not on the labor
market, consequently, he is not entitled to be reimbursed for back pay during this
period e While it is true that the parties stipulated at the hearing herein that
Haralson received $500 from his farm during this period, the stipulation is not
binding upon the undersigned who must apply the law as interpreted by the
]Board and the courts. Accordingly, the undersigned finds that Haralson's net
earnings from August 7, 1947, to August 17, 1948, were $1,348.24 and not $1,848.24
as stipulated at the hearing herein.
In view of the foregoing and upon the record as a whole the undersigned is
convinced and finds that.Elmer Haralson is entitled to back pay from August 7,
1947, to August 17, 1948, less his net earnings of $1,348.24, less 17 weeks he was
self-employed, less the 3 weeks he was confined to his home due to sickness, less
21/2 weeks for the period from August 7 to August 24, 1947, when he was self-
employed on his farm.
13. Orbie V. Kay
Orbie V. Kay was discharged by the Respondent on August 7, 1947. From
August 7 to August 24, 1947, Kay made no serious effort to secure employment.
Nor did he register with U. S. E. S., in fact; he did not do so at any time between
August 7, 1947, and August 17, 1948. From August 24, to September 1, 1947,
he was self-employed on his farm. After September 1, Kay worked for various
employers up to December 20, 1947. In 'this period he was also self-employed
on his farm for a total of 4 weeks. His earnings during this period were $439.
For the most part Kay's earnings were derived from farm labor and carpentry.
The record indicates that he made a reasonable effort to secure employment else-
where during this period. While it is true that there were times when he was
unemployed nevertheless the undersigned is convinced that his unemployment
was by no means willful. It must be remembered that he was an unskilled
worker and lapses in employment are to be expected of such.
In December 1947, Kay purchased s. team of horses for the purpose of plow-
ing gardens for residents of Plainview. The record indicates that gardens are
plowed in that vicinity during either the latter part of January or the early
part of February, depending upon the weather. According to the uncontradicted
and undenied testimony of Kay, the plowing season in that vicinity was delayed
in the winter of 1948 due to a heavy freeze and as a result he did not get started
in this work until February 20. In the interim, he attempted to secure work
at several places, including the Cooperative Creamery and Plainview Wheat
Growers. He also kept in touch with several contractors in an effort to.secure
carpenter work, but he was unable to secure employment of any kind from
December 20, 1947, to February 20, 1948. From the latter date to April 20, he
plowed gardens for numerous individuals in Plainview and earned $420. From
these earnings however must be deducted his expenses which consisted of a
$100 feed bill for his team and a $30 blacksmith bill, a total of $130. Thus, his net
Columbia Pictures Corporation, 82 NLRB 568.
HARVEST QUEEN MILL & ELEVATOR COMPANY 341
earnings from plowing were $290. Kay was unemployed from April 20 to May
14, 1948, primarily due to a drought that made plowing impossible in that area.
From May 14 to August 16, 1948, Kay was employed by the Lookview Farm and
earned $672.35.
Kay's net earnings from August 7, 1947, to August 1.7, 1948, were $1,331.35.
Conclusion as to Orbie V. Kay
The undersigned is convinced that Kay is not entitled to back pay for the
period from August 7 to August 24, 1947, for the reason he made little or no
effort to secure employment, and for the further reason he did not register with
U. S. E. S. From the latter date however to August 17, 1948, he either resorted
to self-help or was self-employed. True, there are periods of unemployment,
especially from December 20, 1947, to February 20, 1948, but there is no sub-
stantial evidence of willfulness. According to Webster's Collegiate Dictionary
willful means intentional. There is nothing in the record to indicate such an
attitude on the part of Kay. In fact, it is to the contrary. The record clearly
shows that he worked at all kinds of odd jobs ranging from carpenter work to
picking cotton bolls. Such activities on his part belie any contention that his
loss of earnings were willfully incurred. However, Kam; is not entitled to back
pay for the time he was self-employed on his farm.'
In view of the foregoing and upon the record as a whole, the undersigned finds
that Orbie V. Kay is entitled to reimbursement for back pay from-August 7,
1947, to August 17, 1.948, less his net earnings of $1,331.35, less the period from
August 7 to August 24, 1947, less the 3 weeks when he was self-employed!
14. Ernest Voyles
Ernest Voyles was discharged by the Respondent on August 7, 1947. From
the latter date to August 21, he made no effort to secure employment of any
kind. Nor did he at any time from the date of his discharge to August 17, 1948,
register with the U. S. E. S. On August 22, 1947, he secured employment with
the Plainview Wheat Growers and worked there until September 11, and earned
$109.50. From September 13 to 18 he worked at odd jobs and earned $49. He
was unemployed from September 19 to 26. From the latter date to November
12, 1947, he picked cotton and earned $216.31. On November 13, 1947, he
secured employment with-the West Texas Cotton Oil Company and worked for
them until April 30, 1948. While so employed he earned $895.67. After leaving
his employment with the Cotton Oil Company, he entered into a venture to stack
hay with his father on May 1, 1948. He was to receive for his share of the
profits 25 percent of all hay stacked. The venture however did not work out
as well as expected and as a result he earned less than he would have earned
at the Cotton Oil Company. His part of the venture netted $387.61. He withdrew
from the venture on August 16, 1948.
Voyles' net earnings from August 7, 1947, to August 17, 1948, including his
profits from the hay-stacking venture were $1,658.29.
There is no substantial evidence in the record that Voyles willfully incurred
any loss in earnings from August 21, 1947, to August 17, 1948.
Columbia Pictures Corporation, supra.
The undersigned does not consider Kay's plowing as "self-employment" for the reason
that he was on the "labor market" figuratively speaking to plow gardens for any and all
who desired his services.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusion as to Ernest Voyles
The undersigned is convinced and finds that Voyles is not entitled to back pay
for the period from August 7 to August 21, 1947, for the reason that he made no
effort to secure employment elsewhere and did not during this period or there-
after register with the U. S. E. S. From August 21, 1947, to August 17, 1948,
there is no substantial evidence in the record that he willfully incurred any loss
of earnings. True, there are a few days of unemployment here and there during
the period involved herein, but that is to be expected under the circumstances
found herein. Voyles like the other dischargees was an unskilled worker and
certain lapses of time between jobs is to be expected, especially in a town like
Plainview with no industry to speak of to absorb workers in Voyles' position.
As far as Voyles' hay-stacking venture is concerned the undersigned is con-
vinced and finds that while so engaged he was self-employed for the reason that
he was not on the labor market at that time. Hence, he is not entitled to back
pay for the time he was so engaged.9
In view of the foregoing, the undersigned is convinced and finds that Ernest
Voyles is entitled to back pay from August 7, 1947, to August 17, 1948, less his
net earnings of $1,270.68, less the period from August 7 to August 21, 1947, less
the periods from May 1 to August 16, 194S.
15. Wyndel Johnson
Johnson was discharged on August 7, 1947. He was named in the Remand,
and subpoenaed to appear at the hearing herein but refused to do so. Conse-
quently, the undersigned recommends that his name be withdrawn from the
Board's Decision and Order, and that the Fifth Circuit Court of Appeals be so
notified.
16. J. D. Dunlap
Dunlap was likewise discharged by the Respondent on August 7, 1947. At the
hearing herein the General Counsel stated to the record that Dunlap had in-
formed him that his earnings for the period involved herein were in excess
of what he [Dunlap] would have earned but for his discriminatory discharge
with the Respondent and that consequently he would not appear at the hearing.
Dunlap' s earnings from August 7, 1947, to August 17, 1948, were $3,400.
In view of the foregoing, the undersigned recommends that the name of J. D.
Dunlap be deleted from the Board's Decision and Order and that the Fifth Cir-
cuit Court of Appeals be so notified.
Concluding findings
In view of the foregoing and upon the record as a whole, the undersigned is
convinced and finds that the discriminatorily discharged employees named in the
Remand earned the amounts set forth hereinabove during the period from August
7, 1947, to August 17, 1948, and are entitled to back pay for this period less said
net earnings, less periods of self-employment, less loss of time due to illness,
less willfully incurred losses, and plus necessary expenses incurred in seeking
employment elsewhere, all of which have been set forth hereinabove as to each
dischargee involved herein.
The undersigned further finds that Wyndel Johnson and J. D. Dunlap are not
entitled to back pay, and the undersigned recommends that their names be de-
0
' Columbia Pictures Corporation, supra.
HARVEST QUEEN MILL & ELEVATOR COMPANY 343
leted from the Order dated June 2, 1949, and that the Fifth Circuit Court of
Appeals be advised accordingly.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding (in-
cluding rulings upon all motions or objections) as he relies upon, together with
the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of ex-
ceptions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed and if mimeographed shall be doubled spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.46,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 5th day of December 1949.
JAMES A. SHAW,
Trial Ea,aminer.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
HARVEST QUEEN
Average hours and earnings , incumbents , week ending 8/15/47 to 8/27/48
week ending payroll period
Average
hours
worked
per week*
Average
weekly
earnings
per week*
Total
employees
with 24 or
more hours
per week
Number
excluded
from av-
erage com-
putation
8/15/47-------------------------------------------------- 61.0 $52.22 41 7
8/22/47------------------------------------------------- 64.7 59.55 43 3
8/29/47-------------------------------------------------- 67.7 63.09 37 5
9/5/47--------------------------------------------------- 53.7 46.68 35 4
9/12/47------------------------------------------------ 62.8 57.32 38 2
9/19/47------------------------------------------------- 65.2 60.00 39 1
9/26/47------------------------------------------------ 66.9 60.34 39 ------------
10/3/47------------------------------------------------- 68.4 62. 91 37 ------------10/10 /47------------------------------------------------ 66.7 62.66 38 .
10/17/47--------------------- ------------------------- 64.9 60.32 33 [4
10/24/47------------------------------------------------ 66.0 61.78 35 ------------
10/31/47------------------------------------------ ---- 65.7 61.48 33
11/7/47------------------------------------------------ 54.4 48.85 34 ------------11/14/47------------------------------------------------- 67.8 64:42 29 5
11/21/47----------------------------------------------- 63.4 58.51 34 3
11/28/47------------------------------------------------ - 55.9 49.84 32 1
12/5/47----------------------------------------------- 57.5 52. 66 21 7
12/12/47------------------------------------------------ 69 . 5 66.99 22 -----------12/19/47---------------------------------------------- 65.5 61.48 31 2
12/26/47---------------------------------- ----------- 58.9 53.83 32 ------------1/2/48---- ----------------------------------------------- 61.3 58.91 33
1/9/48------------------------------------------------- 59.7 54.08 30
1/16/48--- ---------------------------------------------- 60.5 55.46 27 4
1/23/48------------------------------------------------ 59.7 53.99 33 1
1/30/48------------------------------------------------ 60.5 55.10 32 0
2/6/48--- ----------------------------------------------- 56.0 50.07 29 2
2/13/48-------------------------------------------------- 58.3 53.03 28 2
2/20/48-------------- ------------------------------------ 51.3 45.10 28 3
2/27/48---- ---------------------------------------------- 49.9 43.28 26 1
3/5/48--- ------------------------------------------------ 45.4 38.69 23 4
3/12/48 ---------------------------------- ---------------- 63.3 59.56 15
3/19/48-------- ----------------------------------------- . 59.2 54.21 25
3/26/48---- -------------------------------------------- 63.1 58.72 24
4/2/48---- ------------------------------------------ 65.5 61.49 23
4/9/48----- -- ---------------------------------------- 70.3 67.40 26
4/16/48----------------------------------------------- 58.2 53.42 22
4/23/48---------------------------------------------- - 57.2 52.31 23
4/30/48------------------------------------------------- - 59.8 54.86 27
5/7/48-- ----------------------------------------------- 57.1 52.21 26
5/14/48-------------------------------------------------- 69.5 66.55 25
5/21/48----- --------------------------------------------- 62.2 57.57 30
5/28/48--- - --------------------------------------------- 64.7 60.96 30
6/4/48--- ------------------------------------------------ 66.7 62.96 31
6/11/48-------------------------------------------------- 72.6 70.34 30
6/18/48--- -------------------------------------------- 65.8 62.08 29
6/25/48------------------------------------------------ 72.2 69.54 30
7/2/48--- ---------------------------`------------------- 73.6 71.16 31
7/9/48--------------------------------------------------- 72.9 70.31 31
7/16/48---- ---------------------------------------------- 70.5 67.14 34 (
7/23/48-------------------------------------------------- 70.2 66.79 33
7/30/48----- --------------------------------------------- 68.9 65.61 31
8/6/48-------------------------------------------------- 69.3 65.78 33
8/13/48--- ----------------------------------------------- 69.9 67.02 33
8/20/48------------------------------------------------- 67.2 63.58 31
8/27/48------------------------------------------------- 73.1 71.17 29
*Excluding employees who worked less than 24 hours in the given week.