Lundy Packing Co.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 141 (N.L.R.B. 1987)

LUNDY PACKING CO. 141
Lundy Packing Company and Local 525, Meat,
Food and Allied Workers Union , United Food
and Commercial Workers International Union,
AFL-CIO. Cases 11-CA-5790 and 11-CA-
5837
30 September 1987
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 25 August and 25 September 1981, respec-
tively, Administrative Law Judge John C. Miller
issued the attached supplemental decision on back-
pay and second supplemental decision on back-
pay.' The General Counsel and the Respondent
filed exceptions and supporting briefs, and the
Charging Party filed an answering brief to the Re-
spondent 's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sions and the record in light of the exceptions and
briefs and has decided to affirm the judge's rul-
ings, 2 findings , 3 and conclusions and to adopt the
recommended Order as modified.
I. REASONABLE JOB SEARCH
The Respondent devoted a substantial portion of
its exceptions and lengthy supporting brief to the
judge 's credibility determinations and findings bear-
'
The Board's original decision is reported at 223 NLRB 139 (1976),
enfd 549 F 2d 300 (4th Cir 1977), cert denied 434 U.S 818 (1977)
2 The Respondent contends that, by quashing its subpoena to compel
production of the Union's bank records, the judge deprived it of due
process by denying it the opportunity to prove its contention that strike
benefits should be considered interim earnings We find no merit in this
contention because the judge relied on established Board law that strike
benefits not dependent on picketing or the performance of other services
by the recipients are not interim earnings deductible from gross backpay
Rice Lake Creamery Co, 151 NLRB 1113, 1131 (1965), enfd . in part as
modified and remanded in part 365 F 2d 888, 893 (D C. Cur 1966)
9 The General Counsel and the Respondent have er cepted to some of
the judge's credibility findings The Board' s established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings.
The judge noted that the Respondent conducted extensive cross-exami-
nation of each discriminatee , frequently for 4 hours or more and , at times,
concentrated on trivial matters or items of little monetary significance
which resulted in the hearing unnecessarily consuming a total of 14
weeks The Respondent excepts, contending the judge did not appreciate
the complexity of the case and the burden placed on the Respondent
faced with a potential backpay liability of over $1 million While we
agree that the Respondent's burden is not light, we do not find the judge
abused his discretion by calling our attention to some reasons for the
lengthy hearing and record Moreover, we have not relied on these com-
ments in making our decision
ing on the discriminatees ' reasonable job searches.4
In support of these contentions the Respondent
called to testify the representatives of 52 employers
located within a 60-mile radius of the Respondent's
Clinton , North Carolina plant . These witnesses de-
scribed available job opportunities , job application,
and recordkeeping procedures , and methods of re-
cruiting for their respective employers.
The Respondent contends that the judge grossly
erred by failing to deal specifically with this rebut-
tal evidence , which allegedly shows that a signifi-
cant number of discriminatees did not apply for
jobs with these employers and generally that the
discriminatees engaged in insufficient job searches.
The Respondent further contends that , if these wit-
nesses were credited , the discrepancies between
their testimony and the discriminatees ' job search
lists would show that such lists were incorrect or
lead to the inference that the discriminatees' lists
were fabricated.
The record shows that the Respondent 's meat-
packing plant is located in Clinton , North Carolina,
which is in predominantly rural Sampson County
where most of the claimants reside . The unemploy-
ment rate in Sampson County was high and rising
in the first part of the backpay period, with the
rate for blacks considerably higher.5 The Respond-
ent acknowledged in its brief that there are few
meatpacking companies in the area, and each of the
others was substantially smaller than the Respond-
ent's and had "somewhat limited" job opportuni-
ties . The judge pointed out that few large employ-
ers existed within a 25 -mile radius of the Respond-
ent's Clinton plant.
The parties stipulated that the claimants' regular
work at the Respondent's plant was "unskilled
labor." We also note that the judge has provided a
brief description of each claimant 's education and
qualifications . Finally, it is noteworthy that the
claimants generally enjoyed better wages6 and ben-
4 More than one-third of the Respondent 's exceptions and half of its
more than 500-page brief and the 10,000-page trial transcript are devoted
to the job searches of the 46 discrimmatees In some instances the Re-
spondent contends that certain discriminatees' job searches were inad-
equate even if fully credited, but generally its contentions are directed at
the judge 's crediting of the discrimmatees ' testimony and job lists
We note that the General Counsel also has filed a number of excep-
tions to the judge 's findings of inadequate job search
5 As the judge noted, the unemployment rate was 4 percent in August
1974, went to 8 3 percent in November 1974, and 16 percent in January
1975 before decreasing in the second quarter of 1975 For blacks, the
rates ranged from 1-1 /2 to 2 times the rates cited above
6 The Respondent 's treasurer and production manager , Clarence Ke-
phart, testified that no employers in the area paid wages within $2 per
hour of the Respondent's wages When bonuses paid by the Respondent
were included , Kephart testified that as much as another $1 per hour
could be added to that difference Such figures compared with the $2-$3
per hour most claimants were earning at interim jobs
286 NLRB No. 11
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
efits' with the Respondent than with interim em-
ployers and that they worked a day shift year
round with the Respondent but that many interim
jobs involved less desirable shift arrangements and
seasonal work.
The conditions affecting job search generally are
shown by the interim jobs actually obtained by the
46 discriminatees. The record shows that a consid-
erable portion of these interim jobs were seasonal
with schedules affected by the weather. Approxi-
mately 16 discriminatees were able to obtain jobs
only in farm or construction work." Another six
discriminatees fell into this same pattern, but also
were able to obtain work in nonseasonal jobs that
lasted less than one calendar quarter.9 Thus, nearly
one-half of the discriminatees were unable to obtain
nonseasonal jobs or jobs whose schedules were not
affected by the weather. The discriminatees' experi-
ence was that regular nonseasonal jobs, which they
had before their unlawful discharges, were few and
scattered among the employers who provided such
interim jobs in the Clinton, North Carolina area.
Indeed, the record shows that only a few nonsea-
sonal employers provided jobs to more than one
discriminatee. 10
It is well settled that the reasonableness of a dis-
criminatee's efforts to find a job and thereby miti-
gate loss of income resulting from an unlawful dis-
charge need not comport with the highest standard
of diligence, i.e., he or she need not exhaust all
possible job leads. Rather, it is sufficient that the
discriminatee make a good-faith effort.In deter-
mining the reasonableness of this effort, the discri-
minatee's skills, experience, qualifications, age, and
labor conditions in the area are factors to be con-
sidered.l2 The existence of job opportunities by no
means compels an inference that the discriminatees
would have been hired if they had applied.13 The
7 The discriminatees , as employees of the Respondent , were eligible for
a profit -sharing plan, had seniority rights for vacation pay, enjoyed paid
sick days and holidays , and had incentives for good attendance and com-
pany paid health and medical insurance With rare exceptions , the em-
ployers who provided interim jobs for the discnmmatees failed to pro-
vide such benefits
6 Billy Boone, Bryson Johnson , Edward Stevens, Caldron Herring,
William Momsey, Mary Raynor, Otis Simmons, Richard Carr, Robert
Smith Jr, Clarence King, Ray Lewis , Vernon Williams, Wesley Jeffer-
son, Kenneth Faison , Sonnie Boy Stevens, and Douglas Underwood
9 Charles Newton , Elzata Copeland , Aliene Raynor, Milford Bethune,
Leroy King, and Willie Parker
10 Qumn Wholesale, Little Cotton Mfg, Carolina Packers Thermo-
pane, Edwards Tobacco, Erwin Mills, Kelly Service Mart, and Georgia
Pacific
1I Central Freight Lines, 266 NLRB 182 (1983), enfd 741 F 2d 1379
(5th Cir 1984)
' Laredo Packing Co, 271 NLRB 553 (1984), enfd 730 F 2d 405 (5th
Cir 1984), and Mastro Plastics Corp, 136 NLRB 1342, 1359 (1962), enfd.
354 F.2d 170 (2d Cir 1965), cert denied 384 U S 972 (1966)
13 Firestone Synthetic Fibers, 207 NLRB 810, 813 (1973)
respondent's obligation to satisfy its affirmative de-
fense is to show a "clearly unjustifiable refusal to
take desirable new employment." 14 Uncertainty in
such evidence is resolved against the respondent as
the wrongdoer.) s
Applying these principles here, we point out first
that no showing has been made that a specific dis-
criminatee refused a job offer. Nor does the Re-
spondent's evidence establish that the discrimina-
tees would have been hired if they had applied at a
particular company. Absent any such showing, tes-
timony describing available job opportunities is of
limited significance. 1 s Indeed, the record here ex-
hibits a variety of circumstances that weigh against
a finding that the discriminatees would have been
hired for such jobs.
The Respondent's own witnesses-the represent-
atives of the 52 area employers-testified that em-
ployers had 50 to 400 job applications on hand or
that they had more applications than jobs and were
hiring only after further testing. A majority of the
witnesses who testified to having an application on
file from a discriminatee did not explain why that
discriminatee was not hired; indeed one employer
representative called by the Respondent acknowl-
edged having applications from 11 discriminatees
but offered no explanation for not hiring any of
them.
Witnesses also testified that employers gave pref-
erence to their own laid-off employees before
hiring new employees. Witnesses testified that the
practice for seasonal jobs on farms and in packing-
houses (which accounted for approximately one-
third of the 52 representatives) was to use the same
employees each year along with some new hires,
and they also testified to the increasing use of mi-
grant labor as seasonal employees. Most witnesses
testified about hiring only women or mostly
women; only 5 of the 46 discriminatees are women.
Witnesses also testified about requiring particular
skills or experience in particular manufacturing
procedures; a review of the "personal information"
provided by the judge on each discriminatee
shows, however, that few possessed such special
skills.
In addition, two witnesses specifically testified
that they would not knowingly hire strikers. One
witness said his employer was shut down for 1-1/2
years of the backpay period. Other witnesses testi-
14 Phelps Dodge Corp v NLRB, 313 U S 177, 199-200 (1941)
15 NLRB Y Miami Coca-Cola Bottling Co, 360 F 2d 569 (5th Cir
1966), Southern Household Products Co, 203 NLRB 881 (1973), United
Aircraft Corp, 204 NLRB 1068 (1973), and cases cited there
16 Midwest Hanger Co, 221 NLRB 911, 919 (1975), enfd in pertinent
part 550 F 2d 1101, 1105-1106 (8th Cir 1977), cert denied 434 U S 830
(1977)
LUNDY PACKING CO 143
feed that their employers hired no new employees
during portions of the backpay period.
Several other counterbalancing considerations
must be taken into account in assessing the testimo-
ny by the Respondent's witnesses that few discri-
minatees applied for jobs with their respective em-
ployers. Many employers did not advertise job
openings but relied on word of mouth or referrals
by their own employees. In addition, many em-
ployers relied on the North Carolina State Em-
ployment Security Commission (ESC) for referrals;
indeed testimony shows that at least five employers
relied exclusively on the ESC for referrals. Al-
though most discriminatees registered with the
ESC soon after going out on strike and a majority
of the discriminatees returned to renew referral re-
quests, only one employee was successfully re-
ferred, and his referral occurred after he had been
laid off from another interim job.
Finally, it is significant that actually filing a writ-
ten application was necessary to becoming a part
of the various recordkeeping systems described by
the Respondent's witnesses. No witness from this
group described keeping records of oral inquiries.
The credited testimony, however, is that discrimin-
atees generally made oral inquiries regarding avail-
able jobs and, if no jobs were available, filed no
written applications. 17
In sum , we find that the record as a whole sup-
ports the judge's credibility determinations and his
conclusion that the discriminatees engaged in rea-
sonable job searches, except as he specifically
found otherwise. We, like the judge, are mindful
that the discriminatees were testifying about events
that occurred 3 to 5 years before the hearing and
that this passage of time reasonably accounts for
faulty memories and uncertain chronologies.18 We
also rely on the various considerations affecting the
Respondent's rebuttal evidence on job search, dis-
cussed above, particularly the circumstances im-
peding the discriminatees' job searches. We also
note that much of the Respondent's evidence does
not directly contradict credited testimony by the
discriminatees regarding their job searches. Finally,
we rely on the judge's observation and evaluation
of the witnesses, including his comments in credit-
ing the testimony of individual discriminatees re-
garding their job searches. We are not persuaded
17 The record also shows that various Respondent witnesses testified
to keeping application records for only 6 months or 1 year or that their
records were incomplete In some cases it appears that the discriminatees
were hired despite not having an application on file
18 We also reject the Respondent's contentions that the discrimmatees'
job search testimony was so vague and indefinite as to require the judge
to discredit it and that their job search lists were false or fabricated See
Pat Izzi Trucking Co, 162 NLRB 242, 244-245 (1966), Hickory's Best,
Inc, 267 NLRB 1274, 1276 (1983), and Rainbow Coaches, 280 NLRB 166
(1986)
that a clear preponderance of the record evidence
warrants our substituting our own judgment on
credibility for that of the judge, who saw and
heard the witnesses testify. See footnote 3, above.
II. TOLLING OF BACKPAY AND WILLFUL LOSS
OF EARNINGS
The General Counsel has excepted to the judge's
denial of backpay for certain discriminatees during
periods they were employed part-time because they
engaged in inadequate job searches during such pe-
riods. The General Counsel also has excepted to
the denial of backpay for other discriminatees that
the judge found were unjustified in quitting interim
jobs.
After a careful review of the record in light of
these exceptions, we are persuaded that the particu-
lar circumstances present in this case require a re-
versal of the judge's tolling of backpay for six dis-
criminatees during periods in which they worked
part-time employment and for other discriminatees
who quit interim jobs. In so finding we note that
the judge properly found that the discriminatees
discussed below engaged in reasonable job searches
during periods not covered by those particular ex-
ceptions.
We also have considered the conditions affecting
job search experienced by these discriminatees, de-
scribed above. In particular, we refer to the discri-
minatees' generally superior wages, benefits, and
working conditions with the Respondent as op-
posed to the other area employers who provided
interim jobs and that nearly one-half of the discri-
minatees in this case were unable to obtain nonsea-
sonal jobs or jobs with schedules that were not af-
fected by the weather, supra.
A. Tolling of Backpay During Periods of Part-
Time Employment
The job search and interim employment experi-
ences of the six discriminatees whose backpay was
tolled during periods of part-time jobs offer a rep-
resentative sample of conditions affecting job
searches by the discriminatees generally. Their ex-
perience demonstrates the difficulty-despite exten-
sive job searches-of obtaining and maintaining
regular full-time interim employment, particularly
during the winter months.
The unrebutted record evidence shows that Billy
Boone looked for work with some 36 employers
during the August 1974 and March 1975 period
and his credited testimony shows even more
searches during these three quarters. He registered
with the ESC but was never referred. From Febru-
ary 1975 to January 1977, Boone worked full time
during the April-September periods and part-time
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the winter months, performing farmwork for a
single employer. He held an interim job during 9 of
the 11 backpay quarters. Despite finding that
Boone worked an average of 30 hours a week (at a
pay rate substantially below the Respondent's) in
44 of 52 weeks in 1976, the judge denied backpay
to Boone for the fourth quarter of 1975 and the
first and fourth quarters of 1976. The judge rea-
soned that when Boone's employment " lessened in
the winter months . . . it was incumbent upon him
to renew his search for other or additional work."
Milford Bethune's employment pattern was simi-
lar to Boone's . He worked for Willie Faison, a
building subcontractor, from 2 October 1974
through 11 November 1976, and had interim earn-
ings in all 10 quarters of the backpay period. De-
spite testimony by Bethune and Willie Faison that
Bethune averaged 40 hours a week unless inclem-
ent weather prevented it, the judge relied on social
security records to find that Bethune averaged 18
and 15 hours per week respectively for the fourth
quarter of 1975 and the first quarter of 1976. The
judge further found that Bethune's work during
these periods constituted part-time employment,
and that, in view of his failure to job search, back-
pay should be tolled for these periods.
We find the tolling of backpay in certain winter
quarters for Billy Boone and Milford Bethune to be
inappropriate. Both men substantially mitigated the
Respondent's damages . Indeed, both held substan-
tially full-time jobs, albeit seasonally part-time,
with their respective employers throughout the
backpay period. No evidence was presented that
either man refused full-time work during the peri-
ods of part-time employment. Nor does the evi-
dence show that they would have succeeded if
they had looked for full-time employment in the af-
fected backpay period; indeed, the experience of
the discriminatees as a whole suggests the opposite.
We find equally inappropriate and unwarranted
the tolling of backpay during periods when four
other discriminatees were employed part-time. The
record shows that Charles Newton was unem-
ployed for 8 months before and 4 months after his
5 months of part-time summer farmwork at Good-
son's farm. Irene Copeland was unemployed for 7
months prior to her summer 1975 part-time share-
cropping job. Elzata Copeland was unemployed
from August 1974 to May 1976 except for 2
summer months in 1975 when she worked part-
time at the James Ginn farm. Kenneth Faison was
unemployed except for part-time work throughout
the backpay period. The judge found that each of
these discriminatees engaged in a reasonable job
search during their respective unemployed periods.
Despite finding that the requirements for job
search are less while employed part-time, the judge
nevertheless tolled the backpay of these four discri-
minatees during periods they were engaged in part-
time jobs.
The judge's tolling of backpay for these four dis-
criminatees has the effect of condemning them for
accepting part-time jobs, despite the fact that such
jobs had the effect of mitigating the Respondent's
damages, at a time when they had gone through re-
current but fruitless efforts to find employment.
The evidence not only fails to show that had they
spent time looking for full-time jobs they would
have been successful, but also reveals that their
personal experience as well as the experiences of
many of the other discriminatees here demonstrates
just the opposite. Accordingly, we reverse the
judge's tolling backpay for these discriminatees
during the periods they were engaged in part-time
employment.
B. Willful Loss of Earnings by Quitting Interim
Jobs
The General Counsel has excepted to findings by
the judge that certain discriminatees were unjusti-
fied in quitting certain interim jobs. These excep-
tions turn substantially or in part on the contention
that the interim jobs provided lower wages and less
desirable working conditions that rendered the em-
ployment less than substantially equivalent. The
General Counsel contends that, had the discrimina-
tees not accepted such jobs, backpay would have
accrued to them because they otherwise engaged in
reasonable job searches and that, having accepted
the jobs, the discriminatees both mitigated the Re-
spondent's damages and demonstrated a desire and
willingness to work.
It is well settled that a discriminatee is not re-
quired to retain interim employment under all cir-
cumstances. There is no duty to remain if the inter-
im job is substantially more onerous or is unsuitable
or threatens to become so.19 A voluntary quit does
not toll the period when it is prompted by unrea-
sonable working conditions or an earnest search for
better paying employment.20 It is a respondent's
burden of proof to show willful loss of earnings by
unjustified quitting of interim employment.21
Edward Stevens
Stevens worked on Bill Usher's farm from 5
April 1975 until he quit on 19 July 1975. The judge
found that Stevens' quitting was unjustified since
19 Chem Fab Corp, 275 NLRB 21 (1985), Lord Jim's, 277 NLRB 1514
(1986); and Kawasaki Motors Corp, 282 NLRB 159 (1986), and cases cited
there
20 For example , see Winn-Dixie Stores, 170 NLRB 1734, 1744 (1968)
21 Sylvan Manor Health Care Center, 270 NLRB 72, 75 (1984).
LUNDY PACKING CO. 145
he was merely reprimanded for answering a per-
sonal telephone call and that his quit constituted a
willful loss of earnings . On these findings, the
judge added to Stevens' interim earnings his adjust-
ed income from Usher from the date he quit until
he was rehired by Usher on 5 December 1975.
The General Counsel contends that Stevens'
quitting his job with Usher was justifiable. More-
over, he contends that the low wages, heavy work,
long hours, and absence of benefits, inter alia, did
not render the work with Usher substantially
equivalent employment, and thus Stevens was not
obligated to continue working for Usher. In this
latter connection, the General Counsel further con-
tends that Stevens' working for Usher .as long as he
did under these circumstances, including returning
to the job later, demonstrates mitigation of dam-
ages but not willful loss.
We agree with the General Counsel that Usher
did not offer Stevens substantially equivalent em-
ployment. In such circumstances, it is unnecessary
to make a separate determination on whether Ste-
vens' quitting his job over the reprimand was justi-
fied. Accordingly, no willful loss of interim earn-
ings occurred in this instance.
Hubert Fryar
Fryar worked for Thermopane from 14 August
1974 until he was laid off on 14 March 1975. He
was recalled on 19 May 1975, worked half a day,
and left the job. Fryar had worked on the first or
day shift for the Respondent. He testified that he
quit the Thermopane job because working the
second shift at Thermopane was causing marital
difficulties. The judge relied on Fryar's abrupt
quitting without notice and lack of attempt to get a
shift change to find that Fryar was unjustified in
quitting the Thermopane job. The judge limited
Fryar's projected earnings from Thermopane to 4-
1/3 months because of the shift difference.
We note the judge stated that, absent Fryar's
abrupt quit without seeking a first-shift job, he
"might have found [Fryar's] leaving justifiable, as
not suitable interim employment because it was not
a day shift comparable to that at Lundy's." While
we do not condone Fryar's abrupt quit, we note
that Fryar engaged in a reasonably diligent job
search throughout the backpay period, that he had
earnings in every quarter of the backpay period,
and that he secured the full-time job at Thermo-
pane within 2 weeks of the beginning of the back-
pay period. It is also significant that Fryar obtained
part-time farmwork beginning, the day after he quit
the Thermopane job and worked at the farm job
until his reinstatement by the Respondent. In these
circumstances, we find no willful loss of interim
earnings by Fryar.
Aliene Raynor
Raynor worked full time at Southeastern Sewing
from 16 September 1975, until she quit on 24 Sep-
tember 1976. She then remained unemployed until
her reinstatement by the Respondent on 6 Decem-
ber 1976. The judge projected her Southeastern
earnings until her reinstatement by the Respondent
because Raynor voluntarily left the Southeastern
job and admittedly did not job search during the
period prior to her reinstatement.
Raynor testified that she quit because she knew
she was going to be reinstated at the Respondent
and wanted to attend to a personal health problem
before such reinstatement. She also testified she
had anticipated an earlier reinstatement and intend-
ed to take off only 1 or 2 weeks.
Unlike the judge, we find that Raynor did not
have substantially equivalent employment at South-
eastern and that her leaving early for personal
health reasons in anticipation of reinstatement does
not constitute willful loss of earnings. Raynor's pay
at Southeastern was substantially below the rate
she would have received if she had not been un-
lawfully discharged by the Respondent. Further, it
is noteworthy that Raynor did succeed in achiev-
ing interim earnings in 9 of 10 quarters in her back-
pay period. This hardly suggests a proclivity to
willfully evade her duty to mitigate. Inasmuch as
Raynor quit her job at Southeastern for personal
health reasons in anticipation of reinstatement from
the Respondent (which indeed occurred albeit 6
weeks later than she expected), in a period when
the Respondent was reinstating discriminatees, we
find that her early voluntary quit did not constitute
a willful loss of earnings.
Jesse Barksdale
The judge projected additional earnings for
Barksdale because he found that Barksdale unjusti-
fiably quit three different jobs during the backpay
period. In each instance, the projected earnings
were for approximately 2 weeks. Thus, the judge
found that Barksdale could have worked an addi-
tional 9 days after he quit but before Georgia Pa-
cific closed its operations in September 1974, that
Barksdale could have worked from 12-31 July
1975, for Mt. Olive Pickle, and that Barksdale
could have "job searched while fully employed"
by A.P. Parts for the 2 weeks before he obtained a
truckdriving job with Kelly's Service Mart on 1
March 1976.
Barksdale testified that he quit each of the three
jobs to search for a truckdriving job. On his third
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
try, Barksdale was successful and he worked as a
truckdriver for the last 10 months of the backpay
period at Kelly's Service Mart where , as the judge
found, Barksdale "bettered himself financially [and
the Respondent]." The record shows that Barks-
dale had interim earnings in all 11 backpay periods.
Indeed , Barksdale was unemployed for only two
short periods , totaling less than 3 weeks, in the
entire backpay period . Thus , Barksdale 's substantial
periods of employment during the backpay period
are attributable to his efforts to seek alternative
work . Moreover , the three jobs that Barksdale quit
were not substantially equivalent to Barksdale's job
with the Respondent in view of their lower wages
and, specifically regarding A.P. Parts, the fact that
Barksdale worked the night shift and had a lengthy
commute . In these circumstances , we find that the
Respondent failed to prove that Barksdale 's volun-
tary quit constituted a willful failure to maintain in-
terim employment.
Charlie Newton
We also find merit in the General Counsel's ex-
ception to the judge 's reduction of the backpay of
Charlie Newton arising from Newton 's termination
from an interim job at Quinn Wholesale . Newton
worked for Quinn from 9 February 1976 until his
discharge on 23 April 1976. Finding that Newton
was "partially at fault" for his discharge , the judge
projected Newton's earnings for 60 days beyond
his actual termination , thereby raising his interim
earnings and reducing his backpay for the second
quarter of 1976.
The judge found that Newton's discharge was
caused by his failure to comply literally with the
notification rule for absence because of sickness or
injury and to inform Quinn within 3 days when he
would return to work . He nevertheless concluded
that Newton was "only partially at fault since the
Company was notified indirectly [Newton asked a
friend to tell Newton's foreman about the injury
and the friend did so] and he had a legitimate doc-
tor's excuse for not working." Further , he found
that there is no indication that Newton willfully
sought termination.
The General Counsel contends that, absent an
offense involving moral turpitude , a discharge of a
discriminatee for alleged "good cause" will not
constitute a willful loss of earnings. See Mid-Amer-
ica Machinery Co., 258 NLRB 316, 319 (1981), and
cases cited there. Here , there was no allegation that
Newton's discharge was for an offense involving
moral turpitude . Further , the judge found that
Newton was only partially at fault for the dis-
charge and that Newton did not willfully seek ter-
mination. In these circumstances , we find that the
Respondent has not sustained its burden of proof to
show that Newton failed to exercise due diligence
in maintaining his position with Quinn Wholesale.
Hence , we shall revise Newton 's backpay by not
projecting his earnings at Quinn Wholesale past the
date of termination.
III. OTHER MATTERS
A. The General Counsel has excepted to the
judge 's deduction of medical insurance premiums
from the gross backpay of four discriminatees. The
Respondent has excepted to the judge 's refusal to
deduct such premiums from the gross backpay of
approximately 17 discriminatees.
It was stipulated by the parties that payment of
employees ' monthly medical premiums by the Re-
spondent was contingent on the employees being at
work and on time everyday during the month. The
Respondent contended that the discriminatees who
were absent or late from their interim employment
would have been absent or late from their regular
employment at Lundy's and requested an offset of
medical premiums for the months of such absence
or lateness . The judge viewed these medical insur-
ance premiums as an incentive for attendance. He
found no similar or comparable incentives existed
for attendance on interim jobs held by certain dis-
criminatees . He further found , however , that simi-
lar incentives were provided by Quinn Wholesale,
which provided interim employment for the four
discriminatees covered by the General Counsel's
exceptions . We agree with the judge 's findings. Ac-
cordingly, we find the General Counsel 's and the
Respondent 's exceptions without merit.
B. The backpay specification includes amounts
for overtime in the gross backpay formula but does
not separate out overtime hours . Similarly, the
backpay specification describes the interim earnings
of the discriminatees but makes no reference to in-
terim earnings from overtime work.
At the hearing the General Counsel and the
Charging Party moved to amend the backpay spec-
ification to reduce the interim earnings of certain
discriminatees to the extent that their interim earn-
ings included earnings from overtime work. The
judge granted the motion after the hearing and ex-
cluded overtime earnings from interim earnings
and, accordingly , did not deduct them from gross
backpay.
The Respondent contends that the judge 's adjust-
ment was improper because it deducted all over-
time hours and not just excess overtime hours. It
contends that any adjustment should be limited to
the deduction of excess overtime hours "substan-
tially exceeding overtime the discriminatees would
LUNDY PACKING CO. 147
have worked at Lundy." We find merit in the Re-
spondent's exception to the judge's ruling.
It is settled that interim earnings are deducted
from gross backpay and that calculations of such
interim earnings include earnings from overtime
hours in interim employment that correspond to
hours of overtime the discriminatee would have
worked had he not been terminated. "Excess over-
time earnings"-i.e., earnings received for overtime
hours worked at interim employment in excess of
the number of overtime hours the discriminatee
would have worked if employed by the respond-
ent-however, are excluded from interim earnings
and are not deducted from gross backpay.22
In granting the General Counsel's motion to
amend the backpay specification to exclude over-
time pay from certain discriminatees' interim earn-
ings , the judge excluded all overtime pay from
those interim earnings. This was clearly in error
since the parties had stipulated that gross back-
pay-against which the interim earnings were to be
measured-itself included overtime pay. Thus, the
judge's finding did not reflect a calculation of
"excess overtime" earnings as that concept is set
out in United Aircraft Corp., supra. Normally some
adjustment might be made through excluding the
excess overtime. That cannot be done here because,
as noted above, the backpay specification does not
identify what fraction of the gross backpay repre-
sents overtime, the General Counsel did not supply
such evidence during the hearing, and the judge
therefore could make no specific findings on this
matter. Further, we find no evidence in the record
from which' we could make the calculation. In
short, there is no basis for a comparison that would
yield the appropriate "excess overtime" figure. We
therefore reverse the judge's granting of the Gen-
eral Counsel's motion. Accordingly, we restore to
the interim earnings of the following 11 discrimina-
tees23 the amounts of overtime earnings excluded
by the judge and deduct such additional interim
earnings from the gross backpay that the judge
found the respective discriminatees were owed.
C. The judge held that interest on backpay in
this case shall accrue in accord with a flexible rate
of interest tied to the adjusted prime rate, as pro-
vided in Florida Steel Corp., 231 NLRB 651 (1977).
In her exceptions, the General Counsel contends
that the judge erred in applying the Florida Steel
22 United Aircraft Corp, 204 NLRB 1068, 1073 (1973) The reason for
not including "excess" overtime in the interim earnings that are deducted
from backpay is that to do so would penalize the "assiduous and diligent"
who worked even longer hours during the backpay period than he had
customarily worked at the job from which he was unlawfully terminated
Ibid
23 Truman Blue, Johnny Burgess, Caldron Herring, Bryson Johnson,
Jesse C Melvin, George Monk Jr, Daniel J Stevens , Edward Stevens,
Vernon Williams, Diana Wilson, and Roy Gene Wilson
standard here. We agree with the General Coun-
sel's contention.
In our original Decision and Order, the Board
awarded interest at the rate of 6 percent.24 The
Court of Appeals for the Fourth Circuit entered its
judgment enforcing in full the backpay provided,
including interest at 6 percent, on 26 January
1977.25 Subsequent to the Fourth Circuit's enforce-
ment judgment, the Board issued Florida Steel
Corp. on August 25, 1977, which changed the inter-
est standard from 6 percent to the flexible rate tied
to the adjusted prime interest rate. Later, the
Board held that the Florida Steel interest rate
would not be applied in cases in which an Order of
the Board providing for a different interest rate
had been enforced by a court of appeals.26 Ac-
cordingly, we shall order that interest be paid at
the 6-percent rate, consistent with our original de-
cision which was enforced by the court of ap-
peals. 2 7
ORDER
The National Labor Relations Board adopts the
recommended supplemental backpay orders of the
administrative law judge as modified below and
orders that the Respondent, Lundy Packing Com-
pany, Clinton, North Carolina, its officers , agents,
successors, and assigns , shall take the action set
forth in the order as modified.
1. Substitute the following for the discriminatees
numbered 2-11, 16, 19, 24, 26, 27, 36, 38, 41, and
43.28
"2. Billy Boone $25,160
3. Charlie Newton 31,921
4. Johnny Burgess 15,186
5. Bryson Johnson 28,184
6. Irene Copeland 20,308
7. Edward Stevens 23,551
8. Caldron Herring 24,478
9. George Monk Jr. 14,714
10. Hubert Fryar 17,810
11. Jesse C. Melvin 17,719
16. Elzata Copeland 22,151
17. Diana Wilson 20,757
19. Aliene Raynor 24,227
24. Daniel J. Stevens 15,403
24 223 NLRB 139, 140, 158-159 (1976)
25 549 F 2d 300 (4th Cir 1977)
26 Southwest Janitorial Corp, 243 NLRB 317, 318 (1979 ), Vanguard Oil
& Service, 246 NLRB 130 (1979)
27 Recently, in New Horizons for the Retarded, 283 NLRB 1173 (1987),
the Board established a new standard for computing interest. Because the
enforced Order in this case included a fixed interest rate, not a Florida
Steel variable interest rate , the interest rate discussions in New Horizons
are not applicable here
as Because we have restored certain amounts tolled by the judge, the
revised figures in some cases include vacation and profit sharing where
applicable
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26. Truman Blue 13,009
27. Milford Bethune 20,983
36. Jesse Barksdale 21,329
38. Vernon Williams 20,233
41. Kenneth Faison 30,682
43. Roy Gene Wilson 18,388"
Jerome F. Connor, Esq. and John J. Matchulat, Esq., for
the General Counsel.
James M. Miles, Esq., Joseph A. Rhodes, Jr., Esq., and
Owen Blake, Esq. (Haynesworth, Baldwin & Miles), of
Greenville, South Carolina, for the Respondent.
Irving M. King, Esq. and Michael H. Slutsky, Esq. (Cotton,
Watt, Jones, King & Bowlus), of Chicago, Illinois, for
the Charging Party.
SUPPLEMENTAL DECISION ON BACKPAY1
JOHN C. MILLER, Administrative Law Judge. These
supplemental proceedings were held to determine the
amounts of backpay due about 46 employees as the result
of a Board Decision and Order (223 NLRB 139) that
was upheld by the Court of Appeals for the Fourth Cir-
cuit.2 Because the parties failed to agree on the amounts
of backpay due the discriminatees, a backpay specifica-
tion and notice of hearing was issued by the Regional
Director for Region 11 on November 28, 1978. Respond-
ent filed an answer, amended answer, and second amend-
ed answer on February 5, March 21, and April 2, 1979,
with a further amendment at the opening of the hearing.
Thereafter hearings were conducted before me for 14
weeks between April 9, 1979, and October 11, 1979, at
Fayetteville, Wilmington, and Clinton, North Carolina.
Pursuant to my request, counsel for the parties filed
initial briefs about April 1, 1980, covering about 23 dis-
criminatees. About June 1, 1980, the parties filed their
second set of briefs on the remainder of the discrimina-
tees . Finally, all the parties filed reply briefs about July
25, 1980.
On the entire record in this case, including the excel-
lent briefs of the parties, and my observation of the wit-
nesses and their demeanor, I make the following
FINDINGS OF FACT3
1. PRELIMINARY LEGAL QUESTIONS AND
OBSERVATIONS
We are only concerned here with determining how
much backpay is due each of the 46 discriminatees. The
backpay period was stipulated by the parties and with
some exceptions began August 1, 1974, and continued
until the reinstatement of the respective discriminatees by
the Respondent sometime in 1976 or 1977. I have at-
tempted to balance the equities between the discrimina-
tees and the Respondent commensurate with Board and
court precedent, with the objective of reaching fair and
i Part One A second supplemental decision on the remaining 23 discri-
minatees will issue as soon as possible
2 Lundy Packing Co v NLRB, 549 F 2d 300 (4th Cir 1977), cert
denied 434 U S 818 (1980)
a In view of the two-part decision , the parties may wish to request the
Board to defer the applicability of Sec 102 46 of the Board 's Rules and
Regulations until the issuance of part two of this decision
equitable conclusions on the amounts of backpay due. It
should be kept in mind, however, that in some instances,
interim income and expenses were estimated and recol-
lections and testimonies about events in 1974-1976, were
hazy. Consequently, the final backpay due each individ-
ual cannot be determined precisely but is, hopefully, a
reasonable approximation of the backpay due.
A. Stipulations
1. Backpay formula. The parties stipulated about the
formula to be utilized in determining gross backpay for
each of the discriminatees (with the exception of James
King) and also agreed on the backpay period concerning
each discriminatee. Thus the gross backpay a discrimina-
tee would have earned, including vacation, holiday pay,
and profit sharing were not generally in dispute. Howev-
er, whether each discriminatee was entitled to such gross
backpay depended on whether the discriminatee con-
ducted a reasonable job search. In addition, with respect
to most discriminatees, such matters as the amount of in-
terim earnings , the quitting of interim employment, ex-
cepted periods, and expenses were also in dispute.
2. The parties stipulated that between July 26 and
August 1, 1974, the discriminatees were advised by union
representatives to look for jobs and to keep a record of
the places they searched for work.
3. The parties further stipulated that each of the discri-
minatees had normal bills and monthly payments.
4. The parties stipulated that the discriminatees in this
case were ruled not eligible for unemployment compen-
sation by the Employment Security Commission at the
time they first applied because they were on strike
against Lundy.
5. Separate stipulations involving a number of discri-
minatees were not generally applicable and are treated in
the separate specific sections.
Respondent contends that sick pay is determinable
once the gross earnings of each discriminatee have been
settled.4
B. Burden of Proof
The General Counsel has the initial burden of proving
the gross backpay over the backpay period and the Re-
spondent has the burden of proof concerning " diminu-
tion of damages." Mastro Plastics Corp., 136 NLRB 1342,
1346 (1975). The diminution must be established by the
usual standard in civil cases, a preponderance of the evi-
dence. Browning Industries, 221 NLRB 949, 951 (1975).
In cases of uncertainty concerning proof of such matters,
these are normally resolved against the Respondent as
the wrongdoer. Thus, after the General Counsel estab-
lishes his prima facie case , the burden of the proceeding
shifts to the Respondent. A prima facie case is generally
established by the issuance of a backpay specification,
supported by documentation such as social security
records, earnings statements , employment records, et
" In its part I appendix, the Respondent contends that vacation benefits
have already been paid to employees However, the General Counsel
continues to include them in his specifications If in fact this contention is
true, the parties can adjust these backpay awards accordingly
LUNDY PACKING CO. 149
cetera. This may be supplemented by testimony of the
discriminatees. A discrtminatee is required to engage in a
reasonably diligent search for employment during the
backpay period. Respondent seeks to adduce evidentiary
proof of "willful loss" of earnings. Willful loss may be
incurred by refusal to search for or accept suitable inter-
im employment, or the backpay period may be "tolled"
because of nonwork related injury, illness, or other rea-
sons precluding availability, such as duty with the armed
forces, incarceration, or withdrawal from the labor
market.
C. Strike Benefits and Picketing
As a general rule, strike benefits are considered collat-
eral benefits and are not deductible as interim earnings.5
After permitting detailed testimony of 17- 18 discrimina-
tees on the subject of strike benefits , Respondent was
unable to prove any nexus between strike benefits of $30
a week and picketing , as many individuals received pay-
ment irrespective of their picketing activities and in some
cases even where they had interim employment. I find
that the general rule applies here , and that any strike
benefits received by the discriminatees were unrelated to
their picketing activities and cannot be deemed payment
for services rendered . Accordingly , the strike benefits
here are properly excluded from interim earnings as col-
lateral benefits and are not deductible from gross back-
pay. Nor do I find any support in the record for any
contention that the amount of time spent picketing by
the discriminatees precluded them from making a reason-
able search for interim employment.6
D. Motion to Amend Complaint
At the hearing , Counsel for the General Counsel and
the Charging Party moved to amend the backpay specifi-
cations to reduce the interim earnings of 16 discrimina-
tees 7 to the extent their interim earnings included earn-
ings from overtime work as contrasted to their regular
employment where there was no overtime. Case law is
clear that earnings derived from overtime work at inter-
im employment are excluded from interim earnings and
are not, therefore , deductible from gross backpay.8 I de-
ferred ruling on such motion at the time of the hearing
but did permit testimony on such matters to be adduced.
Accordingly, the motion to amend the complaint relating
to the backpay of such discriminatees is granted . Wheth-
er and to what extent the backpay entitlement was modi-
fied depended on to what extent I found that overtime
earnings did in fact exist.
5 Rice Lake Creamery Co, 151 NLRB 1113, 1131 (1965), enfd in part,
modified, and remanded in part 365 F 2d 888 (D C Cir 1966)
8 Sioux Falls Stock Yards Co, 236 NLRB 543, 550 (1978)
Discriminatees are Truman Blue, John King Jr, Robert Smith Jr,
James E Boone, Johnny Burgess, Bryson Johnson, Edward Stevens,
Caldon R Herring, Jesse C Melvin, Elzata Copeland, Diane Wilson,
Dame! J Stevens, Curtis Mims, Wille Parker, Vernon Williams, and Wil-
hard Chavis
8 United Aircraft Corp, 204 NLRB 1068 at 1073-1074 (1973), Henry
Colder Co, 186 NLRB 1088, 1089 (1970)
E. Format and Glossary
I requested the parties follow a format in the discus-
sion of individual discriminatees, emphasizing in chrono-
logical order job search, interim employment and earn-
ings, and excepted periods. Respondent has added a mis-
cellaneous section, which I find appropriate for inclusion
here, to treat all remaining matters. Finally, I have added
a final section "E" designated as "Backpay Entitlement"
for purpose of giving the final backpay figure due. A
brief discussion of terms, or glossary, is noted here for
purposes of clarification.
Reasonable job search-what constitutes a reasonable
job search varies with the facts and circumstances of
each case. The job search does not require success, it
only requires an honest, good-faith effort and the meas-
ure of such efforts must be made in the facts and circum-
stances of earch individual case.
Suitable equivalent employment-as a general rule, a
discriminatee may turn down offers of employment
which are at a lower pay and which do not utilize an 'n-
dividual's technical skills. In this case, the parties stipu-
lated that the regular work of the discriminatees was
"unskilled labor" at Lundy's and in addition the discri-
minatees here did not restrict their job search and a
number of individuals, in fact, did farm work and share-
cropping. In view of that, it was unnecessary to find
here that any jobs were unsuitable per se.
ESC-Employment Security Commission-an agency of
the State of North Carolina. Based on the record, it ap-
parently handled both unemployment compensation
claims and acted as a job registration and referral system.
Expenses-are divided into two kinds. Expenses in-
curred in looking for interim employment, including
mileage, at 10 cents a mile. Additional expenses in main-
taining an interim job over and above the expenses in-
curred in maintaining a regular job are the second type
of job expense. Concerning interim employment ex-
penses, therefore, there are usually the offsetting costs of
regular employment.
New Interim Earnings-those gross earnings derived
from interim employment less expenses.
Excepted Periods-periods when the discriminatee was
unavailable for employment. Such time is tolled.
Backpay Specifications (as modified)-usually reflect
changes from the original specifications due to pay,
newly discovered facts, or figures as reflected in the
General Counsel's briefs and appendices.
F. Documentation
In preparing the backpay specifications, the General
Counsel utilized claimants W-2 forms, social security
records, job search lists, employer's records anout inter-
im earnings of individuals claimants, and available tax re-
turns. These documents, with minor exceptions, were
made available to Respondent 6 months prior to the
opening of this hearing. Respondent asserts that the ma-
terials were furnished them after they filed a Freedom of
Information suit requesting such material. Respondent
subpoenaed the individual claimants and in the process
sought all Federal and state income tax returns for the
backpay period, which generally covered the tax years
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of 1974 through 1976-1977 . As individual claimants ap-
peared at the hearing , they tendered , in varying degrees
of compliance , the income tax returns requested. A
number of claimants testified they could not find all their
returns and submitted the ones they had been able to
locate . There was a tentative agreement among counsel
that a consolidated request for copies of the missing Fed-
eral returns would be made of Internal Revenue Service
at an appropriate time , presumably after all the witnesses
appeared and testified . After the hearing closed on Octo-
ber 11, 1979 , Respondent filed a motion on November 2,
1979, requesting that Charging Party be required to
secure copies of such income tax returns from the Inter-
nal Revenue Service . I issued an order denying motion
dated December 3, 1979 , stating at length there my rea-
sons for finding the motion was untimely and lacked
merit.
G. Factors Affecting Job Search and Job Availability
The General Counsel contends that the economic cli-
mate in the area , the age , the lack of education and lack
of technical skills among the discriminatees, as well as
the fact that an overwhelming majority of the discrimin-
atees were black males and black females-are all factors
to be considered in determining the reasonableness of the
job search and job availability . I agree that these are rel-
evant background factors in determining the context in
which the job search occurred , and the results thereof,
and the availability of jobs.
Regarding the economic climate , the General Counsel,
referring to his Exhibit 45, points out that the unemploy-
ment in Sampson County , in which Clinton, North Caro-
lina, is located , was unusually high in the first part of the
backpay period, namely, from August 1974 through July
1975 . Specifically the unemployment rate was approxi-
mately 4 percent in August 1974 and 8 . 3 percent in No-
vember 1974 . In the first quarter of 1975, the unemploy-
ment rate ranged from a high of 16 percent in January
1975 to a low of 13.9 percent in February 1975. In the
April 1975 through July 1975, unemployment decreased
and ranged between 7.9 and 8 . 6 percent . I further ac-
knowledge that the unemployment rate for blacks was
considerably higher than the percentages previously
cited and may have ranged from one and a half to two
times the unemployment rates cited above.
I further note that Clinton, North Carolina , a small
city of approximately 7500 population and during the
time in question was located in essentially a rural coun-
try. My repeated trips to Clinton , North Carolina, and
the surrounding area disclosed that there were relatively
few large employers in the immediate area , i.e., within 25
miles of Clinton . Fayetteville (32 miles distant) and Wil-
mington (60 miles distant) obviously offered more em-
ployment opportunities and a number of discriminatees
did seek jobs there.
In rebuttal , Respondent , by a number of exhibits that
are summarized in its Appendix B to its first brief, sets
forth the number of employees hired by various employ-
ers showing that jobs were available in the backpay
period . However , I note that at various points in the
record some employers indicated they had anywhere
from 50 to 400 job applications on hand. Also employers
who laid off employees in late 1974 and 1975 , usually re-
called their old employees before hiring new employees.
Concerning seasonal work on farms and in packing
houses , the practice appeared to be to utilize some of the
same employees each year and supplement them with
fresh hires . Thus, the exhibits are limited to the extent
they do not indicate whether "employees hired" include
previous employees recalled or regularly used on a sea-
sonal basis . There was also testimony by some employers
indicating an increasing use of migrant labor as seasonal
employees . These exhibits do establish that some jobs
were available in the area , and they have been consid-
ered.
Regarding individual qualifications , a number of discri-
minatees could not read or write and others had limited
abilities in that area . When an applicant could not read
or write or lacked a high school education , the number
of job opportunities decreased , creating a handicap for a
number of discnminatees . I have, therefore , introduced a
descriptive paragraph entitled "Personal Information" to
give some perspective to the abilities and handicap of the
discriminatees.
H. Credibility of Board Agents
Respondent challenges the credibility of certain discri-
minatees , particularly those who testified at the hearing
that they kept job search lists or scrap notes of their job
searches and yet apparently told Board agents that they
had no lists or records . In support of this contention, Re-
spondent claims that the testimony of Board agents,
namely , Compliance Officer Ron Yost and student-train-
ee Leslie Brown should be credited , and if so , it casts se-
rious doubts on the credibility of the testimony and job
search lists of a number of the discriminatees.
Ron Yost testified credibly that a majority of the dis-
criminatees he interviewed in preparation of the backpay
specifications told him they did not have lists or records
of where they looked for work . The record reveals that
Yost interviewed approximately 31 discriminatees and
took notes of their responses. Yost 's notes of the inter-
views confirmed that six discriminatees brought lists with
them and four said they might have a list or would com-
pile a list . Yost also testified that in regard to those
people on whom no notations were made, some of them
said that they had lists, and if they did, "I asked them to
bring it." (Tr. 6435 .) To those who did not have a list,
Yost instructed them to return home , get a calendar, and
reconstruct from memory the places they searched for
work . He confirmed that at this first interview, he ac-
cepted the prepared lists but instructed those with scrap
notes or incomplete lists to compile those into a list and
submit them to him later . Most of the lists he subsequent-
ly received through the mail, with a few being submitted
directly to him when he returned for additional inter-
views in late 1977 or July 1978.
Leslie Brown was a college student working with the
agency for a 90-day period as a trainee, which might
lead to her eventual hire by the Regional Office as a
field examiner at a later date. She assisted Yost in the
interviews and Yost instructed her concerning the pur-
pose of the interview, gave her an outline of questions to
LUNDY PACKING CO 151
be asked, and after she observed him interview several
discriminatees , he monitored her interviews of several
discriminatees. Thereafter, she worked alone, interview-
ing a total of 15 discriminatees. Brown testified that all
the discriminatees she interviewed told her that they did
not have any notes or records of their job search. I
credit Brown to the extent she indicated that none of the
discriminatees she interviewed had any notes or job
search lists with them at the interview. To the extent she
testified that she was told that they did not have any
notes or records or job search, whether at home or else-
where, I do not rely on Brown's recollection in this re-
spect. I do so because: (a) discriminatees were informed
early in the backpay period to job search and keep
records by the Union; (b) a compliance officer of the
Board sent printed instructions to all discriminatees
during the backpay period instructing them, inter alia, to
keep records of their job search; (c) the statistical pattern
established in Yost's interviews were that at least one-
third or more had job search lists, scrap notes, or some
records of their search either with them or at home; (d)
the recollection by Brown of specific details of the inter-
views without her notes was poor; (e) the testimony of a
number of the discriminatees that they informed Brown
they had notes or records at home, with one stating he
had some scrap notes at the interview; (f) the relative in-
experience of Brown in the interview process renders it
highly unlikely that she would distinguish between
formal job lists or records submitted at the interview as
contrasted to scrap notes or records discriminatees may
have had at home. In essence , I do not rely on the accu-
racy of her recollection even assuming, arguendo, that
she was attempting to tell the truth. To the extent
Brown 's testimony varies in that respect from that of
Yost, I do not credit or rely on it.
In any event, the absence of detailed records of job
search does not mean that the individual did not search
for work. It does , certainly, render proof of a reasonably
diligent job search more difficult. The record discloses
that some individuals kept a fairly meticulous record
contemporaneously with their job search while others
kept haphazard scrap notes and still others kept no notes
at all. Those with no records were asked to recreate a
record of their job search utilizing their memory and a
calendar. Whether such recreated records are 100 per-
cent accurate is not determinative. In the Final analysis, a
determination must be on the record as a whole whether
such individuals engaged in a good-faith effort to secure
interim employment throughout the relevant backpay pe-
riods.
1. Settlement Attempts and Length of Hearing
Prior to the formal opening of the hearing here, I was
informed by the parties that no settlement of this pro-
ceeding appeared possible. At one point in the hearing,
counsel for the General Counsel offered to waive all ex-
pense claims and to compromise the backpay claims at
approximately 80 percent of that claimed Respondent
rejected the offer and made a counteroffer that was
found unacceptable by the General Counsel.
Regarding the 14 weeks of hearing required in this
case , on the first day of hearing, I admonished counsel
for the Respondent for engaging in an extended cross-ex-
amination of a discriminatee for 4 hours or more in what
appeared to be an unnecessary delay in the progress of
the hearing on trivial matters or items of insignificant
monetary matters. Despite my repeated efforts to move
the hearing along, Respondent's counsel insisted on its
right to explore the job search lists in detail and the dis-
criminatee's testimony generally Recognizing that Re-
spondent had to carry the burden of "diminishing" back-
pay, I permitted Respondent considerable leeway, not
wishing to foreclose the Respondent from any legitimate
inquiry even about the smallest details on insignificant
expenses. Thus the length of the hearing and the volume
and complexity of the record was due to a significant
degree to the insistence of Respondent's counsel in fully
developing the record regarding each discriminatee.
J. Interest
The purpose in awarding a discrimmatee interest on
his backpay is twofold: to compensate him for the loss of
his money and to encourage more prompt compliance
with Board orders.9 Therefore, interest shall accrue, as
stated by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), commencing with the last day of each calen-
dar quarter of the backpay period on the total amount
then due and owing. To more fully compensate discri-
minatees ' losses the Board" ° adopted a flexible rate of in-
terest which is tied to the "adjusted prime interest
rate""" then in effect. The interest here shall be deter-
mined from the last day of each calendar quarter until
the employer complies with the backpay order. The Re-
gional Office will normally work out the interest in-
volved for the overall time period at the time of compli-
ance with respect to each discriminatee, including the
applicable rate for various time periods.
K. Motion for Reimbursement of Litigation Expenses
and Organizational Costs
The Charging Party, by written motion at the close of
the hearing, moved that Respondent be ordered to reim-
burse the Union and the discrimmatees for litigation ex-
penses, attorney's fees, organizational costs, and discri-
minatees' lost wages and expenses. There is no precedent
for awarding discriminatees amounts for lost wages and
expenses for attendance at a hearing designed to hear
and/or remedy their rights. Accordingly, that portion of
the motion is denied. There remains, however, the ques-
tion involving reimbursement for litigation expenses, at-
torneys' fees, and organizational expenses.
Mere opposition to union organization and statements
attributed to President Lundy that "we don't want a
union and we will do everything we possibly can legally
to keep one out" 12 and litigation of its case, including
9 Isis Plumbing Co, 138 NLRB 716 (1962)
10 Florida Steel Corp, 231 NLRB 651 (1977), Olympic Medical Corp,
250 NLRB 146 (1980)
11 This is sliding scale charged or paid by the Internal Revenue Serv-
ice in underpayment and overpayment of Federal taxes Florida Steel
Corp, 231 NLRB at 651
12 Regarding the litigation before me, there is no doubt that Respond-
ent is entitled to litigate each and every aspect of the backpay claim Al-
Continued
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seeking certiorari in the original unfair labor practice
case, is no basis for awarding organizational expenses in-
curred by*the Union here. Accordingly, insofar as the
motion pertains to award of organizational fees, the
motion is denied. Moreover, I have no basis for recom-
mending the award of attorneys' fees for other than liti-
gation before me, although related litigation may be con-
sidered as background.
The standard for awarding reimbursement of attor-
neys' fees is a strict one, enunciated in Tiidee Products,
194 NLRB 1234, 1236 (1972), and 196 NLRB 158 (1972),
enfd . as modified 502 F.2d 349 (D.C. Cir. 1974), cert.
denied 421 U.S. 991 (1976). Although I may question the
judgment of Respondent in litigating all these backpay
issues, instead of compromising and settling them, I
cannot find on this record that litigation before me was
patently frivolous. Accordingly, the motion insofar as it
seeks reimbursement for the Union for litigation expenses
and attorney's fees is also denied.
II. THE DISCRIMINATEES
The discriminatees will be discussed in the order of
their appearance at the hearing. Only matters in dispute
will be discussed. The backpay summary sheets for each
discriminatee will be set forth in section III, designated
as the appendix , in similar chronological order.
1. James E. Boone. Backpay Period: August 1,
1974, to June 29, 1976
Periods of Employment/Unemployment
8/1/74-9/5/74 Unemployed
9/5/74-6/28/76 Quinn Wholesale Co.
Personal Information : Boone is a black male, age 27,
married with two children, and resident of Clinton,
North Carolina, He began work at Lundy's in 1968. His
prior employment included work as a short-order cook
and he also did unskilled labor at Countywide Sewing.
Claim : As modified, $28,350 , plus interest.
Rebuttal : Respondent contends the backpay claim is in
error because it fails to include workmen's compensation
payments made to Boone; it fails to include deductions
for insurance premiums Boone would have had to pay at
Lundy for absences ; and it includes excessive amounts
for expenses.
A. Job Search. Boone searched for jobs from August 1,
1974, to September 6, 1974, when he became employed
by Quinn Wholesales as an order selector. I credit his
testimony that he engaged in a job search during that
period and that he did not engage in further job search
though at various times in this 14-week proceeding , I admonished counsel
for the Respondent for what appeared to be unseemly delay in the hear-
ing, my objections were primarily on the method being employed by Re-
spondent 's counsels , rather than their objectives Ultimately , their ques-
tions got to such relevant matters as availability for employment, time
spent on interim employment, interim earnings , et cetera Although I may
question whether Respondent and his counsel 's approach is cost effective,
that is their determination and their right As the trial progressed, coun-
sels for the Respondent proved more cooperative in expediting the hear-
ing and cross-examination was refined and a number of stipulations were
reached on minor matters (examination of employer logbooks, distances
between cities and towns involved in litigation of mileage expenses, etc )
after being employed by Quinn Wholesale. I further find
that the job at Quinn Wholesale was suitable interim em-
ployment and did not require him to engage in a further
job search during the backpay period.
B. Interim Employment and Earnings. Boone was em-
ployed at Quinn Wholesale from September 6, 1974, until
June 25, 1976. He was reinstated at Lundy's on June 29,
1976. His gross backpay earnings are not in dispute
except in the following respects. Respondent contends
that workmen's compensation benefits paid to Boone as a
result of an injury on the job represent lost wages and
under existing law i a should be included as an offset to
gross backpay in the fourth quarter of 1975. The General
Counsel claims payment for an on-the-job injury at
Quinn's, his interim employment, does not toll backpay
as there is no convincing evidence that the payments
were for wages rather than for the physical damage suf-
fered. The injury, loss of a fingernail, resulted in no per-
manent physical damage. In view of testimony by Fran-
cis Oakley, personnel manager of Quinn, that the pay-
ments of $342.44 was for lost wages and the nature of
the injury, I find the payment was for wages and consti-
tutes an offset for backpay. I shall add $342 to interim
earnings , which will then total $1636 for the fourth quar-
ter of 1975.
C. Excepted Periods. None
D. Miscellaneous. Job Search Expenses. For the third
quarter of 1974, the General Counsel claims $36 while
Respondent claims Boone's expenses amounted to $29.20.
Respondent's contention is based on mileage between
points stipulated to by the parties (R. Exh. 265) at 10
cents a mile. In view of the stipulation, I find that job
search expenses were limited to $29.20.
Travel Expenses. It is settled law that the discriminatee
is entitled to travel expenses to interim employment to
the extent they exceeded his travel for his regular em-
ployment. For third quarter of 1974, the General Coun-
sel claims $26 in travel expenses while Respondent
claims it amounts to $47.60. I find both incorrect. Using
Respondent's figures for 17 workdays in September 1974,
but using the General Counsel's mileage figures of 26-
mile round trip at 10 cents a mile equals $44.20 for third
quarter of 1974. The General Counsel's deduction for ab-
sence of work in 1975 is misplaced and Respondent is en-
titled to a 2-mile-a-day offset, which Boone traveled
while at his regular employment with Lundy. Subse-
quent quarters were 26 x 5 days x 13 weeks per quarter
divided by 2 (shared driving) equals $84.50 or $85 per
normal quarter.
Medical Expenses. The General Counsel claims that
Boone had to pay $5.21 a week for medical coverage at
Quinn while his medical expenses would have been paid
for at Lundy's. The record disclosed, however (Tr.
8123), that Boone's medical premium at Quinn was $3.58
a week until July 1, 1975. For the third quarter of 1974,
3 weeks times $3.58 equals $10.74. Thus total expenses
for third quarter of 1974 are $29.20 plus $44.20 plus
$10.74 or a total of $84.14 or $84. Until July 1, 1975,
medical premiums per quarter (13 weeks) were $7. After
13 American Mfg Co, 167 NLRB 520 at 522-523 (1967)
LUNDY PACKING CO. 153
July 1, 1975 , premiums at Quinn were $5.21 a week and
after July 1, 1976 , $5.48 a week.
It was stipulated that payment of medical insurance
premiums at Lundy 's was contingent on being at work
and on time every day during that month . Respondent
contends that because Boone was absent or late from his
interim employment in October and November 1974, and
February , March, May, June, September, and October
1975, and January and June 1976 , he would have been
absent from his regular employment and requests an
offset of medical premiums of approximately $41 (de-
pending on earnings) for the months he was late or
absent . Respondent also points out that employment
records as attested to by Francis Oakley , personnel man-
ager at Quinn , established that prior to July 1, 1975,
medical premiums paid by Boone were 9i3.58 a week.
The backpay specification used $5 . 21 throughout and is,
therefore , in error . Regarding whether Boone's absences
at Quinn can be deemed equivalent to an absence from
Lundy for purposes of disqualifying Boone for payment
of his medical insurance premium , I conclude it can. I
have considered whether the fact that Lundy 's paid the
medical insurance premium for employees who were not
late or absent in a particular month constituted such an
incentive that his attendance at Lundy's may have been
better than when he worked at Quinn Wholesale. How-
ever , Boone testified (Tr. 84) that he received a bonus of
35 cents an hour if he were on time and not absent at
Quinn . Despite such incentive , records (R. Exhs . 173(a),
(b), and (c)) indicated Boone was either absent or late
during the months contended by Respondent . Because
Boone had similar incentives at both his regular and in-
terim place of employment , I conclude that his absences
at Quinn are equivalent to absences at Lundy 's and his
right to reimbursement for medical premiums will be di-
minished to the extent he was absent or late at Quinn's.
The expenses will be reduced in the respective quarters
by deleting $82.26 ($41.13 each for October and Novem-
ber 1974); $42.43 each for the months of February and
March 1975 ; $42.43 each for the months of May, June,
September , and October 1975; and $41 . 4:; each for the
months of January and June 1976 . I agree with the Re-
spondent that travel expenses for the fourth quarter of
1975 were for 9 weeks (absent 4 weeks) and 12 weeks for
the second quarter of 1976 . Thus , most quarters include
travel expenses plus medical premiums at Quinn less pre-
miums at Lundy when applicable.
Respondent further contends that an entry for vacation
pay of $230 for the second quarter of 1976 is an inad-
vertent error because vacation pay was never paid in the
second quarter . I concur and will strike that amount
from the second quarter of 1976 for this discriminatee.
E. Backpay Entitlement : $ 15,150 plus interest.
2. Billy Boone . Backpay Periods : August 1 , 1974, to
January 17, 1977
Periods of Employment/Unemployment
8/1/74 to 2/15/75 Unemployed
2/16/75 to 1/16/77 Farm work for Gainey
Personal Information : Boone is a black male, 22 years
old whose only prior employment was farm work. He
began work at Respondent in 1970 and had interim earn-
ings in 9 of 11 quarters in the backpay period . He regis-
tered with the ESC but was never referred to any jobs.
Claim : As modified , $28,350 plus interest.
Rebuttal : Respondent contends there were willful
losses caused by Billy Boone 's failure to make a reasona-
ble search for employment ; secondly , that expenses
claimed are excessive.
A. Job Search . The General Counsel notes (Br. 40) that
discriminatee Billy Boone 's testimony , that he looked for
work with some 36 employers during the three quarters
(Aug. 1974 through Mar. 1975 ), stands unrebutted, while
also noting that regarding 28 other employers rebuttal
evidence was submitted . Despite some discrepancies, I
credit Billy Boone that he did make a reasonable job
search and made scrap paper notations of his job search.
I find that he made a reasonably diligent job search in
the period from August 1, 1974, until hired for farm
work on February 16, 1975 , so as to entitle him to back-
pay. Respondent 's contentions to the contrary have been
examined and are rejected.
Respondent further contends , however , that Billy
Boone 's employment with Gainey as a farm employee
was part-time and that he had an obligation to search for
other full -time employment . In support of such claim Re-
spondent points out that Boone worked only 30 weeks in
1975 (out of 46) and 44 weeks in 1976 and averaged 22-
1/2 hours per week in 1975 and 30 hours per week in
1976.
Boone credibly testified that he kept records on his job
search after going to work for Gainey on February 16,
1975, but listed a number of employers he visited in
search of work . I find that Boone was a regular farm em-
ployee of Robert Gainey from 1975 through 1977 when
Boone returned to Lundy Packing . As a farm worker, I
find that he was a full -time employee during the season,
approximately April through September . While em-
ployed during October through March 1976 and 1977, he
worked less hours because he was needed less and in
effect became a part-time employee in the off season. At
one point, Boone testified that in the planting season he
worked from sunrise to sunset. I conclude , therefore,
that as a full-time employee during April-September, he
had no obligation to search for an additional job or a
better job . However, when his employment lessened in
the winter months , I conclude that it was incumbent on
him to renew his search for other or additional work. In
light of this , I find it necessary to review in detail his job
search during the periods of October 1975-March 1976
and the period from October 1976 until January 16, 1977,
his date of reemployment . The record indicates that
Boone sought employment at only one place, Cates
Pickle , in the fourth quarter of 1975 , and that was some-
time in October 1975. In the first quarter of 1976 , he tes-
tified credibly about seeking employment at Hamilton
Beach, Beaunit , and Southern Supply . Regarding the
final quarter of 1976 , he stated he went to Joan of Arc
and Cates Pickle.
Despite his partial employment during such periods
with Gainey, I find that looking for employment only
once or twice each in the fourth quarters of 1975 and
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1976 and approximately three times in the first quarter of
1976, constituted an inadequate job search. I shall there-
fore disqualify Boone for backpay for the fourth quarter
of 1975 and the first and fourth quarters of 1976.
B. Interim Employment. Boone 's only employment was
with Robert Gainey as a farm laborer and his interim
earnings therefrom are not in dispute . I rejected Re-
spondent 's contention that Boone 's employment was
part-time and find that he was employed full time during
April-September 1975 and 1976, as a regular (seasonal)
full-time employee . I have found, however, that it was
Boone 's obligation to seek full-time or additional employ-
ment during the off-season , i.e., from October through
March, times when he either did not work at all or
worked a minimal number of hours.
C. Excepted Periods. None
D. Miscellaneous. Job Search Expenses . The General
Counsel claims job search expenses of $32 for the first
quarter of 1975; $27 for the second quarter of 1975; $3
for the fourth quarter of 1975, and $2 for the fourth
quarter of 1976. The General Counsel conceded that
there was little evidence to support job search expenses
for the third quarter of 1975; first quarter of 1976;
second quarter of 1976, third quarter of 1976 and 1977
and asks that these expenses be deleted. Respondent con-
tends Boone 's expenses total no more than $24.60. I
accept the General Counsel' s figures , as modified, as
most accurately reflecting expenses incurred in job
searching except for the fourth quarter of 1975-1976 that
I have tolled.
E. Backpay Entitlement : $19,691 plus interest.
3. Charlie Newton. Backpay Period: August 1,
1976, to January 17, 1977
Periods ofEmployment/Unemployment
8/1/74-4/30/75
5/1/75-9/30/75
10/1/75-2/8/76
2/9/76-4/23/76
4/24/76-1/16/77
Unemployed
Goodson's Farm
Unemployed
Quinn Wholesale (full time)
Unemployed
Personal Information : Newton is a black male, 23
years old , with a wife and one child. He was a high-
school graduate , was hired by Lundy in 1970, and
worked as a hog stunner, i.e., killing hogs with electric
charges . Prior work experience included farming and
some work in a dry-cleaning establishment and at Fleet-
line, a textile or sewing firm. He had interim earnings in
4 of 11 quarters in the backpay period.
Claim: $32,896, as amended, plus interest.
Rebuttal: Respondent claims Newton incurred willful
losses by failing to make a reasonable search for employ-
ment by his unjustified loss of interim employment by his
failure to work all available hours at his interim employ-
ment and by excessive claims for expenses . I reject the
contention that Newton failed to work all available
hours but do find some merit concerning other conten-
tions as noted hereafter.
A. Job Search. The General Counsel claims that
Newton engaged in a diligent search for interim employ-
ment during all periods that he was not employed full
time . Referring to General Counsel's Exhibit 5, a job
search list prepared by Newton of his search for employ-
ment , the General Counsel urges that this reflects job
search visits to 19 employers and some 155 contacts over
the backpay period. The Respondent contends Newton's
testimony is not credible because it is inconsistent with
the testimony of Board Agent Yost , is inconsistent with
his own Exhibit 5, and is contradicted by testimony of
other witnesses.
I credit Newton that he kept notes of the places he
searched for employment and then compiled them into
one list. While he could not recall the chronology or
dates of his job search and relied almost entirely on his
job search list, he was able to recite specific details about
his job search that convince me that he did make a dili-
gent effort to seek interim employment at all times (with
one exception) when he was not fully employed. As his
testimony evolved, he corrected some of his prior testi-
mony and most inconsistencies involved his recollection
of the timing of events 3 to 4 years prior to this hearing.
Nor does the fact that Newton 's testimony was in part
inconsistent with the notes of Yost, the Board agent,
appear critical , since the places he gave to Yost where
he searched for work were from memory.
B. Interim Employment and Earnings . Newton was em-
ployed at two places during the backpay period. Good-
son's Farms and Quinn Wholesale . In issue here is the
period of employment at Goodson's and whether it was
part-time or full time and whether Newton was at fault
when he was terminated from Quinn in April 1976 after
being employed for 2-1/2 months.
Newton 's testimony , as it eventually evolved, was that
he was employed at Goodson 's sometime in May 1975,
and was let go after the harvest was completed sometime
in September 1975. I find that this was the period of em-
ployment with Goodson's Farms. The Social Security
records indicate income of $895 and the General Counsel
places that income as being $335 earned during 8 weeks
of the second quarter of 1975 and $560 earned in the
third quarter of 1975. The Respondent contends, howev-
er, that if income was a total of $895 for 21 weeks,
Newton averaged only 19 to 21 hours a week depending
on whether he earned $2 an hour as Newton testified or
$2.15. Newton conceded that he did not look for em-
ployment while employed at Goodson's Farms . Howev-
er, if he were deemed to be employed only part-time at
Goodson, he had an obligation to search for other em-
ployment or lose his entitlement to backpay. In the
second quarter of 1975, he earned $335 divided by 8
weeks or $42 a week. Utilizing $2 as his hourly wage, he
worked approximately 21 hours per week. A higher
dollar figure for his hourly wage would mean less hours
of work. Similarly, with respect to the third quarter of
1975, he earned $560 divided by 13 weeks thereby earn-
ing approximately $43 a week for 21-1/2 hours of work.
Even assuming that on some days he worked longer
hours and on others he did not work at all , I conclude
that the amount of money earned over that period estab-
lishes to my satisfaction that he was essentially a part-
time employee In doing so , I rely on his Social Security
earnings statement and find unreliable Newton 's testimo-
ny that he worked 30 to 40 hours a week. As such, he
LUNDY PACKING CO.
was required to look for other employment. As he admit-
tedly did not do so, I will toll his gross backpay for
June, July, August, and September 1975. He had job
searched in May 1975. Implementing this, the appendix
will reflect a third reduction in gross backpay entitle-
ment for the second quarter of 1975 and a complete toll-
ing of backpay for the third quarter of 1975 with conse-
quent effects on his backpay entitlement.
Regarding Newton's termination at Quinn Wholesale,
the record is largely undisputed. Newton injured his leg
playing basketball on a Sunday and on Monday his
doctor advised him not to work until the swelling in his
leg, apparently from torn muscle tissue , was reduced and
to see him before returning to work. Newton asked
Melvin, a coworker at Quinn, as well as a striker from
Lundy, to tell his foreman that he was injured, was con-
sulting a doctor, and would not be in to work. It is un-
disputed that Melvin did so and Newton did not return
to work until Friday. In the interim Newton made no
further contact with Quinn Wholesale, although he ad-
mitted that the rule at work was employees must notify
the Company when they missed work and were required
to bring a doctor's excuse when they returned to work.
When he returned to work on Friday with a slip from
his doctor, his timecard was not available and his fore-
man asked him why he had quit. When Newton denied
that he had quit, the foreman, although admitting that he
had been informed by Melvin about Newton's injury,
stated there was nothing he could do for him because he
had heard nothing further and anyone absent for 3 days
or more is deemed a voluntary quit. In effect, while
Newton relayed information to the Company that he was
injured and not able to work, he did not directly contact
the Company himself nor did he inform them thereafter
when he would be able to return t o work. I find of little
significance the fact that Newton took a voluntary lie de-
tector test some weeks before he was terminated. This
was given to other employees evidently as a deterrent to
theft of company goods. The Company also learned that
Newton was a Lundy striker when lawyers for Lundy
attempted to contact him at Quinn Wholesale and
Newton refused to see or talk to them. However, Quinn
employed a number of Lundy strikers.
I am convinced and find that Newton's termination
was caused by his failure to literally comply with the no-
tification rule and his failure to contact the Company
further and inform them when he was returning to work.
On the other hand, the Company appeared somewhat
harsh in terminating Newton, especially after his foreman
had notice that Newton would be absent because of his
injury. Newton was aware of the company rule and
could and should have followed up by directly contact-
ing the Company himself in the days that followed. For
an individual who had spent 12-1/2 of his last 17 months
unemployed, he failed to display any real concern over
retaining his job. By failing to do so, he contributed to
the cause of his discharge. If Newton had been com-
pletely at fault for his termination, I would project his
earnings throughout the backpay period. I conclude that
he was only partially at fault because the Company was
notified indirectly and he had a legitimate doctor's
155
excuse for not working. 14 There is no indication that
Newton willfully sought termination, and as I find he re-
sumed his search for work, I shall project his earnings
for 60 days beyond his actual termination and add the
appropriate amounts to his interim earnings as if he had
worked in May and June, raising his interim earnings
before expenses to $1104 and resulting in reduced back-
pay for the second quarter of 1976.
C. Excepted Periods. The backpay specifications, as
modified, reflect Newton's unavailability for work be-
cause of injury for 4 days in April 1976. The parties
agree that gross backpay was $2763. There are no other
excepted periods.
D. Miscellaneous. The backpay specifications list ex-
penses of $104 each for second and third quarter of 1975
and $93 and $76 for the first and second quarter of 1976.
The $104 claims for second quarter consist of $40 for job
search expenses and $64 for additional expenses incurred
in employment at Goodson's Farm. Respondent claims
that Newton testified (Tr. 348) that he went directly to
work from the picket line and that the distance from
Clinton (Lundy's) to Goodson Farms was less then the
commuting distance from his home in Garland to Lundy
(20 miles) and therefore, he is not entitled to any ex-
penses for his job. Newton did testify that he generally
left for work from the picket line at Lundy's to Goodson
except during the harvest season when he was required
to be at Goodson's at 6 a.m. Conversely, the picket line
at Lundy's was at best an intermediate stopover, enroute
to his work at Goodson's. As 20 miles (mileage to
Lundy) is already being discounted from his travel ex-
penses to Goodson's, I reject Respondent's further con-
tention that no travel expenses are due him for the addi-
tional mileage while employed at Goodson. Accordingly,
I find the expenses listed above reasonable and accepta-
ble.
E. Backpay Entitlement: $27,528 plus interest.
4. Johnny Burgess . Backpay Period: August 1, 1974,
to June 14, 1976
Periods of Employment/Unemployment
(dates uncertain Goodson's Farm-part-time
between fourth qtr. work
1974 and first qtr.
1975.)
3/26/75 to 6/14/76 Sampson Produce
Personal Information : Burgess is a white male, 31
years old, and married with two children. Limited read-
ing and writing ability, ninth grade education and only
able to partially fill out employment applications.
Claim: As modified, $18,093, plus interest.
Rebuttal: Respondent contends that Burgess did not
search for suitable employment for the first 8 months of
the backpay period; that a $500 bonus from Sampson
Produce was not included as interim earnings ; that earn-
ings from part-time employment at Goodson's Farms
were not included as interim earnings; and that Burgess
14 There was some evidence that indirect notification of absence may
have been accepted by some foremen in the past
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
should be excluded from his backpay claim for 2 weeks
in August 1974, because of a back injury that precluded
him from working. Some of Respondent's contentions
appear meritorious.
The General Counsel concedes and provides for an ad-
justment in interim earnings to reflect the $500 bonus so
that matter is not in issue . (See first and second quarter
of 1976.)
A. Job Search. In issue is whether Burgess made a rea-
sonable job search from August 1, 1974, until March 3,
1975, when he became employed full time at Sampson
Produce.
Burgess testified that his wife prepared a job search
list, submitted as General Counsel's Exhibit 6, which was
prepared from written notes his wife had made when he
reported to her what places he had sought employment.
Burgess had registered at the State's Employment Secu-
rity Office (ESC) when that office had opened in Clin-
ton, North Carolina, and was instructed to look for work
at least three places a week to fulfill minimum require-
ments . Between late August 1974 and late March 1975,
Burgess contacted 11 employers a total of 81 times.
Respondent attacks the job search list (G.C. Exh. 6)
contending that Burgess' testimony is inconsistent with
that of Ron Yost and Leslie Brown, the Board agents
who interviewed Burgess, and that, in effect, the job list
was not kept throughout the backpay period but was fab-
ricated at a later date. It is further urged that Burgess
did not engage in a good-faith effort to find employment
as evidenced by the fact that he recontacted many of the
same employers.
I credit Burgess that his wife did keep notes of the
places he sought employment and while it is possible that
the final list may have been somewhat embellished to re-
flect a higher number of employers visited, I am con-
vinced that Burgess did engage in a reasonable effort to
find interim employment. In so doing, I note that Bur-
gess was somewhat handicapped by his limited ability to
read and write, that he did work part-time for Goodson's
Farms in this period, and that when he did secure full-
time employment at the minimum wage at Sampson
Produce, he worked 60 to 90 hours a week for a number
of months. Accordingly, I find Burgess did make reason-
ably diligent efforts to find interim employment during
this period that qualifies him for backpay and that he did
not willfully incur a loss of earnings.
B. Interim Employment and Earnings. Two issues here
include the amount of interim earnings at Goodson's
Farms and the amendment to the backpay specification
by the General Counsel and the Charging Party to elimi-
nate overtime earnings by a number of discriminatees, in-
cluding Burgess, because, under existing precedent, it
should not be included as interim earnings.
(1) Goodson Farms employment. The General Counsel
concedes that interim earnings in the first quarter of 1975
should include $96. This sum derived as follows: 6 hours
a day times $2 an hour times 2 days a week for 4 weeks
totals $96. Respondent urges interim earnings of $1248 be
included based on $2 an hour for 6-1/2 hours a day for 3
days a week for 32 weeks. Burgess could not recall when
he started at Goodson's nor when he stopped. He did
recall hauling hay in the winter and building pepper i089
houses and doing some tobacco work in January and/or
February 1975. He also stated that sometime after the
strike began, he was approached by Roy Gene about
working part-time when he was needed. It is obviously
difficult from this record to determine the exact periods
of employment at Goodson because neither Burgess nor
Respondent were successful in obtaining employment
records. It is the burden of the Respondent to seek to di-
minish the backpay claimed in the backpay specifica-
tions . I shall credit Burgess with employment for 4
weeks in the fourth quarter of 1974 and 8 weeks in the
first quarter of 1975 based on his testimony and what I
deem a fair assessment of his employment in the absence
of specific dates and employment records. The Respond-
ent has not sustained its burden of proof on this record
to support its claim of 32 weeks. I shall use the figure of
2 days a week (an average between 1 and 3 days) at $2
an hour for 6 hours a day. In the case of the fourth quar-
ter of 1974, this results in interim earnings of $96. For
the first quarter of 1975, the same formula results in in-
terim earnings of $192. The specifications concerning
Burgess will be adjusted accordingly.
(2) Amended complaint regarding overtime earnings. I
grant the joint motion of the General Counsel and the
Charging Party to delete from interim earnings those
earnings derived from overtime work. Precedent is
clear"' that such earnings are not to be included as inter-
im earnings . I have reviewed the General Counsel's con-
tentions as set forth in this brief (55-56) based on em-
ployment records as set forth in Respondent's Exhibit
142 and am in agreement that Burgess ' interim earnings
should be adjusted as follows: second quarter of 1975-
deduct $639; third quarter of 1975-deduct $1140; fourth
quarter of 1975-deduct $463; first quarter of 1976-
deduct $327; second quarter of 1976-deduct $387.
These changes have been incorporated into the modified
appendix of the General Counsel and are accepted as
correct.
C. Excepted Periods. The Respondent contends that 2
weeks should be deducted from August 1974 (third quar-
ter of 1974) because Burgess injured his back in a scuffle
on the picket line and was unable to work. Burgess ad-
mitted that he went to a hospital and was told to stay off
his feet for a couple of days and to receive therapy treat-
ments for his back. I find that he was unavailable for em-
ployment for approximately 1 week and will deduct ap-
proximately $237 from the third quarter of 1974 to re-
flect his unavailability for employment, leaving gross
backpay at $1663.
D. Miscellaneous. Expense claims for Burgess were
minimal and were waived at the hearing.
E. Backpay Entitlement: $18,142
5. Bryson Johnson . Backpay Period-. August 1,
1974, to January 26, 1977
Periods of Employment/Unemployment
8/1/74-12/31/74 Unemployed
15 United Aircraft Corp., supra at 1073-1074, Henry Colder Co, supra at
LUNDY PACKING CO. 157
1/1/75-6/30/75 Part-time farm work-
Norwood
Sumner Farm
7/1/75-9/30/75 Unemployed
10/1/75-9/30/76 Sumner Farm
10/1/76-12/31/76 Sumner Farm
1/1/77-1/25/77 Unemployed
Personal Information: Johnson is a black male and
prior to employment at Lundy's he had served in the
military and had worked at Thermopane inspecting glass.
He began work at Lundy's in April 1973 and last worked
in the cut department. He registered at ESC in Decem-
ber 1974 or January 1975 and returned there weekly for
a time but was never referred to a job. He had interim
earnings in 8 of 11 quarters in the backpay period.
Claim: As modified, $29,293 plus interest. Expenses
were waived. (Tr. 616.)
Rebuttal: Respondent contends that backpay figures
are in error because they fail to include reductions for
losses willfully incurred by Johnson for his failure to
make a reasonable job search and fail to account for
Johnson's willful concealment of earnings.
A. Job Search. A job search list prepared by Johnson
was admitted as General Counsel's Exhibit 7 that set
forth the places and times that Johnson sought employ-
ment. Johnson testified that he made notations about his
job searches immediately after leaving the employer or
on arriving home. Respondent contends that the job
search list was fabricated after Johnson's second inter-
view with Yost in July 1978, and that his inconsistent
testimony about the list renders his testimony not credi-
ble.
I credit Johnson that he kept notations of employers at
which he had applied for jobs on separate slips of paper
and inserted them in a Mead notebook. I further find that
Johnson, as he conceded on cross-examination, did not
prepare a master job search list until after his first inter-
view with Board Agent Ron Yost in late 1977. Although
I am not prepared to find that General Counsel's Exhibit
7 is accurate in every respect, I do find that it substan-
tially reflects Johnson's job searches and establishes that
he made a reasonably diligent effort to locate interim em-
ployment. The General Counsel's brief, which summa-
rizes the employer and job contacts by quarter, as re-
flected by General Counsel's Exhibit 7, discloses the fol-
lowing:
3Q- 4Q- IQ- 2Q- 3Q- 4Q- IQ-
74 74 75 75 75 76 77
Employer Contacts 6 15 9 8 12 10 3
Total Contacts 8 15 9 8 13 10 3
I have excluded from the above summary the period
from October 1, 1975, until September 30, 1976, when
Johnson was employed full time and no requirement for
job search existed.
I have reviewed the separate blocks of unemployment
apart from the part-time employment on the Sumner
farm, e.g., the third and fourth quarters of 1974 as one
entity as contrasted to the part-time employment from
January to June 30, 1975, and I find sufficient unrebutted
evidence to establish a reasonably diligent search effort
warranting Johnson 's entitlement to backpay.
B. Interim Employment and Earnings. Johnson's only
interim employment was at Norwood Sumner's farm and
was either full or part-time and some work at the King
farm. Two issues need to be resolved here. One, the
amount of earnings, if any, Johnson had at the farm of
Harvey King. Second, whether Johnson's interim earn-
ings should be reduced by $120 a quarter because John-
son had worked approximately 20 hours a month while
employed by Lundy, both before the strike and after re-
instatement.
Regarding issue one, I credit Denny King's testimony
that Bryson Johnson worked on his father's farm for 3
full days and 2 half days and received pay in the amount
of $109 in 1975. Although I originally rejected King's
testimony about the amount because it was attributed to
his mother's examinations of her books and was not per-
sonally verified by Denny King, I find that it does repre-
sent the most accurate figure of earnings available to me.
Moreover, my rough calculations for 3 days' work
would be 11 hours at $2 an hour times 3 days or $66 and
approximately $24 for part-time work on 2 days or a
total of $90, which roughly corroborates the $109 figure
cited by King. However, as part of these earnings was
attributable to overtime work, I shall deduct $18 leaving
$91 to be added to Johnson' s interim earnings for third
quarter of 1975.
Regarding issue two, it is established law that if an in-
dividual had earnings from a second job in addition to
his regular employment, such earnings would not be
counted as interim earnings so as to reduce Respondent's
backpay liability. i 6 I find that Johnson did in fact work
approximately 20 hours a month for Sumner while em-
ployed by Respondent and that Johnson resumed such
part-time employment after being reinstated by Respond-
ent. I agree, therefore, with the contention of the Gener-
al Counsel that any quarterly earnings by Johnson should
be reduced by $120 a quarter. In this respect, I am ac-
cepting the General Counsel's backpay specifications
concerning interim earnings except as noted previously, I
am adding $91 to interim earnings for the third quarter
of 1975.
C. Excepted Periods. None, except as Respondent's
contentions are treated under job search.
D. Miscellaneous. As noted previously, expenses were
waived concerning Johnson.
Respondent contends, however, that Johnson willfully
concealed his interim earnings on King's farm (3 full
days, 2 part-time days in 1975) and should be denied
backpay for that period, citing M. J. McCarty Motor
Sales Co., 147 NLRB 605 (1964), and Robinson Freight
Lines, 129 NLRB 1040 (1960). I note, however, that
Johnson, who hesitated slightly in answering the ques-
tion, was testifying in 1979 about employment of several
days in 1975. In view of the shortness of the employment
and the 4-year period between, it is more likely that
16 Henry Colder Co, 186 NLRB 1088, 1089 (1970), Miami Cola-Cola
Bottling Co, 151 NLRB 1701, 1711 (1965)
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Johnson did not recall it at all and in fact denied any
such employment. I find the evidence insufficient to con-
clude that Johnson willfully attempted to conceal such
earnings.
E. Backpay Entitlement: $29,202 plus interest.
6. Irene Copeland . Backpay Period: August 1, 1974,
to November 18, 1976
Periods of Employment/Unemployment
8/1/74-3/31/75 Unemployed
4/1/75-9/10/75 Sharecropping (Ginn's
Farm)
9/11/75-1/6/76
5/16/76 Unavailable-injury
5/17/76-7/22/76 Little Cotton Mfg. Co.
7/23/76-11/2/76 Unemployed
11/3/76-11/17/76 Hamilton Beach
Personal Information : Copeland is a black female with
limited education and she had difficulty reading and
writing . She began work at Lundy 's in 1969 and was a
"gland puller ." She grew up on a farm with no special
skills, except farm work . She registered with the ESC
for work and returned there a number of times to inquire
about jobs.
Claim : As modified , $23,497 . No expenses claimed.
Rebuttal : The Respondent contends that Copeland in-
curred willful loss of income by, inter alia , failing to
make a reasonable job search and quitting suitable inter-
im employment ; by failing to admit that she was unavail-
able for employment because of injury ; and by willfully
concealing interim income. Lastly , it is contended that
because of absences at her interim employment, she
would have had to pay insurance premiums at Lundy's
and such payments should be deducted from gross back-
pay. The Respondent contends that Copeland's testimony
and her job search list are not credible and that inconsist-
encies between her testimony and job search list estab-
lished that the job search list was fabricated.
A. Job Search. General Counsel 's Exhibit 8 was a job
search list prepared by Irene Copeland with the assist-
ance of her nephew , Ronnie Copeland , because of Irene's
difficulties in writing and spelling . The list was compiled
from written scrap notes and entries on calendars main-
tained by Irene Copeland . The General Counsel con-
tends that Copeland , as evidenced by her testimony and
exhibit , visited 25 different employers looking for work
during the course of the strike and the total number of
searches reached 100. She did not search for jobs during
the period she was sharecropping on James Ginn's farm
(May through September 10, 1975) and an excepted
period in which she suffered a broken leg (September 11,
1975, to January 1976 or May 1976) and was unavailable
for employment . Concerning 16 of the employers visited,
Respondent offered no rebuttal evidence . Copeland cre-
dibly testified that she searched for work 1 or 2 days
every week she was out . I find sufficient credible evi-
dence to establish that Irene Copeland did make a rea-
sonably diligent search for jobs so as to qualify her for
backpay except as noted hereafter.
Respondent contends , however , that her employment
as a sharecropper on Ginn 's farm in 1975 was part-time
work and she should have continued to look for employ-
ment . I agree . Although the number of working hours
varied as between cultivating and harvesting squash and
peppers , I find it was essentially a part -time job for 5
months that did require her to search for additional em-
ployment as she admittedly did not search for work
while sharecropping on Ginn 's farm , I shall toll 5 months
from April through August 1975. I shall eliminate the
gross backpay for the second and third quarters of 1975.
Because Copeland 's job search list indicated she share-
cropped until the second week in September when she
broke her leg and became unavailable , September is also
tolled.
B. Interim Employment and Earnings . Copeland had
earnings in five of the nine quarters she was available for
employment . She worked at three places : the farm of
James Ginn Little Cotton Mfg. Co. and Hamilton Beach.
(a) Irene Copeland sharecropped on the farm of James
Ginn for two quarters in 1975 with her sister Elzato.
Irene Copeland testified she sharecropped from April
1975 until July or August 1975. Her job search record
indicates she worked for Ginn beginning May 12, 1975,
and ending the second week in September, although it
also showed no job search for April 1975 , until she re-
covered from a broken leg in 1976 . The testimony of
Ginn's wife , who referred to her records , indicated that
Copeland worked 29 days in the period of May through
July and that the Copelands (Irene and Elzato) earned
net income totaling $2507 . 80. Irene Copeland 's share of
that amounted to $1253 . 90. In view of my earlier conclu-
sion that Copeland did not job search while at Ginn's
and my tolling April through September 1975, the earn-
ings for the tolled period become irrelevant.
Thus , while I credit Ginn 's wife's testimony about
earnings , supported as it was by records, and do not
accept Irene Copeland 's testimony concerning her share-
cropping earnings, I do not find that she willfully con-
cealed earnings as the purported attempt to conceal earn-
ings involved Elzato Copeland, Irene's sister. Moreover,
Irene kept no records and her testimony did involve
earnings some 4 years earlier.
(b) Irene Copeland worked during May 18 to July 22,
1976, at Little Cotton Mfg. Co. and earned $543 while
employed there on the third shift. She terminated her
employment because her work entailed walking exten-
sively on the job and, as she had previously suffered a
broken leg (see extended discussion of this under except-
ed periods about unavailability for employment ), her leg
began to swell and cause discomfort. The record estab-
lishes that her former job at Lundy 's did not involve
much walking although it did require standing . I accept
the contention that her leg injury made it difficult and
onerous to remain on that particular job. I find , there-
fore, that her termination of employment was justifiable
and does not disqualify her from a continuing backpay
claim. 17
17 East Texas Steel Castings Co, 116 NLRB 1336, 1347 ( 1956), enfd
255 F 2d 284 (5th Cir 1958), My Store, 181 NLRB 321, 341 ( 1970), Flori-
da Steel Corp , 234 NLRB 1089 , 1093 (1978), enfd 85 LC ¶ 11 ,073 (1978)
LUNDY PACKING CO 159
(c) Her next employment was at Hamilton Beach
where she worked only a short period (11/3/76 to
11/17/76) before being reinstated at Respondent's on
November 18, 1976. Her interim earnings there were
$254.
C. Excepted Periods. It is undisputed that 'Irene Cope-
land had a compound fracture of the leg, a nonwork
injury, and was unavailable for employment for an exten-
sive period. Her injury required surgery and physical
therapy. In dispute is the extent of such unavailability
with the General Counsel contending that the excepted
period ran from September 11, 1975, to the third week in
January 1976, when she allegedly began to look for
work. The Respondent claims that she was unavailable
through May 16, 1976, until she became employed by
Little Cotton Mfg. Co.18 In view of her inability to
handle the Little Cotton Mfg. job because of her leg
injury as late as July 1976, I find considerable merit in
Respondent's contentions that her excepted period
should be extended. I find it highly improbable that
Copeland could have worked or held a job so early after
suffering a compound fracture. Moreover, her job search
list (G.C. Exh. 8) indicates she did not search for work
in February, March, or April 1976. In light of her seri-
ous injury and the lack of any evidence that she searched
for work in those months, I find that Copeland's except-
ed period should be extended to May 1, 1976. 1 do not
credit her testimony or her list to the extent they indi-
cate a job search in January 1976 or prior to May 1,
1976. Accordingly, I find she was not entitled to any
backpay from September 11, 1975, until May 1, 1976,
and shall revise her backpay figures. accordingly.
D. Miscellaneous. There is no claim for expenses. Re-
spondent contends that it is entitled to a reduction in
gross backpay for the insurance premiums Copeland
would have had to pay at Lundy for June and July 1976.
Respondent equates her absences at Little Cotton to ab-
sences at Lundy's. I have accepted Respondent's conten-
tion when it has been shown that similar or comparable
incentives existed for attendance on the interim job. The
record (Tr. 8911-8912) does not establish any special in-
centives for attendance at Little Cotton Mfg. Co. There-
fore, Respondent's contention is rejected.
E. Backpay entitlement: $15,470 plus interest.
7. Edwards Stevens. Backpay Period: August 1,
1974, to September 8, 1976.
Periods of Employment/Unemployment
8/01/74-4/04/75 Unemployed
4/05/75-7/19/75 Farm work (full time)
Bill Usher
7/20/75-9/30/75 Unemployed
10/01/75-11/15/75 Farm work (part-time)
Steven Peterson
11/16/75-12/14/75 Unemployed
18 In support of its contentions, Respondent contends R Exh 253(a),
which represented a log of picketing activities at Lundy, had an entry on
January 5 through February 13, 1976, opposite her name as "walking on
crutches," and a further entry on April 5, 1976, as "walking with a walk-
mg stick " For reasons unknown, that numbered exhibit is not present in
the exhibit file and has not been considered
12/15/75-6/04/76 Farm work (full time)
Bill Usher
6/05/75-9/08/76 Unemployed
Personal Information: Stevens is a black male, married
with two children and is a high school graduate. He
began work at Lundy's in November 1968. He had no
specialized skills and has done farm work in his youth.
He had interim earnings for five of nine quarters that he
was eligible for backpay.
Claim: As modified, $23,771 plus interest.
Respondent's Rebuttal: The claim falils to account for
losses willfully incurred because of (1) failure to make a
reasonable job search; (2) fails to account for excepted
periods; (3) failure to adjust backpay for unjustified quit-
ting of suitable interim employment; and (4) failure to re-
flect that Stevens willfully attempted to conceal earn-
ings.
A. Job Search. Because I subsequently find that Ste-
vens was or should have been employed full time until
December 5, 1975, the only issue here is whether he en-
gaged in a reasonable search for employment between
August 1, 1974, and April 5, 1975, and from June 5,
1976, until reinstatement by Lundy on September 8,
1976. (G.C. Exh. 9.) Stevens testified that he prepared
his master job search list from notes that he had been
keeping and that he prepared this list after meeting with
Board Agent Yost and disposed of his notes after making
the list. Respondent's Exhibit 61, the notes that Board
Agent Ron Yost made at an interview with Stevens,
listed only 11 different employers at which he sought
work but did not indicate that a job search list was sub-
mitted by Stevens at the interview. In addition, Stevens'
testimony on cross-examination was inconsistent or
vague in many instances contrasted with what he testi-
fied on direct. General Counsel's Exhibit 9 listed employ-
ers by name but was undated concerning the supposed
time he visited such employers.
I have examined Stevens' testimony and while there
were numerous discrepancies about the dates of his
search, and his indicated exhibit was an obvious attempt
to recreate his job search, I find Stevens did engage in a
reasonable job search. He related details (e.g., contacting
his uncle and brother-in-law) about his job search that
satisfy me that he made a reasonably diligent search for
employment. Respondent's Exhibit 61 states in part that
Stevens looked for work every Monday. He also credi-
bly testified that he asked for work at Cates Pickle while
working for Usher because he needed more money and
was only receiving $2 an hour from Usher. Accordingly,
I find that Stevens did make a reasonably diligent job
search during his initial period of unemployment from
August 1, 1974, to April 5, 1975, until he was employed
full time at Usher's farm and from June 5, 1976, until re-
instated.
B. Interim Employment and Earnings. Stevens worked
for Bill Usher doing farm work for two periods and
worked for Stevens Peterson doing farm work from Oc-
tober 1 until November 15, 1975, grading potatoes. Re-
spondent contends that Stevens' first period of employ-
ment with Usher was terminated unjustifiably by Stevens
on July 19, 1975, and that earnings Stevens would have
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made if he had not terminated employment should be
projected as interim earnings until he was rehired by
Usher on December 5, 1975, and Respondent's liability
be reduced accordingly. I agree . On review of the
record (Tr. 935) I find that Stevens' quitting of his em-
ployment was unjustified because he was merely repri-
manded for answering a personal phone call. His quitting
constitutes a willful loss of earnings. I will adjust his
backpay accordingly and credit him with an average of
$105 a week until he was rehired on December 5, 1975.
During the period from October 5 to November 15,
1975, he worked part-time for Peterson and earned $450.
As it appears his projected earnings for Usher would
have exceeded his earnings for Peterson, those figures
will be utilized in determining interim earings.
Respondent further contends that Stevens' termination
about June 4, 1976, was due to "unsatisfactory produc-
tion" in accord with Usher's testimony and was, there-
fore, a willful loss of earnings thereafter that should be
an offset to backpay due. Stevens testified that he was
discharged and told that he was not needed anymore and
was not given any further reason. In view of the fact
that Stevens had been rehired a second time and worked
for approximately 6 months, I credit Stevens over Usher
and find he was terminated for lack of work. In addition,
Charging Party Exhibit 19 indicates Usher informed the
Board his termination was for lack of work.
C. Excepted Periods: In issue here is whether Stevens
was out with a personal injury (gunshot wound) from
August 16 until September 9, 1974, as set forth in the
backpay specifications or until September 27, 1974, as
contended by Respondent. Respondent notes that its Ex-
hibit 61 (notes by Board Agent Ron Yost) indicated Ste-
vens was unable to work for 5 to 6 weeks and that Ste-
vens testified he did not begin looking for work until the
end of September 1974. I concur with Respondent's con-
tention that Stevens' unavailability continued until Sep-
tember 27, 1974. Implementing this, he shall receive
credit for 3 weeks' availability for work in the third
quarter of 1974 or $747 plus sick leave of $700 and $35
for holiday pay.
D. Miscellaneous. The General Counsel originally
claimed a total of $135 in expenses that was accepted by
Respondent. The General Counsel now seeks to amend
claimed expenses in light of testimony developed at the
hearing to claim interim employment expenses of $151
for the second quarter of 1975, zero for the third quarter
of 1975, $35 for the fourth quarter of 1975, $218 for the
first quarter of 1976, and $170 for the second quarter of
1976. I accept the right to amend its position i s but dis-
agree with the General Counsel's figures because they
are based in part on a 6-day week and because I project
Stevens' earnings through the third and fourth quarters
of 1975. For the second quarter of 1975, using a mileage
figure of 28 miles a day times 5 days equals 140 miles per
19 Because this proceeding was convened to arrive at the most equita-
ble figures on backpay , I have permitted the General Counsel to amend
his backpay specifications to reflect overtime earnings and the expense
items noted above In so doing , I note and reject the General Counsel's
objections to permit Respondent to amend its pleadings regarding dates
of availability of Stevens (G C Br 75, fn. 1) because its original answer
admitted it
week times 9 weeks equals $126 for the second quarter
of 1975. Utilizing 13-week quarters and similar mileage, I
arrive at $182 for expenses for the third and fourth quar-
ters of 1975 and the first quarter of 1976. Utilizing 10
weeks for the second quarter of 1976, 1 arrive at an ex-
pense figure of $140. Those figures will be utilized in my
appendix.
E. Backpay Entitlement: $22,940 plus interest.
8. Caldon R. Herring : Backpay Period : August 12,
1974, to January 21, 1977.
Periods of Employment/Unemployment
8/01/74-12/31/74 Part-time farm work at
Ivory & Liston Moore and
Pearlie Mathews
1/01/75-8/31/75 Part-time farm work
(Moore-Mathews)
9/01/75-12/31/75 Goodson Farms (part-time)
1/01/76-1/19/77 Goodson Farms (full time)
Personal Information: Herring is a black male, 27 years
old, divorced with three children. While employed at
Lundy's he did ham trimming work. He is a high school
graduate and can read and write to some degree.
Claim: As modified, $28,691 plus interest.
Rebuttal: Respondent contends that Herring had will-
ful loss of earnings in that: (a) he failed to make a reason-
able job search for interim employment; (b) he willfully
concealed earnings; and (c) he had excessive amounts for
expenses. For reasons detailed hereafter, I find that Her-
ring did make a reasonably diligent effort at seeking in-
terim employment. Second, as later found, Herring's
recollection of events was poor and he at times testified
against his best interests, primarily because of inability to
recall events in their proper chronological order. I con-
clude, however, that he did not willfully conceal earn-
ings. I find some expenses claimed are excessive and
have reduced them where appropriate.
A. Job Search. Herring credibly testified that he com-
menced a job search in August 1974. After he visited an
employer, he wrote a note on scrap pieces of paper and
placed such notes in his bible, which he kept on the
dashboard of the car. After meeting with Board agents
he prepared General Counsel's Exhibit 10, which was
prepared by his mother at his direction. Both Herring
and his mother testified that the job search list was pre-
pared from such scrap notes with the dates he supplied
from memory. Herring had interim earnings from various
farm jobs in every quarter of the backpay period. Her-
ring had a poor recollection of events, was inconsistent
in many instances, and relied almost completely on his
job search list because he had little or no independent
recollection. Nevertheless, I find Herring's testimony
credible regarding his job search as he was able to relate
significant details of such search, and I conclude that he
engaged in a reasonably diligent search for employment
throughout the backpay period. Moreover, he was em-
ployed in farm work part-time for most of the search
period. He was not, of course, required to search when
employed full time at Goodson's farm from January 1,
1976, until reinstated. In so concluding, I note that he
LUNDY PACKING CO. 161
initially worked on at least two farms part-time and
when ultimately employed full time at Goodson's farm,
he worked some 9- and 10-hour days and that he had
earnings in each quarter of the backpay period.
B. Interim Employment and Earnings. The backpay
specifications, as modified in General Counsel's brief, list
earnings for the third and fourth quarters of 1974 as $320
and $400 respectively, based on Herring's testimony that
he worked part-time for Moore and Mathews in those
quarters. There after, the compliance officer estimated
earnings of about $50 a week or $650 a quarter, repre-
senting 13 weeks for the first two quarters of 1975. 1 find
these figures supported by the record and acceptable as
interim earnings and reject Respondent's contentions to
the contrary.
The General Counsel further contends. that for the
third and fourth quarters of 1975 interim earnings of
$775 reflect overtime earnings and using the formula of
40/60 times $775 he argues that interim earnings should
be reduced to $517. This is based on Herring's testimony
about overtime work in 1975. As Respondent points out,
however, the documentary evidence (record of Social
Security earnings, R. Exh. 4) discloses that Herring
earned only $1550 for all of 1975 from Goodson's farm
and that his hourly rate was either $3.25 or $3.50 an
hour; $1550 divided by 17 weeks (fourth quarter of 1975
plus September 1975) equals $91 a week. Yet, $3.25 times
40 hours would be $130 a week. Therefore, General
Counsel's claim that Herring's interim earnings in 1975
reflect overtime are not sustainable and are rejected.
Using the $50-a-week average figure for July and August
1975 is $400 plus $387 from employment at Goodson
totals interim earnings of $787 for the third quarter of
1975. I further accept Respondent's contention that earn-
ings for the fourth quarter of 1975 are $1163, since $1163
and $387 in September 1975 total $1550, and such earn-
ings are reflected by Social Security records.
The General Counsel also contends that Herring's
earnings of $7012 or $1753 per quarter for all of 1976 be
reduced to $974 reflecting a reduction for overtime earn-
ings . Using gross figures, however, it is admitted that
Herring's earnings for 1976 totaled $7016. If Herring had
worked 40 hours a week times 52 weeks times $3.25 an
hour he would have earned $6760 for the year on a 40-
hour week. I cannot, therefore, accept Herring's testimo-
ny or the General Counsel's contention that for all of
1976, Herring average 72 hours not 40 hours. Using the
gross figures, namely, deducting a 40-hour average week
or $6760 from $7012 the total of earnings for 1976, re-
flects that Herring and overtime earnings of approxi-
mately $252 for the year. Although I recognize that Her-
ring may have worked some overtime and less than 40
hours in other weeks, this cannot be determined from
Herring's testimony that reflected workdays of 9 to 11
hours a day and that I find unreliable in this respect in
light of documented figures. Accordingly, I will deduct
the $252 reflecting overtime pay from the interim earn-
ings of the fourth quarter of 1976; $1753 minus $252
leaves $1501 that I will credit as interim earnings for that
quarter.
The modified specifications of the General Counsel list
$30 as interim earnings for the first quarter of 1977
whereas the Respondent contends it should be $405. Her-
ring testified repeatedly that he worked up until a few
days before reinstatement on January 21, 1977. Using
gross backpay figures again , adding $7417 (backpay for
1976 and January 1977) plus $1550 for admitted earnings
for 1975 totals $8967. Yet the claimed interim earnings
for 1975 and 1976 total $8562. The difference, $405, is
the figure urged by Respondent, which I find correct.
C. Excepted Periods. Respondent contends that Her-
ring's appearance in court on a domestic relations matter
made him unavailable for employment for that day. At
one point, Herring testified that this matter was settled
out of court and conceded that he had an attorney for
the proceeding. Absent more direct evidence that the
matter in question occurred or interfered with his full-
time employment at Goodson or that the time involved
was more than an hour or two, I conclude it does not
warrant excluding that day from the backpay period. I,
therefore, reject Respondent's contention that Herring
was unavailable for employment that day.
D. Miscellaneous. In issue here is expense for Herring
for job search (JS) and for interim employment (IE). As
modified, claimed for Herring is:
(a) Job search expenses of $27 (3Q '74) and $46
(4Q '74)
(b) 1st Q '75-$7
(c) 3Q '75 through 4Q '76-$94 for six quarters
totaling $564 (IE)
(d) 1st Q '77-$5 (IE)
Respondent contends that claimant is not entitled to
any expenses for the four quarters beginning the third
quarter of 1974 and ending the second quarter of 1975
because his interim employment was closer than was em-
ployment at Lundy's and job search expenses were not
proven. The claim of $73 for the first two quarters, how-
ever, is for job search, and the claim of $7 for the first
quarter of 1975 is undesignated and there is no claim for
expenses for the second quarter of 1975. On review of
the record, I find sufficient evidence to sustain the job
search claims of (a) and (b) above totaling $80. There is
no expense claim for the second quarter of 1975.
Regarding (c) above, Herring's expense claims for six
quarters, the record discloses testimony that he worked
for farms other than Goodson in July and August 1975,
and Respondent's Exhibit 4 discloses earnings for Her-
ring of $1550 in 1975, from Goodson's farms. In light of
this and the inconsistent and vague testimony of the wit-
ness about when he began work at Goodson, I will
reduce expense claims for the third quarter of 1975 to
$26 for differential travel expense to Goodson for Sep-
tember 1975. Regarding the remaining five quarters, $94
is claimed for each quarter and Respondent contends it
should be $78. The General Counsel's claim is based on a
12-mile differential times 6 days a week times 13 weeks
times 10 cents a mile. I agree that 5 days is appropriately
used because assuming , arguendo, the sixth day would be
overtime work, such earnings would be excluded. To the
extent I found overtime existed, it would be inappropri-
ate to exclude overtime earnings and include overtime
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
expenses . Accordingly, I find $78 an appropriate expense
figure for five quarters, totaling $390.
Regarding (d), the expense claim for the first quarter
of 1977, I accept Respondent's position based on Her-
ring 's testimony that he worked until several days before
returning to Lundy on January 21, 1977, and incurred
expenses of $17 based on 2.8 weeks of work, particularly
in light of my findings that he had interim earnings of
$405 in January 1977.
E. Backpay Entitlement: $24,730 plus interest.
9. George Monk, Jr. Backpay Period: August 1,
1974, to June 4, 1976
Periods of Employment/Unemployment
8/01/74-9/15/74 Unemployed
9/16/74-9/30/74 Best Foods (part-time)
10/01/74-6/04/76 Carolina Packers Inc.
Personal Information: Monk is a black male, has a wife
and one child. He started work at Lundy's in 1966. He
did not complete high school and had no formal techni-
cal training . Employment background was unskilled jobs.
He had interim earnings in each quarter of the backpay
period.
Claim: As modified, $15,300 plus interest.
Rebuttal: Respondent claims that the General Coun-
sel's figures are in error to the extent they failed to in-
clude certain interim earnings and also failed to include
deductions for insurance premiums, which Monk would
have had to pay at Lundy. Lastly, the backpay claims
fail to account for two excepted periods and also include
excessive amounts for expenses.
A. Job Search. Monk was employed full time from Oc-
tober 1, 1974, until reinstated at Lundy's on June 4, 1976.
As Monk was unemployed for approximately 6 weeks,
the only issues here are whether he engaged in a reason-
ably diligent job search from August 1, 1974, until em-
ployed full-time on October 1, 1974, or whether he had a
duty to search for other work while employed at Caroli-
na Packers. The job at the Carolina Packers was compa-
rable to that at Lundy's except that this pay was at a
lower scale. Carolina Packers was also a meat packing
plant. I find that Monk's job at Carolina Packers was
suitable interim employment and that it fulfilled his obli-
gation to seek and retain interim employment and that he
had no obligation to search for other employment while
employed at Carolina Packers.
B. Interim Employment and Earnings. Monk testified
that he worked for Dewey Hutchison's brother for 2 or
3 days at approximately $2 per hour. The backpay speci-
fication does not show any earnings in this respect.
Using 8 hours a day at $2 an hour times 3 days, I will
amend the specification to include as interim earnings in
the third quarter of 1974, the sum of $48. Consistent with
my past adjustments on overtime earnings, I agree with
Charging Party that George Monk's interim earnings be
reduced to reflect the amounts of overtime earnings. See
Respondent's Exhibit 104, Charging Party's brief I, p.
148, and Appendix. [Omitted from publication.]
C. Excepted Periods. Respondent contends that Monk's
backpay specifications should be amended to reflect 2
days that he was unavailable for work. It included 1 day
in September 1974, when he had to attend a trial on a
speeding ticket he had received. Further, that he was un-
available for work 1 day in November 1975, when he at-
tended his trial for driving under the influence of alco-
hol. The record (Tr. 1326-1327) indicates Monk was off
work 5 hours on two occasions. His backpay will be ad-
justed to show additional interim earnings of $11 for the
third quarter of 1974 and $13 for the fourth quarter of
1974, rather than an excepted period. See Appendix.
[Omitted from publication.]
D. Miscellaneous. Respondent claims that certain ex-
penses claimed by Monk are excessive and points par-
ticularly to job searches to the Hercules plant in Wil-
mington, North Carolina, and also to the Kelly Spring-
field facility in Fayetteville, North Carolina. I agree with
Respondent that the total mileage traveled in going to
and from his place totals 244 miles and at 10 cents a
mile, Monk is only entitled to $24.40. I shall also include
$51 for mileage, room, and board to Silver Spring,
Maryland, and $6 for expenses at his job in Washington
or a total of $81 for the third quarter of 1974.
The backpay specification also claims expenses for
mileage from his home in Clinton, North Carolina, to
Washington, D.C. As noted previously, Monk worked
briefly for several weeks in the Silver Spring, Maryland
area and then returned to the Clinton area because his
family was there. As it was Monk's decision to seek
work in the Washington, D.C. area, some 300-400 miles
away, the expenses to and from Washington, D.C., shall
be excluded. Included, however, as proper expenses for
job search, are amounts expended in looking for work
after he arrived in Washington, D.C., as the income
earned there has been included as interim earnings.
Regarding Monk's expenses traveling to and from his
interim job at Carolina Packers, he testified that the first
week he traveled back and forth from Clinton to the job
at Carolina Packers, which is located in Smithfield,
North Carolina. Later, Monk traveled from Goldsburg
rather than from Clinton. Later, Monk moved back to
Clinton and rode in a carpool from there to Carolina
Packers at Smithfield. He paid $7.50 a week for his ride
for the balance of 1974 and thereafter he paid $10 per
week.
Monk is also claiming expenses for amounts he had to
pay to rent uniforms at Carolina Packers. Examination of
Respondent's Exhibit 104 discloses that Monk paid for
uniforms in the columns entitled advances. Thus, that
document discloses that for each of the 13 weeks in the
first quarter in 1975, Monk paid $1.20 for uniforms.
Monk paid that same amount for the second quarter of
1975 and for the first 9 weeks of the third quarter of
1975. Monk elected to have more uniforms and paid
$2.80 per week for the remaining 4 weeks of the third
quarter of 1975, and the first 6 weeks of the fourth quar-
ter of 1975. Thereafter he paid $2.95 per week for uni-
forms until he returned to Lundy's.
Monk is claiming expenses for insurance premiums he
paid while at Carolina Packers. Wood testified that
Monk paid approximately $5.25 a week for health insur-
ance and $7.75 for cancer insurance. The amounts paid
are disclosed in the Respondent's Exhibit 104. Contrary
LUNDY PACKING CO. 163
to Respondent, the cancer insurance was optional and is
not claimed here. Monk is only entitled to reimburse-
ment for $5.25 per week for health insurance.
Respondent makes a further contention that Monk's
gross pay should be reduced by the amount he would
have had to pay for insurance at Lundy's. This argument
is based on Respondent's Exhibit 105, which shows that
Monk was absent or late at Carolina Packers during Oc-
tober 1974, March, April, May, June, Jully, September,
October, November, and December 1975, and March,
April, and May 1976. As the record does not disclose
any comparable benefits for attendance at Carolina Pack-
ers, I reject Respondent's argument that gross backpay
should be reduced by the amount of the insurance premi-
ums at Lundy.
E. Backpay Entitlement: $17,027 plus interest.
10. Hubert Fryar. Backpay Period: August 1, 1974,
to August 27, 1976
Periods of Employment/Unemployment
8/01/74-8/13/74 Unemployed
8/14/74-3/14/75 Thermopane (full-time)
3/15/75-5/18/75 Unemployed (on layoff)
5/19/75 Recalled, worked 1/2 day
Thermopane
5/20/75-8/27/76 Part-time farm work
Personal Information: Fryar is 27 years old, married,
and has three children. He lived in Clinton and had
grown up on a farm. He had completed high school but
apparently had some difficulties in both reading and
writing. He had no special or technical training and prior
to working at the Respondent did some farm work,
truckdriving, and tested mixers at Hamilton Beach. He
registered with the ESC in Clinton, apparently in Janu-
ary 1975, and returned there several times but was never
referred to a job.
Claim: $ 18,118 plus interest.
Rebuttal: Respondent contends that Fryar willfully in-
curred losses in that he failed to make a reasonable
search for employment; unjustifiably quit interim em-
ployment at Thermopane; that the backpay claims fail to
take into account excepted periods; and last, that exces-
sive amounts are claimed for expenses. I agree for rea-
sons noted hereafter that Fryar was not justified in termi-
nating his employment at Thermopane and that Fryar
was unavailable for employment for approximately 9
days during the backpay period.
A. Job Search: In General Counsel's Exhibit 11 was a
job search list of employers Fryar contacted for work.
Fryar testified that he recorded on a pad the names of
the employers that he visited and the date. Fryar's girl-
friend, Grace Cooper, testified that she compiled Gener-
al Counsel's Exhibit 11 in his presence. She testified she
copied the list from scrap notes that Fryar had given
her. The General Counsel notes that Exhibit 11 indicates
that Fryar contacted 28 employers in a search for work
that he had contacts with employers in all quarters
except for the fourth quarter of 1974 when he was em-
ployed full time at Thermopane. Concerning 21 employ-
ers contacted by Fryar, Respondent presented no rebut-
tal evidence.
Respondent contends that General Counsel's Exhibit
11 was not properly authenticated. As Cooper prepared
the exhibit in the presence of Fryar, I find that the exhib-
it was sufficiently authenticated as it was prepared at
Fryar's direction. Respondent points to several inconsist-
encies in the testimony of Fryar and his girlfriend
Cooper, particularly the fact that Cooper testified that
she prepared General Counsel's Exhibit 11 from scrap
notes whereas Fryar testified that he had a tablet in
which he had recorded all these job searches and had
given it to Cooper for recopying. Respondent also ques-
tions the adequacy of Fryar's search for employment for
the period subsequent to his layoff at Thermopane, that
is, subsequent to March 15, 1975. Thereafter, until he
was reinstated, Fryar did primarily part-time farm work.
Although certain discrepancies exist about the job
search list, I am impressed by the fact that Fryar had
earnings in each of the quarters of his backpay period
and further that within 2 weeks of the beginning of the
backpay period he had secured full-time employment at
Thermopane. On this record, I am convinced and find
that Fryar engaged in a reasonably diligent effort to find
employment throughout the backpay period.
B. Interim Employment and Earnings: Fryar earned
income from two sources during the backpay period.
The first was an employer called Thermopane in Clin-
ton, where the job was full time until he was laid off in a
reduction in force on March 14, 1975. He was, however,
recalled about May 19, 1975, and apparently worked
only half a day. According to Respondent, Fryar was
terminated for "job abandonment." Fryar testified that
working second shift at Thermopane was causing marital
difficulties and that he quit because of that. It is undis-
puted that Fryar quit his employment at Thermopane.
The only issue is whether it was a justifiable quitting
making him entitled to backpay or whether it was un-
justified and the earnings that he would have made at
Thermopane should be projected as interim earnings.
Fryar had initially worked some 6 months on the second
shift, and he was recalled to the same shift. Moreover,
Fryar left the job abruptly without notice to any supervi-
sor and without making any attempts to seek some ad-
justment on his shift hours. In such circumstances, I find
that Fryar was unjustified in quitting his interim employ-
ment at Thermopane and his projected earnings at Ther-
mopane will be deemed interim earnings. In so doing, I
necessarily reject the General Counsel's contention that
Fryar's second-shift work at Thermopane was onerous
and constituted a justifiable reason for leaving this inter-
im employer. There remains for resolution how far
Fryar's earnings should be projected at Thermopane.
Bass, Thermopane's director of personnel, testified that
McLamb was a comparable employee to Fryar and
would have had comparable earnings . McLamb earned
$997 for the second quarter of 1975 and $1394 for the
third quarter of 1975 and additional earnings in subse-
quent quarters. I will limit the projected earnings to 4-
1/3 months, i.e., through the third quarter of 1975, and
utilize $997 and $1394 as interim earnings for the second
quarter of 1975 and the third quarter of 1975 as urged by
Respondent. I will not project such earnings further be-
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause it was established that Fryar's employment at
Lundy's was on the first or day shift. Absent his abrupt
quitting without notice and/or lack of attempts to get a
shift change, I might have found his leaving justifiable as
not suitable interim employment because it was not a day
shift comparable to that at Lundy's. I note that backpay
specifications indicated that Fryar earned $1296 for the
first quarter of 1975, and I find the estimates of compara-
ble earnings made by McLamb of $997 for the second
quarter and $1394 for the third quarter of 1975 to be a
reasonable projection of earnings under the circum-
stances.
Although Fryar was only successful in obtaining the
part-time farm work, I find that he did engage in a rea-
sonable search for employment.
I also find that estimates of interim earnings for the
fourth quarter of 1975 to the second quarter of 1976
appear to be a reasonable approximation of his earnings
during that period in the absence of more definite
records or more explicit testimony.
C. Excepted Periods. Respondent contends that Fryar
was unavailable for employment for 7 days due to incar-
ceration in jail and for three court appearances involving
a separation with his wife and two child support charges.
The General Counsel claims there was no showing of
any interference with any schedule work and therefore
no basis for an excepted period. I conclude that Fryar
was unavailable for work from 4 to 5 days during his
period in jail and shall deduct 1 week's wages ($203)
from the total due him.
Respondent further urges that due to a hemorrhoid
condition Fryar was unavailable for another 15 to 20
days. Fryar did testify that at one time he was in bed 3
to 4 days as the result of his condition. Although Fryar
admitted to subsequent flareups, I do not read the testi-
mony as establishing that Fryar was again confined to
bed or unable to work. I shall therefore deduct four-
fifths of a week's salary or $162. As the record does not
establish the specific quarters in which he was unavail-
able, I shall deduct the two sums, $203 plus $162, total-
ing $365 for a 9-day period of unavailability from the
grand total due him.
D. Miscellaneous. Respondent claims there was no
proof of expenses for job search or for interim employ-
ment . The General Counsel submits that the expense
claim as modified, amounting to $242 for the entire back-
pay period are reasonable approximations of expenses in-
curred. My modification of Fryar's interim earnings for
the second and third quarters of 1975, by projecting his
earnings at Thermopane, results in the elimination of $93
in expenses for those two quarters. The remaining ex-
penses claimed for the four quarters running from the
fourth quarter of 1975 through the fourth quarter of 1976
amount to $149. In light of Fryar's testimony and exhibit,
I agree that these represent reasonable approximations of
expenses incurred.
E. Backpay Entitlement: $16,431 plus interest.
11. Jesse C. Melvin. Backpay Period: August 1,
1974, to November 29, 1976.
Periods of Employment/Unemployment
8/01/74-9/09/74 Unemployed
9/10/74-11/28/76 Quinn Wholesale
Personal Information: Melvin is a black male, married,
with two children. He had a high school education but
had no other technical or mechanical training. He began
work at Lundy's in 1970. His prior experience was farm
work and a laborer's job at a plastering firm.
Claim: As modified, $21,281 plus interest.
Rebuttal: Respondent contends the backpay claim fails
to account for willful losses when Melvin removed him-
self from the labor market and fails to account for all
Melvin's interim earnings . It is further urged that Melvin
should pay for insurance premiums at Lundy's because
of his absences from his interim employment, and there-
fore the claim includes excessive amounts for expenses.
A. Job Search. Melvin credibly testified that he
searched for work at some 12 employers until he was
hired at Quinn Wholesale on September 10, 1974, where
he specifically requested and accepted a night job. Re-
spondent contends that Melvin limited himself to a night
job and should be denied backpay until September 10,
1974, because he removed himself from comparable (i.e.,
daytime) employment. The record does not establish that
he only looked for night work and Respondent's conten-
tion is rejected. At Quinn Wholesale, Melvin was an
"order selector" and was making $3.65 an hour when he
left there to return to Lundy's on November 29, 1976. I
find that Melvin's employment at Quinn was suitable in-
terim employment and he had no further obligation to
search for different work after September 10, 1974.
B. Interim Employment and Earnings: Melvin's earn-
ings and date of employment at Quinn Wholesale are not
in dispute. Melvin admitted that he worked about 1
month at Honeycutt's gas station during the backpay
period and that such earnings, approximately $80, should
be included as additional interim earnings . At one point
Melvin stated he did not remember whether he was also
working full time at another job. He also testified that he
usually worked in the evenings or for a couple of hours
on Saturday at the gas station. The General Counsel's
claim that Melvin also worked at this gas station while
employed at Lundy's is not supported by the record.
Charging Party claims that if the employment was in ad-
dition to his employment at Quinn's it is earnings from
other than full-time employment and not deductible as
interim earnings . The record appears to establish this was
additional earnings over and above his regular full-time
interim employment at Quinn. The burden of proof of di-
minishing backpay claims is on the Respondent. This
record is in conflict and does not establish by a prepon-
derance of the evidence that these particular earnings
should be deemed interim earnings and an offset against
gross backpay. Accordingly, I shall disregard the $80 in
earnings.
The General Counsel and Charging Party contend that
Melvin's unrebutted testimony established that he
worked approximately 50 hours a week at his interim
LUNDY PACKING CO. 165
employment compared to 40 hours at Lundy's and that
only four-fifths of his earnings should be utilized as inter-
im earnings. Melvin credibly testified that he worked 8
to 12 hours a day, 5 days a week. I agree that his interim
earnings should be reduced so as not to reflect earnings
from overtime work. His adjusted interim earnings
(before expenses) become $968 for the fourth quarter of
1974, $1045 for the first quarter of 1975, $1348 for the
second quarter of 1975, $1634 for third quarter of 1975,
$1452 for the fourth quarter of 1975, $1254 for the first
quarter of 1976, $1519 for the second quarter of 1976,
$1587 for the third quarter of 1976, and $853 for the
fourth quarter of 1976.
C. Excepted Periods: Respondent reiterates its argument
here that Melvin limited his job search to night work
thereby removing himself from the labor market for the
period from August 1 to September 10, 1974. The record
does not support the contention that Melvin limited him-
self to night employment at some 12 employers to which
he applied. Accordingly, I find no excepted periods for
Melvin.
D. Miscellaneous: Regarding expenses for interim em-
ployment at Quinn Wholesale, there is no dispute. Re-
spondent urges, however, that monthly insurance premi-
ums (life and medical) at Lundy's are properly paid by
Melvin and should be deducted from gross backpay be-
cause of Melvin's absences from his interim employment.
As discussed previously, absences or tardiness in any
month while employed at Lundy's meant that employees
had to pay their own insurance premiums. The record
establishes that Quinn Wholesale also paid an incentive
to employees who were not absent or tardy, amounting
to a 35-cent hourly bonus (or $2.80) a day, or approxi-
mately $61.60 for 22 working days a month. According-
ly, in view of the comparable incentives for attendance I
agree with Respondent that the cost of premiums for
months in which Melvin was absent or late at his interim
employment be equated to absences from Lundy's and
premiums should be deducted from gross backpay.20 Re-
spondent's Exhibit 171 establishes that Melvin was absent
or late during October, November, and December 1974,
May and June 1975, and March and October 1976, and I
will deduct those premiums from expenses for the appro-
priate quarters. However, concerning claimed absences
for October and December 1975, I find the entries con-
flicting and not in accord with the explanation of sym-
bols on the absence/late record. 'There were multiple en-
tries such as AB that appeared to conflict. Second, the
form had two explanations and when C is used it is un-
clear which explanation is being; used. Lastly, the fore-
man who made the double entries did not appear or ex-
plain such double entries. Accoidingly, i[ find unpersua-
sive and of little evidentiary value the double entries for
October and December 1975, for purpose of ascertaining
absences, and I shall not deduct premiums for those
months.
Respondent's Exhibits 259 and 260 show the amount
of monthly premiums for the backpay period and range
from a low of $30.04 in October 1974, to a high of
20 As medical expenses are generally treated as expenses, I shall deduct
premiums from expenses or from the total backpay due that quarter
$41.43 after November 1, 1975. Accordingly, deductions
for insurance will be made from expenses for Melvin as
follows: $112.30 for the fourth quarter of 1974, $82.26
for the second quarter of 1975, $41.43 for the first quar-
ter of 1976, and $41.43 for the fourth quarter of 1976.
E. Backpay Entitlement: $20,634 plus interest.
12. Brady Waters . Backpay Period : August 1, 1974,
to January 21, 1977
Periods of Employment/Unemployed
8/01/74-6/26/75
6/27/75-8/22/75
8/23/75-9/23/75
9/24/75-2/17/76
2/18/76-1/14/77
1/15/77-1/21/77
Unemployed
Part-time work (Wilson)
Unemployed
K.R. Edwards Tobacco Co.
Quinn Wholesale
Unemployed
Personal Information: Waters is a black male, married
with three children, and 29 years old at the time of the
strike. He had interim earnings in 7 of the 11 quarters in
his backpay period. Educated through the ninth grade,
he had difficulties reading and writing. He was brought
up on a farm and had no special mechanical or trade
skills. He bagan work for Lundy's in 1971.
Claim: As modified, $26,299 plus interest.
Rebuttal: Respondent claims error contending that
Waters failed to make a reasonable job search for interim
employment; that Waters failed to accept suitable interim
employment and that Waters' absence in October and
December 1976 from his interim employment (Quinn
Wholesale) made Waters liable for 2 months insurance
premiums. Last, it is claimed that his expenses were ex-
cessive for the fourth quarter of 1975 and first quarter of
1976.
A. Job Search. In issue is whether Waters made a rea-
sonable search for employment from August 1, 1974,
until September 24, 1975, when he was employed by Ed-
wards Tobacco. General Counsel's Exhibit 12 was a
compilation of employers at which Waters allegedly
sought work. Apart from his job search list, which was
compiled by his wife in his presence, his recollection
about his Job search was poor, compounded no doubt by
the intervening years the General Counsel contends that
Waters visited some 48 different employers during this
period and that Respondent failed to adduce any rebuttal
evidence about 36 of such employers. Respondent con-
tends that his poor recollection supports their contention
that the job search list was a fabrication. The job search
list also notes the mileage to such place. Despite some
discrepancies, I am satisfied that Waters' testimony was
credible and that he made a reasonably diligent search
for employment from August 1974 to September 1975.
B. Interim Employment and Earnings. There is no dis-
pute on the actual earnings made by Waters while em-
ployed at Edwards Tobacco. In dispute is whether
Waters could have worked more for Daniel Wilson on
whose farm he lived, for whom he worked part-time
June through August 1975 and whether he could have
worked more hours for Edwards Tobacco while em-
ployed there. Lastly, Respondent contends that Waters
left his employment at Quinn Wholesale a week early
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
before returning to Respondent and would have earned
an additional $147 as interim earnings or, alternatively,
that it was an excepted period for which he is not enti-
tled to any backpay.
I credit Wilson's wife's testimony that Brady Waters
was asked to work during June 1975 and could have
worked 80 hours during the last 2 weeks in June in lieu
of the 26 hours he did work. Therefore, I will add $108
to his interim earnings (54 hours times $2 an hour) for
the second quarter of 1975. Similarly, I find that Waters
could have worked an additional 149 hours in the third
quarter of 1975 and I shall add $298 to his interim earn-
ings for such period.
Further, I credit the testimony of Bill Daughtry, per-
sonnel manager of Edwards Tobacco, that all employees
of the company could have worked 40 hours each week
from September 24 to December 5, 1975; 30 hours a
week between December 3 and 17, 1975; 30 hours be-
tween January 1 and May 28, 1976. Thus, Respondent
contends and I agree that Waters willfully lost 65 hours
in the fourth quarter of 1975 and 80 hours in the first
quarter of 1976. Therefore, I shall add $161 to his inter-
im earnings for the fourth quarter of 1975 and $206 for
the first quarter of 1976, which reduces his backpay enti-
tlement accordingly.
Waters admitted that he quit his interim employment
on January 14, 1977, in preparation for his return to
work at Lundy's on January 21, 1977, and that he prob-
ably took the week off. Because he voluntarily quit his
interim employment, wages of $147 that he would have
earned for that week will be added to his interim earn-
ings.
The General Counsel claims $24 a quarter should be
deducted from Waters' earnings at the Wilson farm be-
cause he worked 3 to 4 hours a month even when he
was employed at Lundy's prior to the strike. Waters' tes-
timony was credible and I agree that $24 a quarter
should be deducted from his interim earnings for the
second quarter of 1975 and third quarter's of 1975.
C. Excepted Periods. I rejected Respondent's conten-
tion that Waters did not make a reasonably diligent
search for employment from August 1, 1974, until Sep-
tember 24, 1975. Further, Waters' early termination of
his employment at Quinn Wholesale the week before he
returned to work was treated as a willful loss of earn-
ings, not complete removal from the labor market. Ac-
cordingly, I find no excepted periods concerning Brady
Waters.
D. Miscellaneous. Respondent claims that Waters' ex-
penses are excessive for the fourth quarter of 1975 and
the first quarter of 1976. On his worksheet appendix, the
General Counsel claims $429 and $315, although his brief
also indicates $338 and $231 for the fourth quarter of
1975, and the first quarter of 1976, respectively. Re-
spondent claims expenses are limited to $363 ($6.60 per
day times 55 days) and $235 for the first quarter of 1976
($145 at Edwards and $90 at Quinn Wholesale). I find
Respondent's figures and rationale correct and will
modify expenses for those two quarters.
I accept Respondent's further contention that Waters'
absences from Quinn Wholesale in October and Decem-
ber 1976 make him liable for payment of his insurance
premiums at Lundy's as there were comparable attend-
ance incentives at Quinn Wholesale, as I have found pre-
viously. I shall deduct $82.86 or $83 ($41.43 per month)
from his expenses for the fourth quarter of 1976.
E. Backpay Entitlement: $24,891 plus interest.
13. William Morrisey. Backpay Period: August 1,
1974, to December 6, 1976
Periods of Employment/Unemployment
8/1/74-12/31/74 Unemployed
1/1/75-12/06/76 Part-time farming (self-
employed)
Personal Information: William Morrisey is a black
male with an eighth grade education who reads and
writes very little. He was 38 years old, married, with
two children. Expenses claims for job search were
waived for Morrisey. His prior work experience included
farming his 8-acre tract of land and construction labor.
Claim: As modified, $27,254 plus interest.
Rebuttal: Respondent contends the backpay claims fail
to include reductions for losses willfully incurred by
Morrisey as the result of his failure to make a reasonable
search for employment.
A. Job Search. William Morrisey found no interim em-
ployment and ended up as a self-employed farmer with
earnings of approximately $400 a quarter for the eight
quarters of 1975-1976. The only major issue concerning
this discriminatee involves the validity and reasonable-
ness of Morrisey's job search. General Counsel's Exhibit
14 is a list of employers where he searched for employ-
ment. William Morrisey, who was recuperating from a
heart attack that occurred subsequent to his reinstate-
ment, testified that he wrote on scrap pieces of paper or
envelopes the employers and the dates and mileage in-
volved in his job searches. He admitted that he could not
read and he wrote only slightly, primarily by copying al-
ready written names or material. At the request of Re-
spondent's counsel, he copied the words "property of the
United States Government" in about 7 minutes. He cre-
dibly testified that he looked for work each week and
that his wife copied the job search list from his notes
that he placed on the bedroom dresser. Morrisey was a
difficult and poor witness. At times he failed to respond
to questions and when he did respond after the question
was repeated several times, he did not remember. He re-
membered only a couple of the employers where he
sought employment. There was little doubt that his
memory was poor and it is unclear whether the heart
attack had impaired his mental facilities or whether his
mental capabilities were inherently limited. Carrie Morn-
sey testified that she prepared Exhibit 14 from notes of
her husband and confirmed that her husband did not
read and write very well. She credibly testified that her
husband searched for work every week.
Respondent points out that Morrisey allegedly visited
five employers a total of 16 times and yet these employ-
ers had no record of job applications in their logbooks. It
is further urged that Morrisey's inability to recall many
of the names of the employers or the details is proof that
the job search list was fabricated. However, Morrisey
LUNDY PACKING CO. 167
was unable to fill out written applications for employ-
ment by himself and oral inquiries for employment were
usually not recorded by employers . Thus, lack of evi-
dence in the logbooks does not necessarily establish that
Morrisey did not make an oral inquiry about employ-
ment . It can well be argued that filling out applications
when no hiring is being done or planned would be a
waste of time . Regarding Morrisey 's poor memory, this
does not in these circumstances reflect on his credibility
in view of his heart attack and apparent limited mental
capacity.
With respect to most discriminatees , the failure to find
any interim employment except self-employment on his
farm over a 29-month period would be a significant
factor in determining whether a reasonably diligent job
search was made . Lacking any significant skills, and for
all practical purposes unable to read or write , obviously
Morrisey would not make a very good candidate for em-
ployment and he would probably rank low in any com-
petition for existing jobs. As Lundy had employed him
despite these limitations, Morrisey's failure to find inter-
im employment does not relieve Lundy of its backpay li-
ability.
On review of the record and exhibits , I am convinced
that despite his lack of success , William Morrisey did
make reasonably diligent efforts to locate interim em-
ployment and I so find.
B. Interim Employment and Earnings. Morrisey was a
self-employed farmer on his 8 -acre farm and had income
of approximately $400 a quarter beginning with the first
quarter of 1975 and continuing until he was reinstated on
December 6, 1976 . His interim earnings on the farm are
not in dispute.
C. Excepted Periods. None , other than Respondent's
contention that lack of job search precludes Morrisey
from any backpay.
D. Miscellaneous . Expenses were waived.
E. Backpay Entitlement : $27,254 plus interest.
14. Harry L . Melvin. Backpay Period : August 1,
1974, to January 25, 1977
Periods of Employment/Unemployment
8/01/74-9/15/74 Unemployed
9/16/74-9/16/74 Carolina Packers (6-1/2
hours)
9/17/74-6/19/75 Unemployed
6/20/75-4/20/76 Gore Manufacturing
4/21/76- 1/25/77 Unemployed
Personal Information : Melvin is a black male, 20 years
old and married . He was a high school graduate but had
no technical or college training and began working for
Respondent in 1972 . He had interim earnings in 6 of 11
quarters in the backpay period.
Claim : As modified, $30,417 plus interest.
Rebuttal : Respondent contends Melvin failed to search
for interim employment and had willfully incurred losses
when he quit or was discharged from Carolina Packers
and Gore Manufacturing . Further it is claimed that
Melvin would have had to pay insurance premiums at
Lundy 's because of his absences from his interim em-
ployment.
A. Job Search . For reasons noted hereafter , the only
issue here is whether Melvin made a reasonably diligent
effort to find work in the period from August 1, 1974,
until June 20 , 1975. Melvin testified that when he
searched for interim employment , he wrote down the
names of employers contacted and that this job search
list, introduced as General Counsel Exhibit 13, was pre-
pared for him by his girlfriend , Connie Cannon, some-
time in 1977 . His original notes , which he had put on
scraps of paper and kept in his wallet , were allegedly de-
stroyed when his brother's house , at which he was stay-
ing, burned down. His girlfriend prepared the list at Mel-
vin's direction based on his recollection of the places he
had searched for work . On cross -examination he was
unable to specify dates but did relate certain details of
his job search . Melvin also testified that he lost his trailer
and his car was "repossessed" during the strike , presum-
ably due to his lack of income to make his payments.
Respondent contends that Melvin 's testimony is un-
trustworthy and his job search list should be discredited.
In support of that contention , Respondent notes that
Harry Melvin 's job search notes, which he claimed were
destroyed by a fire at his brother's house , cannot be true
because the fire occurred on February 10, 1979, appar-
ently after Harry Melvin had moved to an apartment
around August 1978 , according to Melvin 's own testimo-
ny. Moreover , Melvin also testified that he first saw
General Counsel Exhibit 13, which his girlfriend pre-
pared at his direction , in 1977.
Harry Melvin was unresponsive to certain questions,
had a tendency to mention extraneous information in his
responses , at times was prone to exaggeration, and was
obviously confused on the chronology of events . Never-
theless, I am convinced on the record as a whole that he
did engage in a search for interim employment at least
up until he became employed at Gore Manufacturing on
June 20, 1975. In so finding , I conclude that he did make
notations after he visited employers in his job searches
but that such notes were lost or mislaid and that General
Counsel Exhibit 13 was an attempt to list at least some of
the places he had visited . I do not credit his testimony
that his notes were destroyed by a fire . I have also taken
into consideration the fact that he visited the ESC at
Clinton , North Carolina, regularly , including some four
times throughout his backpay period . (See C . P. Exh. 1.)
He also found work at Carolina Packers on September
16, 1974. In effect , I conclude that he did engage in a
reasonably diligent job search from August 1, 1974, until
June 20 , 1975, so as to entitle him to backpay . I find it
unnecessary to consider whether he engaged in a job
search after June 20 , 1975, in view of my determination
hereafter that he willfully incurred losses when he was
discharged from Gore Manufacturing on April 20, 1976,
for absenteeism and poor work.
B. Interim Employment and Earnings . It is undisputed
that Melvin was employed by Carolina Packers on Sep-
tember 16, 1974 , for a 6-1/2-hour period until he quit al-
legedly because of unsafe conditions . He worked on the
kill floor in the slaughtering department and he testified
credibly that he slipped on the bloody floor and acciden-
tally stabbed a fellow worker in the back of his leg with
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his knife. There is no dispute that the incident happened
and the only issue is whether Melvin was justified in
quitting his employment and did or did not incur a will-
ful loss of earnings . When asked why he quit , Melvin
credibly testified "because of the working conditions;
you could get hurt real quick out there ; it was unsafe to
me." (Tr . 2244.) Respondent contends working condi-
tions were the same as at Lundy 's but that contention is
unsupported in this record . I find that in the circum-
stances related , Melvin had reason to fear the working
conditions , particularly in the slaughtering department.
First , Melvin worked in the cut department at Lundy's.
Second , the circumstances related at Carolina Packers
were arguably unsafe and Melvin was in the best position
to judge that from prior work experience at Lundy's. An
employee is not required to work in an unsafe environ-
ment at his interim employment . I find , therefore, that
Melvin was justified in quitting his employment at Caro-
lina Packers, and, by doing so, did not willfully incur a
loss of earnings.
Melvin began work at Gore Manufacturing on June
20, 1975, and was discharged on April 20 , 1976. I do not
credit Melvin that he was discharged because two attor-
neys for Respondent visited him at Gore and asked
whether he would settle his case with Respondent for a
sum of money . Gore credibly testified that Melvin start-
ed off doing a good job but thereafter had problems with
absenteeism and lateness. On March 16, 1976, Melvin re-
ceived a written warning (R. Exh . 150), which he signed
stating that it was a final warning and would be dis-
missed if his conduct so warranted . The warning con-
cerned not being cooperative with his supervisor and
also stated that he would not follow instructions and had
a bad attitude . Respondent 's Exhibits 149, 151, and 152
also support the conclusion that Melvin was discharged
for poor work and absenteeism . As Gore testified that he
could have continued to work had he remained a satis-
factory employee , Melvin 's earnings shall be projected
from his discharge date until he was reinstated at
Lundy's. Gary Aircraft Corp., 211 NLRB 554 (1975),
enfd . 90 LRRM 2890 ( 1975). At the rate of $2.65 per
hour, Melvin would have earned $ 106 a week . I accept
Respondent 's calculations that had he continued his em-
ployment, Melvin would have earned the sums of $1081
or a total of $ 1290 for the second quarter of 1976, $1378
for the third and fourth quarters of 1976, and $382 for
the first quarter of 1977. His interim earnings for such
quarters will be adjusted accordingly with resultant
changes in backpay due.
C. Excepted Periods . I find no excepted periods and
reject Respondent's contention that Melvin was not enti-
tled to any backpay when not employed.
D. Miscellaneous . Expense claims were waived.
E. Backpay Entitlement : $26,198 plus interest.
15. Nathan J. Banks. Backpay Period : August 1,
1974, to January 26, 1977
Periods of Employment/Unemployed
8/74-9/74 Unemployed
9/74-10/74 Shields, Inc.
11/74-12/74 Unemployed
12/74-6/75 Marus Marble & Title Co.
7/75-11/75 Sheris Co.
11/75-1/28/76 Kirkland Plastering Co.
2/76-4/76 Ellis Jones Tile Co.
5/76-1/77 Action Tile Co.
Personal Information : Banks is a black male, 26 years
old, married , and had not graduated from high school.
He had no special skills . He had worked on a farm and
in a hospital emergency room . He had interim earnings
in each of the backpay quarters and worked for seven
different employers.
Claim : As modified , $23,784 plus interest.
Rebuttal : Respondent contends that the backpay fig-
ures failed to account for losses incurred by Banks by
virtue of his being discharged from interim employment,
failed to consider excepted periods , failed to charge
Banks for insurance premiums because of absences from
his interim employment , and that his expense claims are
excessive.
A. Job Search : (G.C. Exh . 16) No issue as Respondent
does not claim Banks failed to search for interim employ-
ment.
B. Interim Employment and Earnings . In issue is
whether Banks worked all available hours while em-
ployed by C . W. Kirkland from November 17, 1975,
until January 28 , 1976, and further whether the job, ter-
minated or he quit or was terminated for absenteeism.
Respondent 's Exhibit 107 shows that Banks worked only
262 hours out of an alleged 440 available hours. C. W.
Kirkland was located in Kingston, North Carolina, some
47 miles from Banks ' home . Banks credibly testified that
he left Kirkland when the job ended . Reen Carlisle, pay-
roll clerk for Kirkland , testified she was told by Tucker,
company superintendent, that Banks was terminated be-
cause he refused to work regularly . Reen Carlisle admit-
ted that she did not learn the reason for Banks' termina-
tion from Tucker until 2 years after the discharge. He
was paid $3 an hour with no fringe benefits . Moreover,
Charging Party's Exhibit 13, a reply by that employer to
Board Agent Yost 's inquiry , stated that Banks left of his
own accord . In view of the conflict between the exhibits
and the work record established by Banks during the
backpay period , I credit Banks' version that the job
ended.
In view of Banks' record for obtaining jobs and keep-
ing employed , I find no basis for concluding that he re-
fused to work other available hours . I also note that
Banks was employed by Ellis Jones Tile Co. in February
1976, shortly after the Kirkland job ended . Moreover,
Banks had to travel 94 miles a day to a job paying $3 an
hour . Accordingly , I find a willful loss of earnings in-
volved in Banks' employment at Kirkland because I find
he did not turn down proffered work nor did he quit his
interim employment.
C. Excepted Periods. None . Respondent's contention
that if Banks' job at C . W. Kirkland is found unsuitable,
he is not entitled to backpay , is rejected , because I find
Kirkland was suitable employment.
D. Miscellaneous. In issue is whether Banks ' expenses
for the third quarter of 1974 are $104 as originally al-
leged or $70 as now contended by Respondent. In his
LUNDY PACKING CO. 169
modified claim , set forth in the appendix to General
Counsel's brief to me concerning Banks' the expenses
claimed were $40. As the modified expense claim is $40,
less than that contended by Respondent, I shall accept
the $40 figure.
Respondent also contends that because Banks was
absent from his employment at C. W. Kirkland in No-
vember and December 1975 and January 1976 he should
be required to pay his insurance premiums at Lundy's,
which should be deducted from gross backpay under the
theory previously discussed with prior discriminatees.
Absent evidence of a comparable monetary incentive for
attendance and promptness at Kirkland, the interim em-
ployer, Respondent's contention is rejected. Moreover, I
note that Banks received no fringe benefits at Kirkland.
E. Backpay Entitlement: $22,925 plus interest.
16. Elzata Copeland. Backpay Period, August 1,
1974, to June 14, 1976
Periods of Employment/Unemployment
8/01/74-5/23/75
5/24/75-7/19/75
Unemployed
James Ginn's farm (part-
time)
7/20/75-5/04/76 Unemployed
5/05/76-6/13/76 Little Cotton Mfg. Co.
Personal Information : Copeland is a black female, 35
years old, and unmarried. She started work at Lundy's in
1968. She had a seventh grade education and had diffi-
culty in spelling and writing. She helped her father in
sharecropping while growing up. She had no special
skills . She had interim earnings of $200-$300 per quarter
in three to eight quarters in her backpay period derived
from sharecropping.
Claim: As modified, $22,972 plus interest.
Rebuttal: Respondent urges that Copeland's backpay
be diminished because she incurred willful losses by fail-
ing to make reasonable searches for employment and
that, even if her testimony is credited, it does not show a
reasonable search for employment. It is further urged
that she refused interim employment at Ginn 's farm and
asked Ginn's wife not to cooperate with anyone trying to
determine her earnings at Ginn's and grossly understated
her income from sharecropping there. Respondent urges
that Copeland be denied backpay altogether because of
her failure to make a reasonable job search and/or for
her attempt to deliberately conceal her earnings.
A. Job Search. (Job search hst-G.C. Exh . 18) Elzata
Copeland's sister, Linda Copeland, testified that she pre-
pared the job search list admitted as General Counsel's
Exhibit 18. It was allegedly prepared from slips of paper,
i.e., notes taken by Elzata and her notations on a calen-
dar or calendars that were then transferred to one list.
Elzata admittedly did not job search from April through
August 1975 because she was working on the Ginn farm.
Again, the exhibit indicates that Elzata did not look for
work in April 1976 because she was working at Little
Cotton Mfg. Co. However, I credit the testimony of
Louise McMillan, former personnel director of Little
Cotton, supported by Respondent's Exhibit 218, the em-
ployment application of Copeland dated May 5, 1976,
that Elzata began work there on May 5, 1976. Conse-
quently, for April 1976, there is no evidence of either job
search or employment.
The General Counsel, in summary form, contends that
if the job search list and her supporting testimony is
credited. Elzata Copeland had 112 visits to 25 employers
in six quarters (excluding the second and third quarters
of 1975 when she worked the Ginn farm) and Respond-
ent submitted no evidence to dispute 67 visits to 16 em-
ployers. Respondent points to various discrepancies be-
tween Copeland's job search list and her testimony and
between records of certain employers who retained
records of job applicants and her testimony. As an exam-
ple, Copeland's job search list indicates that she looked
for employment at Futorian in September and November
1974, January September, and December 1975, and
March 1976. Records of Futorian disclosed only one
written application from Copeland and that was dated
May 6, 1976. On that application Copeland had respond-
ed "No" to a question of whether she had ever applied
to Futorian before, according to the testimony of McMil-
lan whom I credit. Despite discrepancies between her
job search list and portions of her testimony, I credit her
testimony that she searched for jobs approximately twice
a week.
Although I am convinced that she did look for em-
ployment approximately twice a week, there were cer-
tain months when she admittedly did not search for em-
ployment. Copeland's job search list shows and she ad-
nutted that she did not search for employment from
April through August 1975, when she was employed on
the Ginn's farm. On review of Ginn's initial testimony,
bolstered by her records of when the Copelands did
work, I find that Elzata Copeland worked very little on
the Ginn farm in April and May 1975. Records indicate
she may have worked 6 to 10 days in May on the Ginn
farm and few if any days in April 1975. While I am cog-
nizant of Board precedent2 r that minor lapses in job
search do not require a tolling of backpay if, overall, the
individual has engaged in a reasonably diligent job
search, I believe this is distinquishable and requires a
tolling of gross backpay for 5 months, namely, April,
May, June, July, and August 1975, because sharecrop-
ping was a part-time endeavor. I find that working hours
while sharecropping were usually no more than 4 to 5
hours a day. She was, therefore, required to look for ad-
ditional employment. Records of employment at the
Ginn farm do not indicate any work performed during
August 1975. In view of my conclusion, here, I find it
unnecessary to determine whether she could have
worked in tobacco for Ginn during August 1975. Simi-
larly, I note that for April 1976 Copeland's job search
records indicated she was working at Little Cotton Mfg.
Co. while her employment application and employment
were dated from May 5, 1976. Accordingly, in view of
her admitted failure to job hunt in April 1976, 1 will toll
or deduct one-third of her gross earnings for the second
quarter of 1976.
21 Cornwell Co, 171 NLRB 342 at 343-344 (1968), My Store, 181
NLRB 321 at 333-334 (1970), Gary Aircraft Corp, 211 NLRB 554, 557
(1974)
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In implementing the above , I shall delete the second
quarter of 1975 gross earnings of $2621 entirely leaving
zero back wages due for that quarter . For the third quar-
ter of 1975 , gross backpay was $2829 of which two-
thirds is $ 1886. Deducting $ 1886 from $2829 leaves a bal-
ance of $943 as gross backpay with the remaining figures
adjusted accordingly.
With respect to tolling April 1976, the gross backpay
for the second quarter of 1976 was $2357 of which one-
third is $786 . Deducting $786 from $2357 leaves a bal-
ance of $1571 as gross backpay with the remaining fig-
ures adjusted accordingly.
In sum , with respect to job search , I have credited
Elzata Copeland that she did look regularly for employ-
ment except for April through August 1975 , and April
1976, until she was reinstated at Lundy 's on June 14,
1976.
B. Interim Employment and Earnings . Copeland 's inter-
im employment was for approximately 5 months on the
Ginn farm from April to August 1975 and for approxi-
In regard to expenses , the backpay specifications set
forth claims of $55 , $65, and $90 , respectively , for the
second and third quarters of 1975 and the second quarter
of 1976 . In view of the tolling of gross backpay for the
second quarter of 1975 , and two-thirds of the third quar-
ter of 1975 , those expenses are now irrelevant. I do
accept Respondent 's figures establishing that her ex-
penses for the second quarter of 1976 amounted to $55
while working at Little Cotton . That expenses figure will
be incorporated in the backpay specifications.
E. Backpay Entitlement : $ 17,244 plus interest.
17. Diana Wilson . Backpay Period : August 1, 1974,
to January 31, 1977
Periods of Employment/Unemployment
8/01/74-8/24/75
8/25/75-3/16/76
3/16/76-9/17/76
mately 5 weeks at Little Cotton Mfg. Co ., from May 5 , 9/18/76-10/31/76
1976, until June 13 , 1976. Concerning employment on 11/01/76-11/30/76
the Ginn farm , Respondent contends and exhibits submit - 12/01/76-1/31/77
ted by the Respondent (R. Exh . 114) establish that the
Copelands made a total of $2507 . 80 and Elzata 's share
was $1253 . 90, which I shall divide equally between the
second and third quarters of 1975 for backpay purposes
that comes to $627 as interim earnings for each of those
quarters . However , in view of my earlier ruling tolling
the backpay for the second quarter of 1975 , the interim
earnings for that quarter are irrelevant.
C. Excepted Periods. As previously discussed , because
of her admitted failure to job search , I have in effect
tolled April through August 1975 and April 1976, from
the backpay period . There are no other excepted periods.
D. Miscellaneous . Respondent contends that Copeland
deliberately concealed part of her earnings from share-
cropping on the Ginn farm . She estimated to the Board
agent and in testimony that her total earnings from shar-
ecropping were approximately $458 and the records and
exhibits of Respondent established that in fact her share
was $1253 . 90. Respondent urges that in view of Ginn's
testimony , which I credit , that Copeland asked her not
to divulge any information about her earnings to anyone,
that she was deliberately engaged in concealing her earn-
ings and such subversion of the Board's processes should
disqualify her from all backpay . Although her attempts
in this regard are not to be condoned , in view of the fact
that she admitted the place of employment and the cor-
rect figures were otherwise obtainable , I do not believe
disqualification from backpay is warranted . In H. J.
McCarthy Motor Sales Co., 147 NLRB 605 at 606 (1964),
a discriminatee was vague and evasive concerning earn-
ings. As a result it was impossible for the administrative
law judge to ascertain any interim earnings figure and
the Board upheld his denial of backpay to that individ-
ual. This case is distinguishable on its face as the case
here amounts in effect to an understatement of earnings.
In McCarthy, supra , the actual earnings could not be as-
certained at all because of the witness' evasiveness about
interim earnings.
Unemployed
Erwin Mills (full time)
Fleetline of Salemburg (full
time)
Unemployed
Marrali 's Pizza (part-time)
Unemployed
Personal Information: Wilson is a black female, a high
school graduate , 22 years of age, married with one child.
She had no technical training but had training as a
weaver and a sewing machine operator. She began work
at Lundy 's in November 1973. She had interim employ-
ment in 6 of the 11 quarters of the backpay period.
Claim : As modified , $23,612 plus interest.
Rebuttal : Respondent contends backpay should be re-
duced to reflect : failure to make a reasonable job search;
failure to account for losses for quitting of suitable inter-
im employment ; failure to include deductions for insur-
ance premiums at Lundy 's; failure to account for Wil-
son's withdrawal from the labor market in late 1976;
lastly, that the expenses claimed are excessive.
A. Job Search . Wilson 's job search list was General
Counsel 's Exhibit 19. In issue is whether she made a rea-
sonably diligent job search when not fully employed,
namely , from August 1, 1974, to August 24 , 1975, and
from September 18, 1976, until reinstatement at Lundy's
on January 31, 1977.
Concerning the first period , the General Counsel con-
tends that for the third and fourth quarters of 1974 and
the first quarter of 1975, Wilson visited 58 employers a
total of 72 times in search for a job. Concerning the
second quarter of 1975, it is further noted that Wilson
registered with ESC sometime in January 1975, and that
once or twice a week thereafter she visited retail stores
in Clinton , Fayetteville , and Dunn and manufacturing
plants in Clinton and Fayetteville looking for work (see
R. Exh . 56-2).
In opposition, Respondent points out certain discrep-
ancies in Wilson 's job search list including, inter alia, that
the notes job searches in the first week of July 1974, al-
though Wilson continued to work until July 11, 1974. In
addition , her list was altered and had discrepancies con-
cerning the weeks in August , September , and October
that are allegedly indicative that the list was not com-
piled as the job search was made. Finally, the job search
LUNDY PACKING CO
list only showed job searches through the first week of
January 1975.
Despite certain discrepancies , after review of the
record, I find that she did engage in a reasonably diligent
search for employment in the period from August 1,
1974, until she was employed at Erwin Mills on August
25, 1975. Although she did not recall all her job
searches , she was able to relate sufficient details to con-
vince me that she had regularly engaged in a job search.
Concerning the second period, from September 18,
1976, to January 31, 1977, I find no evidence of, nor was
Wilson able to recall , any places she searched for em-
ployment after being forced by personal problems to
leave her part -time employment at Marrali's in Clinton,
in late November . The record includes no definite dates
for Wilson 's employment there , but it was estimated she
worked there for 1 month in November 1976. Absent
any evidence of job search thereafter, I shall toll the
months of December 1976, and January 1977, from the
backpay claim and shall adjust the figures accordingly. I
reject , however , Respondent 's further contention that
November 1976 be also tolled because of lack of job
search since Wilson 's employment in November was 5
hours a day and 7 hours on weekends . Whether deemed
full- or part-time employment , she was only employed
there a short time.
Accordingly, from the fourth quarter of 1976, I shall
deduct $663 from the gross backpay earnings of $1990
(one-third of $1990), leaving gross backpay earnings of
$1327 Gross backpay for the first quarter of 1977 is
stated as $1166, which I shall change to zero reflecting
failure to job search for January 1977.
B. Interim Employment and Earnings . Wilson worked
with three employers during the backpay period , namely,
Erwin Mills , Fleetline , and Marrali 's Pizza . In issue is
whether her earnings at Erwin Mills should be projected
through the remainder of her backpay period as Re-
spondent contends , because she voluntarily quit employ-
ment. Wilson worked the 3 to 11 p.m. shift at Erwin
Mills as compared to the first shift at Lundy's, which
created problems for her in getting a baby sitter . Second,
Erwin Mills was further from her home than her new
employment at Fleetline . Third , she immediately began
employment at Fleetline without any lapse of time from
her employment at Erwin Mills, although her wages
were less. Wilson also credibly testified that she left
Erwin Mills because of a breathing problem with the
lint, although there was some evidence that she quit to
go to school at Sampson Technical Institute . However,
she did not go to school and was immediately employed
at Fleetline. Thus , even apart from the proffered reasons
for her quitting , I find she was justified in seeking other
employment involving a day shift , the same shift she
worked at Lundy's. Second, she did not have to work 6
days a week as at Erwin Mills'. Last , working a day shift
made it easier in finding a babysitter . Therefore, I reject
Respondent 's contentions and find that her voluntary ter-
mination of employment at Erwin Mills was justifiable
under the circumstances.
Concerning Wilson 's subsequent voluntary termination
of employment at Fleetline due to the lack of a babysit-
ter, the backpay specifications except or loll the period
171
of approximately 6 weeks after her voluntary quit until
she again became employed . The dates are set forth
under paragraph C. here.
The General Counsel contends and I agree that since
Wilson worked 6 days a week at Erwin Mills as com-
pared to 5 days a week at Lundy 's, the money accruing
as the result of overtime work should not be counted as
interim earnings . Thus, the General Counsel proposes
that instead of $350 for earnings in the third quarter of
1975, the corrected interim earnings are $292; $2351
earnings for the fourth quarter of 1975 should be correct-
ed to $1959 ; that $2166 earnings for the first quarter of
1976 should be corrected to $1914 . I agree and will uti-
lize the corrected figures for the above -named quarters.
The Respondent contends and I agree that the evi-
dence establishes that Wilson took a leave of absence of
2 days in December 1975, to care for her ill son. Ac-
cordingly , the sum of $91 shall be deducted from the
total back wages due for the fourth quarter of 1975.
C. Excepted Periods. September 17, 1976, to November
1, 1976, in accordance with the backpay specifications.
D. Miscellaneous . There are two matters in issue here:
The expense claims in maintaining interim employment
and whether insurance premiums paid by Lundy 's should
be paid for by the discriminatee because of absences
from her interim employment.
The specifications claim expenses as follows : $25 for
the third quarter of 1975; $65 for the fourth quarter of
1975; $60 for the first quarter of 1976; $91 for the second
quarter of 1976; $77 for the third quarter of 1976; and
$40 for the fourth quarter of 1976 . Respondent contends
that the General Counsel waived expenses less than $50 a
quarter and that Wilson incurred actual expenses of only
$27 for the third quarter of 1975; $65 for the fourth quar-
ter of 1975 ; $55 for the first quarter of 1976. Respondent
further notes that when Wilson was employed at Fleet-
line in Salemburg , she was 7 miles from her home as op-
posed to 10 miles to Lundy 's from March 16, 1976,
through September 17, 1976, and that Wilson incurred
no additional expense and is entitled to no reimbursement
while employed there for the second and third quarters
of 1976. Respondent's arguments are well -founded. I do
not find , however , that the claim of $25 for the third
quarter of 1975 was waived as the waiver was prospec-
tive in nature (Tr. 2901). I accept Respondent 's figures
that Wilson incurred costs of $5 a week while employed
at Erwin Mills and for the fourth quarter of 1975, in-
curred travel expenses of $65 ($5 times 13 weeks) and
$55 for the first quarter of 1976 ( 11 weeks times $5). I
also accept Respondent 's argument that Wilson is enti-
tled to no reimbursement while employed at Fleetline be-
cause that was closer to her home at Roseboro than was
Lundy's, and her move to Roseboro was prompted by
personal reasons . Therefore, I disallow any claims for ex-
penses for the second and third quarters of 1976. For
similar reasons, I find Wilson not entitled to any reim-
bursement for expenses to her temporary job at Marra-
li's, which was located at Clinton as was Lundy's and
which involved the fourth quarter of 1976.
Respondent also urges that insurance premiums be de-
ducted from gross backpay due to Wilson's absences at
172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
her interim employment. As stated elsewhere that argu-
ment has been rejected and is rejected here because it
has not been shown that similar attendance and on-time
incentives existed at the interim employment.
E. Backpay Entitlement: $21,459 plus interest.
18. Weldon Raynor. Backpay Period: August 1,
1974, to November 29, 1976
Periods of Employment/Unemployment
8/01/74-4/23/75
4/24/75-6/27/75
6/28/75-3/21/76
3/22/76-11/25/76
11/25/76-11/29/76
Unemployed
Carolina Packers
Unemployed
Little Cotton Mfg. Co.
Unemployed
Personal Information: Raynor is a black male, 23 years
old and married with one child. He was a high school
graduate. He had no special skills and began work for
Lundy's in 1970. He was employed on the first shift,
trimming hog jaws. He had interim employment for 5 of
10 quarters of his backpay period. Prior work experience
was farm work and at a grocery store.
Claim: As modified, $25,922 plus interest.
Rebuttal: Respondent contends backpay should be di-
minished because Raynor failed to make a reasonable
search for interim employment; that Raynor unjustifiably
quit interim employment; and last, that excessive ex-
penses are claimed.
A. Job Search. Raynor registered for work with the
ESC in Clinton and returned there 5 to 10 times seeking
employment. Raynor kept no records of his job search.
He testified he searched for work at a number of places,
at least 12 of whom he called visiting on numerous occa-
sions. He did secure work at two places, Carolina Pack-
ers on April 24 through June 27, 1975, and Little Cotton
Mfg. Co. from March 22 to November 25, 1976, when
he quit to return to work at Lundy' s. His search efforts
were primarily oral inquiries but he did complete written
applications at Thermopane and Sampson Produce. He
visited most of the employers twice and to certain em-
ployers he made additional inquiries. He secured his first
interim employment at Carolina Packers and worked
there approximately 2 months before quitting because of
lack of transportation.
I find that in the first interim period, i.e., from August
1, 1974, until he secured employment at Carolina Packers
on April 24, 1975, he did engage in a reasonably diligent
job search that qualified him for backpay.
In regard to the period from June 28, 1975, through
March 21 , 1976, after terminating his employment at
Carolina Packers, Raynor testified that he made job in-
quiries, repeated in many instances, at Hamilton Beach,
Firestone, Beaunits , Quinn Wholesale , Rohm and Haas,
Countrywide Sewing, Southern Supply, and Joan of
Arc, plus others, Finally, despite being unable to recall
many events 4 and 5 years previously, Raynor testified
credibly that he searched for jobs "two and three times
every week when I wasn't working." (Tr. 2868.) On the
record as a whole, I find that Raynor engaged in a rea-
sonably diligent effort to find work during this second
period until he obtained employment at Little Cotton
Mfg. Co. (also known as Roseboro Spinning) on March
22, 1976.
B. Interim Employment and Earnings. Raynor worked
at two places during the backpay period, namely, Caroli-
na Packers and Little Cotton Mfg. Co. Respondent con-
tends that Raynor was unjustified in quitting his employ-
ment at Carolina Packers about June 27, 1975, and that
his earnings should be projected to diminish the backpay.
Raynor testified that Carolina Packers was 37 miles from
his home and that, after he left his carpool after the first
2 weeks of employment, he drove himself the next 6
weeks. When he drove, he left home at 4 a.m., arriving
about 5 a.m. After the transmission of his car broke
down and he was unable to get it repaired or replaced,
he was forced to quit his job. Respondent contends that
there is no evidence that Raynor could not have re-
turned to his original carpool. The test is, however,
whether his employment would have been interrupted at
Lundy's because of transportation problems. I think not
in view of the distance as contrasted with his approxi-
mate 3-mile trip to Lundy's. In effect, I find that he
would have had no transportation problem if he had con-
tinued employment at Lundy's in view of the short dis-
tance to Lundy's I find that Raynor was forced by cir-
cumstances beyond his control to give up employment at
Carolina Packers. Thus, his quitting of his employment
was justifiable under the circumstances, provided, how-
ever, that he did, in fact, resume his search for other in-
terim employment. I find no basis for concluding that
Raynor willfully incurred a loss of earnings. As noted
previously, I am convinced that Raynor was diligent in
searching for employment.
His second place of employment was Little Cotton
Mfg. Co. where he began work on March 22, 1976,
working a shift beginning at midnight from Tuesday
through Saturday. His earnings are not in issue but he
terminated his employment there on Thursday, Novem-
ber 25, 1976, to return to work at Lundy's. Respondent
contends, correctly I find, that he could have worked
two additional days, Friday and Saturday, before return-
ing to work at Lundy's on November 29, 1975. There-
fore, 2 days of additional wages shall be added to his in-
terim earnings at Little Cotton. Utilizing the third quar-
ter of 1976, I divided his net interim earnings of $1692
by 13 weeks to get $130 a week, divided by 5 (days) is
$26 a day. I shall add $52 to his interim earnings for that
quarter.
C. Excepted Periods. None in view of my rejection of
Respondent's contention that Raynor did not engage in a
reasonable job search.
D. Miscellaneous. As modified, the backpay specifica-
tion claimed $258 as expenses for the second quarter of
1975, while Respondent (responding to the original claim
of $348) claims it should be $286. Respondent has failed
to offset the original mileage of 6 miles roundtrip to
Lundy's. Consequently, I find the General Counsel's
lesser claim of $258 correct. The General Counsel claims
(as modified) that expenses were as follows: $33-first
quarter of 1976; $79-second quarter of 1976; $86-third
quarter of 1976; $53-fourth quarter of 1976. Respondent,
responding to the original backpay specifications, claims
LUNDY PACKING CO
that they should be: $11-first quarter of 1976; $128-
second quarter of 1976; $132-third quarter of 1976;
$66-fourth quarter of 1976. Except for the first quarter
of 1976, in which the General Counsel seeks $33 as com-
pared to Respondent's acceptance of an $11 figure (as
amended at the hearing), the General Counsel's claims
are now less than that urged by the Respondent. I find
the General Counsel's figures correct ($33) concerning
the first quarter of 1976 and adopt his claimed figures for
other quarters as being more correct and, in any event,
less than that urged by the Respondent.
I reject, absentee evidence of comparable monetary in-
centives at interim employment to encourage attendance
and promptness, Respondent's contention that insurance
premiums at Lundy's should be deducted from gross
backpay because of Raynor's absences or tardiness from
his interim employment.
E. Backpay Entitlement: $25,679 plus interest.
19. Aliene M. Raynor. Backpay Period: August 1,
1974, to December 6, 1976
Periods of Employment/Unemployment
8/01/74-6/04/75 Self-employed (Babysitting
and sewing part-time)
6/05/75-8/17/75 Wilson Packing (seasonal)
8/18/75-9/15/75 Farm work (full time) In
laws
9/16/75-9/24/76 Southeastern Sewing
9/25/76-12/06/76 Unemployed
Personal Information: Raynor is a black female, 26
years old, married with one child. She began work at
Lundy's in 1970 and worked first shift. Her work experi-
ences prior to Lundy's were sewing and farm work. She
registered for employment at the ESC. She had interim
earnings in 9 of 10 quarters in her backpay period.
Claim: As modified, $24,981 plus interest.
Rebuttal: Respondent contends the backpay figures are
incorrect because they fail to consider willful losses in-
curred due to lack of a reasonable job search they fail to
deduct for insurance premiums and they fail to deduct
for excepted periods.
A. Job Search. In issue is whether Raynor made a rea-
sonable search for employment during times she was not
employed full time, namely, from August 1, 1974, to
June 4, 1975; a second time period, June 5 to August 17,
1975, when she was allegedly employed part-time at
Wilson Packing; and a third time period from September
25 to December 6, 1976, after voluntarily quitting em-
ployment at Southeastern Sewing.
In regard to the period from August 1, 1974, until her
employment at Wilson Packing on June 6, 1975, she was
self-employed as a babysitter and doing sewing. She testi-
fied credibly that her schedule prior to going to work at
Wilson Packing would be to "get up early in the morn-
ing, and travel from place to place and ask about jobs,
you know, early in the morning and try to be back to
the [picket] line at maybe 10:00 o'clock or 11: o'clock;
and then maybe I would walk from 11:00 o'clock until
1:00 or 2:00 o'clock; and then sometimes would go home
and start sewing." (Tr. 2949.) She seemed forthright and
appeared to testify to the best of her recollection about
173
events, and, when uncertain or she did not recall, she so
stated. I am convinced and find that she engaged in a
reasonable search for employment while engaged in part-
time sewing and babysitting for this period.
Raynor conceded that she did not look for other work
while employed at Wilson Packing from June 5 to
August 17, 1975. (Tr. 3016.) She made boxes at Wilson
Packing and her hours varied with the processing of the
crop and worked from 35 to 40 hours but rarely over 40
hours. Linda Wilson testified that Raynor normally
worked a 40-hour week. In essence Raynor was doing
seasonal work, working whatever hours they needed her,
and when no more work was available on a given day,
employees were laid off. I conclude that since Raynor
was subject to working differing hourly periods on a sea-
sonal crop, she was working essentially full time that 2-
month period and was not required to search for another
job.
Respondent contends that inasmuch as Raynor testified
that she did not search for work after leaving Southeast-
ern on September 24, 1976, her backpay should be termi-
nated or alternatively her earnings at Southeastern
should be projected until her reemployment by Lundy's.
I agree and for the reasons set forth in the discussion
under interim employment, I find that Respondent's
backpay liability terminates as to Raynor on September
24, 1976.
B. Interim Employment and Earnings. Raynor received
income from four sources during her backpay period. In
addition to her period of self-employment, she worked at
Wilson Packing for approximately 2 months in 1975;
worked full time for some relatives on their farm for 1
month thereafter; finally she worked approximately 1
year full time (except for a layoff in the first quarter of
1976) for Southeastern Sewing.
Respondent contends that Raynor voluntarily quit her
employment from Wilson Packing citing the testimony of
Linda Wilson to that effect. Raynor credibly testified on
rebuttal that she worked until she was told there was no
more work. Moreover, General Counsel's Exhibit 48
contains a response from Wilson Packing regarding
Raynor's employment stating that the work ended. Ac-
cordingly, I reject Respondent's contention that Raynor
willfully incurred any wage loss and find that she left
Wilson when the seasonal work ended.
Respondent contends that the backpay specifications
are in error in the following respects. Concerning the
first quarter of 1976, no interim earnings are listed, yet
Respondent's Exhibits 136 and 138 establish that Raynor
had interim earnings at Southeastern in the amount of
$604. I agree. Concerning the third quarter of 1976, Re-
spondent claims that interim earnings should be $1234
not the $1084 listed by the General Counsel, pointing
again to its Exhibit 136. Further, Raynor did not work
the last week in September 1976. Respondent argues that
backpay should be terminated completely as of the date
she voluntarily left Southeastern, namely, September 24,
1976, or her income should be projected. As Raynor
conceded she did not search for employment after de-
parting Southeastern, I shall toll or terminate backpay li-
ability as of that date. In implementing this, I shall
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
deduct $207 from the gross backpay for the third quarter
of 1976, which I obtained by dividing $2690 by 13
(weeks), leaving an adjusted gross backpay figure of
$2483 with the remaining figures adjusted accordingly. I
agree that interim earnings for the third quarter of 1976
are $1234. For the fourth quarter of 1976, prior to her
return to Lundy's, for which Raynor was admittedly not
available, I am tolling all backpay.
C. Excepted Periods. As discussed previously and dis-
posed of, the period from September 24, 1976, until
Raynor's reinstatement at Lundy, on December 6, 1976,
will be treated as an excepted period since she voluntari-
ly left her employment and did not search for another
job.
D. Miscellaneous. Expense claims were waived. Re-
spondent notes that Raynor was absent from her job at
Southeastern on March 22, 1976, and requests that the
cost of insurance premiums at Lundy's for March 1976,
be borne by the discriminatee in light of her absence
from her interim employment. There was no evidence es-
tablishing that attendance incentives at Southeastern
were comparable to those at Lundy's. Accordingly, Re-
spondent's position is rejected.
E. Backpay Entitlement: $21,475 plus interest.
20. Elwood Raynor. Backpay Period: August 1,
1974, to November 12, 1976
8/01/74-10/16/75 Self-employed-Mechanic
work (part-time)
10/17/75-9/25/76 Little Cotton Mfg. Co.
9/26/76-11/12/76 Mechanic work (part-time)
Personal Information- Elwood Raynor is a black male,
32 years old, married with five children. He began work
at Lundy's in 1969, and at the time of the strike was per-
forming work as a belly skinner. His prior work experi-
ence included working as a short-order cook, farm work,
and laborer at a Dr. Pepper bottling plant . He also
worked as an auto mechanic, although he had no special-
ized training in this field. He had interim earnings in all
quarters of his backpay period. He had registered at the
ESC.
Claim: As modified, $21,000 plus interest.
Rebuttal: Respondent contends that the amount
claimed for backpay is in error because Raynor: failed to
make a reasonable search for employment unjustifiably
quit interim employment at Little Cotton had excessive
amounts of expenses and would have had to pay insur-
ance premiums in view of his temporary discharge from
his interim employment. Last, Respondent contends he
would have been discharged from Lundy's about July
23, 1976.
A. Job Search. Raynor had no written record of a job
search and testified solely from memory. Although
Raynor could recall some specific events that occurred
during his job search his recollection was poor on when
he made such searches. Respondent's Exhibit 11 was a
document he prepared from memory when interviewed
by a Board agent of the number of places he went
searching for a job. The General Counsel urges that
based on his testimony and Exhibit 11, Elwood Raynor
sought work at 14 different employers up until his em-
ployment at Little Cotton on October 17, 1975, and
again after his leaving employment at Little Cotton on
September 25, 1976. Respondent contends that Raynor's
testimony about his job searches is not credible, citing
certain discrepancies, including Raynor' s changes in tes-
timony, and that, in any event, even if his testimony is
credited, it would show his job search was not reasona-
ble.
I have examined Raynor's testimony and most of his
equivocation was based on inability to recall when and
how many times he did visit a certain employer in search
of a job. Since he was testifying in 1979, about events
occurring in 1974-1975 and 1976, his inability to recall
dates is no reflection on his credibility. Based on his de-
meanor, I find that Raynor attempted to recall events as
truthfully as he could and I credit him. Regarding the
extent of his job search, I note , for example (Tr. 3170,
3214), that Raynor indicated in testimony I find credible
that the places he stated he visited in discussions with
Board agents and in the hearing did not necessarily in-
clude all the places that he went job searching. More-
over, Raynor was working part-time as an auto mechanic
and making approximately $55 a week and when he fi-
nally took employment at Little Cotton in October 1975,
he accepted a third shift (or midnight shift) and worked
at that job for some 11 months. In addition, I find that
the requirement for job search is less when employed
part-time than when unemployed. All these factors per-
suade me that Raynor did not willfully incur a loss of
earnings and that he did engage in a reasonable job
search during the period from August 1, 1974, to Octo-
ber 16, 1976, when he gained full-time employment. In
view of my subsequent findings under interim employ-
ment , I find it unnecessary to determine whether Raynor
engaged in a reasonable job search at other times.
B. Interim Employment and Earnings. Raynor testified
he earned approximately $55 a week while self-employed
as an auto mechanic part-time during all times except
when he worked full time at Little Cotton Mfg. Co. Re-
spondent contends that the specifications do not include
the correct amounts of interim earnings from his self-em-
ployment as a mechanic for the third quarter of 1974, the
fourth quarter of 1974 and the first three quarters of 1975
and urging that the correct amounts are third quarter of
1974-$473 (8.6 weeks times $55); and $715 for subse-
quent quarters ($55 times 13 weeks), namely, the fourth
quarter of 1974 and the first three quarters of 1975. I
agree and shall adjust those figures accordingly.
For the fourth quarter of 1975, Respondent contends
his interim earnings should include 2.3 weeks times $55
or $126 plus the $1046 at Little Cotton, totaling $1172. I
agree with Respondent and shall adjust the specifications
accordingly.
Respondent contends that Raynor unjustifiably quit his
job as Little Cotton on September 25, 1976. Raynor ad-
mitted quitting his job and said the main reason was he
developed a rash, apparently from the lint dust, but also
offered other reasons, namely, the distance (17 miles)
from his home and the fact that his working the night
shift disturbed and disrupted his family life. Although
Raynor sought treatment from a doctor, he was advised
LUNDY PACKING CO
the rash was probably from something he ate. He was
not advised by a doctor to quit his present employment.
As to distance, 17 miles is not an unreasonable distance
to commute for employment. He later sought employ-
ment 20 miles from his home. As he worked there for
approximately 11 months prior to quitting, I do not
credit his claim of family "disruption" as a basis for quit-
ting . In these circumstances, I find Raynor's quitting of
his interim employment at Little Cotton was unjustified
and shall project his earnings as if he had remained em-
ployed at Little Cotton until the date he was reinstated
at Lundy's. Implementing this, Raynor's interim earnings
for the third quarter of 1976 amounted to $1379 divided
by 12 weeks (less 1 week in September 1976) or approxi-
mately $115 a week. Thus, for the third quarter of 1976,
his interim earnings shall be stated as $1494 ($1379 plus
115). The fourth quarter of 1976 (until November 12,
1976) is approximately 6 weeks times 115, which equals
$690 that I shall utilize as interim earnings for that quar-
ter.
Respondent also contends that because Raynor was
discharged temporarily for taking time off from Little
Cotton after being denied permission, he would have
been terminated had he been still employed at Lundy's
and argues, therefore, that its backpay liability ends as of
July 23, 1976. Apart from the speculative nature of this
contention, I note that Raynor had been employed at
Lundy's since 1969, that he was employed on the night
shift at Little Cotton that necessitated him working
Friday night or part of a weekend, an event which
would not have occurred at Lundy's because he worked
days and normally worked a 40-hour week. Last, as to
the speculative aspect, despite testimony of Clarence Ke-
phart that an individual would have been discharged for
taking time off after being denied permission to do so,
there is no way of knowing whether either Raynor or
Lundy would have taken the same positions about his ab-
sence. In sum , Respondent's contention is rejected be-
cause the factual circumstances do not posit an exact
analogy and the contention is very speculative at best.
C. Excepted Periods. Respondent's contention that
Raynor would have been discharged on July 23, 1976,
was previously rejected.
D. Miscellaneous. In issue are claimed expenses for in-
terim employment and whether Respondent is entitled to
an offset for insurance premiums paid by Lundy's be-
cause of Raynor's absences from interim employment.
The General Counsel contends and the credited testi-
mony of Raynor supports that he purchased $800 of
automotive equipment in pursuing his part-time interim
employment as a self-employed auto mechanic and that
this amount should be offset as expenses, $133 for the six
quarters he was self-employed. I agree that this should
offset his interim earnings but it does pose a problem re-
specting the fourth quarter of 1976, in which I substitut-
ed his higher projected earnings at Little Cotton in lieu
of $55 a week from his automotive work. I shall leave
intact the $113 for expenses for all six quarters since such
expenses were incurred and since any alternative ap-
proach would simply mean dividing the $800 among five
quarters with no change in the ultimate figures.
175
Respondent objects to alleged expenses of $30 for the
third quarter of 1974, $65 for the fourth quarter of 1975,
and $65 for the first three quarters of 1975 in the original
specifications. These claims have been subsequently
dropped and claims of $133 for each quarter for pur-
chase of equipment substituted. In view of my accept-
ance of the $133 figure above, this issue is resolved.
Respondent again raises its claim that because Raynor
was absent once in January 1976, and once in September
1976, from his interim employment at Little Cotton, the
insurance premiums at Lundy's would not have been
paid and Respondent is entitled to a reduction in the
amount of backpay due. Consistent with my prior rul-
ings , absent a showing of comparable monetary incen-
tives for attendance at Little Cotton, Respondent's con-
tention is rejected.
E. Backpay Entitlement. $19,657 plus interest.
21. Mary Raynor. Backpay: August 1, 1974, to June
25, 1976
Periods of Employment/Unemployment
8/1/74-3/31/75 Unemployed
4/1/75-7/05/75 Farm work (part-time)
7/6/75-3/31/76 Unemployed
4/1/76-6/24/76 Farm work (part-time)
Personal Information: Mary Raynor is a black female,
age 24, married to Weldon Raynor, another Lundy's em-
ployee, with one child. She trimmed hog heads on the
kill floor at Lundy's and has been employed there since
1968. She had no specialized skills but had worked at
Hamilton Beach boxing motors and had done farm work,
picking squash, cucumbers, and working tobacco. She
registered for employment with the ESC and checked
back there some eight to nine times during the backpay
period. She had interim earnings in three quarters of
eight quarters in her backpay period.
Claim: As modified, $24,046 plus interest. Expenses
were waived.
Rebuttal: Respondent contends the backpay figures are
in error because they do not take into consideration
Mary Raynor's failure to make a reasonable job search.
A. Job Search. Mary Raynor had no written record of
her job searches. She testified from memory and her
recollection was poor. However, the General Counsel
submitted into evidence his Exhibit 22, a list of employ-
ers that Raynor visited as told to Brown, a Board agent,
in an interview. Raynor testified, at one point (Tr. 3227)
that "during the time I was out [on strike], I went a lot
of times to different places looking for work." At an-
other point, she testified (Tr. 3245) that she searched for
work on Mondays and Tuesdays of the week because
people usually hired on Monday and that she rarely
looked for work on Wednesday, Thursday, or Friday.
Respondent contends the job search list and her testi-
mony are untrustworthy pointing out, inter alia, that Ex-
hibit 22 shows that Raynor went to Hamilton Beach four
times between August and November 1974, and three ad-
ditional times to Hamilton Beach in May, June, and July
1975, but that they would not take her application. Yet
General Counsel's Exhibit 52 shows that Hamilton Beach
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
accepted numerous applications (e.g., 118 in August, 193
in September, 126 in October, all in 1974). Respondent
contends, therefore, that this, inter alia, is indicative that
Raynor did not in fact seek employment at Hamilton
Beach and therefore the list is untrustworthy. Respond-
ent further contends that even if Raynor's testimony and
General Counsel's Exhibit 22 are fully credited, her job
search was not reasonable because it only establishes that
she searched for work on 35 occasions over a 22-month
period. I find this latter contention has some merit.
I credit Raynor that she did in fact search for employ-
ment in the initial months after August 1, 1974, noting
that oral inquiries for jobs were rarely recorded by em-
ployers. Her testimony that she searched for work, usual-
ly Mondays and Tuesdays of each week combined with
General Counsel's Exhibit 22 convinces me that she en-
gaged in a reasonable search for employment at least
through July 1975. Exhibit 22, however, shows that from
August until December 1975, a 5-month period, she
searched for work only at Southeastern Sewing four
times and that from January until May 1976, she only
searched at one employer, Rohm & Haas (five times) in a
5-month period. Moreover, her recollection of her job
searches at the hearing was sketchy at best and provides
no solid foundation for finding that she engaged in a rea-
sonable search for employment from August 1975 until
her reinstatement in June 1976. Her breadth of search
was also defective inasmuch as it indicates she searched
at only two employers in a 10-month period and eight
different employers over a 22-month period. Moreover,
the fact that she secured no interim employment in a 22-
month period buttresses my conclusion, in these circum-
stances, that her search was inadequate. On the basis of
all the factors mentioned above, I find that Raynor did
not engage in a reasonable job search from August 1975
to her reinstatement in June 1976, and such period shall
be tolled with resultant adjustment in her backpay. For
the third quarter of 1975, I shall only utilize one-third of
the total gross backpay (one-third of $3184) for July
1975 or $1061 with interim earnings of $18.
B. Interim Employment and Earnings. Raynor had no
formal interim employment but did work several months
on her brother-in-law's farm. The parties stipulated that
Mary Raynor engaged in additional farm work in squash
and pepper in the second quarter of 1975 and 1976 and 1
week in July of both years at $2 an hour, 2 to 3 days a
week. Because I have tolled the period after August
1975, the stipulation involving any interim earnings for
1976, of approximately $252 is nullified. However, the
stipulation of the parties is effective for the second quar-
ter of 1975, and July of the third quarter of 1975, and
results in interim earnings of $234 and $ 18, respectively,
for those quarters. Respondent, while agreeing to the
stipulation, argued that Raynor was only employed in
farm work part-time in any event and still did not engage
in a reasonable job search.
C. Excepted Periods. As discussed previously, backpay
for the period from August 1975 until June 1976, is
tolled for lack of reasonable job search.
D. Miscellaneous. Expense claims were waived.
E. Backpay Entitlement: $12,438 plus interest.
22. Everette Smith. Backpay Period: August 1,
1974, to April 16, 1976
Periods of Employment/Unemployment
8/01/74-8/05/74 Unemployed
8/06/74-8/06/74 Roberson's Beverages
8/07/74-12/17/74 Unemployed
12/18/74-1/19/75 Part-time construction work
(Promac)
1/20/75-4/01/75 unemployed
4/02/75-4/10/75 Pepsi-Cola Bottling Co.
4/14/75-5/30/75 Rogers Construction Co.
6/01/75-4/16/76 North Carolina Justice
Academy
Personal Information: Smith is a black male, 41 years
old, married with four children. He began working at
Lundy's in 1953, and boned meat on the first shift. He
had a sixth grade education and has difficulty reading
and writing. His prior work experience was in a sawmill
and on a farm. He had no special skills other than utiliz-
ing a knife in his work. He worked for five employers
and had interim earnings in all eight quarters of his back-
pay period.
Claim: As modified, $18,526 plus interest.
Rebuttal: Respondent contends that Smith incurred
willful losses by failing to make a reasonable search for
employment; by failing to accept full-time employment at
Promac, Inc., and by quitting suitable employment while
working for Roberson's Beverages and Pepsi-Cola with-
out justification.
A. Job Search . In issue is whether Smith engaged in a
reasonable job search in the period from August 1, 1974,
until April 14, 1975, when he become employed full time
until his reinstatement on April 16, 1976. Smith credibly
testified that when he returned from job searching, he
told his wife where he had been and she wrote it down
on a pad. His wife, Betty, credibly testified to the same
effect. The list of places were recopied, submitted to a
Board agent , and introduced at the hearing as General
Counsel's Exhibit 23, listing some 32 employers on a
four-page list. Smith, who had no independent recollec-
tion of the dates of his job searches, testified credibly
and in detail about his job searches and was able to
relate a certain chronology as between job searches. He
candidly admitted that concerning four employers on the
list he did not recall them although he admitted he may
have visited two of the four employers he did not recall.
Respondent contends that certain discrepancies, inter
alia, all the jobs were not listed chronologically as testi-
fied to by Betty Smith, the allegedly confusing testimony
of Smith's concerning whether a second copy had been
prepared for submission to the Board agent, and the inac-
curacies discovered in the list (places he did not recall)
render the job search list untrustworthy and Smith's tes-
timony should be discredited.
I find that the minor inaccuracies do not detract from
the document's overall trustworthiness. Not only was
Everette Smith's testimony credible, he sought employ-
ment in Greensboro, Wilson, Kingston, and St. Paul, all
in North Carolina but at distances ranging from 50 to
115 miles from his home. Moreover, Smith's success in
LUNDY PACKING CO. 177
obtaining jobs, four employers between August 1974 and
April 1975 reflects an above average job search. Accord-
ingly, I find that Smith was actively engaged in job
searches when not fully employed.
B. Interim Employment and Earnings. Smith worked 1
day (8/6/74) at Roberson's Beverages; approximately 4
weeks at Promac, Inc., a construction employer, from
December 18, 1974, to January 19, 1975, and 8 days at
Pepsi-Cola from April 2, 1975, to April 10, 1975. Only
Smith's employment at Roberson' s Beverages , Promac,
Inc. and Pepsi-Cola are in issue.
Smith worked 1 day at Roberson's Beverages at $2 an
hour and quit primarily because he could not "adjust" to
handling the bottles and also referred to an earlier wrist
injury at Lundy's that prevented him from properly per-
forming his job. However, his latest wrist injury was
some 4 years old and his job at Lundy's, boning meat
with a knife, according to the credited testimony of Ke-
phart, required considerable wrist strength and he also
had to lift 100 pound boxes of meat while employed at
Lundy's. I credit Smith's testimony that his thumb was
weaker as a result of an earlier injury at Lundy's and
three operations. Different jobs utilize different muscles.
Smith's work record during the backpay period reflected
five jobs with five different employers totaling about 15
months out of the approximately 20-1/2 months of the
backpay period. In two instances he quit jobs and was
immediately employed elsewhere and his job search indi-
cated a vigorous effort to find employment. For exam-
ple, he sought work in Greensboro, North Carolina, at a
Swift plant, some 3-hour drive from him home and in
other instances made two trips to a place, one to get an
employment application that was filled out by his wife at
home and the next day to return him completed applica-
tion. After having worked at Lundy's some 20 years it is
understandable that he may have had difficulties adjust-
ing to his job at the bottling plant. He explained that his
thumb pained him after working 1 day and he quit. I
conclude that Smith could perform his job at Lundy but
was unable to perform a job lifting these bottles. In such
circumstances, I conclude he was not able to perform the
job at Roberson without considerable discomfort and
was justified in quitting his job at Roberson's.
Smith was employed at Promac, Inc., a construction
company for approximately 1 month (12/18/74 to
1/19/75) at the end of which he was told they did not
need him anymore. Respondent contends that he only
accepted part-time work at Promac when full-time work
was available. Smith's job search reflected vigorous ac-
tivity in seeking another job and this contention is incon-
sistent with his work history. Watson, foreman on the
Promac job, testified that Smith told him he did not wish
to work full time because he would lose some unemploy-
ment benefits. Yet, it was unlikely Smith was eligible to
receive unemployment compensation after 1 day's em-
ployment at Roberson's and the only benefits he was re-
ceiving were strike benefits of $30 a week. In view of
Smith's work record, I credit him over Watson. More-
over, I note that the day after, namely January 20, 1975,
Smith went to work for Pepsi-Cola Bottling Co. in Fay-
etteville, North Carolina. Considering the variable nature
of employment in the construction industi y and his job
of excavating for the foundation and Smith's work
record, I credit Smith that he would work as much time
as was available at Promac and was let go for unnamed
reasons, presumably lack of work.
Respondent also contends that Smith's departure from
Pepsi-Cola was unjustified and that his pay should be
projected. Smith credibly testified that he quit Pepsi-
Cola after 8 days because he was not getting his 8 hours
and in view of his long drive (Roseboro to Fayetteville
was approximately 28 miles one way) he quit. He testi-
fied for example, that some days he would only work 3
hours and that it did not pay him for gasoline to keep
less than a full-time job. In any event I reject Respond-
ent's contention and find that Smith was justified in quit-
ting Pepsi-Cola because it turned out to be less than a
full-time job and it was not economical for him to con-
tinue work there.
C. Excepted Periods. Respondent contends that because
Smith only sought part-time employment from August 6,
1974, until April 14, 1975, that period should be excepted
from the backpay period. I rejected the contention that
Smith only sought part-time work based on Smith's cred-
ited testimony to the contrary and his work history
during the backpay period, including the fact that he quit
Pepsi-Cola because he was not getting enough working
time.
As I have previously rejected the contention that
Smith sought only part-time work, Respondent' s conten-
tion that the period from August 6, 1974, until April 14,
1975, be considered an excepted period for backpay pur-
poses is similarly rejected. I also reject Respondent's al-
ternative contention that Smith's wrist injury that alleg-
edly prevented him from continuing work at Roberson's
Beverages would make the period from August 6, 1974,
until his employment at Promac, Inc., an excepted
period.
D. Miscellaneous. At the hearing, all expenses except
those claimed for the first and second quarter of 1975,
were waived. The backpay specifications as amended
claim $109 and $102, for job search expenses and for in-
terim employment travel expenses, respectively. The par-
ties stipulated that $102 was correct for expenses for the
second quarter of 1975. (Tr. 3665.) The Respondent
claims that the first quarter of 1975 figures, utilizing his
Exhibit 265, establishes a total mileage of 726 miles at 10
cents a mile or $72.60. However, he excluded a job
search to Greensboro, North Carolina, which is a dis-
tance of approximately 230 miles that I find includable.
Moreover, Respondent's mileage figures to Fayetteville
list 54 miles while his argument pertaining to the second
quarter of 1975 expenses lists Fayetteville as 28 miles one
way or 56 miles roundtrip. Thus, six trips to Fayetteville
for job searches understates mileage a total of 12 miles.
Adding 242 (230 plus 12) miles to 726 totals 968 miles or
$96.80 or $97, which I find to be an acceptable expense
figure for the first quarter of 1975. In view of Respond-
ent's stipulated agreement concerning expenses for the
second quarter of 1975, that is no longer in issue.
E. Backpay Entitlement: $18,157 plus interest.
178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23. Ronald E . Bowen . Backpay Period : August 1,
1974, to February 2, 1977
Periods of Employment/ Unemployment
8/01/74-1/21/75 Unemployed
1/22/75-1/30/75 K.R. Edwards
1/31/75-9/17/75 Unemployed
9/18/75-9/23/75 K.R. Edwards
9/24/75-1/31/77 Quinn Wholesale
Personal Information : Bowen is a black male , 23 years
old, married with two children. He was a high school
graduate and began work at Lundy's in April 1974. He
had no technical skills. He had interim earnings in 6 to
11 quarters of his backpay period . Earnings in two other
quarters were offset by expenses . He registered with the
ESC early in 1975.
Claim : As modified, $24,764 plus interest.
Rebuttal : Respondent contends that the backpay claim
is in error because Bowen failed to search for interim
employment and, further, that the claim includes exces-
sive expenses.
A. Job Search. In issue is whether Bowen made a rea-
sonable search for interim employment in the period
from August 1, 1974, to September 18, 1975, at which
point he became employed full time until reinstatement
on February 2, 1977.
Bowen credibly testified that after returning home
from job searching , he made a note on the back of an
envelope or on scrap paper the name of the place , its lo-
cation, the date, and the mileage and placed the scrap of
paper in a large envelope . Later after he was interviewed
by Board Agent Brown, a student -trainee, he went home
and compiled a list from his notes and turned in the job
search list to Yosts , another Board agent . The list was
admitted into evidence as General Counsel's Exhibit 25.
The list showed the names of approximately three to
four employers a week . While Bowen could not recall
the dates or whether he had filled out applications at
each place, he was able to recite sufficient details to con-
vince me that he had in fact job searched at all or sub-
stantially all the places listed.
Respondent contends the job search list and Bowen's
testimony are incredible , noting the inconsistencies with
Respondent 's Exhibit 12, notes taken by Board Agent
Brown about places visited and that in a number of
places "48" times or similar high numbers were listed
after named places, presumably inferring that Bowen re-
visited that employer that many times in the backpay
period . Bowen could not explain the number and merely
stated that the employers he cited in the original inter-
view with Brown were from memory and his job search
list was prepared from his scrap notes . Whether Bowen
was attempting to be "flip" with the young woman inter-
viewer or whether her notes were not accurate, I need
not decide . In rejecting Respondent 's contentions, I note
that Bowen did in fact find employment for a 8-day
period with K. R. Edwards in January 1975 and at a
later date , after being reemployed by Edwards, quit that
job for a higher paying job at Quinn Wholesale where he
was employed full time for some 16 months . I find suffi-
cient credible evidence that Bowen engaged in a reason-
ably diligent job search for August 1, 1974, to September
17, 1975, except when fully employed at K. R . Edwards.
B. Interim Employment and Earnings . There is no dis-
pute over the time period of Bowen 's employment at
K. R. Edwards and Quinn Wholesales nor the earnings
derived therefrom . I find such jobs suitable interim em-
ployment.
C. Excepted Periods. As I have rejected Respondent's
contention that Bowen failed to make a reasonable job
search , there is no issue concerning excepted periods.
D. Miscellaneous . In issue are job search expenses,
travel expenses for interim employment , the cost of in-
surance premium payments at Quinn Wholesale , and the
Lundy 's insurance premium contention . Respondent con-
tends that job search expenses have not been proved for
the first and third quarters of 1975. It is further argued
that travel expenses for interim employment for the
fourth quarter of 1975, all of 1976, and first quarter of
1977 are erroneous.
The backpay expense claim indicates $141 for the first
quarter of 1975 and $127 for the third quarter of 1975,
which totally offsets interim earnings in those quarters.
No claim for job search expenses were made for the
third and fourth quarters of 1974 or second quarter of
1975. The expense claim is only for two quarters (at 10
cents a mile) and no claims are made for three quarters.
In view of my crediting testimony that Bowen did make
such searches and no countervailing evidence to indicate
that such trips were not made , I find such expenses rea-
sonable approximations of the cost incurred.
In regard to additional travel expenses incurred while
Bowen was employed at Quinn Wholesale for 5-1/2
quarters (fourth quarter of 1975, all of 1976, and first
quarter of 1977), Respondent contends and I agree that
the additional distance he traveled from his home to
Warsaw (Quinn Wholesale) was 10 miles. He ordinarily
traveled 9 miles to his job at Lundy's. This amounts to
$5 for every week of travel or $65 for each quarter (13
weeks) for travel expenses . Added to this are the costs of
medical insurance incurred at Quinn that I find were
$5.21 a week until July 1, 1976 , at which time it went to
$5.48, which differed from the testimony of Bowen. I
credit the testimony of Francis Oakley , personnel direc-
tor at Quinn , who was in a position to know the exact
costs of insurance premiums . In sum , I agree with Re-
spondent's argument and figures that the correct calcula-
tion of expenses (travel plus insurance premium of either
$5.21 or $5 .48, whichever is applicable) makes the ex-
penses as follows for the quarters indicated : The fourth
quarter of 1975-$69; first quarter of 1976-$ 133; second
quarter of 1976-$132; third quarter of 1976-$131;
fourth quarter of 1976-$134; first quarter of 1977-$46.
This includes deductions for days that Bowen did not
work as indicated by Respondent 's Exhibit 174(c), his
employment record at Quinn Wholesale.
I accept Respondent 's further contention that the cost
of Lundy's insurance premiums be deducted from back-
pay due to reasons previously stated , inter alia, since the
record established that Quinn Wholesale had comparable
incentives for attendance/promptness . Utilizing Respond-
ent's Exhibit 259, 1 have assessed $42.81 or a total of
LUNDY PACKING CO.
$128.43 for absences in the fourth quarter of 1975,
second quarter of 1976, and third quarter of 1976, and
$44.55 for an absence in the fourth quarter of 1976, total-
ing $172.98. I have deducted such sum from the final
amount due. If the premium rate selected (based on earn-
ings) proves incorrect, this can be adjusted by the par-
ties.
E. Backpay Entitlement: $23,883 plus interest.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
In accord with my previous findings and the Appendix
attached [omitted from publication] with respect to the
discriminatees named thereafter, the Respondent,
Lundy's Packing Company, Clinton, North Carolina, its
officers, agents, successors, and assigns, shall be required
to pay each of the discriminatees the sum of money
listed opposite their names, plus appropriate interest.
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1. James E. Boone
2. Billy R. Boone
3. Charlie Edward
Newton
4. Johnny Burgess
5. Bryson Johnson
6. Irene Copeland
7. Edward Stevens
8. Caldon Herring
9. George Monk Jr.
10. Hubert Fryar
11. Jesse C. Melvin
12. Brady Waters
13. William M.
Morrisey
14. Harry Lee Melvin
15. Nathan Joe Banks
16. Elzata Copeland
17. Diane Wilson
18. Weldon Raynor
19. Aliene Raynor
20. Elwood Raynor
21. Mary Raynor
22. Everette Smith
23. Ronald E. Bowen
$15,150
19,691
27,528
18,142
29,202
15,470
22,940
24,730
17,027
16,431
20,634
24,891
27,254
26,198
22,925
17,244
21,459
25,679
21,475
19,657
12,438
18,157
23,883
179