Monroe Feed Store

National Labor Relations Board - Board Decisions

Feb 17, 1959

122 N.L.R.B. 1479 (N.L.R.B. 1959)

MONROE FEED STORE 1479
Monroe Feed Store and American Federation of Grain Millers,
Local 61, AFL-CIO.' Case No. 36-CA-434. February 17, 1959
SUPPLEMENTAL DECISION AND ORDER
On October 29, 1954, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,2 which order was
enforced by the United States Court of Appeals for the Ninth Circuit
by a decree entered on October 29, 1956.3 The decree provided,
inter alia, that the Respondent offer reinstatement to certain of its
employees who had been discharged on October 30, 1953, except
those who had since been rehired, and make all the discharged
employees whole for loss of earnings they may have suffered by
reason of the Respondent's discrimination against them. Thereafter,
pursuant to a back-pay specification and appropriate notice issued
by the Regional Director for the Nineteenth Region, a hearing was
held for the purpose of determining the amounts of back pay due
to the discharged employees.
On August 27, 1958, Trial Examiner Maurice M. Miller issued his
Supplemental Intermediate Report, a copy of which is attached
hereto, in which he found that eight of the claimants I were en-
titled to specific amounts of back pay. Thereafter, the Respondent
filed exceptions to the Supplemental Intermediate Report, and a
supporting brief.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and, except as hereinafter noted, finds that no prej-
udicial error was committed.6 The rulings are hereby affirmed. The
Board has considered the entire record in this case, including the
Supplemental Intermediate Report, the exceptions and the brief, and
1 As the AFL and the CIO have merged subsequent to the initial hearing in this case,
we have amended the identification of the charging union's affiliation.
2110 NLRB 630.
8 N.L.R.B. v. Monroe Feed Store, 237 F. 2d 116 (C.A. 9).
The Trial Examiner without objection granted a motion by the General Counsel to
dismiss his initial prayer for relief with respect to Ralph H. Jones and Ray Joyner, as it
appeared that these employees had already been made whole by the Respondent.
5Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Rodgers , Jenkins,
and Fanning].
8 We adopt the Trial Examiner's rulings admitting into evidence copies of records pre-
pared by the Oregon Unemployment Compensation Commission, but only to show the
amount and dates of compensation paid to the claimants, which amounts were admitted
by the Respondent. Our conclusion that the claimants must therefore have been registered
for work stems from our reading of the pertinent Oregon statutes (O.C.L.A. section
126-704, as amended by chapter 646, Oregon Laws, 1953), and not from the Commission's
records themselves. Sections of these statutes were read into evidence, and we take
judicial notice of them. Contrary to the Respondent's contention, there is no indication
that the statutory requirement of registration for work was waived by the Commission
for these claimants.
122 NLRB No. 170.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the exceptions, additions, and modifications set forth
below.
1. For the reasons indicated in the Supplemental Intermediate
Report, we shall award to William D. Harrington, Frank Harring-
ton, Ellis Conn,7 a-nd Jessie A. Howe,' the amounts of back pay
found due them by the Trial Examiner.
2. Floyd Cantrell, Sr., at the time of his discharge on October 30,
1953, had worked at the Respondent's Monroe plant as a cleaner
man for approximately 8 years, and was its oldest employee in terms
of service, On March 17, 1954, General Manager Wayne Giesy told
Cantrell "he had some work ... he'd let him do" at the Respondent's
Corvallis plant, 15 miles from his home and 17 miles from Monroe.
Nothing was said about the nature of the job, its pay or hours, and
Cantrell refused the job on the ground that he was entitled to his
old job at Monroe. We agree with the Trial Examiner that Re-
spondent's vague offer of "some work" at another plant did not
constitute a bona fide offer of substantially equivalent employment.
The Respondent contends alternatively that its dispatch of a regis-
tered letter on May 10, 1954, to Cantrell's home in Junction City,
Oregon, should cut off his back pay. This letter offered Cantrell
his old job back, and the Respondent contends it was sent to his
last-known address. The letter was returned unopened, as Cantrell
had moved on May 9 to Eureka, California, to take a job with a
lumber company there. It was the position of the General Counsel
that this offer did not terminate the back-pay period, because there
were available to the Respondent several sources of information
regarding Cantrell's current address. General Manager Giesy had
been seeing Cantrell's daughter socially, and the Trial Examiner
found that Giesy, at whose direction the registered letter was sent,
was in a. position to determine Cantrell's whereabouts through her.
In addition, when the May 10 letter was sent, Cantrell's son was in
the Respondent's employ, and Respondent could readily have ob-
tained from him his father's California address.' On the basis of
v Conn's back pay for the period November 2, 1953, to December 19, 1953, was errone-
ously computed in the back-pay specification and Supplemental Intermediate Report to
be $504 .23. The correct amount is $503.23. Accordingly , Conn ' s net back pay is adjusted
from $346.87 to $345.87.
9 The back-pay specification alleged that Howe was reemployed by the Respondent on
November 11, 1953, and the Respondent in its answer admitted this allegation. However,
in its exceptions to the Supplemental Intermediate Report, the Respondent contended that
Howe had been reemployed on November 6, 1953, and that his back pay should end as of
that date. Howe was paid $22 by the Respondent for unloading freight cars on Novem-
ber 4 and 5. As Howe's regular job was grinder man, his employment on those days
unloading freight cars was not substantially equivalent employment, and merely con-
stituted interim earnings which the Trial Examiner properly deducted from Howe's
gross back pay. There is no indication that Howe had any further employment with the
Respondent until November 11.
9 Cantrell'e son was instructed to forward his father's mail to the California address,
and some mail was so forwarded. The registered letter of May 10, however, was returned
to the Respondent.
MONROE FEED STORE 1481
these facts, the Trial Examiner found that the letter of May 10
was, in effect, not a bona fide mailing, and that it therefore did not
end the Respondent's back-pay liability." In the circumstances, we
adopt the Trial Examiner's findings. Thus Cantrell's back-pay
period was not terminated until December 7, 1954, when an offer of
reinstatement by the Respondent was successfully communicated to
Cantrell. in California, and was refused by him. It may be noted
that the question of whether Cantrell's back-pay period terminated
on May 10 or December 7 is actually of little practical significance
here, as on May 17 Cantrell's job in California commenced, paying
him higher wages than his back-pay rate, and these interim earnings
have been deducted for the appropriate quarters. Thus, in -any
event, no net back pay accrued for Cantrell beyond May 17.11
3. The Respondent contends that Webster Sams failed to exercise
due diligence, in that he made no search for employment until
2 weeks after his discharge, and did not register for employment
during that initial period. We agree with the Trial Examiner that
this contention lacks merit. Sams was discharged on October 30,
1953. It is true that at the hearing, in response to a question from
the General Counsel as to when he first went to the unemployment
office, Sams answered: "It was a couple of weeks, I guess, after we
got laid off." Records of the Oregon Unemployment Compensation
Commission 12 indicate that Sams was paid compensation for the
week ending November 14, 1953. Paragraph (d) of the Oregon Un-
employment Compensation statute 13 provides for a waiting period of
1 week, and paragraph (c) of the same statute provides that no
benefits will be payable unless the claimant is able to work, available
for work, and actively seeking and unable to obtain suitable work.
Thus it appears that Sams received unemployment compensation as
soon as it was legally available to him, and under Oregon law must
have been registered for work before his receipt of unemployment
compensation 2 weeks after his discharge. While such registration
is not conclusive of the question of due diligence, it is one of the
factors the Board considers.14 There is additional evidence that,
later during the back-pay period, Sams searched for employment at
a brickyard and sawmill in Monroe, and at several feed stores in the
area. He eventually succeeded in obtaining short-term employment
"See National Video Corporation, 114 NLRB 599, 603; and cf. Jay Company, Inc.,
103 NLRB 1645, 1647, enfd. 227 F. 2d 416 (C.A.. 9), where the Board found that the
mailing to the discharged employee's last-known address had been bona fide.
' The back-pay specification and the Supplemental Intermediate Report erroneously
computed Cantrell's net back pay for the second quarter of 1954 at $406.50. The correct
amount is $405.50. In addition, the Supplemental Intermediate Report listed the Re-
spondent's payment on account as $1,215.75 ; the amount paid was $1,251.75. Accord-
ingly, the total back pay due Cantrell is corrected from $639.75 to $602.75.
11 See footnote 6, supra.
13 Ibid.
14 Southern Silk Mills, Inc., 116 NLRB 769, 771 ; Ozark Hardwood Company, 119
NLRB 1130, 1134.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at a flour mill and the local telephone company; these earnings were
deducted from Sams' gross back pay. While the Respondent may be
correct that there is no indication that Sams' search for employment
began the very day after he was discharged, we cannot say that the
Respondent has thereby sustained its burden of proving Sams' willful
idleness. It is not necessary, in showing due diligence, that an
employee prove specifically that he searched for employment within
a day or two of his discharge. It is sufficient that the record as a
whole indicates due diligence, and on the record before us we so
find in regard to Webster Sams.15
4. Alex S. Johnson was reinstated on May 11, 1954, on his old
job as cleaner man's helper. However, on April 29, 1954, Foreman
Beal had informed Johnson by letter that "we have employment
for you starting Monday May 3." Johnson appeared on that date,
and was told by Beal that he would be assigned to "run" a cleaner.
Johnson testified at the hearing that he refused this offer of re-
employment because he had never run a cleaner before, but had
merely served as cleaner man's helper. Beal, on the other hand,
testified that running a cleaner required a minimum of skill, and
that he had told Johnson that Foreman Zovodsky would handle all
adjustments on the cleaner. Cleaner man and cleaner man's helper
are two distinct jobs. The Trial Examiner found that Beal's testi-
mony was not credible, and that Johnson had not been offered his
old helper's job. In view of this record, we find that the Respondent
did not, on May 3, 1954, make an offer of substantially equivalent
employment to Johnson. Accordingly, we find Johnson's back-pay
period to have ended on May 11, 1954, when he resumed employment
with the Respondent.
5. For the reasons stated in the Supplemental Intermediate Report,
we find that Kenneth Mumford exercised due diligence in searching
for interim employment, and that there was insufficient evidence of
earnings from the sale of firewood to make a deduction for that
reason from his gross back pay. Respondent contends further, how-
ever, that because of a fire in its warehouse on November 23, 1953,
Mumford's employment would have been suspended from Decem-
ber 1, 1953, to February 20, 1954, and that he should be awarded no
back pay for that period.16 The same contention is made with re-
spect to the failure of the Trial Examiner to abate other employees'
back pay. Although the testimony of General Manager Giesy was
confusing as to the exact quantity of grain and seed lost in the fire,
the Trial Examiner found that only 85 .73 tons had been destroyed.17
lc The Trial Examiner inadvertently computed Sams' total interim earnings for the
second quarter of 1954 at $343.48. The correct figure is $343.40.
1e The Trial Examiner found Mumford 's back-pay period to have ended on May 3, 1954,
when he was reinstated by the Respondent.
17 This finding was based on figures submitted by a fire insurance adjuster shortly after
the fire.
MONROE FEED STORE 1483
For this reason, and also because he found there had been 300 tons
of grain on hand for grinding and mixing , the Trial Examiner held
that the Respondent had failed to prove the fire vas sufficiently
serious to have caused extensive employee layoffs. We agree with
this conclusion . Even accepting General Manager Gies y 's estimate
that 110 tons of inventory were destroyed , the fire would have elim-
inated approximately 2 days' work on the cleaning machine, and a
fraction of 1 day's work on the scalper . 18 We agree with the Trial
Examiner that the Respondent has not shown that the fire would
have occasioned layoffs for lack of work . 19 Accordingly , this con-
tention of the Respondent is rejected.
6. The original hearing in this case was held on March 9 and 10,
1954. At that time the Respondent introduced evidence that, because
of a decline in the seed-cleaning business and a poor crop generally,
it had suffered a seasonal decline which ( a) was the reason for the
discharges , and (b ) would in any event have resulted in layoffs
during the back-pay period . The Trial Examiner rejected these
contentions:
It is true that subsequent to October 30 for a period of months
Respondent 's operations were on a considerably lesser scale than
before. This of course suggests that the Respondent had a need
for fewer employees after that date than before and that in
any event some individuals would have found their employment
terminated on a date somewhere near October 30 . While this
consideration in another factual setting might lead to such a
conclusion , I am persuaded by a consideration of all evidence
concerning Giesy's opposition to the Union that the failure to
restaff the mills immediately after the discharges was but part
of the entire plan to defeat the employees ' desire for representa-
tion. Had Giesy immediately hired a number of workers
equivalent to those he had discharged the motivation for the
discharges would have been too apparent . If the Respondent
suffered additional losses by failure to operate at normal capac-
ity for a period following October 30, I believe that it did so
as part of a deliberate design to accomplish its principal aim.20
The Board adopted the Trial Examiner 's finding, and the Court of
Appeals for the Ninth Circuit affirmed the Board.21
>s Fifty-five tons represented seed and grain to be processed over the small grain-
cleaning machines. The other 55 tons represented straight wheat, screenings , and oats
which might have been cleaned over the Respondent's large scalpers. The small cleaner
machines can process 20-30 tons per day, the scalper 100-125 tons per day. Two men
are required to operate the small cleaner, three the scalper.
1e We do not adopt the Trial Examiner's apparent finding that the 300 tons of grain
on hand for feed mixing and grinding would have supplied work for all of the discharged
employees. Feed grinding and mixing is one of the Respondent's incidental operations, to
which a single employee is normally assigned.
21 Monroe Feed Store, supra, at pp. 636-637.
21 As Conn, Howe, and the Harringtons were reinstated prior to March 1.0, 1954, our
finding in the initial proceeding covered their entire back period.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the instant proceeding, the Respondent in its reply to the back-
pay specification once again alleged the seasonal nature of its busi-
ness in mitigation of back pay. During the hearing the Respondent
reintroduced much of its original evidence on this point. The Trial
Examiner reserved ruling on a motion by the General Counsel to,
strike these allegations, but in his Intermediate Report ruled that
these issues were res judicata, precluding a consideration of the
Respondent's evidence. The Respondent excepted to the Trial Ex-
aminer's ruling.
We find merit in the Respondent's exceptions. The Board found
in its initial decision that any economic losses suffered by the Re-
spondent "for a period" following October 30, 1953, were, in effect,,
losses the Respondent itself assumed as part of a plan to defeat the
employees' desire for representation. The Trial Examiner's exclusion
of the evidence of seasonal and economic decline for the period fol-
lowing the original hearing would in essence attribute such a motive
to the Respondent indefinitely. We cannot agree. The Board in
its initial decision dealt with the Respondent's contentions regarding
seasonal decline only to the date of the original hearing, March 10,
1954, and its findings are res judicata only to that extent 22 We shall
therefore consider these contentions of the Respondent, and the
evidence offered, as they relate to the period which followed the
original hearing.
The Respondent's evidence is in large part merely an amplification
of what was presented at the original hearing. Respondent asserts
that because of a seasonal reduction in its business, 23 a reduced
complement of five men could have handled the 1954 spring seed
cleaning in 2 weeks. This seed-cleaning phase of the Respondent's
operations begins in March and ends in May. Early in 1954, the
Employer hired approximately six new employees to do spring seed
cleaning and apparently continued to employ some of these new
employees through May.24 The back-pay periods of Sams and Mum-
ford ended on May 3 and that of Johnson on May 11, 1954, when
they were reemployed. Cantrell accrued no back pay in excess of
his interim earnings after May 17. Particularly as it appears that
new employees were hired in the spring of 1954, and because there
is no indication that the regular employees 26 had in the past been
22 Supra.
23 The Respondent introduced evidence that the Corvallis and Monroe plants shipped
only 10 and 14 carloads of seed , respectively , during the 1953 harvest , in comparison
with approximately 23 and 28 carloads in 1952 . There was additional evidence that the
harvest of seed in 1953 had been only 6 million pounds , in comparison with approximately
10 million pounds in 1952.
21 The Employer also hired three college students for a short period.
2s The Board in the initial case adopted the finding of the Trial Examiner that by
October 30, 1953, all strictly seasonal employees had already been laid off. Thus, all
who were discharged on that date were regular employees. In its brief, the Respondent
points to evidence at the original hearing that in December and January of 1952-53,
Kenneth Mumford had been laid off for 2 months. However, it is not clear from the
MONROE FEED STORE 1485
laid off as the amount of work fluctuated, we find that the Respond-
ent has failed to sustain its contention that seasonal fluctuations
would have resulted in a curtailment of employment for certain of
the discriminatees herein during the period for which back pay is
awarded. Accordingly, no back pay will be abated on this account.26
ORDER
On the basis of the foregoing Supplemental Decision and the entire
record in this case, the National Labor Relations Board hereby
orders that the Respondent Monroe Feed Store, Monroe and Cor-
vallis, Oregon, its officers, agents, successors, and assigns, shall pay
to the employees involved in this proceeding as net back pay the
amounts set forth below :
Jesse A. Howe ----------------------------------- $5.15
Webster Sams ------------------------------------- 1,034.00
Frank Harrington --------------------------------- 254.25
William D. Harrington ---------------------------- 249. 00
Ellis Colin ---------------------------------------- 345.87
Floyd Cantrell, Sr. -------------------------------- 602.75
Kenneth Mumford -------------------------------- 633.75
Alex S. Johnson ---------------------------------- 411.75
record that this layoff was for lack of work. In any event, Mumford had been working
for the Respondent since 1949 , and evidence that he had been laid off for 2 months on
one occasion does not establish that such layoffs were customary.
2° As we do not find that seasonal fluctuations or economic factors would have caused
partial layoffs of the permanent employees , we reject the Respondent ' s contention that the
Board should take as the appropriate measure of back pay the lump suns of the wages
actually paid by the Respondent to other employees during the back -pay period.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On October 29, 1954, the National Labor Relations Board, designated as the
Board herein , issued a Decision and Order in this case ; the Order directed Monroe
Feed Store, designated as the Respondent herein, to offer the employees it dis-
charged on October 30 , 1953-except those who had since been rehired-immediate
and full reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights or privileges , and to make whole each of
the designated employees for any loss of earnings they may have suffered by reason
of the Respondent 's discrimination against them between October 30, 1953, and the
date of their rehire or any offer of reinstatement . Monroe Feed Store, 110 NLRB
1630. On September 21, 1956, the Court of Appeals for the Ninth Circuit enforced
the Board's order. N.L.R.B. v. Monroe Feed Store, 237 F. 2d 116 (C.A. 9). There-
after, on April 26, 1957, pursuant to Section 102.51(a) et seq. (now Section 102.52
and following sections ) of the Board's Rules and Regulations , the Regional Direc-
tor for the Nineteenth Region of the Board issued a back-pay specification in this
matter and caused it to be served on the Respondent herein . The specification
designated 10 employees , referred to as Claimants hereinafter, as the employees
discriminatorily discharged on October 30, 1953, by the Respondent herein. The
individuals designated were:
Ralph H . Jones Ellis Conn
Jesse A. Howe Floyd Cantrell, Sr.
Webster Sams Kenneth Mumford
Frank Harrington Ray Joyner
Wm. D. Harrington Alex S. Johnson
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 27, 1957, the Respondent filed its answer to the specification. It ad-
mitted some of the allegations in the specification, but disputed most of the General
Counsel's gross back-pay and net back-pay computations. Among other things, the
Respondent alleged that some of the Claimants had failed to seek other employ-
ment, or to exercise due diligence in a search for such employment, during their
back-pay periods. The acceptance of payments in full settlement of the Respond-
ent's back-pay obligation, by some of the Claimants designated, was also alleged.
And the receipt of unemployment compensation benefits by certain Claimants
from the Oregon Unemployment Compensation Commission is reported; the Re-
spondent argued that, if any back pay may be considered due, the sums thus
received should be applied to reduce the amount payable to the Claimants in-
volved. The answer also included various allegations with respect to, the receipt
of additional interim earnings, by some of the Claimants designated, which should
be applied to reduce the amount of any back pay due. Additionally, it included
a report that the Respondent's business is seasonal in nature, and. a further report
that a fire on November 23, 1953, had destroyed a warehouse owned by the Re-
spondent which contained grain to be processed; the Respondent went on to argue,
on the basis of these factual allegations, that certain Claimants would not have
been employed during a portion of the back-pay period. Upon these grounds, the
Respondent contended that its back pay obligation has been satisfied.
Pursuant to notice, a hearing was held before me as a Trial Examiner duly
designated, at Corvallis, Oregon, on February 3, 4, and 5, 1958. The General
Counsel and the Respondent were represented by counsel and the Union by
counsel and a representative. Each of the parties was afforded full opportunity
to examine and cross-examine witnesses and to introduce evidence pertinent to
the.issues.
At the outset of the hearing, the General Counsel presented a motion to strike
certain designated allegations from the answer of the Respondent Employer; the
allegations attacked were itemized as follows:
1. Various conclusionary allegations that the unemployment compensation
benefit payments concededly received by the Claimants Frank Harrington,
Wm. D. Harington, Mumford, Sams, Conn, Joyner, and Cantrell should be
applied to reduce the amount of back pay due these Claimants, if any.
2. An allegation that Claimant Johnson was a temporary, employee only.
3. Various conclusionary allegations that certain sums received from the
Respondent herein by the Claimants Frank Harrington, Wm. D. Harrington,
Mumford, Sams, Conn, Joyner, and Cantrell were accepted, by each of them,
in full payment of any' back pay that might be due by reason of any Board
in this case.
With respect to the first issue raised by the motion to strike-its prayer with
respect to the deductibility of unemployment compensation benefit payments in
connection with the computation of any back-pay award-an order of denial was
entered; the answer of the Respondent, thereby, was permitted to continue the
reflection of its legal contention with respect to the deductibility of the unemploy-
ment compensation benefits paid; it was indicated, however, that the denial of the
motion to strike would not, in any event, preclude a contention by the General
Counsel, upon the entire record, that the benefit payments should not be deducted.
The prayer of the motion to strike with respect to the Respondent's allegation that
Claimant Johnson was a temporary employee was likewise rejected in the absence
of a record sufficiently developed to permit a proper assessment of the General
Counsel's contention that any question with respect to Johnson's status ought to
be considered res judicata in this supplemental proceeding.
It was indicated, in the course of argument, that the Respondent expected to
assert, both with respect to Johnson and several of the other Claimants involved,
that normal seasonal variations in business volume would have limited the dura-
tion of any employment the Respondent could have offered, and that its back-pay
obligation to Johnson and various other individuals should be limited because of the
probability that their employment, during the back-pay period specifically, would
have been interrupted in the normal course of events. In the face of this con-
tention, the General Counsel presented an oral motion to strike the allegation in
the Respondent's answer with respect to the seasonal nature of the Respondent's
feed and seed business, on the ground that the issue of seasonality, and its alleged
impact upon the Respondent's statutory liability, had previously been litigated and
determined. This motion to strike was rejected, on the basis of a tentative de-
termination that the discussion of the seasonality issue in the first Intermediate
Report issued by a Trial Examiner in this case-adopted by the Board as a part
of its decision-had been related primarily to the Respondent's contention, at the
MONROE FEED STORE 1487
original hearing , that the October 30 discharges were justified by the seasonal
nature of its business . I concluded that the Board's rejection of this argument in
support of the' discharges could not be considered res judicata with respect to the
Respondent 's contention , in the present back-pay proceeding , that its business
suffered a seasonal decline between October 30 , 1953, and the end of the back-pay
periods.
However, the General Counsel 's formal motion to strike the Respondent's con-
tention that various sums previously tendered and accepted by certain designated
individuals ought to be acknowledged a legal accord and satisfaction , with respect
to the Respondent's back-pay obligation , was granted . The deductibility of the
sums paid , in connection with the computation of any back pay due, was conceded.
The General Counsel's representative then moved for the dismissal of his
initial prayer for relief with respect to both Ralph H. Jones and Ray Joyner; the
motions were made, allegedly , on the basis of newly acquired information which
indicated that the Respondent 's obligation to make whole these employees, under
the Board Order and court decree, had been discharged in full. There were no
objections ;. the motions were granted . Several additional motions to amend the
back-pay specification were also granted without objection . Counsel for the Union
presented a motion to strike the Respondent 's answer because of the firm's
antecedent failure to serve that organization with a copy , in its capacity as the
charging party. The motion was denied. At the conclusion of the testimony, the
General Counsel 's motion to conform the pleadings to the proof with respect to
formal matters was granted. Oral argument in the Respondent 's behalf was heard,
and, after the hearing, a brief was submitted by. the Respondent 's counsel.
Upon the entire record in the case , and from my observation of the witnesses,
I make the following findings of fact:
I. PRELIMINARY DETERMINATIONS
A. The deductibility of unemployment compensation benefits
In the Respondent 's answer, previously noted, several references were made to
the unemployment compensation benefits received by Frank Harrington , William
D. Harrington , Mumford, Sams , Conn, and Cantrell ; the firm 's counsel argued
that the benefit sums received by each of the designated Claimants should be
applied to reduce the amount of their back -pay awards , if any back pay is found
to be due.
At the outset of the hearing , counsel acknowledged the existence of a definitive
United States Supreme Court determination that this Agency may properly refuse to
deduct unemployment compensation benefits received by an employee , in connection
with its determination of a respondent employer 's back-pay obligation . Gullett Gin
Company, Inc . v. N.L.R.B ., 340 U.S. 361 . An opportunity to relitigate the question
was requested , however-
. . . on the ground that in the State of Oregon the amounts paid to these
employees as unemployment compensation are paid by the employer and are
deducted from his account and charged to him. So , the money is paid by the
employer to the employee and is a benefit received by the employee during
the period . of unemployment. .. .
On the basis of this factual representation , with respect to the State of Oregon
law, I denied the motion to strike presented by the General Counsel in the face of
the Respondent 's contention.
No evidence was adduced in the Respondent 's behalf, however, with respect to
the provisions of the Oregon statute which regulates the payment of unemployment
compensation benefits . And I was not even asked to take official notice of the
relevant statutory requirements . In the course of the oral argument at the hear-
ing's close , nevertheless , the Respondent 's counsel did state that:
We take this position generally because the money is actually paid by the
employer to the Unemployment Compensation Fund, and as it is drawn by
the employees , it's charged against his account, and , by reason of the fact that
the money is drawn by the employee , his rate of contribution is increased, and,
therefore , as a direct result of the payments to these employees , the employer,
Monroe Feed Store in this instance , pays more money into the fund.
Now, in the Moss Planning Mill case, it was held that workmen's com-
pensation benefits paid to employees during a period of back pay can be
deducted from the amount found to be due to them , and I feel that the same
principle applies to unemployment compensation benefits because , after all,
it is money contributed by the employer and is money received by these
employees , and certainly , if it is found that they are entitled to back pay,
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they have already received these benefits, and that should be deducted from
the amount of wages they would have received, because the purpose is to
make the employee whole, and he's already been made partially whole by the
payment of unemployment compensation benefits.
In order to determine the validity of the Respondent' s implicit contention that the
unemployment compensation law under which the Claimants received benefits differs
from the Louisiana statute before the Supreme Court in the Gullett Gin case, I have
had to take official notice, on my own initiative, with respect to the relevant pro-
visions of the Oregon law. See, specifically, chapter 657 "Unemployment Com-
pensation" in the 1957 revision of the "Oregon Revised Statutes" and, particularly,
sections 657.010(6), (8), 657.805, 657.810, 657.815, 657.505 (1-4), 657.430, 657.155,
657.255, 657.466; insofar as I can determine, these provisions of the statute,
presently effective, have not been changed, in any respect material herein, since
the period with which this case is concerned. Briefly summarized, they call for
the establishment of an unemployment compensation trust fund, from which the
statutory benefits may be paid. Employers are required to contribute to the fund
at certain fixed rates of contribution. There is a specific provision that all moneys
deposited in the fund shall be "mingled and undivided" and the fund is declared
to be subject to administration by the Oregon Unemployment Compensation
Commission for the statutory purposes. Benefits are payable to eligible claimants
from this mingled and undivided fund. The Commission is directed to "charge"
any benefits paid to the "account" of the benefit claimant's previous employer,
and each employer's contribution rate is declared subject to periodic revision,
on the basis of the State's experience with respect to the payment of benefits to his
former employees. In every material respect, this statutory scheme parallels the
Louisiana arrangement which the Supreme Court considered in the Gullett Gin
case. In that decision, the Court observed that:
Payments of unemployment compensation were not made to the employees
by respondent but bp the state out of state funds derived from taxation. True,
these taxes were paid by employers, and thus to some extent respondent
helped to create the fund. However, the payments to the employees were not
made to discharge any liability or obligation of respondent, but to carry out a
policy of social betterment for the benefit of the entire state. . We think
these facts plainly show the benefits to be collateral. It is thus apparent
from what we have already said that failure to take them into account in
ordering back pay does not make the employees more than "whole" as that
phrase has been understood and applied.
Finally, respondent urges that the Board's order imposes upon it a penalty
which is beyond the remedial powers of the Board because, to the extent that
unemployment compensation benefits were paid to its discharged employees,
operation of the experience-rating record formula under the Louisiana Act
will prevent respondent from qualifying for a lower tax rate. We doubt
that the validity of a back-pay order ought to hinge on the myriad provisions
of state unemployment compensation laws.... However, even if the Louisiana
law has the consequence stated by respondent, which we assume arguendo,
this consequence does not take the order without the discretion of the Board
to enter. We deem the described injury to be merely an incidental effect of
an order which in other respects effectuates the policies of the federal Act.
Under the circumstances, the Respondent's reliance upon the rationale of the Moss
Planing Mill case is misplaced. In that case, the Court of Appeals for the Fourth
Circuit refused to approve a Board determination that the monetary award received
by a disehargee under a State workmen's compensation statute for disability suffered
at the hands of his employer during the period covered by a back-pay order should
not be deducted from the amount of back pay due. N.L.R.B. v. Moss Planing Mill
Co., 224 F. 2d 702 (C.A. 4). In reaching this conclusion, the court of appeals dis-
tinguished the Gullett Gin case on the following grounds:
Unemployment compensation is paid by the State itself from taxes and is
an obligation imposed upon the public. It is indeed a welfare statute within
the usual meaning of the term. The employer participates only as a tax
payer. As such, his obligation is not to the recipient of unemployment benefits
but to the State. There is no contractual relationship between him and the
recipient. It is, of course, quite clear that any benefit that the recipient of
unemployment compensation receives is collateral to the fact that he was
working for a particular employer. . The State is not the instrumentality
through which [workmen's compensation] payments are made. On the other
hand, payments come from the employer himself through the medium of his
MONROE FEED STORE 1489
agent, his insurance carrier. The workmen's compensation payments made
here were so directly derived from the employer that we feel a back pay
allowance for the period during which these payments were made would make
the employee more than whole at the expense of the employer.
Since the Oregon unemployment compensation law clearly parallels the Louisiana
statute considered in the Gullett Gin case, and since its provisions cannot be con-
sidered similar to a workmen's compensation statute of the type before the court of
appeals in the Moss Planing Mill case, the Respondent's contention with respect to
the deductibility of the unemployment compensation benefit payments received by
the Claimants herein must be rejected.
B. The significance of the private settlements
My decision, at the outset of the case, to grant the motion to strike of the
General Counsel with respect to the Respondent's contention that various sums
accepted previously by some of the dischargees herein as a settlement in full of
the firm's back-pay obligation ought to be acknowledged as such by this Agency,
has already been noted. The contention of the Respondent has, however, been
reasserted; a statement of the principle which dictated my decision, therefore,
would seem to be appropriate.
In the light of established precedents, there can be no doubt that respondents may
not utilize a compromise or settlement agreement privately negotiated with a claim-
ant to defeat a back-pay claim, particularly if the settlement is one which makes the
claimant less than whole. Back-pay claims do not involve private rights. Nathan-
son v. N.L.R.B., 344 U.S. 25, 26; N.L.R.B. v. Sunshine Mining Co., 125 F. 2d 757,
759-762 (C.A. 9); N.L.R.B. v. Arthur J. Colten et al. d/b/a Kiddie Kover Manu-
facturing Company, 105 F. 2d 179 (C.A. 6). And this Agency has held, with judi-
cial approval, that settlement agreements executed without Board participation cannot
be held to limit or defeat the Agency's power to enter a back-pay order. N.L.R.B.
v. E. A. Laboratories, Inc., 188 F. 2d 885, 887 (C.A. 2); MacKenzie Coach Lines v.
N.L.R.B., 100 F. Supp. 489, 491 (D.C., Mass.), reversed and remanded on other
grounds, 344 U.S. 25; St. Johnsbury Trucking Co., Inc., 120 NLRB 636; Armstrong
Tire and Rubber Company, 119 NLRB 353; Newspaper and Mail Deliverers Union
(Hearst Consolidated Publications, Inc.), 93 NLRB 237; Alexander Milburn Com-
pany, 62 NLRB 482. Upon this well-established principle, my decision to grant the
General Counsel's motion to strike is reaffirmed.
C. The res judicata issue
In response to the General Counsel's back-pay specification with respect to Alex
S. Johnson, the Respondent alleged, among other things, that its feed and seed
business is seasonal in nature, and that one of its grain warehouses was destroyed
on November 23, 1953, by fire; the firm argued, therefore, that the Claimant
designated would have been laid off nondiscriminatorily, pursuant to a normal
reduction of the workforce on or about November 23, 1953, and that he would
not have been reemployed until February 23, 1954. In support of its allegation
that Johnson would have been subject to such a layoff, under the circumstances
noted, the Respondent characterized him as a "temporary" employee. As re-
ported previously, the General Counsel moved to strike this last allegation, on
the ground that the issue presented with respect to Johnson's status ought to be
considered "res adjudicata" at this time.
On its face, this contention of the General Counsel appeared to have merit.
The Board's initial Decision and Order in this matter does reveal its unanimous
adoption of the "findings, conclusions, and recommendations" of the Trial Exam-
iner in the case; his appended Intermediate Report included a statement that
Johnson had testified "credibly and without contradiction" with respect to a com-
ment by his foreman that he would be retained as a permanent employee. Upon
further consideration, however, I concluded tentatively that the adoption of this
finding by the Board did not dispose of the issue now posed, with respect to the
extent of the Respondent's back-pay obligation in Johnson's case. The basic thrust
of the firm's present argument, I felt, derived from its contention that seasonal
business variations and the reduction of activity at Monroe occasioned by the
fire would have dictated Johnson's layoff at some time regardless of any dis-
crimination. The Respondent's counsel, in the course of argument, claimed the
right, therefore, to litigate the possibility that Johnson would have been laid off,
and defended the relevancy of an evaluation with respect to his seniority status
in that connection.
505395-59-vol. 122-95
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This argument in the Respondent's behalf was countered by the General Counsel
with a motion that every reference to seasonal variations in the firm's business be
stricken from its formal reply; a contention was made that the issues raised with
respect to the seasonal character of the Respondent's business had been litigated
previously, and that the Board's original Decision and Order in this case reflects
its adoption of a finding by Trial Examiner Royster that the firm's seasonal peak
had been passed, and that all of its seasonal employees had been terminated prior
to the October 30 discharges. In this connection, my attention was directed to the
Intermedite Report and Recommended Order of Trial Examiner Royster in the
case. It included, inter alia, a reference to the "busy summer season" at the Re-
spondent's mill. Reference was also made to an assertion by the Respondent's
manager in regard to a shift of emphasis effectuated with respect to the firm's
operation subsequent to October 30, 1953, after which date greater effort was
allegedly directed to grain and feed processing, and less time was spent on the
cleaning of seeds. My attention was also directed to the following language in
Trial Examiner Royster's report:
It is suggested in the record, although not specifically argued, that because
Respondent's business is to some extent seasonal in nature terminations and
layoffs are to be expected in the fall of the year. This appears to be true,
but by October 30 the Respondent had trimmed its crew of temporary workers
and apparently had work for all those who remained. . . . It is true that
subsequent to October 30 for a period of months Respondent' s operations
were on a considerably lesser scale than before. This of course suggests that
the Respondent had a need for fewer employees after that date than before
and that in any event some individuals would have found their employment
terminated on a date somewhere near October 30. While this consideration
in another factual setting might lead to such a conclusion, I am persuaded by
a consideration of all evidence concerning Giesy's opposition to the Union
that the failure to restaff the mills after the discharges was but part of the
entire plan to defeat the employees' desire for representation. Had Giesy
immediately hired a number of workers equivalent to those he had discharged
the motivation for the discharges would have been too apparent. If the
Respondent suffered additional losses by failure to operate at normal capacity
for a period following October 30, I believe that it did so as part of a de-
liberate design to accomplish its principal aim.
I have considered these aspects of Trial Examiner Royster's report-which the
Board adopted-and find that they lend substance to the General Counsel's motion.
An inspection of the initial record in this case, which the present proceeding
merely supplements, has also revealed that the Respondent took no specific excep-
tion to Trial Examiner Royster's finding that the Respondent had trimmed its crew
of temporary workers by October 30, 1953, and apparently had work for all
those who remained. Specific exception was taken to the Trial Examiner's con-
clusion that the Respondent's failure to restaff its mills immediately after the
discharges was part of a "design and plan" to defeat the desire of the employees
for representation, and an exception was also taken to the further conclusion of
the Trial Examiner that the Respondent deliberately inflicted economic loss upon
itself, by its failure to operate at normal capacity for a "period" after October 30,
1953, as part of a deliberate design to accomplish its principal aim. The record
in this case reveals that the Board found no merit in these exceptions.
Prior to my inspection of the entire record, as previously noted, I denied the
General Counsel's motion to strike the Respondent's allegation with respect to the
status of Johnson as an employee. My determination was predicated upon a
stated conclusion that Johnson's employee status, and his susceptibility to layoff,
could properly be litigated in a back-pay proceeding. An indication was given,
however, that any recommendation I might make with respect to the amount of
back pay due in this case would have to take into account the Board's affirmation
of Trial Examiner Royster's initial conclusion with respect to Johnson's status, and
with respect to the absence of any economic justification for his termination by
virtue of any seasonal decline in business activity.
The General Counsel's motion that every reference to the seasonal character of
the Respondent's business be stricken from its reply was likewise denied, on the
basis of a tentative conclusion that Trial Examiner Royster's discussion of the
issue related primarily to the Respondent 's original contention that the October 30
discharges were justified by the seasonal nature of the business. Reference was
also made to a tentative determination that Trial Examiner Royster' s conclusions
MONROE FEED STORE 1491
ought not to be considered res judicata with respect to the Respondent's present
contention that seasonal variations in the postdischarge business of the firm would.
have justified the termination of some Claimants, or a refusal to reemploy them,.
for at least a part of the back-pay period.
Now, however-upon the entire record-I am satisfied that the Board's decision.
to adopt Trial Examiner Royster's observations, previously noted, invested them with
sufficient weight to warrant their present evaluation as res judicata with respect to.
any contention that particular Claimants would not have been employed by the
Respondent during any designated portion of the back-pay period.
The Respondent's course of conduct subsequent to October 30, 1953, was chal-
lenged as an unfair labor practice in the complaint which the General Counsel
filed in this case. It included an allegation that:
Respondent, by its officers, agents, and supervisors ... has, since on or about
October 30, 1953, and continuously down to and including the date of the issu-
ance of this Complaint, interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by . . , a mass
termination of its production and maintenance employees, which mass ter-
mination took place on October 30, 1953. [Emphasis supplied.]
The propriety of the Respondent's postdischarge conduct, therefore, was properly
before Trial Examiner Royster. And evidence was adduced before him with respect
to the normal operation of the Respondent's business, and with respect to its sea-
sonal fluctuations in 1953 and thereafter. Under established decisional doctrine, I
have concluded that the issues raised in regard to the seasonal character of the
Respondent's business, and its alleged impact upon the availability of employment
for the Claimants herein, have already been litigated and finally decided in this case.
Monroe Feed Store, 112 NLRB 1336; Fred Volandri et al. d/b/a Califruit Canning
Company, 78 NLRB 112; West Kentucky Coal Company, 24 NLRB 863. And I
so find.
In this connection, also, it should be noted that the present supplemental record
includes considerable testimony with respect to the size of the 1953 seed crop in
Benton County, Oregon , where the Respondent 's operation is located ; a summary
of the relevant official acreage and production figures for the year was proffered in
evidence by the Respondent and received to establish a decline in Benton County
seed production for the 1953 harvest, in comparison with that of the previous year.
The evidence adduced in this connection, however, I now find, merely recapitulates
and amplifies the record previously made before Trial Examiner Royster in the
Respondent's behalf. Under established decisional doctrine, therefore, the firm's
present argument that a reduced 1953 seed crop effectively limited the amount of
work available at its Monroe and Corvallis mills, after the October 30 discharges,
must be considered precluded.' The testimony offered with respect to the impact
of the November 23; 1953, fire at the Respondent's Monroe warehouse upon its
operations deserves consideration, however. Presumably, it could have been
proffered and received in the course of the hearing before Trial Examiner Royster
in this matter, since it would have been arguably relevant to a determination with
respect to the Respondent 's alleged continuation of the discrimination initially
practiced against the Claimants in connection with their mass discharge. Its
relevancy and materiality as a part of the Respondent 's original defense in response
to the General Counsel's complaint, however, cannot be considered patent. The
Respondent's failure to adduce it previously, therefore, should not be held to estop
the firm from reliance upon it, now, to establish the fire as a factor which, con-
ceivably, could limit its back-pay obligation. The General Counsel's representative,
indeed, has made no contention that the Respondent should be considered so
estopped. The significance of the fire, therefore, as a postdischarge development
which may have tended to reduce the amount of work available for the discrim-
inatees herein, will be considered in this report.
i It is well settled, of course, that issues determined in a prior representation case may
not be relitigated in a complaint case, in the absence of newly discovered evidence, or evi-
dence which was not in the employer' s possession at the time of the earlier representation
proceeding. Allis-Chalmers Manufacturing Company, 120 NLRB 644. See also National
Carbon Company, 110 NLRB 2184, and the cases therein cited. It would seem to be
equally clear that an issue determined in the initial stages of a complaint case ought
not to be relitigated in compliance proceedings related to the case, absent newly dis-
covered or newly acquired evidence. I have so concluded.
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. BACK-PAY OBLIGATIONS
A. The commencement of the back-pay period
Reference has already been made to the Board's original determination that the
Claimants herein were discriminatorily discharged on October 30, 1953, by the
Respondent Employer. On the basis of Trial Examiner Royster's determination
in this connection, and the Board's adoption of it, the back-pay period in this case
is alleged to have begun on October 31, 1953, with respect to each of the
Claimants for whom relief is presently requested. And the Respondent does not,
indeed, dispute the allegations of the back-pay specification in this regard. I find,
in the absence of controversy, that the back-pay period for each of the dis-
criminatees began on the indicated date.
B. Rates of pay during the back-pay period
It is alleged in the back-pay specification, and the Respondent's answer concedes,
that prior to October 30, 1953, the Claimants herein-with the exception of Howe,
Conn, and Johnson specifically-were paid at a straight-time rate of $1.20 per hour,
and that they received 11/2 times their straight-time rate for all employment over
40 hours per week. For each Claimant the workweek admittedly consisted of
5 working days, Monday through Friday, at 10 hours per day, plus a Saturday
working day of 5 hours. The gross weekly rate of pay, under this arrangement,
appears to have been $75 for each Claimant herein, with the exception of Howe,
Conn, and Johnson as previously indicated. I so find. (This gross figure, of
course, represents payment at the rate of $1.20 per hour for 40 hours and $1.80
per hours for 15 hours, every week.)
It is further asserted in the back-pay specification, and conceded in the Respond-
ent's behalf, that the firm's workweek was reduced to 40 hours, beginning on or
about Monday, January 25, 1954, and that the Respondent's straight-time hourly
rate of pay was thereupon raised to $1.50 for all employees, with the exception of
warehouse cleaners whose straight-time rate of pay was raised to $1.35 per hour.
Despite the Respondent's failure to dispute these allegations, it entered a denial
that the figures cited would provide an appropriate measure of the gross weekly
earnings which each Claimant would have received, absent discrimination. The
firm made no effort, however, to adduce evidence calculated to raise a question
with respect to the correctness of the General Counsel's computations. Upon the
entire record, I find that no issue has been raised in this connection. And thus,
in the light of the General Counsel's specification and the Respondent's concession,
I find that $75 per week constitutes an appropriate measure of the gross weekly
pay which Frank Harrington, William D. Harrington, Mumford, Sams, and Cantrell
would have received for employment between October 31, 1953, and January 24,
1954, both dates inclusive, absent discrimination. (The gross weekly pay which
Howe, Conn, and Johnson would have received during this period, at their lesser
rates of pay, will be noted elsewhere in this report.)
Since the record, to be noted, establishes that Howe, Frank Harrington, Conn,
and William D. Harrington were reinstated by the Respondent before the conceded
change in its regular workweek and straight-time hourly rates of pay' became ef-
fective on January 25, 1954, no conclusion need be reached with respect to the
gross weekly amounts they could have earned under the altered arrangement.
Mumford, Sams, and Cantrell, however, clearly would have received gross weekly
pay of $60 after January 25, 1954, absent discrimination. Johnson would have
received $1.35 per hour as a warehouse cleaner man after the indicated date. The
amount of this gross weekly pay thereafter would have varied, however, and will
be noted elsewhere in this report.
C. The individual claimants
1. Jesse A. Howe
According to the back-pay specification this Claimant was paid at a straight-time
rate of $1.10 per hour prior to October 30, 1953; the record made before Trial
Examiner Royster in this case, previously-of which I have taken official notice-
establishes that he was then employed primarily as a grinder man. He was em-
ployed for the Respondent's standard workweek, and received 11/2 times his
straight-time rate for all weekly employment in excess of 40 hours.
Within a week after his discharge, on November 4 and 5, 1953, Howe was em-
ployed by the Respondent, temporarily, to unload freight cars, and received $22
for his work. On November 11, 1953, he resumed regular employment with the
MONROE FEED STORE 1493
Respondent; this ended his back-pay period. On or about February 11, 1956, the
Respondent paid Howe $71.85 on account of its net back-pay obligation. In this
posture of the matter, the General Counsel has outlined the back pay due Howe
as follows:
1953 4th quarter
Saturday, Oct. 31, 5 hrs. at 11/2 X$1.10-------------------------------- $8.25
Nov. 2-7, 1953, 55 hrs--------------------------------------------- 68.75
Nov. 9-10, 1953, 20 hrs. at $1.10------------------------------------- 22. 00
Gross back pay---------------------------------------------- 99.00
Interim earnings--------------------------------------------------- 22.00
Net back pay------------------------------------------------ 77.00
Payment on account-- ---------------------------------------------- 71.85
Back pay due----------------------------------------------- 5.15
The Respondent's answer admits every allegation of the back-pay specification out-
lined above, but denies that $77 represents the total back pay due. In the absence
of any evidence adduced to support the Respondent 's assertion , however, I find it
deficient in merit, and conclude that the sum suggested by the General Counsel as
the amount due Howe represents the Respondent's unsatisfied pack-pay obligation.
There is a possibility , of course , that the Respondent 's payment of $71.85 to
Howe satisfied the Board's back-pay requirement. The General Counsel's prayer
for relief in the back-pay specification includes an allegation that the Respondent's
obligation to make the Claimant whole, under the Board Order and court decree
in this case, would be discharged by the payment of $5.15, less taxes withheld
pursuant to Federal and State law. There is an assertion in the Respondent's
brief, however, that Howe accepted the firm 's $71.85 payment in full settlement
of his back-pay claim. (The brief includes an assertion, also, that the sum in-
dicated had been computed by the Board's Regional Director and a field examiner,
and that the Respondent 's payment to Howe was made in reliance upon their
computation.) It is conceivable that the $71.85 payment to Howe represented a
settlement of the Respondent's $77 back-pay obligation, less taxes withheld as re-
quired by Federal and State legislation . In the absence of evidence sufficient to
warrant such a conclusion, however, I have been constrained to find that the
Respondent remains obligated to Howe in the sum of $5.15, as indicated.
2. Frank Harrington
The original record made in this case establishes that Frank Harrington was initi-
ally employed by the Respondent in March 1952 as a cleaner man. He appears to
have been serving in this capacity at the time of his discharge . It is alleged in the
back-pay specification, and the Respondent concedes, that he was reinstated at the
firm's Monroe mill on January 18, 1954, thus ending his back-pay period. The
record made before Trial Examiner Royster establishes that he was reemployed as
a cleaner man, and I so find. On or about October 19, 1955, the Respondent paid
Harrington $450 on account of its back-pay obligation. (At the close of the sup-
plemental back-pay hearing, before me, the Respondent's counsel argued that the
back-pay period for Frank Harrington and his brother, William D. Harrington,
ought not to extend beyond January 8, 1954, if any back pay is found to be due.
The argument was predicated upon this Agency's determination , in a related case
which involved the Respondent Employer and these Claimants, that they were en-
titled to "back pay reimbursement" only for the period between October 30, 1953,
and January 8, 1954. Monroe Feed Store, 112 NLRB 1336 (Case No. 36-CA-490).
On the basis of this collateral Board determination , the Respondent suggested the
dismissal of those portions of the back-pay specification which could be considered
inconsistent with the conclusion that the back-pay periods of Frank Harrington and
William D. Harrington terminated as of the latter date. Upon analysis, however,
I find the Respondent's motion to dismiss the back-pay specification, pro tan to, with-
out merit . The original record in this case reveals Frank Harrington 's testimony
that he "thought" he had been rehired by the Respondent "about" January 8; Trial
Examiner Royster , however, made no specific finding with respect to the date of his
rehire. Monroe Feed Store, 110 NLRB 630, 634, 637. The Board's Decision and
Order in the related case against the firm , previously noted , thus includes a con-
clusion that the Harringtons had been recalled "about" January 8, 1954; there is a
reference, therein, to the Board 's initial order in the instant case as an order which
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided for the "back pay reimbursement" of the Harrington, inter alia , only for
the period between October 30, 1953, and the latter date. Upon the entire record,
however, I am satisfied that January 8, 1954, was cited, initially, as nothing more
than a tentative approximation of the date on which the Harringtons were re-
hired. The back-pay specification in the present supplemental proceeding fixes the
date of Frank Harrington's reinstatement definitively as January 18, 1954, and the
Respondent's answer indicates its concurrence.) The Respondent, however, denies
that Frank Harrington is entitled to any back pay; essentially, this contention
appears to be predicated upon the assertion that he failed to exercise due diligence
in seeking employment.
The Respondent's answer does include a denial that Harrington ever sought
other employment during the back-pay period; this contention, however, has ap-
parently been abandoned. In the back-pay specification reference is made to the
Claimant's earnings during 1953's fourth quarter with three employers-Under-
writers Salvage Company, F. W. Carter Co., Inc., and Willamette Valley Sheet
Metal Company-and the Respondent's answer includes an admission of the interim
earnings attributable to him as a result of such employment. With the record in
this condition, the Respondent could hardly maintain that Harrington sought no
work.
In support of its argument, however, that Harrington failed to make a reasonable
search for employment during the back-pay period, the Respondent asserts that he
was self-employed on his farm during that period, engaged in making capital im-
provements and selling livestock. Because of his preoccupation with farm work,
it is argued, he did not seek alternative postdischarge employment with due
diligence. (Additionally, it is argued that the value of the capital improvements
effectuated by Harrington, and his profits from the sale of livestock, should be
considered interim earnings and thus reduce the amount of the firm's back-pay
liability, if any.)
Pursuant to established Board policy, the Respondent has, of course, been per-
mitted to make this contention with respect to Frank Harrington and the other dis-
chargees. Ohio Public Service Company, 52 NLRB 725. The burden of proof with
respect to the indicated contention, however, has been the Respondent' s at all times.
Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 197-200; N.L.R.B. v. 1. G.
Boswell Co., 136 F. 2d 585, 597 (C.A. 9); Alaska Chapter of the Associated General
Contractors of America, Inc., 119 NLRB 663, footnote 21; Southern Silk Mills, Inc.,
116 NLRB 769, 770. And the record must be examined, therefore, to determine
whether the Respondent has met its burden of proof with respect to the issue, in
this case.
Upon the entire record, I am satisfied that the Respondent has failed to sustain
its contention with respect to Frank Harrington's alleged failure to exercise due
diligence in a search for employment during the back-pay period.
In this connection, at the outset, reference should be made to the Respondent's
allegation that Harrington received $307 from the Oregon Unemployment Com-
pensation Commission between October 30, 1953, and January 18, 1954, as un-
employment compensation benefit payments. The General Counsel has conceded
Harrington's receipt of the indicated sum, and has alleged, affirmatively, that
Harrington regularly registered for employment with the commission during the
period indicated, to qualify for the benefit payments in question. Upon request,
I have taken official notice of the Oregon statute which governed eligibility for
the receipt of unemployment compensation benefits during the period now under
consideration. O.C.L.A., section 126-704, as amended by chapter 646, Oregon
Laws, 1953. That statute read, in part, as follows:
An unemployed individual shall be eligible to receive benefits with respect
to any week only if the commission finds that:
(a) He has registered for work at and thereafter has continued to report
at an employment office in accordance with such regulations as the commission
may prescribe . . .
(b) He has made a claim for benefits with respect to such week . .
(c) He is able to work, is available for work, and is actively seeking and
unable to obtain suitable work . .
(d) He has been unemployed for a waiting period of one week . . .
In support of his assertion that Frank Harrington registered for employment reg-
ularly during his back-pay period pursuant to the requirements of this statute, the
General Counsel has proffered in evidence a document prepared by an official of
the Oregon Unemployment Compensation Commission, at the instance of the
Union's counsel, which recapitulates commission record with respect to Frank
MONROE FEED STORE 1495
Harrington 's claim history during the 1954 benefit year defined in the Oregon law .2
The Respondent objected to the receipt of this document in evidence on the ground
that it was not an official commission record and constituted hearsay. A ruling
was reserved . Upon reflection , however , I am satisfied that the document should
now be received in evidence.
It appears to be generally conceded that any properly authenticated official record
made or maintained by a public official of the United States, or of a State or Terri-
tory, may be received in evidence to establish the facts recorded-despite its putative
hearsay character- if the record is shown to be one made or maintained by the
official or subordinates pursuant to his direction , in the performance of his official
functions , and if it concerns acts, events , or conditions which the official was under
a duty to perform , observe, or record, personally or vicariously . See Chesapeake
and Delaware Canal Company v. United States , 250 U .S. 123 ( 1919 ); White v.
United States , 164 U.S. 100 (1896 ); Evanston v. Gunn, 99 U .S. 660 ( 1878 ); United
States v. Ward, 173 F. 2d 628, 630 (C.A. 2, 1949); Scott v. R. Company, 43 Ore. 26,
72 Pac. Rep. 594 (1903). Cf. Olender v. United States, 210 F. 2d 795 (C.A. 9, 1954)
which is factually distinguishable but summarizes the relevant case law. See also
"Wigmore on Evidence," § 1630-1637, 1639 ; "Uniform Rules of Evidence, Na-
tional Conference of Commissioners on Uniform State Laws," Rule 63 (15).
Despite the General Counsel's failure to produce a certified or attested copy of
the Commission's record with respect to Frank Harrington 's unemployment com-
pensation claim, I am satisfied that the document proffered in evidence was
properly authenticated-by the union counsel 's undisputed testimony-as an au-
thoritative recapitulation of the Commission 's record in that respect. Cf . "Uniform
Rules of Evidence ," supra, Rule 68, 70; Rules of Civil Procedure for the District
Courts of the United States," Rule 44 (c). And although the record does not show
that the General Counsel ever exhibited the document to the Respondent or his
counsel prior to the inception of the supplemental hearing in this case , the record
will clearly establish the Respondent 's awareness of the fact that Harrington did
file an unemployment compensation benefit claim immediately after his discharge
on October 30, 1953, and subsequently received benefits.3 Upon the entire record,
therefore , I am satisfied that the Respondent has not been unfairly surprised by the
General Counsel 's failure to exhibit or deliver a copy of the document now in
question prior to the hearing in this supplemental proceeding . "Uniform Rules of
Evidence ," supra, Rule 64 . The proffered exhibit will, therefore , be received in
evidence.
It establishes , inferentially , the initiation of an unemployment compensation bene-
fit claim by Frank Harrington within the calendar week subsequent to his October 30
discharge , his concurrent registration for work at an Unemployment Compensation
Commission office, and his successive visits to the office thereafter , weekly, through-
out his back -pay period . Under established Board doctrine , the exhibit would seem
to be sufficient to show , prima facie, that Harrington made a reasonable effort to
secure other employment during the back -pay period . Southern Silk Mills, Inc.,
supra. I so find.
In support of the Respondent 's contention that Harrington , nevertheless, made
no reasonable search for alternative employment , reference was made to his earlier
testimony before Trial Examiner Royster with respect to his activity during the
back-pay period . That testimony establishes , in the absence of contradiction, that
he worked briefly on the construction of a new store in Monroe , that he was em-
2 The benefit year in question , I find, began July 1, 1953 , and ended June 30, 1954.
Oregon Laws , 1951, ch. 347 , sec. 126-702(1 ) ( M). It should be noted, inter alia, that
the $307 which Harrington admittedly received within this period constituted the total
amount he received , both for a 9-week compensable period which began with the week
ending November 14, 1953, and terminated with the week ending January 16, 1954, and
for a subsequent 4-week compensable period which began with the week ending April 10,
1954 , and terminated with the week ending May 1 of that year . Presumably , the sum he
received for his initial 9 -week period of compensable unemployment was less than his
$307 total benefits.
Its counsel conceded the Respondent 's knowledge with respect to the receipt of un-
employment compensation benefits by Harrington and several other Claimants , but denied
any knowledge as to the period of unemployment covered and the dates upon which
Harrington and the other Claimants registered for work. Commission practice under
the Oregon Unemployment Compensation Law-of which I have taken official notice-
provides for the dispatch of a duplicate copy of an initial unemployment compensation
claim form to every benefit claimant's last employer . I am satisfied , therefore , that the
Respondent was made aware of the date on which Harrington filed a claim , and hence
the date on which his registration for work became effective.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed for a short time by a salvage company after the Respondent's warehouse
burned, that he worked at a local sheet-metal shop, and that he sought reemploy-
ment at the Respondent's Monroe mill, unsuccessfully, 3 or 4 weeks after his
discharge? When asked if he had applied for work elsewhere, Harrington indicated
before Trial Examiner Royster that he did not believe he had; he referred to the
fact that he had been working on his farm.
As previously noted, the Respondent has referred to Harrington's self-employ-
ment as indicative of a lack of diligence with respect to his search for other
employment; it has also alleged that the value of the capital improvements which
he made on the farm during the back-pay period, and the profits received.from
his sales of livestock during that period, if any, ought to be considered interim
earnings. I find no merit in either contention.
This Agency has consistently held-with court approval-that, unless unusual cir-
cumstances exist, even a discriminatee who devotes his full time to self-employment
and fails to seek other employment does not, thereby, exhibit a lack of diligence with
respect to the search for work, and may be entitled to back pay nevertheless, the
amount to be computed by the deduction of his net profits from self-employment,
if any, from his gross back pay. Cf. Armstrong Tire and Rubber Company, The
Test Fleet Branch, 119 NLRB 353, particularly footnote 8 and the cases therein cited.
In this case, even if the record-despite its fragmentary character-could be said to
warrant an assumption that Harrington's farm activity constituted self-employment,
the available evidence would establish that he was simultaneously seeking other em-
ployment, and that he was, in fact, employed elsewhere intermittently. Compare
N.L.R.B. v. Cashman Auto Company, 223 F. 2d 832 (C.A. 1) enfg. 109 NLRB 720;
Brotherhood of Painters, Decorators & Paperhangers of America, etc. (Lauren Burt,
Inc. of Colorado), 114 NLRB 295. Harrington's farm activity, therefore, cannot be
relied upon to establish a lack of diligence on his part in seeking employment.
Additionally, it may be noted that the Respondent made no effort to adduce
evidence with respect to the amount of Harrington's farm income during his back-
pay period. Under the circumstances, no justification can be asserted for the
designation of any specific sum as interim earnings by the Claimant in self-
employment.
On the basis of this discussion, it should be obvious that my determinations with
respect to Frank Harrington's registration for work and his search for employment
during the back-pay period have been based-entirely upon his previous testimony
and documentary evidence or formal concessions proffered in this supplemental
proceeding. Harrington himself did not testify. There was testimony adduced
before me, however, which might, arguably, bear upon the issue raised by the
Respondent with respect to Harrington's search for employment.
Several of the Claimants, for example, testified that they had made automobile
trips to nearby communities in search of employment, and that they had been
accompanied or chauffeured by one or both of the Harrington brothers on such
trips. Executive Secretary Stevens of the Union also reported that he had applied
for work on behalf of the Claimants, at the Corvallis office of the General Laborers
Union, and that he had solicited the aid of the Willamette District Council of the
Lumber and Sawmill Workers Union, AFL, to procure lumber industry employ-
ment for the Claimants, generally, shortly after their discharge. There is testimony
by Stevens, also, that various Claimants telephoned him at the Union's Portland
office on several occasions, during November and December 1953, to solicit the
Union's help in their search for employment. This testimony deserves evaluation,
despite its generalized character.
The available evidence with respect to the participation of the Harringtons in
various automobile journeys in search of employment probably deserves char-
acterization as too vague to justify a conclusion that they were involved in such
activity during their back-pay periods; the testimony with respect to the time at
which several trips occurred was indefinite, and there is justification for an in-
ference that the trips in question occurred after Frank Harrington's January
reinstatement. Additionally, it should be noted that none of the testimony estab-
lishes his personal employment application at any of the business enterprises
visited. The available evidence, of course, will not sustain a definitive conclusion
that the Claimant made no automobile trips in search of employment, during his
back-pay period, but his testimony before Trial Examiner Royster-to which
reference has been made-suggests, at least, that he made none. And the testimony
4 Harrington's previous testimony with respect to his employment history during the
back-pay period thus reflects, without omission, his employment by the F. W. Carter
Company, Underwriters Salvage Company, and the Willamette Valley Sheet Metal Com-
pany, previously noted.
MONROE FEED STORE 1497
of his fellow Claimants can only be described as insufficient to establish that he
did seek work, in this fashion, during the period in question.
An inference would seem to be warranted, nevertheless, that Executive Secretary
Stevens of the Union was engaged, albeit unsuccessfully, in a persistent effort to
secure employment for the Claimants, both within and without the grain milling
industry, during the 2-month period subsequent to the October 30 discharges.
While the record will not sustain a conclusion that Frank Harrington personally
requested Stevens to make such an effort in his behalf, in the course of any tele-
phone call to the union office initiated by a fellow Claimant during the period
indicated, I am satisfied upon the entire record that the Union representative,
considered the calls indicative of every Claimant's interest in work. Upon the
entire record, therefore, I find that Frank Harrington, together with the other
Claimants herein, enlisted the Union's aid in connection with his search for post-
discharge employment.
It is alleged in the Respondent's answer that Harrington was offered substantially
equivalent employment and willfully refused it during the back-pay period. No
evidence was proffered, however, in support of this assertion. Carson Adams, a
farmer, did testify that "one" of the Harrington brothers questioned him in mid-
summer, 1953, with respect to the possibility of employment as a truckdriver; his
recital establishes that the individual who raised the question was invited to apply
at some later date, if he needed work, but never did so. In the absence of a
definitive identification of the individual involved, however, and in the absence of
evidence with respect to the rate of compensation Adams would have paid, or with
respect to other aspects of the possible employment noted , no determination can
be made that Frank Harrington, specifically, was guilty of a refusal or failure to
accept desirable new employment during his back-pay period.
Upon the entire record, I find that the Respondent's back-pay obligation with
respect to Frank Harrington may be computed as follows:
1953 4th quarter
Saturday, Oct. 31, 5 hrs. at 11/2 X $1.20------------------------------ $9.00
7 weeks Nov. 2-Dec. 19------------------------------------------- 525.00
Dec. 21-24, 40 hours---------------------------------------------- 48.00
Saturday, Dec. 26, 5 hrs. at 1 V2 X $1.20------------------------------ 9.00
Dec. 28-31, 40 hours---------------------------------------------- 48.00
Gross back pay--------------------------------------------- 639.00
Interim earnings:
Underwriters Salvage Company-------------------------- $20.25
F. W. Carter Co., Inc---------------------------------- 34. 50
Willamette Valley Sheet Metal Co------------------------ 39.00
Total interim earnings--------------------------------------- 93.75
Net back pay----------------------------------------------- 545. 25
1954 1st quarter
Saturday, Jan. 2, 5 hrs, at 11/2 X $1.20--------------------------------. 9.00
2 weeks, Jan. 4-16------------------------------------------------- 150.00
Gross back pay--------------------------------------------- 159.00
Interim earnings-------------------------------------------------- None
Net back pay----------------------------------------------- 159.00
Total net back pay------------------------------------------ 704.25
Payment on account----------------------------------------------- 450.00
Back pay due---------------------------------------------- 254.25
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Ellis Conn
The original record in this case establishes that Conn was employed by the
Respondent as a grinder helper. It is alleged in the General Counsel's back-pay
specification, and the Respondent concedes, that prior to October 30, 1953, Conn
was paid at a $1.15 per hour straight-time rate, with time and one-half for all
weekly employment in excess of 40 hours. His workweek equaled that of the other
Claimants herein; thus $71.89 constituted his gross weekly rate of pay, prior to
his October 30 discharge. On January 22, 1954, Conn was reinstated as an em-
ployee, thus ending his back-pay period. On or about April 3, 1956, 1 find, he
received $465 from the Respondent on account of its net back-pay obligation.
The Respondent has denied the allegations of the back-pay specification with
respect to Conn's entitlement to additional net back pay; specifically, its denial
appears to be based upon the double contention that Conn sought no other em-
ployment during his back-pay period, and that he failed to exercise due diligence
in seeking employment during the period in question. Upon the entire record,
I find no merit in these assertions.
The available evidence establishes that Conn filed an unemployment compensa-
tion claim with the Oregon Unemployment Compensation Commission on Novem-
ber 2, 1953, and concurrently registered for work. It establishes, also, that Conn
reported at the Commission's Corvallis office, pursuant to instructions, every week
thereafter throughout his back-pay period. He received no job referrals.
There is testimony by Conn, elicited at the General Counsel's instance, that he
made an independent effort to secure employment. In the main, I credit this
testimony. It establishes his efforts, over a period of time, to secure employment
at a Corvallis plywood plant, and his unsuccessful attempts to secure employment
with Murray and Stanford, general contractors, engaged in the construction of a
bridge in Monroe, and with the sawmill located in that community. On direct
examination Conn also testified that he had sought employment, during his back-
pay period, at a veneer plant under construction near Philomath, several miles west
of Corvallis, and at a brickyard in Monroe; these efforts were allegedly equally
unsuccessful. Cross-examination, however, elicited a concession from the Claimant
that these, contacts might have been made during a later period of unemployment
after his second termination at the Respondent' s mill.5 In this posture of the
record, I find the evidence insufficient to establish that Conn sought work in-
dependently with any employers other than the three previously indicated.
Concurrently, however, Conn's need for employment was known to the Union's
executive secretary. In the light of the testimony proffered by the latter, to which
reference has already been made, I am satisfied that he was solicited to make an
effort to find employment for Conn, among others, during the latter's back-pay
period, and that such efforts were made.
In the light of the available evidence, then, I find that the Respondent has failed
to sustain its double contention that Conn did not seek other work during his
back-pay period, and that he failed to make a reasonable search for alternative
employment. The Respondent's net back-pay obligation with respect to Conn,
therefore, may be summarized as follows:
1953 4th quarter
Saturday , Oct. 31, 5 hrs. at 1'/z X $1.15-- ---------------------------- $8.62
7 weeks, Nov. 2-Dec. 19------------------------------------------- 504. 23
Dec. 21-24,40 hours---------------------------------------------- 46.00
Saturday , Dec. 26, 5 hrs. at 1'h X$1.15------------------------------ 8.62
Dec. 28-31,40 hours---------------------------------------------- 46.00
Gross back pay--------------------------------------------- 613.47
5 The Claimant ' s testimony before Trial Examiner Royster had indicated that his
applications for postdischarge employment had been limited to the Monroe sawmill, the
Corvallis plywood mill , and the bridge contractor ; no reference had been made to any
applications at the Monroe brickyard or the Philomath veneer plant then under construc-
tion . When confronted with this testimony , before me, Conn conceded that his search for
employment during the back-pay period had been limited to the three employers noted ;
he did testify that he had " probably" visited other employers , but could not be sure
whether such visits had occurred during the period in question.
MONROE FEED STORE
1954 1 st quarter
1499
Saturday , Jan. 2 , 5 hrs. at 1r X$1.15-------------------------------- 8.62
2 weeks, Jan . 4-16------------------------------------------------ 143.78
Jan. 18-21 , 40 hours---------- ------------------------------------- 46. 00
Gross back pay----- ---------------------------------------- 198.40
Total gross back pay---------------------------------------- 811.87
Interim earnings-------------------------------------------------- None
Net back pay---------------------------------------------- 811.87
Payment on account----------------------------------------------- 465.00
Back pay due---------------------------------------------- 346.87
4. William D. Harrington
Before Trial Examiner Royster, William D. (Don) Harrington testified that he
was initially employed by the Respondent in July 1952 as a general utility worker
and cleaner's helper. The General Counsel alleges, and the Respondent concedes,
that, after his discharge, he was reinstated on January 25, 1954, in the same
capacity. This ended his back-pay period. On or about October 20, 1955, Har-
rington accepted $450 from the Respondent on account of its back-pay obligation.
The Respondent, however, now denies Harrington's right to any net back pay,
as set forth in the General Counsel's back-pay specification, on the double ground
that he did not seek other employment during his back-pay period and failed to
exercise due diligence in connection with his search for employment. Upon the
entire record, I am satisfied that the Respondent has failed to sustain its conten-
tions in this connection.
With respect to the Respondent's denial that Harrington actually sought other
employment during his back-pay period, reference need only be made to the
Claimant's undisputed testimony before Trial Examiner Royster that he was em-
ployed as a farmworker by Bob Harper for a period of 3 days in November 1953,
and that he subsequently worked a "couple days" for the Willamette Valley Sheet
Metal Company at Monroe, suffering a termination when his job was completed.
Harrington's testimony in this connection is corroborated by a Social Security
Administration report with respect to his employment and earnings record during
the period in question; this report became a part of the record in the present. case
as an attachment to the back-pay specification, and its accuracy has not been
challenged.
In connection with the Respondent's alternative allegation that William D.
Harrington failed to exercise due diligence in his search for employment, refer-
ence may be made to the firm's allegation that he received $258 from the Oregon
Unemployment Compensation Commission between October 30, 1953, and Jan-
uary 15, 1954, as unemployment compensation benefits. As reported in my an-
alysis of Frank Harrington's case, the General Counsel has conceded the Claim-
ant's receipt of the indicated sum and alleges, affirmatively, that Harrington
regularly registered for employment with the Commission, during the period in-
dicated, to qualify for the benefit payments in question. Elsewhere in this report,
I have already noted that, under the Oregon unemployment compensation law,
the prosecution of an unemployment compensation claim necessarily denotes a
registration for work, and the persistence of an active interest in obtaining work.
In support of his assertion, noted, that William D. Harrington did, in fact, file
such a claim, register for work, and report his availability for employment reg-
ularly, during his back-pay period, the General Counsel has proffered in evidence
a document similar to the one previously received in evidence, prepared by an
official of the Oregon Unemployment Compensation Commission at the instance
of the Union's counsel, which recapitulates the Commission's record with respect
to William D. Harrington's claim history during the 1954 benefit year defined by
Oregon law. The objection of the Respondent to the receipt of this document as
an exhibit paralleled its obligation with respect to the receipt of a similar docu-
ment proffered to support Frank Harrington's claim. For the reasons previously
noted in this report, in connection with my antecedent disposition of the question
raised, I am satisfied that the document under consideration should now be received
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in evidence . Its receipt , therefore , is noted. The commission records recapitulated
therein established , inferentially , the initiation of an unemployment compensation
benefit claim by. William D. Harrington within the calendar week subsequent to
his October 30 discharge , his concurrent registration for work at a commission
office, and his successive visits to the office thereafter , weekly, throughout his back-
pay period . As previously noted, in the case of his brother , Frank Harrington,
this would seem to be sufficient to show, prima facie, that William D . Harrington
made a reasonable effort to secure other employment during the back-pay period.
And I so find.
Additionally, it should be noted that Harrington 's testimony before Trial Exam-
iner Royster establishes his employment at the Monroe sheet-metal shop as the
result of a written application for employment there. Harrington could not recall
the date of the application ; his inability to supply this information , however, may
be considered immaterial . (The Respondent 's answer includes an allegation that
this Claimant was offered substantially equivalent employment by the sheet-metal
firm in November 1953 and that he refused such employment . No evidence in
support of this allegation was adduced , however, and I find that it has not been
sustained .) On the basis of the testimony provided by Executive Secretary Stevens,
I am satisfied , also, that William D. Harrington , together with his brother and
the other Claimants herein , enlisted the Union's aid in connection with his search
for postdischarge employment.
In the light of the available evidence , therefore , I find that the Respondent has
failed to sustain the burden of proof with respect to its allegation that this
Claimant failed to exercise due diligence in his search for employment.
. Upon the entire record, I find that the Respondent's back-pay obligation with
respect to William D. Harrington may be computed as follows:
[Consult the back-pay summary provided elsewhere in this report with respect to
Frank Harrington 's claim for a detailed statement of this Claimant 's gross back-pay
computation]
1953 4th quarter
Gross back pay-------------------------------------------------- $639.00
Interim earnings : Bob Harper , Junction City, Oregon- ---------- $24.00
Total interim earnings-------------------------------------- 24. 00
Net back pay--------------------------------------------- 615.00
1954 1st quarter
Saturday , Jan. 2 , 5 hrs. at 1 'hX$1.20------------------------------- 9.00
3 weeks,Jan . 4-23----------------------------------------------- 225.00
Gross back pay------- ------------------------------------- 234.00
Interim earnings : Willamette Valley Sheet Metal Co---------- $ 150. 00
Total interim earnings -------------------------------------- 150.00
Net back pay--------------------------------------------- 84.00
Total net back pay----------------------------------------- 699.00
Payment on account---------------------------------------------- 450.00
Back pay due--------------------------------------------- 249.00
5. Kenneth Mumford
This Claimant 's testimony before Trial Examiner Royster establishes his em-
ployment by the Respondent in September 1949 as a cleaner man's helper; addi-
tionally, I find, he served as a part-time millhand and truckdriver prior to his
discharge . The back-pay specification fixes May 3, 1954 , as the date of his re-
instatement , and the end of his back-pay period. This the Respondent concedes.
There is nothing in the record , however, to indicate the nature of his work
assignment after he was reemployed . On or about December 12, 1955, the Re-
spondent paid him $750 on account of its net back -pay obligation.
MONROE FEED STORE 1501
With specific reference to the General Counsel's present gross back-pay claim
in Mumford's behalf, the Respondent has renewed its reference to the seasonal
character of the feed and seed business, and its reference to the November 23,
1953, fire which destroyed one of the firm's Monroe warehouses; it is contended
that, as a result of the seasonal decline in the Respondent's business and the fire,
Mumford would not have been employed during December 1953 or the early part
of 1954, prior to February 20 of that year, and that his gross back pay would
have been reduced thereby. Upon the entire record, however, I find no merit in
this contention. With the exception of Floyd Cantrell, Sr., Mumford appears
to have had more seniority as an employee of the firm than any of the other
October 30 dischargees. And his experience at the Monroe mill appears to have
been diversified. The available evidence, therefore, would seem to warrant an
inference that Mumford would be one of those least subject to layoff because of
the Respondent's business vicissitudes. Reference has already been made, however,
to the conclusion of Trial Examiner Royster, which the Board has adopted, that the
October 30 discharges took place after the Respondent's employee complement
had been reduced to those with "permanent" status. In the light of this factual
conclusion, any argument now that Mumford would have been subject to lay-
off because of a seasonal business decline-after the date of the mass discharge-
must be considered precluded. And the evidence proffered with respect to the
impact of the warehouse fire, separately considered, seems to deserve characteriza-
tion as insufficient to establish that Mumford would not have been employed for
a period of approximately 80 days during his back-pay period.
In the Respondent's behalf, General Manager Giesy did testify that approximately
110 tons of grain and seed ready to be processed were destroyed in the warehouse
fire. It is established, however, that the figures of an insurance adjuster, received
in evidence, will not support this approximation; they indicate that the Respondent
was compensated for the loss of 73,060 pounds (36.53 tons) of Rye grass and
Hairy Vetch seed, and 98,400 pounds (49.20 tons) of wheat, oats, and barley.
These figures would indicate a total loss of 171,460 pounds (85.73 tons) of seed
and grains Giesy's undisputed testimony establishes that the grain lost in the fire
would have been scalped-that is, screened through a large grain-cleaning ma-
chine to remove impurities-after which it would have been delivered to boxcars
in bulk. He estimated the average capacity of the machine involved at 20-25 tons
per hour; it would seem to follow, therefore, that the grain lost in the fire could
have been processed in slightly more than 2 hours. The general manager of the
Respondent testified, also, that the firm had had 125-135 tons of grain and seed
on hand to be processed as of the date of the mass discharge. Of this amount,
his testimony would indicate that 70-80 tons had been processed prior to the
November 23 fire, leaving 55 tons on hand, which the fire destroyed. (It has
already been established that this figure represents an approximation. Its sig-
nificance remains to be noted.) Giesy described the 55 tons in question as the
remainder of the previously noted 125-135-ton inventory of seed and grain on
hand as of October 30, 1953; when questioned as to whether an inference would
be correct that the other 55 tons allegedly destroyed represented subsequent re-
ceipts of seed or grain, the general manager failed to acknowledge the validity
of the suggested inference; he described the extra 55 tons as grain tonnage ready
to be scalped, but gave no clear indication as to the date of its receipt. His
testimony, elsewhere, would seem to warrant an inference that his reference to a
125-135-ton inventory related to a seed inventory only. If an assumption can be
made, presumably consistent with the Respondent's argument, that Giesy's refer-
ence to a 125-135-ton inventory on the date of the mass discharge related entirely
to the seed tonnage then on hand, an inference would be warranted that the firm
was able to clean and process 70-80 tons of seed in 19 working days, between
October 31, 1953, and November 21 of that year. And a further inference would
certainly seem to be warranted that the 36.53 tons of seed destroyed in the fire
could have been processed by the Respondent's regular employee complement in
less time. The testimony of Giesy, that the seed inventory of the firm on Oc-
tober 30 could have been cleaned in 30 days by the regular crew, would seem to
support this inference. And since the available evidence establishes that the
Respondent, despite its fire loss, had an inventory of approximately 300 tons of
grain on hand for feed grinding and mixing operations, the fire cannot, legitimately,
be characterized as sufficiently serious to have warranted extensive employee layoffs.
In short, I find the, testimony proffered in the Respondent's behalf insufficient to
sustain its contention that the warehouse fire involved a significant inventory loss,
9 The firm also appears to have been compensated for the loss of 130,000 pounds
(05 tons) of chemical fertilizer, a small amount of peat moss, and some small machinery.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial enough-when coincidental with a seasonal low in the Respondent's
business-to have warranted a suspension of Mumford 's employment from Decem-
ber 1, 1953, to February 20 of the following year.
The answer of the Respondent to the back-pay specification includes a specific
denial that Mumford sought other employment during his back-pay period. It
also includes an admission, however, with respect to his interim earnings, as set
forth in the specification. In this state of the record, I find that the Respondent
has effectively abandoned any contention that Mumford did not seek postdischarge
employment .? In cross-examination , the Respondent 's counsel elicited an admission
.from Mumford that he had earned $15 at a 2-day job for the firm, sometime dur-
ing his back-pay period. I so find.
No evidence has been adduced by the Respondent in support of its contention
that Mumford failed to seek employment with due diligence during his back-pay
period. The Claimant's undisputed testimony-elicited at the General Counsel's
instance-establishes, rather, that he filed an unemployment compensation claim
and registered for work, at the Oregon Unemployment Compensation Commis-
sion's Corvallis office, on November 2, 1953, and reported thereafter, weekly,
22 times during his back-pay period. (A recapitulation of the Commission's claim
record, which Mumford acknowledged as accurate, establishes that he reported
regularly throughout November and December 1953, January, February, and
March, 1954, and once in April. I so find.) Mumford's credible testimony shows
that he received one referral to work as a strawberry picker, but was not employed.
At the original hearing in this case, Mumford's testimony indicated that his in-
dependent search for employment between October 30, 1953, and March 10, 1954,
had been limited to repeated applications at the Corvallis plywood plant previ-
ously mentioned, Hull's sawmill, and the Monroe sawmill to which reference has
already been made. And the Claimant has now acknowledged the accuracy of
this testimony. His additional testimony with respect to his own attempts to find
work establishes, however, that-between March 10, 1954, when the hearing
before Trial Examiner Royster ended, and the date of his reinstatement-he sought
employment with the Willamette Valley Seed Company in Junction City, and with
a feed mill at Harrisburg, Oregon, unidentified. His testimony also establishes an
application at the Evans sawmill in Philomath. The available evidence raises a
question as to whether this application was made before March 10, 1954, or there-
after; upon the entire record I am satisfied that it was made after the indicated
date. Mumford expressed a present "belief" that he had also applied for work
at the Corvallis Feed and Seed Mill and a Junction City plywood mill, prior to
his reinstatement; the Respondent made no effort to shake his testimony in this
regard.8 The available evidence also establishes Mumford's active interest in the
Union as a possible source of employment referral; Executive Secretary Stevens
testified credibly that the Claimant visited him in Portland on several occasions,
and his April 1954 employment at the Terminal Flour Mills was secured, in fact,
with the aid of this union official. (In the course of this employment, Mumford
had to commute to Portland at the outset of every workweek and return to his
home at the end of the week. Over a 4-week period, I find, he incurred incidental
expenses for transportation and room and board, as a result; these may properly
be deducted from his Portland earnings.) In this posture of the record, a con-
clusion would seem to be warranted that the Respondent has failed to sustain its
contention with respect to Mumford's alleged failure to exercise due diligence in
connection with the search for postdischarge work. American Bottling Company,
116 NLRB 1303, 1305, 1318-1321 (Miguel Salinas, Pedro Pena). I so find.
T In connection with its admission in regard to Mumford's interim earnings, the
Respondent alleged that Mumford also assisted his brother in the sale of slabwood for
use as fuel, during his back-pay period, and that he received interim earnings, in such
employment, of an undetermined amount. The Claimant's undisputed testimony, how-
ever, indicates that his brother had no slabwood for sale during the 1953-54 winter
season-or, for that matter, during any part of Mumford's back-pay period. His testi-
mony also establishes that any income which his brother conceivably may have derived
from slabwood sales during his back-pay period would have been devoted exclusively to
the purchase of food for an entire family, which the Claimant was permitted to share.
I find the available evidence in this connection, therefore, insufficient to warrant a modi-
fication of the General Counsel's specification with respect to Mumford's interim earnings,
otherwise conceded.
8 When questioned about a possible application at the Monroe brickyard, previously
noted, Mumford reported a visit to the yard, but he could not recall his application for
employment there ; according to his testimony, various brickyard employees had indicated
to him that the enterprise had a full employee complement.
MONROE FEED STORE 1503
The Respondent argues vigorously , however, that Mumford failed to exercise due
diligence with respect to his search for employment because his testimony estab-
lishes that, prior to March 10, 1954, he failed to apply for work at the Monroe
brickyard , or at any of the 18 feed and seed mills in the Monroe and Corvallis
areas. Upon the entire record , I find no merit in this contention . The concept of
due diligence , like that of due process , cannot be defined as precisely as a Plimsoll
line. See "Frankfurter, J., Concurring" 71 Harvard Law Rev. 77. Nor, to vary
the metaphor , can the Respondent argue, legitimately , that it ought to be consid-
ered a Procrustean bed, which every Claimant , regardless of circumstances , should
be required to fill in equal measure. Evidence which would warrant a conclusion
that none of the Claimants sought work at all of the nearby feed and seed mills,
that some of them visited fewer mills than others, and that Mumford, particularly,
visited none of them until some time after the initial hearing in this case , cannot
justify a per se determination that the Claimant designated-or any other Claimant
herein-did not seek employment with due diligence , as a matter of law. The
record, previously noted, establishes that the brickyard had a stable employee
complement, throughout the period with which we are concerned, and that the feed
and seed mills in the area were all involved in the seasonal lull to which the
Respondent's staff had already been adjusted prior to Mumford's discharge. An
inference would certainly seem to be warranted that these mills had dispensed
with the services of employees other than their "steady" crews; the available
evidence, to be noted in this report, establishes, indeed, that some of the mills
indicated as much, when questioned with respect to employment opportunities.
Dischargees cannot properly be accused of a lack of due diligence because of their
failure to complete a presumptively futile round , especially in view of the evidence
that extensive travel would have been required .9 In this connection , reference has
already been made to Mumford 's reliance upon the Union as a possible source
of employment referral to feed and seed mills throughout his back-pay period.
And the record does reveal that he did, ultimately, find substantial interim em-
ployment within the grain milling industry with the Union's help. In the light
of the evidence noted, I find the Respondent 's sweeping contention unacceptable.
Upon the entire record, therefore, I am satisfied that the Respondent's back-pay
obligation with respect to Mumford should be computed as follows:
[Consult the back-pay summary provided elsewhere in this report with respect to
Frank Harrington's claim for a detailed statement of this Claimant's gross back-pay
computation]
1953 4th quarter
Gross back pay------------------------------------------------- $639.00
Interim earnings:
Underwriters Salvage Company------------------------ $27. 75
Wayne Giesy--------------------------------------- 37.50
Total interim earnings------------------------------------- 65.25
Net back pay-------------------------------------------- 573.75
1954 1 st quarter
Saturday, Jan. 2, 5 hrs. at 11/2 X$1.20------------------------------ 9.00
3 weeks, Jan . 4-23---------------------------------------------- 225.00
9 weeks, Jan. 25-Mar. 27, 40 hrs. at $1.50-------------------------- 540. 00
Mar. 29-31,24 hours-------------------------------------------- 36.00
Gross back pay------------------------------------------- 810.00
Interim earnings:
Monroe Feed--------------------------------------- $15.00
Total interim earnings------------------------------------- 15. 00
Net back pay-------------------------------------------- 795.00
e The record establishes that there were two seed mills in Corvallis, 17 miles away ;
two in Junction City, 8 miles distant ; four in Harrisburg, 12 miles away ; two in Halsey,
18 miles from Monroe ; two in Shedd, 32 miles distant; one at Philomath, 22 miles away
via Corvallis ; one at Peoria, 25 miles away ; and five at Albany, 25 miles from the
Respondent's Monroe operation.
1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1954 2nd quarter
April 1-3, 24 hours--------------------------------------------- 36.00
4 weeks, April 5-May 1------------------------------------------ 240. 00
Gross back pay------------------------------------------- 276. 00
Interim earnings:
Terminal Flour Mills Co----------------------------- $402. 60
Less: Incidental expenses---------------------------- 48.00
Net interim earnings--------------------------------------- 354.60
Net back pay--------------------------------------------- None
Total net back pay---------------------------------------- 1,383.75
Payment on account---------- ----------------------------------- 750.00
Back pay due-------------------------------------------- 633.75
6. Webster Sams
The record in this case establishes that this Claimant was employed by the
Respondent in July 1952, and that he worked as a cleaner man at the firm' s Monroe
and Corvallis mills. Terminated in the course of the mass discharge, Sams was
reinstated, together with Mumford, on May 3, 1954, thus ending his back-pay
period. On or about December 20, 1956, Sams accepted $400 from the Respondent
on account of its back-pay obligation. The Respondent, however, now denies any
net back-pay obligation with respect to the Claimant designated.
The Respondent's answer includes a formal denial that Sams sought other
employment during his back-pay period. Concurrently, however, the firm admits
his interim earnings as set, forth in the back-pay specification herein. On the basis
of the Claimant's 'interim earnings, and upon the entire record, I find no merit in
the contention that he did not seek postdischarge employment.
The Respondent, however, has also alleged that the record will reveal a failure
on the part of Sanis to exercise due diligence in the search for alternative em-
ployment.
Upon the entire record, I find, this contention deserves characterization as
deficient in merit. Sams testified that a document which purported to recapitulate
his unemployment compensation claim record-similar in form to the documents
noted previously in this report-accurately reflected his weekly visits to the
Oregon Unemployment Compensation Commission office. Since the recapitulation
indicates that Sams received his first benefit payment for the week ending Novem-
ber 14, 1953, the Respondent argues that he failed to exercise due diligence in
seeking work for a period of 2 weeks after his October 30 layoff, and that he
should not be considered entitled to any back-pay award for the period from
November 1, 1953, through November 14 of that year. This contention must be
rejected. Under Oregon law, previously noted, it is clear that the Claimant's
right to receive benefits for a compensable week of unemployment ending No-
vember 14, 1953, could only have been established by a visit to the commission's
office, for the purpose of filing an initial claim, immediately after the date of the
mass discharge, and a subsequent visit to the office for the purpose of establishing
the week ending November 7, 1953, as a waiting period week. During the 2-week
period in question, I find, Sams was necessarily registered for work, pursuant to
statutory requirements, and available for such work. On the basis of his testimony,
I find that he continued to report his availability for work throughout his back-pay
period, except for the period subsequent to April 3, 1954, when he had alternative
employment.
The record establishes, also, that Sams was actively interested in the Union as
a possible source of employment referral; that he made many telephone calls to
the organization's office, collect; and that he made several personal visits to the
office in an effort to solicit the aid of the Union's executive secretary. The avail-
able evidence also establishes that he did, in fact, secure alternative employment
at the Terminal Flour Mills with the assistance of the designated Union official.
(During the period of his Portland employment, Sams incurred expenses for
transportation and board and room, under circumstances comparable with those
noted in Mumford 's case . These expenses , I find , may properly be deducted from
his earnings during the period in question.)
MONROE FEED STORE 1505
In the Respondent 's brief, extended reference is made to the independent efforts
of this Claimant to secure postdischarge employment immediately after his Octo-
ber 30, 1953, dismissal ; his testimony with respect to his search for employment
after the initial hearing in this case is also noted . The contacts which Sams item-
ized, conceded in the Respondent 's behalf, certainly cannot be characterized as
minimal. The firm's counsel has argued , nevertheless, that:
Certainly the efforts of Sams in seeking work at various feed and seed mills
in the vicinity of Monroe cannot be called unreasonable , but the failure to seek
work at all or most all of these plants engaged in the feed and seed business
could be found to be unreasonable . [ Emphasis supplied.]
For reasons previously indicated , this contention must be rejected . The testimony
of the Claimant designated establishes that his efforts to find work at feed and
seed mills during the winter months uniformly elicited a response substantially
identical with the one he attributed to various seed mill operators in Harrisburg,
Oregon , as follows:
They said it was pretty late to be looking for work because the harvest work
was over, and they had what help they needed, and it was their steady help.
Well, they said they usually hired their local help , and, when they was
hiring steady hands, they had their own hands that had been with them for
a period of years, and they thought that was good enough... .
Under the circumstances, I find, the failure of Sams to make his canvass exhaust-
ive ought not to be considered unreasonable . Due diligence , of course , requires
a reasonably persistent effort to find work , but not necessarily - an exhaustive can-
vass of every conceivable employer.
In the light of the available evidence , I find that the Respondent 's back-pay
obligation with respect to Sams may be summarized as follows:
[Consult the back -pay summary provided elsewhere in this report with respect to
Kenneth Mumford 's claim for a detailed statement of this Claimant's gross back-pay
computation]
1953 4th quanter
Gross back pay------ ------------------------------------------
Interim earnings : Belfountain Telephone Co------------------ $15. 00
$639.00
Total interim earnings------------------------------------- 15. 00
Net back pay-------------------------------------------- 624.00
1954 1st quarter
Gross back pay------------------------------------------------- 810.00
Interim earnings ------------------------------------------------ None
Net back pay--------------------------------------------- 810.00
1954 2nd quarter
Gross back pay-------------------------------------------------
Interim earnings:
Terminal Flour Mills Co ---------------------------- $381.40
Less: Incidental expenses----------------------------- 3 8. 00
276.00
Total interim earnings------------------------------------- 343.48
Net back pay-------------------------------------------- None
Total net back pay---------------------------------------- 1,434.00
Payment on account---- ----------------------------------------- 400.00
Back pay due-------------------------------------------- 1,034.00
505395-59-val . 12 2-9 6
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. Alex S. Johnson
It is alleged in the General Counsel's back-pay specification that prior to Octo-
ber 30, 1953, Johnson was paid at a straight-time rate of $1.10 per hour for work
.as a warehouse cleaner man, with time and one-half for all weekly employment
in excess of 40 hours. His workweek was identical with that of the other Claim-
ants herein; it would seem to follow, despite the Respondent's formal denial, that
$68.75 constituted his gross weekly rate of pay prior to discharge, and for the
period from October 31, 1953, through January 23, 1954, thereafter. I so find.
The specification includes an allegation that the Respondent's rate of pay for
-warehouse cleaner men was raised to a straight-time rate of $1.35 per hour for
a 40-hour week on January 25, 1954; despite the Respondent's formal denial of
this allegation, I find it to be correct. In the light of this conclusion, I find that,
for the period January 25, 1954-February 20, 1954, Johnson would have earned
$54 per week as his gross weekly rate of pay. The General Counsel alleges that
the Respondent employed one E. Simon as a warehouse cleaner man on or about
February 22, 1954; that he was transferred to another type of work on or about
July 5, 1954, and that one K. Simon replaced him on that date. It is further
.alleged, in the back-pay specification, that K. Simon's employment was terminated
on or about July 17, 1954, and that the Respondent employed one Pacheco, at
that time, as a warehouse cleaner man. It is the General Counsel's contention
that the actual earnings of E. Simon, K. Simon, and Pacheco provide a proper
and valid basis on which to calculate the gross weekly rates of pay Johnson would
have received in the Respondent's employ, absent discrimination, from February
22, 1954, to the end of his back-pay period. In the Respondent's answer, the fac-
tual allegations of the General Counsel in this connection are admitted; there is
:a formal denial, however, that the actual earnings of the individuals designated
in the specification provide a proper and valid basis for the calculation of the
gross back pay Johnson would have received between February 22, 1954, and the
end of the back-pay period.
With respect to the latter date, the back-pay specification includes an allegation
that Johnson was offered reemployment on November 17, 1954, and that he pre-
sented himself for reinstatement on December 3, 14, and 20, 1954, in response to
the firm's offer. It is the General Counsel's contention that the Respondent failed
and neglected to provide Johnson with regular employment, whereupon Johnson
refused any further response to the firm's offer on December 20, 1954, thus end-
ing his back-pay period.
The Respondent concedes that it offered Johnson reemployment on November
17, 1954, and that he subsequently rejected its offer, on December 20 of that year.
The firm's answer, however, includes a denial that Johnson's back-pay period did
-not terminate until the latter date; it contains an affirmative allegation that his
back-pay period terminated, rather, on one of several alternative dates:
1. April 29, 1954, when he was offered reemployment, which he rejected on
May 5 thereafter.
2. May 12, 1954, when he was allegedly reemployed as a warehouse cleaner
man for 16 working days, approximately, after which he was discharged for lack
of work.
3. July 1, 1954, when the Respondent dispatched a letter to him by registered
mail which contained an offer of reinstatement.
In this posture of the record, a threshold issue is presented with respect to the
terminal date of Johnson's back-pay period.
Upon the entire record I am satisfied that the Respondent dispatched a letter
to Johnson on April 29, 1954, by registered mail, and that he received it on
May 1, as alleged. Therein, I find, he was advised that the Respondent had
"employment" for him to start May 3, 1954, at its Monroe mill. In the light of
the available evidence, however, I am satisfied that the employment mentioned in
the letter did not clearly involve work substantially equivalent to that performed
by Johnson before his discharge; additionally, I am satisfied that the Respondent's
putative offer was never completely formalized. Johnson's testimony, which I
credit in this connection, establishes that he appeared as requested and that Mau-
rice Beal, the Respondent's manager at the Monroe mill, told him he would be
assigned to "run" a cleaner. When Johnson protested that he had never run a
cleaner before, but had merely served as a cleaner man's helper, Beal's reply
appears to have been limited to a statement that the work offered was the only
work which the Respondent had available. Nothing was said, I find, with respect
to the rate of pay Johnson would receive, his hours of work, the duration of the
job, or any other condition of employment. The Claimant's indication of his un-
-willingness to assume responsibility for the operation of the cleaner does not
MONROE FEED STORE 1507
appear to have been countered by any real attempt to clarify the nature of the
proffered employment.10 Under the circumstances, Johnson cannot be said to have
refused a definitive offer of reinstatement to his former position or one substan-
tially equivalent. I so find.
On May 11, 1954, Johnson was actually reemployed, however, as a machine
helper or warehouse cleaner man. There is no indication in the record that he
was offered temporary employment in this capacity, or that he understood his
employment to be temporary. Nevertheless, the record establishes that he was laid
off on May 26, 1954, for lack of work. In the light of the available evidence,
the Respondent's contention that Johnson's reemployment on May 11, 1954, termi-
nated his back-pay period cannot be dismissed as devoid of substance.
In the back-pay specification, the Claimant's May employment at the Monroe
mill is treated as a period of interim employment. No effort has been made in
the General Counsel's behalf, however, to spell out the theory upon which this
conclusion with respect to the significance of his employment has been reached.
It may have been bottomed upon the General Counsel's contention, previously
noted, that Johnson has received assurances, prior to October 30, 1953, of his
prospective retention as a "permanent" employee; in the light of these assurances,
it may be arguable that the Respondent ought to have dismissed some other ware-
house cleaner man, hired after the mass discharge, when a layoff for lack of work
became necessary. The selection of Johnson for layoff, in short, might conceivably
be subject to characterization as an indication that his May 11 employment did
not involve effective reinstatement as a permanent employee. The General Coun-
sel, however, has made no such contention in terms; he has, in fact, made no
effort to rebut any inference suggested by the testimony elicited from Johnson
with regard to his employment and subsequent layoff. In a case involving several
similar instances, the Board has held that a discriminatee's back-pay period will
be considered terminated by his reemployment for a relatively short period, if his
subsequent layoff cannot be attributed to discrimination. Stilley Plywood Com-
pany, Inc., 94 NLRB 932, 934-938. With respect to an employee rehired by the
respondent in the cited case on October 14, 1948, and subsequently laid off for
a nondiscriminatory reason , the Board observed that:
. we disagree with the Trial Examiner that the Respondent further dis-
criminated against Hunt by reason of its failure to recall him to work after
his nondiscriminatory layoff on November 21, 1948. The fact that Hunt was
not subsequently recalled to work and new employees were hired after his
layoff is insufficient evidence to support a finding of discrimination, especially
in view of the absence of evidence that Hunt applied for reinstatement after
November 21, or that the Respondent promised to recall Hunt when a job
became available for him, or that the Respondent had any particular policy
or practice with respect to recall of employees after layoff. Nor do we be-
lieve that simply because Hunt is entitled to back pay for the period before
November 21, he is further entitled to reinstatement following his nondis-
criminatory layoff. The remedy of reinstatement is designed to reestablish
the relationship between the employee and his employer which normally would
have continued had the employer not engaged in unfair labor practices, and
is not designed to place discriminatees in any better or superior position than
other employees.
Similar considerations would seem to be applicable here. The assurance which
Johnson received in late October 1953 that he would be retained as a "perma-
nent" employee was clearly intended to apprise him, at the very least, that he
would not be subject to layoff as a temporary worker when the busy summer
season ended; realistically, however, it cannot be considered a guarantee of future
employment. There is no reliable or probative evidence that Johnson applied for
10 The testimony of Beal-even if most of it could be credited-would merely establish
his advice to Johnson that the cleaner the latter was being asked to run had already been
set tip to operate. The manager of the firm's Monroe mill did testify initially, with some
hesitancy, that he had met the Claimant's objection to running the cleaner with a com-
ment that Foreman Zavodsky would take care of any "adjustments" required on the
machine. This testimony did not impress me as credible ; even if it could be credited,
I find, it would merely establish that Zavodsky would handle major adjustments on the
cleaner, rather than assume responsibility for its overall routine operation. When
questioned as to whether he'd mentioned any rate of pay, Beal testified, with some doubt,
that Johnson was told he'd get the same rate he had been receiving prior to his
October 30 discharge, and work the same hours; if the Claimant was so advised, Beal's
information was, I find, erroneous. On the whole, I find his testimony unacceptable.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstatement after his May 1954 layoff, or that he was ever promised recall when
employment became available. Nor will the record sustain a conclusion that the
firm had any particular policy or practice with respect to the retention of em-
ployees or their recall after a layoff, on the basis of their overall seniority. No
contention has been made in this case that the Respondent deliberately offered
Johnson reemployment for a period which it expected to be short, or that it
selected him for ultimate layoff-in preference to E. Simon subsequently employed
as a warehouse cleaner man-for discriminatory reasons. Upon the entire record,
therefore, I find that Johnson's reemployment by the firm on May 11, 1954, termi-
nated his back-pay period.
As in Mumford's case, the Respondent argues that the autumnal lull which
characterizes the feed and seed business, coupled with its warehouse fire losses,
would have dictated Johnson's nondiscriminatory layoff, during his back-pay period,
in connection with a normal reduction of the firm's work force. It is alleged,
specifically, that he would have been subject to layoff on or about November 23,
1953, and that he would not have been reemployed until February 23, 1954; the
Respondent argues that he should not be considered entitled to back pay for the
period indicated.
Elsewhere in this report, however, reference has been made to the Board's
earlier conclusion that the temporary summer season workers in the Respondent's
employ had all been terminated prior to October 30, 1953, and that the firm appar-
ently had work for all the employees on its payroll as of the designated date. In
view of the specific. assurances Johnson received, that he would not be subject to
termination as a member of the Respondent's temporary crew, I am satisfied that
the normal seasonal decline in the Respondent's business, after the harvest period,
would not have dictated his temporary separation from employment.
The significance of the Respondent's warehouse fire, as a factor in the determi-
nation of the firm's personnel needs, has already been noted. Separately consid-
ered, I find, the lass which hte Respondent sustained cannot, legitimately, be con-
sidered serious enough to justify a conclusion that Johnson's employment would
have been suspended, because of the fire, for a period of 92 days, if his employ-
ment with the Respondent had not previously been terminated. Even if an assump-
tion could be made, for the sake of argument, that Johnson's employment would
have been terminated for lack of work, for some period after the fire, the Respond-
ent cannot be said to have adduced enough reliable, probative, and substantial
evidence to justify a reasonable conclusion as to the duration of his layoff. In the
light of the available evidence, therefore, no adequate justification can be found
for the abatement of Johnson's back-pay period, fixed as the period between Octo-
ber 31, 1953, and May 10, 1954, both dates inclusive.
With respect to this Claimant, as well as the others, the Respondent's answer
includes a denial that any search was made for other employment during a back-
pay period. In the light of the available evidence, however, with respect to John-
son's interim earnings , which are conceded, I find no merit in this contention."
The Respondent's allegation that Johnson failed to exercise due diligence in con-
nection with his search for employment during his back-pay period parallels its
contention with respect to the other Claimants in this case. The record establishes,
however, in the absence of effective refutation, that Johnson registered for work
at an Oregon Unemployment Compensation Commission office-in connection with
his abortive effort to claim unemployment compensation benefits-within the cal-
endar week subsequent to his October 30 discharge. Thereafter, I find, the Claim-
ant reported at the Commission's Corvallis office "quite a few" times in search of
work. He was not, however, referred to available employment. The record estab-
lishes that he sought work, additionally, at the Commission's Eugene, Salem, and
Allan offices.
Johnson's testimony that he applied for work at the local brickyard and the Monroe
sawmill, without success, has not been disputed. It is established, also, that he
"It is alleged in the Respondent's answer that this Claimant was also employed-at a
Monroe store for 5 days-presumably within the back-pay period defined by the General
Counsel's representative-and that his earnings in such employment, not within the Re-
spondent's knowledge, should be applied to reduce the amount of its hack-pay obligation,
if any. No evidence was adduced, however, in support of this allegation. There is an
intimation on the record, elicited by the General Counsel, that Johnson was employed for
2 or 3 days to clean up a store which burned down at the time of the Respondent's
warehouse fire, but the Respondent made no effort to determine Johnson's earnings in
this employment. In the absence of evidence sufficient to support a finding as to the
amount of the Claimant's earnings, no deduction from gross back pay has been made on
the basis of his reported employment as noted.
MONROE FEED STORE 1509
sought farm work with the Kroeger "boys" and Neil Myron in November 1953 and
with the Crosson brothers on several occasions in December 1953 or January 1954,
unsuccessfully . 12 His testimony that he applied for work at a Corvallis sawmill in
January or February 1954 has not been refuted. Together with other Claimants,
Johnson appears to have sought work through the Union ; upon the entire record,
I find that his interest in postdischarge employment was made known to the Union's
executive secretary , and that he did, ultimately , secure short-term employment at
the Terminal Flour Mills in Portland , with that official's aid.
In the light of the available evidence , I am satisfied that the Respondent 's back-pay
obligation with respect to Johnson should be computed as follows:
1953 4th quarter
Saturday, Oct. 31 , 5 hrs. at 11/2X$1.10 ----------------------------- $8.25
7 weeks, Nov. 2-Dec. 19----------------------------------------- 481.25
Dec. 21-24, 40 hours-------------------------------------------- 44. 00
Saturday , Dec. 26, 5 hrs. at 11 X$1.10----------------------------- 8. 25
Dec. 28-31, 40 hours-------------------------------------------- 44.00
Gross back pay------------------------------------------- 585.75
Interim earnings:
Underwriters Salvage Company--------- --------------- $20. 25
Fred W . Carter Co ., Inc------------------------------- 44. 25
Total interim earnings------------------------------------- 64. 50
Net back pay-------------------------------------------- 521.25
1954 1st quarter
Saturday, Jan. 2 , 5 hrs. at 11/zX$1.10------------------------------ 8.25
3 weeks, Jan . 4-23---------------------------------------------- 206.25
4 weeks, Jan. 25-Feb . 20, 40 hrs. each at $1.35 ---------------------- 216. 00
6 weeks, Feb. 22-Apr. 3 at $60 per week---------------------------- 360.00
Gross back pay- ------------------------------------------ 790.50
Interim earnings------------------------------------------------ None
Net back pay--------------------------------------------- 790.50
1954 2nd quarter
5 weeks, Apr. 5-May 8 ------------------------------------------ 250.13
May 10 , 8 hrs. at $ 1.50 average------------------------------------ 12.00
Gross back pay- ------------------------------------------ 262.13
Interim earnings:
Murray and Stanford-------------------------------- $353.85
Terminal Flour Mills-------------------------------- 87. 56
Total interim earnings ------------------------------------- 441.41
Net back pay--------------------------------------------- None
Total net back pay---------------------------------------- 1 , 311.75
Payment on account- -------------------------------------------- 900.00
Back pay due-------------------------------------------- 411.75
"The Respondent has challenged the Claimant 's testimony with respect to his efforts
to find work with various farmers , and at various sawmills , lumber mills , and feed
mills, during his back-pay period, on the basis of his uncertainty as to the dates involved.
Johnson's inability to be specific , however, with respect to the date of any particular
application cannot sustain the Respondent 's contention that be failed to exercise due
diligence in seeking work ; an employer 's burden of proof with respect to this issue cannot
be considered satisfied merely by the elicitation of testimony which would tend to warrant
an inference that some discriminatee 's memory with respect to his asserted search is
currently vague.
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Floyd Cantrell, Sr.
Prior to his discharge on October 30, 1953, Cantrell had been in the Respond-
ent's employ for 8 years, approximately; his seniority appears to have been greater
than that of any other employee. Except for the first few months of his employ-
ment, his assignment was that of a cleaner man.
It is the General Counsel's allegation that, subsequent to his discharge, Cantrell
received an offer of reemployment from the Respondent on or about November
17, 1954, and rejected it on or about December 7 of that year, thus ending his
back-pay period. The Respondent's answer concedes the indicated reemployment
offer and Cantrell's rejection of employment on or about December 7, 1954, but
alleges that the Claimant's back-pay period had previously terminated on March 17,
1954, when he rejected a reemployment offer involving a substantially equivalent
position. In the alternative, the Respondent argues that Cantrell's back-pay period
ought to be considered terminated as of May 10, 1954, when a registered letter
with an offer of reinstatement to his predischarge position at the Monroe mill was
dispatched to him at the last address shown for him in the Respondent's records;
the record establishes that the letter was returned undelivered since the Claimant
had moved, allegedly without leaving word as to his forwarding address. On
these alternative grounds, the Respondent contends that Cantrell is not entitled to
gross back pay as set forth in the specification.
In the light of the available evidence, however, I find no merit in the contention
that the Respondent's offer to reemploy this Claimant on March 17, 1954, which
he rejected, terminated his back-pay period. Cantrell's undisputed testimony estab-
lishes that he was offered "some work" at the Respondent's Corvallis plant, ap-
proximately 15 miles from his Monroe home. The nature of the position was
not specified, and nothing appears to have been said with respect to the rate of
pay he would receive, his prospective hours of work, the duration of the job, or
other conditions of employment. I so find. Cantrell offered to accept work at
the Monroe mill, but was told that no work Has available there. (These factual
conclusions are based upon the Claimant's testimony in cross and redirect exami-
nation. As a witness in the Respondent's behalf, General Manager Giesy made
no reference to the incident.) Under the circumstances, the Respondent's pro-
posal cannot be considered a bona fide offer to reinstate the Claimant, either to
his former position or one substantially equivalent. Cantrell could have made an
assumption, of course, that Giesy's offer related to reinstatement as a cleaner man,
and that his rate of pay would match the $1.50 rate then in effect at each of the
firm's operations. The Respondent, however, cannot argue, legitimately, that its
obligation to offer this Claimant reinstatement was satisfied by an offer of employ-
ment subject to evaluation as the equivalent of his former employment only on
the basis of assumptions. And, in any event, Cantrell's extended experience as a
cleaner man with the Respondent at Monroe, his home community, for a period
of 8 years approximately would seem to warrant a conclusion that his rejection
of the proffered work at Corvallis was not unreasonable. I so find.
With respect to the Respondent's May 10 letter, its counsel has relied upon the
established rule that a bona fide offer of reinstatement, embodied in a registered
letter directed to a discriminatee's last known address, will toll an employer's back-
pay liability as of the date on which delivery of the letter is attempted. Jay Com-
pany, Inc., 103 NLRB 1645, 1647, enfd. 227 F. 2d 416 (C.A. 9). This doctrine,
however, has only been applied to terminate a respondent's back-pay liability when
the evidence has established that the reinstatement offer involved was, in fact,
dispatched to the last known address of the discriminatee. Upon the entire record,
I find myself constrained to reject its application in this case. It is established,
now, that Cantrell left Monroe on May 8, 1954, to accept employment with the
Arkley Lumber Company of Arcata, California. His testimony at the initial
hearing before a Trial Examiner in this case, in March 1954, had indicated the
possibility of such action when the position became available. When the May 10
letter was sent, Cantrell's son was in the Respondent's employ and presumably
cognizant of his whereabouts; he was working, I find, with Foreman Beal, whn
sent the letter to Cantrell at Giesy's direction. At the same time, I find, General
Manager Giesy was in a position to communicate with Ruth Cantrell, the Claim-
ant's daughter, and to determine his whereabouts through her. There is no indi-
cation that Beal or Giesy made any effort to check on the Claimant's whereabouts,
or to determine whether a letter dispatched to his Monroe address would reach
him, prior to the dispatch of the letter.13 In any event, it is clear that sources
13 Under the circumstances, the record could, conceivably, justify an inference that the
letter was dispatched to Cantrell's Monroe address despite Glesy's actual knowledge that
MONROE FEED STORE 1511.
of information with respect to the address at which Cantrell would receive mail.
were available to the Respondent. The return of the firm's May 10 letter, there-
fore, cannot be said to have terminated its back-pay liability. And, absent reli-
able, probative and substantial evidence which would justify an inference that
Cantrell's back-pay period was otherwise terminated, I find that it ended on Decem-
ber 7, 1954, as the back-pay specification alleges.
The Respondent's formal denial that Cantrell sought other employment during.
his back-pay period is negated, again, by its admission with respect to his receipt
of interim earnings, as set forth in the General Counsel's specification.
The argument that Cantrell failed to exercise due diligence in seeking employ-
ment raises a significant issue, however. The available evidence establishes his.
application for unemployment compensation benefits, and his concurrent registra-
tion for work at an Oregon Unemployment Compensation Commission office,.
within the calendar week subsequent to his October 30, 1953, discharge; there-
after, I find, he reported to it commission office every week, without fail, until the
week of May 2-8, 1953, when he reported his continued unemployment for the
week ending on the 1st of the month. Additionally, the record establishes that
Cantrell placed a number of telephone calls to the Union's Portland office, to
enlist the aid of Executive Secretary Stevens in his search for work. Between the
date of his discharge and the date of his departure for California, therefore, this.
Claimant was available for work and gave evidence of his interest in employment.
In the light of the testimony of Executive Secretary Stevens, previously noted, that
some of the telephone calls he received from the Monroe area were placed from.
Cantrell's home, the Claimant's inability to recollect the calls cannot be considered.
a sufficient reason for the rejection of a factual conclusion that such calls were
made. The Respondent's counsel argues in his brief, however, that:
In view of the fact that Cantrell, Sr. failed to seek employment at any feed
or seed store and failed to seek employment at the brickyard or sawmill in
Monroe and failed to seek farm work or any other employment except at the
Corvallis Plywood Company and another mill between Corvallis and Philo-
math, he is not entitled to an award of back pay as he has failed to exercise
due diligence in seeking employment.
The record establishes, in this connection, that Cantrell did question Foreman.
Turner of the Respondent in December 1954 with respect to the possibility of
reemployment, and that his visits to the Corvallis Plywood Company in search of
work, which the Respondent has conceded, covered a period of several weeks. It
is also established that he visited Giesy early in May 1954, together with Execu-
tive Secretary Stevens of the Union and several other dischargees, to request re-
employment. The exercise of due diligence in seeking employment would certainly
seem to call for some independent effort to find work on the part of back-pay
claimants , beyond their passive reliance upon the State employment service and
their union hall. American Bottling Company, supra. It cannot, however, be
said to require personal contacts which any reasonable man would consider use-
less. The fact that no work was available at the local brickyard or Monroe saw-
mill appears to have been well known in the community. Cantrell, I find, was so
advised; his failure to seek employment with these firms, under the circumstances,
cannot be considered indicative of a lack of due diligence. And the Claimants
who did seek fall and winter work at other feed and seed stores appear to have
been advised, uniformly, that temporary work was not available, and that the
work on hand could be handled by each mill's regular crew. Cantrell, conceiv
-ably, could have tested the validity of these assertions himself; his unwillingness
to make the effort, however-which would have required extensive travel-cannot,
in my opinion, be considered unreasonable. In view of the Claimant's demonstra-
tion of his continued interest in reemployment at the Respondent's mill, his regis-
tration for work at the State employment service office, his involvement in the
attempt of the Claimants to enlist the aid of the Union as a source of employ-
ment referral, his independent efforts to locate employment, and his demonstrated
willingness to accept employment at a California sawmill as soon as it became
available, I find that the Respondent has failed to sustain its contention that he
failed to exercise due diligence in connection with his search for work.
When the Claimant accepted employment with the Arkley Lumber Company,
he moved his family and household goods from Monroe, Oregon, to Eureka, Cali-
fornia; his credible testimony,, which has not been contradicted, establishes that
his departure for California had just been effectuated. Such a conclusion, however,
would be bottomed, of course, upon nothing more than suspicion.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he incurred moving expenses in the sum of $100 to make possible his acceptance
of the indicated employment. Despite the Respondent's formal denial, I find this
item of expense to be a reasonable and proper deduction from Cantrell's first
interim earnings in sawmill employment.
Throughout the third and fourth quarters of 1954, Cantrell' s interim earnings
exceeded his gross back pay. For these quarters, the General Counsel has ad-
vanced no back-pay claim.
Upon the entire record, I am satisfied that the Respondent's back-pay obligation
with respect to Cantrell should be computed as follows:
[Consult the back-pay summary provided elsewhere in this report with respect to the
claim of Frank Harrington for a detailed statement of this Claimant's gross, back-pay
computation]
1953 4th quarter
Gross back pay------------------------------------------------- $639.00
Interim earnings------------------------------------------------ None
Net back pay--------------------------------------------- 639.00
[Consult the back-pay summary provided elsewhere in this report with respect to the
claim of Kenneth Mumford for a detailed statement of •this Claimant's gross back-pay
computation]
1954 1st quarter
Gross back pay------------------------------------------------- 810.00
Interim earnings------------------------------------------------ None
Net back pay--------------------------------------------- 810.00
1954 2nd quarter
Apr. 1-3, 24 hours---------------------------------------------- 36.00
12 weeks, Apr. 5-June 26, 40 hrs. at $1.50-------------------------- 720. 00
June 28-30, 24 hrs---------------------------------------------- 36.00
Gross back pay------------------------------------------- 792.00
Interim earnings:
Arkley Lumber Company---------------------------- $486. 50
Less: Incidental expenses----------------------------- 100. 00
Net interim earnings -------------------------------------- 386.50
Net back pay-------------------------------------------- 406.50
Total net back pay---------------------------------------- 1,855.50
Payment on account--------------------------------------------- 1,215.75
Back pay due-------------------------------------------- 639.75
[Recommendations omitted from publication.]
Kermac Nuclear Fuels Corp . and United Steelworkers of
America, AFL-CIO, Petitioner
Kermac Nuclear Fuels Corp . and International Brotherhood of
Electrical Workers, Local No. 611 , AFL-CIO, Petitioner.
Cases Nos. 33-RC-708 and 33-RC-710. February 17, 1959
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
122 NLRB No. 176.