Moss Planing Mill Co.

National Labor Relations Board - Board Decisions

Feb 27, 1958

119 N.L.R.B. 1733 (N.L.R.B. 1958)

MOSS PLANING MILL CO. 1733
(4) (D) "unless such employer is failing to conform to an order or
certification of the Board determining the bargaining representative
for employees performing such work." The Operating Engineers
does not claim to be the certified collective-bargaining representative
for the employees performing the work of operating the air compressor
here in dispute, nor does it claim any contract with Slane which would
entitle it to represent such employees. Accordingly, we find that the
Operating Engineers was not entitled, by means proscribed by Section
8 (b) (4) (D), to force or require Slme Industrial Painters to assign
the disputed work to employees who were members of the Operating
Engineers to the exclusion of other employees.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact and upon the entire
record in this case, the Board makes the following determination of
dispute, pursuant to Section 10 (k) of the Act:
1. Local 450, International Union of Operating Engineers, AFL-
CIO, is not and has not been lawfully entitled to force or require Slane
Industrial Painters to assign the work of operating the air compressor
to employees who are members of Local 450, rather than to Slane In-
dustrial Painters' own employees who are not members of that labor
organization.
2. The Respondent shall, within ten (10) days from the date of
this Decision and Determination, notify the Regional Director for the
Sixteenth Region in writing whether or not At accepts the Board's de-
termination of this dispute, and whether or not it will refrain from
forcing or requiring Slane Industrial Painters of Houston, Texas, by
means proscribed in Section 8 (b) (4) (D) of the Act, to assign the
work of operating the air compressors to members of Local 450 rather
than to employees of Slane Industrial Painters who are not members
of Local 450.
MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.
Moss Planing Mill Co. and International Woodworkers of Amer-
ica, AFL-CIO.' Case No. 11-CA-308 (formerly 34-CA-308).
February 27, 1958 `
THIRD SUPPLEMENTAL DECISION AND
RECOMMENDATION
On November 19, 1954, in a,supplemental proceeding to determine
the amounts of back pay due Roy E. Fulcher and Lee A. Wynne from
1 The AFL and the CIO having merged subsequent to the initial hearing in this case, we
hereby amend, the identt5eation of the, affiliation of the Charging Union
119 NLRB No. 222.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent,' the Board issued a Supplemental Decision and De-
termination, finding the amounts to be $2,184.42 for Fulcher and
$3,710.291 for Wynne. Upon the Board's motion to the United
States Court of'Appeals for the Fourth Circuit to enter an amended
decree making definite the amounts of back pay due, the court rejected
the Board's back-pay recommendations and remanded the case to the
Board.4
Thereafter, on July 10, 1956, the Board issued a Second Supple-
mental Decision and Recommendation finding the amounts of back
pay due Fulcher and Wynne to be $1,839.31 for Fulcher and $2,572.37
for Wynne .5 On January 9, 1957, the court issued an order finding
that the Board had entered its July 1956 decision "without affording
to Respondent an opportunity to be heard with respect to the matters
involved, in the light of this court's decision rendered August 1,
1955." 6 The court vacated the Board's July 1956 decision and re-
manded the proceeding to the Board for the second time "with direc-
tion to afford to Respondent a hearing on the matters involved in said
Supplemental Decision and Recommendation, with right to either
side to introduce additional evidence . . . to the end that decision
may be rendered in accordance with the principles laid down in [the
Court's] decision of August 1, 1955." On March 1, 1957, the Board
reopened the record in this proceeding and ordered that a further
hearing be held before Trial Examiner Reeves R. Hilton for the pur-
pose of receiving additional evidence consistent with the court's
January 1957 order. A supplemental hearing was held before Trial
Examiner Hilton who issued a Second Supplemental Intermediate
Report on October 30, 1957. As set forth in the copy of the Second
Supplemental Intermediate Report attached hereto, the Trial Ex-
aminer found specific amounts of back pay due Fulcher and Wynne
and recommended that the Respondent reimburse them in accordance
with his findings. The General Counsel and the Respondent filed
exceptions to the Second Supplemental Intermediate Report and
supporting briefs.'
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Supplemental and Second Supplemental Intermediate
Reports, the various exceptions and briefs and the entire record in
the case and hereby adopts the findings, conclusions, and recom-
2 See N. L. R. B. v. Moss Planing Mill Co., 206 F. 2d 557 (C. A. 4), enfg. 103 NLRB 414.
3 110 NLRB 933, as amended by Board order of April 28, 1955.
4 N. L. R. B. v. Moss Planing Mill Co., 224 F. 2d 702 (C. A. 4).
r, 116 NLRB 68.
e Not reported in printed volumes of Board Decisions and Orders.
v The Respondent has requested oral argument . The request is hereby denied because
the record , the exceptions , and the briefs adequately present the issues and the positions
of the parties.
MOSS PLANING MILL CO. 1735
mendations of the Trial Examiner insofar as they are consistent with
this decision.
The Board has made the following decision within the context of
the August 1955 opinion and the January 1957 order of the court
of appeals. In view of the Board's decision to accept the remand,
the Board recognizes the court's views as binding upon it for the
purpose of disposing of this case.
1. Contrary to the Board, the court directed that the money Wynne
received under the North Carolina Workmen's Compensation Act be
deducted as income from his gross back pay.' Wynne was awarded
$432; of that amount, and subject to the approval of the North Caro-
lina Industrial Commission, $100 went to counsel representing him in
the compensation proceeding. The Trial Examiner deducted $332
from Wynne's gross back pay. The Respondent does not except.
The Board agrees with the Trial Examiner's deduction of only $332
from Wynne's gross income because expenses are deducted from
interim earned income in Board back-pay proceedings,' and the
$100 Wynne paid counsel were his expenses in the compensation
proceeding.'°
2. The court found that Wynne and Fulcher could have earned
greater interim amounts than credited to them by the Board had they
"used due diligence to secure other suitable employment." The Trial
Examiner and the Board have, accordingly, granted to the Respondent
full opportunity to present whatever material it had pertaining to the
discriminatees' interim earnings. Moreover, the Trial Examiner and
the Board have reconsidered in its entirety all of the evidence from
both hearings pertaining to the discriminatees' search for work
during the back-pay period.
Fulcher's unlawful discharge was effective May 21, 1951; however,
he registered with the North Carolina Employment Security Com-
mission on May 16, 1951, and reported to the Commission every week
thereafter until July 11, 1951. In the month of June included in that
period, an employee of Girken's lumber mill told Fulcher that he
thought Fulcher could get a job at Girken's. Fulcher saw Girken
who asked where Fulcher had worked previously. After being
8 The Board does not , by virtue of this deduction , signify agreement with the court's
determination that workmen 's compensation awards are deductible from gross back pay.
8In N . L. R. B. v. Seven - Up Bottling Company of Miami, Inc., 344 U. S . 344, the
Supreme Court approved the Board 's "Woolworth formula." In F. W. Woolworth Com-
pany, 90 NLRB 289 , the Board , among other things, defined the net earnings deductible
from gross back pay as "earnings less expenses, such as transportation , room, and board,
incurred by an employee in connection with obtaining work and working elsewhere than
for the Respondent, which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere . See Crossett Lumber
Company, 8 NLRB 440."
10 Indeed , deduction of more than $332 from Wynne 's gross back pay would make him
less than whole and be a direct benefit to the Respondent at Wynne's expense, as the
Respondent would have been liable for $432 in back wages had the discriminatee not
instituted the workmen 's compensation action.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised that Fulcher had worked for the Respondent, Girken told
Fulcher there was no work for him. Fulcher returned several days
later but Girken again refused him a job. In the summer of 1951,
Fulcher sought work at a lumber mill operated by H. D. Cox.ll
About mid-July, the Employment Commission referred Fulcher to
the West Construction Company and he was told to report for work
the second week in August. In the first week of August, he obtained
a job at Waters' lumber mill; at the end of his first day a Waters official
asked Fulcher whether he had worked for the Respondent, and,
upon Fulcher's admission that he had, the official stated there was no
more work for Fulcher. In this regard, it is undisputed that the
Respondent's secretary-treasurer, Litchfield, threatened Fulcher at
the time of his discharge, "Preacher, if I can keep you from getting a
job anywhere around here, I am going to do so." Fulcher went to
work for the West Company the second week of August and was laid
off in October 1951. From August through December of both 1951
and 1952, Fulcher earned $200 more from his ministerial duties than
he had during the same periods when he worked for the Respondent.
In November 1951, he went to Durham, North Carolina, and for
2months tried unsuccessfully to find work in at least 2 lumber mills
and 2 cigarette plants.
In January and February 1952, Fulcher traveled to Wilson and
then to Stantonsberg, North Carolina, seeking lumber or cigarette-
making work. In March and April, Fulcher did office cleaning,
house repairing, and other odd jobs for Scott. He also sought work
at Messick's lumber mill. The next month he returned to the Employ-
ment Commission and was sent to a lumber mill just outside
Washington but did not get a job. In June, Fulcher went to New
Bern, North Carolina, and in July he went to Bath, North Carolina,
applying for work at several different lumber mills. In August 1952,
he started part-time work in a fish market and continued on the job
until October. In November, Fulcher started work for Jefferies and
Smith, a lumber mill at Wootentown, North Carolina, and worked
there until April 1953, when he was injured; upon his recovery the
job was no longer available.12 In May and June, Fulcher tried to
"At the June 1957 supplemental hearing, Herman M. Cox, a partner in the Cox mill,
testified that Fulcher did not ask him for work. The Trial Examiner credited Fulcher
rather than Cox because he characterized certain of Cox's testimony as "weak and flimsy."
We adopt the Trial Examiner 's resolution of credibility because we are not convinced that
the clear preponderance of all the relevant record evidence shows that the Trial Examiner's
resolution was incorrect. Standard Dry Well Products, Inc., 91 NLRB 544, 545, enfd.
188 F. 2d 362 (C. A. 3). Contrary to the General Counsel's exception, the Trial Examiner
did not find that Fulcher did not apply for work with Cox ; at one point in his Intermediate
Report, the Trial Examiner reported Cox's testimony to that effect but the Trial Examiner
did not so find.
12 The Respondent excepts to the Trial Examiner 's finding that Fulcher returned to
Jefferies and Smith after recovering from his injury and was told by a foreman that he
would be called when needed. The record of the first hearing shows that Fulcher did not
return to- Jefferies and Smith because the foreman told him, at the time -lie was injured,
MOSS PLANING MILL CO. 1737
secure employment in a wood salvage yard in Edenton, North Caro-
lina. In July 1953, Fulcher worked for several weeks for a tobacco
farmer.
The Respondent discharged Wynne on January 13, 1951, but,
because of the injury inflicted upon him by an official of the Respond-
ent, he was not employable until May 18, 1951. 13 In May, Wynne
registered with the North Carolina Employment Security Commis-
sion. The next month, he sought work at a pocketbook factory in
Mount Vernon, New York, with an electrical contractor in Bridgeport,
Connecticut, and at a construction project in Long Island, New York.
Wynne returned to Washington, North Carolina, in late June or early
July; in July, he again went to the Employment Commission. Later
in July, Wynne went to his father's farm for about a month. In the
course of that visit, he sought jobs in Greenville, North Carolina, at
Fad's Shoe Parlor and with Winslow, a farmer and livery stable
owner. In August, Wynne unsuccessfully sought work in the Wash-
ington Tobacco Company's tobacco redrying plant on several different
occasions. Beginning in September 1951 and continuing for 4 or 5
months, he worked intermittently for Copeland, an electrical con-
tractor. He did some carpentry work for Mrs. Moss in the spring
of 1952. He went to the Employment Commission again in May 1952
and was referred to Wright, an electrical contractor. Although he
saw Wright on three occasions in May, June, and July, he did not
obtain work. In July or August, Wynne worked part of a day
priming tobacco for Craig but the work was too difficult and he had to
stop. In August 1952, Wynne again tried on several occasions to
obtain employment at the tobacco redrying plant but was unsuccessful.
About September 1, Wynne graded tobacco for Hodges and Gurganus.
At various times throughout 1952, Wynne visited his father's farm for
2- or 3-day periods. In the latter part of 1952 and early 1953, he
worked for the Mills Motor Company. In the spring of 1953, Wynne
sought work with the American Tobacco Company in Richmond,
Virginia. He remained most of the rest of the spring of 1953 at his
father's farm, and during that period, did some gardening work for
McNeal. Upon his return to Washington, Wynne did some gardening
for Vann and unsuccessfully sought work with Chance, a painter. At
that the Company was laying off newer employees such as Fulcher . At the supplemental
hearing, Fulcher testified initially that he returned to the Jefferies and Smith mill and
was refused work , but he thereafter indicated agreement with the evidence adduced at the
initial hearing. Accordingly , the Board finds, as requested by the Respondent, that
Fulcher did not actually return to the Jefferies and Smith mill after recovering from his
injury . This finding does not, however , alter the salient fact that Jefferies and Smith did
not have a job for Fulcher after he recovered.
is The Respondent excepts to the Trial Examiner's finding that Wynne was hospitalized
until May 18, 1951. The Board finds, contrary to the Trial Examiner , that Wynne was
pronounced fit to resume work as a fireman on that date . However , this correction does
not affect the Trial Examiner 's ultimate conclusions.
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
various times in 1951 through 1953, Wynne did gardening work for
Mrs. Allegood.
The Trial Examiner found in his Second Supplemental Inter-
mediate Report "that Fulcher exercised all reasonable efforts to secure
employment in lumber mills and that his inability to obtain regular
employment was not attributable to any neglect or failure on his
part," and "that there were present in Fulcher's case, except for his
efforts to secure agricultural employment, the `special circumstances'
which the Court has found [in N. L. R. B. v. Pugh c0 Barr, Inc., 231 F.
2d 558 (C. A. 4)] excused a discriminatee's failure to make higher
interim earnings than he ordinarily would be expected to earn." With
respect to Wynne, the Trial Examiner found that "he would have
had little, if any, employment, assuming he sought work regularly
at the mills." He otherwise found "in view of Wynne's failure to
earn more money" that "a reasonable and equitable method for achiev-
ing compliance with the court's opinion is to charge Wynne with
$87.50.14 in each quarter of the back-pay period, excluding the first
quarter of 1951" when Wynne was unemployable and the second
quarter of that year.
The Respondent asserts that, in various instances, the Trial Ex-
aminer failed to comply with the court's remand. The Respondent
contends initially that the Trial Examiner's failure to assess Fulcher
with higher interim earnings for sawmill work was contrary to the
court's direction. The court stated, "The Board seems to think that
Fulcher was bound to accept no work save preaching and work in
sawmills. To us, that seems quite unreasonable." 15 The court went
on to require a larger deduction from Fulcher's interim income for
his failure to obtain "other suitable employment, including agricul-
tural employment." The court's reference to sawmill work and
preaching rejected the Board's finding that Fulcher was only obliged
to seek that type of work. The court's direction that Fulcher be
charged with higher earnings was applicable to "other suitable
employment" than sawmill work and preaching. The Board, accord-
ingly, rejects the Respondent's claim that the court's remand requires
assessing Fulcher with higher sawmill earnings. On the other hand,
with the additional evidence from the supplemental hearing, it is
necessary to reconsider the adequacy of Fulcher's entire search for
work.16
The Trial Examiner found that, at times, jobs were open at the
lumber mills, but he also found that Fulcher was barred from these
14 The $87.50 figure equaled Wynne's highest earnings in any back-pay quarter when
agricultural work was not available.
'b 224 F. 2d 702, 705 (C. A. 4).
For example, a number of witnesses for the Respondent testified for the first time at
the supplemental hearing that there were job opportunities at the sawmills at various
times during the discriminatees' back-pay period.
MOSS PLANING MILL CO. 1739
jobs by the black-listing of Fulcher among other Washington lumber
mill owners. The Respondent contends that there were more jobs
available on more occasions than found by the Trial Examiner." The
record contains conflicting evidence on the existence of jobs at the
sawmills.'8 However, if a blacklist were in effect against Fulcher,
the fact that sawmill jobs existed is irrelevant because they were not
available to Fulcher.
The Respondent excepts to the Trial Examiner's finding of a black-
list against Fuicher on the asserted ground that the court's remand
implicitly rejected such a blacklist finding. The Respondent argues
that the court implicitly rejected a finding of blacklist against Fulcher
because, in the Respondent's view, the court held that Fulcher should
have been assessed with higher earnings from sawmill work. As
pointed out above, however, the court did not hold that Fulcher was
chargeable with additional interim earnings from sawmill work.
Accordingly, there is no merit in the Respondent's contention that the
court held there was no blacklist against Fulcher. The blacklist ques-
tion must also be considered anew and in its entirety, however, because
the supplemental hearing contains pertinent, new evidence on the
matter.
At the supplemental hearing a number of Washington area lumber
mill officials testified for the Respondent. They gave general testi-
mony that they had no knowledge of a blacklist against the discrimi-
natees. Also, one witness, a partner in the Jefferies and Smith Lum-
ber Company, testified that he gave Fulcher a job in the latter part of
1952 after speaking to one of the Respondent's officials.'9 On the
other hand, the consolidated record of both hearings contains evidence
to support a finding that Fulcher was blacklisted. It is undisputed
that the Respondent's secretary-treasurer stated at the time he fired
Fulcher, "Preacher, if I can keep you from getting a job around here,
I am going to do so." 20 When Fulcher sought a job at Girken's lumber
mill, he was not refused work until after the Girken official had learned
that Fulcher previously had worked for the Respondent. After Ful-
cher's first day of work at Waters' sawmill, a Waters official said he
17 The Respondent asserts that the Trial Examiner inferred that the "Respondent had
to show a shortage rather than an opportunity for employment" in the lumber mills. The
Board finds no such inference in the Intermediate Report and has considered the relevant
facts only to the extent that they pertain to the diligence of Fulcher's efforts to find work.
'8 The nonexistence of sawmill jobs is supported by such evidence as the following :
Fulcher sought lumber mill work through the Washington office of the North Carolina
Employment Commission ; he personally applied for work at other sawmills in the vicinity
of Washington ; and he was obliged to travel to neighboring towns in search of sawmill,
as well as other, work.
19 However , by the time Fulcher obtained this job the initial Intermediate Report in
this proceeding had issued , and the Respondent , at that point, was liable for back pay
to Fulcher. .
' The court has so found in • N. L. R. B. v., Moss Planing Mill Co., supra, at 559
(C. A. 4).
1740 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
had no more work for Fulcher after learning that he had worked for
the Respondent?' Also Fulcher was refused jobs at Washington lum-
ber mills at times when the record otherwise shows that jobs were open.
The Trial Examiner found that Fulcher was blacklisted upon all
the record evidence and rejected the Respondent's witnesses' "blanket
denials to the contrary." There is explicit evidence as well as circum-
stantial evidence in support of the Trial Examiner. In the circum-
stances the Board accepts the Trial Examiner's resolution of credi-
bility which rejected the contrary testimony of the Respondent's
witnesses, because the Board is not convinced that the clear prepon-
derance of all the relevant record evidence shows that the Trial
Examiner's resolution was incorrect.22 The Board therefore agrees
that Fulcher was precluded from obtaining work at the Washington
sawmills because of blacklisting by the Respondent.
Although the Trial Examiner stated that "except for his efforts
to secure agricultural employment" Fulcher was not chargeable with
higher interim earnings, he actually did assess Fulcher with interim
earnings in "other suitable employment" besides agricultural employ-
ment. Specifically, the Trial Examiner assessed Fulcher with interim
income for work he failed to obtain at the American Tobacco Com-
pany's tobacco redrying plant: The tobacco redrying factory is a
seasonal operation that runs annually from about August 18 to
November 28. The discriminatees''back-pay period covered'the 1951
and 1952 seasons. The Trial Examiner did not charge Fulcher with
earnings for work at the tobacco factory in 1951, because he worked
for the West Construction Company for a portion of that season and,
in the Trial Examiner's judgment, Fulcher made reasonable efforts
to obtain work elsewhere during the remainder thereof. The Trial
Examiner charged Fulcher with 8 weeks of tobacco redrying work in
the 1952 season at the rate of $30 per week. He did not assess Fulcher
for work in the first 2 weeks of the 1952 season because the factory
gave old employees rehiring preference, and he did not charge Fulcher
with earnings for the last 2 weeks of the season because Fulcher was
then working for Jefferies and Smith.
The Respondent asserts -that Fulcher's testimony concerning his
attempts to obtain work at the redrying factory conflicts with that
of other witnesses and is self-contradictory. Upon these assertions,
21 The Respondent now, for the first time , excepts to a finding made by the Trial
Examiner in his initial Intermediate Report that an official at Waters mill named Mr. Buff
fired Fulcher. The Respondent asserts that "There is no such official as a Mr. Buff at
Waters Lumber Company , nor has there ever been ." The Respondent 's exception is
untimely under Section 10 ( c) of the Act. Moreover , notwithstanding the untimeliness
of this exception the Board would reject it. The record contains uncontradicted testi-
mony that a Mr. Buff fired Fulcher after his 1 day of work at Waters ' mill. There is no
record support for the Respondent 's assertion.
23 Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F. 2d 362 ( C. A. 3).
MOSS PLANING MILL CO. 1741
the Respondent argues that Fulcher should be assessed with tobacco
factory earnings for the full 1951 and 1952 seasons excluding only
periods when he worked elsewhere.
Fulcher's testimony pertaining to his attempts to obtain work at
the tobacco factory is, as the Respondent suggests, difficult to compre-
hend or judge. However, the effect of the court's remand on the issue
of Fulcher's search for work at the tobacco factory is the more signifi-
cant and controlling factor. The Board construes the court's direc-
tion that Fulcher be assessed with interim earnings for "other suitable
employment" as a requirement that he be charged with such employ-
ment whenever it was available to him during the back-pay period.
Accordingly, the Board assesses Fulcher for interim earnings at the
tobacco redry.ing plant during both the 1951 and 1952 seasons. The
Board.excludes from the assessment,,only those times when. Fulcher
actually earned income and the first 2 weeks of each season when the
job preference for former tobacco factory employees made employment
of new workers unlikely.
With respect to Wynne's efforts to find other than agricultural work,
the Respondent contends that the Trial Examiner should have
assessed him with higher earnings. The Board found in its November
1954 decision that Wynne did not, at all times, exercise due diligence
in seeking work and adjusted his back pay accordingly. The court
held in its August 1955 opinion that the Board's adjustment was inade-
quate. In order to comply with this court holding, the Board, in its
now vacated decision of July 1956, found "that a reasonable, equitable
method for achieving compliance with the court's opinion is to charge
Wynne for each quarter in his back-pay period the highest actual
earnings ($87.50) that he achieved in any single nonagriculture quar-
ter." After receiving all the evidence at the supplemental hearing
concerning Wynne's efforts to find work, the Trial Examiner found
that the formula charging Wynne`$87:50'in earnings for each non-
agricultural quarter "was a. fair one under the circumstances of this
case."
The Respondent excepts to the Trial Examiner's formula as the
means of complying with the court's remand. The Respondent
asserts that the supplemental hearing established that physically dis-
abled men were fully employable at some of the Washington sawmills
and that Wynne should have been steadily employed at a lumber mill
from January 1, 1952, until the end of his back-pay period. This
assertion represents a change in the Respondent's position. At page
20 of its brief to the court opposing the Board's motion for adoption
of its July 1956 recommendations, the Respondent stated that,
although 'it would be justified in requesting a full earnings assessment
1742 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD
against Wynne, "it will deduct $120 a quarter on the theory that
Wynne might have had difficulty in getting full employment, and in
any event could hardly have been expected to work every day."
Notwithstanding the evidence), adduced for the first time at the
supplemental hearing showing., additional efforts by Wynne to obtain
work, the Board is still convinced that Wynne did not, at all times,
exercise sufficient diligence in his search for nonagricultural work.
But the record, even as supplemented, does not supply an optimum
formula for computing the amount of back pay that Wynne should
be assessed. Indeed, the absence of such an optimum formula is
underscored by the Respondent's own vacillation in the matter. The
record shows that during those back, pay quarters when no agricul-
tural employment was available the discriminatees had much less
opportunity to find work and to earn money. In such circumstances,
the Board finds that the amount of Wynne's earnings during a non-
agricultural back-pay quarter when he made a reasonable, diligent
search for work furnishes an earnings figure that is fair and just to
all parties concerned. The Board, in the exercise of its back-pay
authority," adopts the Trial Examiner's quarterly assessment of
Wynne which represents his highest income during a nonagricultural
work period?'
The Respondent contends that the Trial Examiner also should have
assessed Wynne with interim earnings for work at the tobacco redry-
ing plant. The record supports the Trial Examiner's finding that
Wynne exercised due diligence in seeking work at the tobacco plant.
For example, in 1951 and 1952 Wynne went to the factory when the
season opened and 2 or 3 times thereafter but was refused work on each
occasion. In both years, the factory had full complements of firemen,
Wynne's job classification with the Respondent. The Board does not
assess Wynne for work at the tobacco redrying plant.
3. The potato farming season in the Washington, North Carolina,
area covers the 6 weeks from May 15 to July 1. The Trial Examiner
charged the discriminatees with potato farming earnings at the rate of.
$5 a day for a 5-day week in each of the 3 seasons of 1951 through
1953.
The Respondent excepts to the Trial Examiner's rate of $5 a day and
claims, additionally, that Wynne's earnings should have been at the
hourly rate of a bag sewer.
23 Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177.
21 The Board does not, however, adopt the Trial Examiner's finding that Wynne's capacity
for lumber mill work was limited to that of a boiler fireman.
The Trial Examiner did not assess Wynne with $87.50 earnings for the second quarter
of 1951. As the Trial Examiner gave no particular reason for not doing so, and none
appearing , the Board assesses Wynne with earnings prorated for 7 weeks of that quarter.
MOSS PLANING MILL CO. 1743
The Trial Examiner arrived at the $5 figure on the basis of testi-
mony by the farm placement manager of the North Carolina Employ-
ment Security Division that an average potato farming worker should
earn $5 a day. Indeed, the Respondent, itself, set that very figure as
the rate for potato farming work at page 20 of its brief to the court
opposing the Board's motion for adoption of its July 1956 recom-
mendations . The Respondent stated, "the agricultural periods .. .
should be computed on the basis of six weeks employment in irish
potatoes . . . 5 days a week at $5.00 a day. . . ." The Respondent
has failed to advance any substantial ground for raising the $5 rate,
and the Board adopts the $5 per day rate for the potato farming work
chargeable to the employees. The record fails to show that Wynne
was qualified to do, or could have obtained, a bag sewer's job. The
Board therefore finds no merit in the Respondent's assertion that
Wynne should be charged at the hourly rate of a bag sewer.
The General Council claims that the Trial Examiner should not have
charged the discriminatees for farming work in 1951, asserting that
Fulcher and Wynne were not obliged to take farming work during
the 3 months immediately following their discharges. The Gen-
eral Counsel relies upon the court's opinion in Southern Silk Mills.25
In that case, the court rejected a Board finding that discriminatees
were not obliged, at any time during their back-pay period, to "lower
their sights" and accept employment not equivalent to that they had
had with the Respondent. The court held that, under the conditions
of the Southern Silk Mills case, the discriminatees' failure to accept
nonequivalent employment for approximately 3 years was a willful
loss of earnings. However, the court did not require the discriminatees
to "lower their sights" immediately after discharge, noting that such
action would have subjected them to a charge that they did not "exer-
cise proper care and diligence" in seeking interim work . Instead the
court directed the Board to decide the time after discharge when the
discriminatees were obliged to "lower their sights."
As noted above, the remand in this case requires the Board to assess
Fulcher and Wynne with earnings from agricultural work. But the
General Counsel contends that the remand does not require assessing
the discriminatees with putative agricultural earnings immediately
after their discharges. 26 He argues that the Southern Silk Mills
decision requires that Fulcher and Wynne be given some time after
their discharges to find equivalent employment before being obliged to
2r N L. R B. v Southei n Silk ltslls , Inc., 242 F. 2d 697 (C. A. 6 ), cert . denied 355
U S 821
=s In the absence of exception by the Geneial Counsel , such an issue was not before the
Board at the time the Board issued the now vac.ited decision of July 1956
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"lower their sights" and seek agricultural work. Absent a specific
holding to the contrary by the court in its remand in this case, the
Board assumes that the court agrees that a discriminatee should not
be required to "lower his sights" immediately after discharge .17 It
thus becomes necessary for the Board to decide when Fulcher and
Wynne were required to seek agricultural work.
The potato farming season started just about the time Fulcher and
Wynne were fired and was directly followed by the tobacco farming
season which ended about 3 months after their discharges. The record
shows that during the first 3 months after the Respondent fired them,
the employees diligently sought work equivalent to that which they
had performed for the Respondent. The Board agrees with the Gen-
eral Counsel that Fulcher and Wynne were not required to "lower
their sights" and seek agricultural work within the first 3 months after
their discriminatory discharges 28 This finding rests primarily upon
these factors: The remand in this case does not direct that Fulcher
and Wynne be assessed with agricultural earnings within the first 3
months after their discharges; the principle advanced by the court
in the Southern Silk Hills case; and the discriminatees' diligent
search for work during those first 3 months after discharge.
4. The tobacco farming season covered 6 weeks from July 1 to
August 15. The Trial Examiner assessed Fulcher with tobacco farm-
ing earnings for full seasons in 1951 and 1952 and for 3 weeks of the
1953 season. The Trial Examiner found that Fulcher should have
earned $40 a week at tobacco farming. He assessed Wynne for
earnings in tobacco farming for all of the 1951 through 1953 seasons
at the rate of $30 per week.
The Respondent excepts to the Trial Examiner's assessment of
Fulcher with only 3 weeks of w-,ork in the 1953 season. Fulcher testi-
fied, without contradiction, that heavy rains during 1953 precluded
more work in tobacco farniing before August 10, the date Fulcher's
back-pay period ended. In such circumstances the Board agrees with
the Trial Examiner and charges Fulcher with only 3 weeks of tobacco
farming work in the 1953 season.29
=T In the event the court disagrees, the Board hereinafter makes an alternative computa-
tion of the employees ' back pay, assessing them with farming earnings immediately after
their dischaiges
=sTlns finding is limited specifically to the particular circumstances of this case under
the court ' s remand and is not to be construed as a general statement of Board position
on the " lowering of sights" concept.
In view of this finding the Board does not pass upon the General Counsel's other excep-
tions to the Trial Examiner ' s assessment of Fulcher and Wynne with farming earnings
in 19.51
=o As noted above , Fulcher is not assessed with income from tobacco work for the 1951
season
MOSS PLANING MILL CO. 1745
The General Counsel contends that Wynne should be charged with
only 2 weeks of work in each of the 6-week tobacco seasons-that is,
for 2 weeks of tobacco grading work. The General Counsel claims the
record establishes that Wynne could not work in the tobacco fields
during the other 4 weeks of each season. However, the court's remand
specifically rejected a contention that Wynne was not required to
accept tobacco tying work, a job done throughout the season. Ac-
cordingly, the Board assesses Wynne for all 6 weeks of work in each
tobacco farming season."
5. In view of the substantial amendments to the Board's initial
recommendation of November 1954, there is attached hereto a second
amended appendix itemizing the back pay due Fulcher and Wynne.
In making the computations, the Board has not charged either dis-
criminatee with more than 13 weeks of work in any single quarterly
pay period. In other words, when either employee had actual
earnings during a quarter but is being charged for other work he
failed to obtain, his actual earnings in that quarter are prorated.31
RECOMMENDATION
Upon the basis of the opinion of the United States Court of Appeals
for the Fourth Circuit dated August 1, 1955, and the entire record in
this case, the National Labor Relations Board at this time respectfully
recommends to the court that its decree entered July 24, 1953, be
amended to incorporate therein the respective amounts of back pay
required to be paid by the Respondent to each of the employees unlaw-
fully discharged herein as follows :
Roy E. Fulcher-------------------------------------- $1,509.46
Lee A. Wynne--------------------------------------- 322,842.21
MEMBER RODGERS took no part in the consideration of the above
Third Supplemental Decision and Recommendation.
30 As noted above, Wynne is not assessed with income from tobacco farm work for the
1951 season
31 For example, in the third quarter of 1952 Fulcher is assessed with 6 weeks of tobacco
farming work and 4 weeks in the tobacco iedrying factory , his actual income of $140 in
that quarter was earned throughout the course of the period As Fulcher is being assessed
earnings for 10 full weeks in that quarter which lie did not earn, lie is only charged with
three-thirteenths of his actual $140 earnings.
re In the event the court finds, contrary to the Board, that the employees were obliged
to "lower their sights" and accept farming work in 1951, the amounts are Roy E
Fulcher-$1,525 57 and Lee A Wynne-$2,592 97 However, the alternative )mount for
Fulcher, unlike that figured by the Tiial Examiner, assesses Fulcher for only 5 weeks of
potato farming in 1951 , because the Respondent did not discharge him until about a week
after that season started.
476321-58-vol. 119-111
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
BACK-PAY COMPUTATION
ROY E FULCHER
Year Quarter Gross backpay
Interim
earnings Expenses
Net back
pay
1950-- ------------------------ - Fourth-------- $12 00 ------------ ---------- $12 00
1951---- ----------------------------------- Fast--------- 23 29 - 29
Second -------- 263 36 ------------ ---------- 263 36
Thu d--------- 329 68 1 $242 69 ---_-----_ 86 99
Fourth -------- 2432 28 3 278 86 ---------- 153 42
1952--------------------------------------- First---------- 377 52 +17 50 ---------- 360 02
Second -------- 404 71 -167 50 6 $51 60 288 81
Thud--------- 392 49 7392 31 ---------- 18
Fourth -------- 2448 39 9399 99 910 50 58 90
1953--------------------------------------- First ---------- 381 75 16 457 70 8 19 50 ----------
Second -------- 375 01 11 244 98 1254 60 184 63
Third --------- 197 86 13 120 00 ---------- 77 86
Total -------------------------------- --------------- ------------ ------------ ---------- 1,509 46
LEE A WYNNE
1951 --------------------------------------- First---------- $408 04 14 $205 52 _ $202 52
Second-------- 419 30 13 173 60 ---------- 245.70
Third --------- 360 41 16 87 50 ---------- 272 91
Fourth -------- 17420 86 1687 50 ---------- 333 36
1952--------------------------------------- First ---------- 372 87 16 87 50 ---------- 285 37
Second -------- 400 03 18 197 12 19$51 60 254 51
Third --------- 423 43 20 227 12 ---------- 196 31
Fourth-------- 17475 12 1687 50 ---------- 387.62
1953 _______________________________________ First _ 393 95 16 87 50 306 45
Second -------- 445 23 18197 12 21 73 60 321 71
Thad --------- 22 262 87 20 227 12 ---------- 35 75
Total ------------------------------- ---------------- --------- ----------- --------- 2,842 21
'Earned from M. G Waters-$5.95; West Construction-$136 74 ; additional preach-
ing-$100
2 Includes Christmas bonus and gift-$35
3 Earned from West Construction-$45 01 , tobacco redrying plant-$180 ; additional
preaching-$53 85
4 Earned from Scott.
5 Earned from Scott-$17 50 , potato farming $150
6 Incurred in tobacco fanning work.
7 Earned from tobacco farming $240 ; tobacco redrying plant-$120 ; day-$9 23 ;
additional preaching-$23 08
8 Earned from tobacco redrying plant-$120 ; Jefferics and Smith-$279 99
9 Incui red on Jefferies and Smith fob
19 Earned from Jefferies and Smith.
11 Earned from Jefferies and Smith-$94 98, potato farming-$150.
12 Incurred in potato farming work-$51 60, Jefferies and Smith job-$3.
13 Earned from tobacco farming
14 Workmen's compensation
15 Workmen's compensation-$12648; $47 12 charged tor Wynne's tailure to use due
diligence in seeking work doling the 7 chargeable weeks of this quarter
16 Income Wynne could have earned in nonagricultural employment had he used due
diligence in seeking work
17 Includes Christmas bonus and gift-$35
is Earned from potato farming-$150 , $47 12 charged for Wynne's failure to use due
diligence in seeking work for the remaining 7 weeks of this quarter
19 Incurred in potato farming work.
D Eai ned from tobacco farming-$180; $47 12 charged for Wynne's failure to use due
diligence in seeking work for the remaining 7 weeks of this quarter
21 Incurred in potato farming work-$51.60 ; incurred on trip to Richmond, Virginia,
for job-$22
22 The full gross back-pay figure is used rather than the partial one used in the earlier
Board decisions because Wynne is now being charged for the specific earnings he would
have earned had he not removed himself from the labor market during this quarter.
MOSS PLANING MILL CO. 1747
SECOND SUPPLEMENTAL INTERMEDIATE REPORT
On March 10, 1953, the Board issued its decision and order in this case wherein
it found that Moss Planing Mill Company (herein called the Respondent or the
Company) had discriminatorily discharged Lee A. Wynne and Roy E. Fulcher and
ordered the Respondent to reinstate these individuals with back pay computed in the
usual manner- (103 NLRB 414.) On July 24, 1953, the United States Circuit
Court of Appeals for the Fourth Circuit entered its decree enforcing the order of
the Board. (206 F. 2d 557.)
The General Counsel and the Respondent being unable to informally resolve the
question of back pay, the Board thereupon directed that a hearing be held to deter-
mine the amount of back pay due to Wynne and Fulcher and, on March 23 and 24,
1954, a hearing for that purpose was held before the duly designated Trial Examiner.
Following the issuance of a Supplemental Intermediate Report (June 30, 1954), to
which exceptions were filed by both parties, the Board issued its Supplemental Deci-
sion and Recommendation, dated November 19, 1954 (110 NLRB 933), in which
it found, as amended by its order of April 8, 1955, the amount of back pay due to
Wynne and Fulcher to be $3,710.29 and $2,184.42, respectively. In brief, both the
Trial Examiner and the Board held, inter alia, that an award of $432 received by
Wynne under the North Carolina Workmen's Compensation Act for injuries inflicted
at the time of his discharge should not be deducted as interim earnings and that
neither Wynne nor Fulcher were required to seek and accept seasonal agricultural
work during the back-pay period. The Board filed an appropriate motion with the
circuit court to enter an amended decree making definite the amounts of back pay.
On August 1, 1955, the court entered its decision (224 F. 2d 702) setting aside
the Board's order and remanding the case, stating:
We shall, accordingly, set aside the Board's order with the direction that it
make findings of the amount due Wynne, with a deduction of the amount
awarded him under the Workmen's Compensation Act and with the further
deduction of what he could have earned elsewhere had he used due diligence
to secure other suitable employment. As to Fulcher, the Board's order is set
aside with the direction that the Board deduct from the amount awarded him
such an amount as Fulcher could have earned had he used due diligence to seek
other suitable employment, including agricultural employment.
On July 10, 1956, the Board, after reconsideration of its Supplemental Decision
in the light of the court's views, issued its Second Supplemental Decision and Recom-
mendation in the matter. (116 NLRB 68.) There, the Board, in accordance with
the court's opinion that allowance should be made for the award to Wynne under
the Workmen's Compensation Act, deducted from his gross back pay the sum of
$332, since this represented the net amount he received, the balance thereof, $100,
being awarded by the State Commission to his attorney for representing him in the
proceedings. Since the court found that Wynne and Fulcher could have earned
greater interim earnings had they "used due diligence to secure other suitable
employment," which specifically included agucultural and related work, the Board
reexamined the efforts made by Wynne and Fulcher to find work, including those in
areas other than agriculture. Upon reexamination the Board found that there
were present in Fulcher's case, exclusive of his attempts to secure agricultural work,
the "special circumstances" (in part the Company's blacklisting of Fulcher with
other employers in the area), which the court had previously held excused a dis-
criminatee's failure to make higher interim earnings than he ordinarily would be
expected to earn.' In substance, the Board found, as it did in its prior decision,
that Wynne did not exercise due diligence in searching for work, nor were there
any unusual circumstances to excuse his failure to earn more money during the back-
pay period. Accordingly, the Board recomputed Wynne's back pay by charging him
with $87.50 in each quarter of the back-pay period, except the first quarter of 1951,
this amount being the highest he earned in any nonagriculture quarter. The Board,
in line with the court's remand, also considered the efforts made by Wynne and
Fulcher to secure agricultural work and, on the basis of certain criteria, charged
them with stated sums they would have earned had they exercised due diligence in
endeavoring to secure agricultural employment throughout the back-pay period.
This phase of the Board's decision is discussed below. Having thus reexamined the
record the Board found that Wynne's back pay amounted to $2,572.37, and Fulcher's
$1,839.31. Again, the Board filed a motion with the circuit court to amend its
decree by incorporating therein the above-stated amounts of back pay.
3 N L. R. B v Pugh and Barr, Inc., 231 F. 2d 558
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, on January 9, 1957, the court entered an order wherein it pointed out
that the Board had issued its Second Supplemental Decision and Recommendation
without affording the Respondent an opportunity to be heard with respect to the
matters involved in the light of the court's decision of August 1, 1955, and vacated
and set aside the Second Supplemental Decision and Recommendation and remanded
the case to the Board:
. with direction to afford to Respondent a hearing on the matter involved
in said Supplemental Decision and Recommendation, with right to either side
to introduce additional evidence if it desires to do so to the end that decision
may be rendered in accordance with the principles laid down in our decision
of August 1, 1955.
Pursuant to notice, a second hearing was held at Washington, North Carolina, on
June 17 and 18, 1957, for the purpose of determining the amount of back pay due
the discriminatees in accordance with the court's order. The General Counsel and
the Respondent participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce relevant evi-
dence. At the conclusion of the hearing counsel waived oral argument and
submitted briefs which have been considered by the Trial Examiner.
Upon the entire record in this case, including the previous hearing and the deci-
sions of the court and the Board, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. PRELIMINARY STATEMENT
At the outset the Trial Examiner wishes to point out that there is no dispute as
certain material issues, which have already been considered by the Board in prior
decisions. Thus, there is no question in respect to the back-pay period, the amount
of gross back pay, including bonuses and gifts, certain interim earnings, and
expenses incurred by the discriminatees in seeking employment. The Trial Exam-
iner, therefore, adopts the Board's findings on these phases of the case, as set forth
in its Second Supplemental Decision. The Trial Examiner also adopts the Board's
findings, made in accordance with the court's determination, that the award of
$432, less $100, attorney's fees, to Wynne under the North Carolina Workmen's
Compensation Act be deducted as income from gross back pay. Company counsel
does not contest the Board's finding in this respect, so the Trial Examiner credits
the Company with $332; $205.52 and $126.48, in the first and second quarters of
1951, respectively.
To repeat, Fulcher's back-pay period runs from November 28, 1950, to August
10, 1953, while Wynne's period extends from January 13, 1951, to August 10, 1953.
Wynne, of course, was hospitalized until May 18, 1951, as a result of injuries
inflicted by Thomas Litchfield, a company official, at the time of his discharge.
As already stated the Board found that in view of Wynne's failure to earn more
money a reasonable and equitable method for achieving compliance with the
court's opinion is to charge Wynne with $87.50 in each quarter of the back-pay
period, excluding the first quarter of 1951. In the opinion of the Trial Examiner
this formula is a fair one under the circumstances of this case and will be followed
herein. However, since Wynne could have worked only about one-half of the
second quarter in 1951, and he is charged with other earnings, the Trial Examiner
will also exclude the above amount from that quarter of the back-pay period.
II. EMPLOYMENT OPPORTUNITIES IN THE WASHINGTON AREA
A. The potato harvest season
It should be noted that at the first hearing on remand to determine the amount of
back pay due to the dischargees the Trial Examiner received all testimony adduced by
counsel for the parties in respect to job opportunities in agricultural employment. In
this connection counsel for the Company produced as a witness, Guy W. Churchill,
manager of the local office of the Employment Security Division of North Carolina,
who testified concerning employment conditions in both the potato and tobacco
harvests. Churchill testified, as previously found by the Trial Examiner, that the
potato harvest in Aurora, located about 30 miles from Washington, commences
about May 15 and ends about July 1. Although Churchill said his office had
requests for employment in 1951, 1952, and 1953, for work in Aurora, a majority
of the growers sought, and still seek, their own help rather than through his office,
MOSS PLANING MILL CO. 1749
Churchill could not estimate the average earnings of workers digging potatoes
because they usually work on a piece rate, or bag basis, and are paid by a crew
leader who in turn is paid by the grower.
At the second hearing the General Counsel produced as a witness Paul M. Nance,
farm placement manager of the Employment Security Division for the past 16 years,
who testified his duties consisted primarily in the recruitment of farm labor and that
he was thoroughly familiar with employment conditions in respect to the harvesting
of the potato crop in Aurora. Although the commencement of the harvest season
would vary with weather conditions, Nance said it generally started around May 25
and ended about July 10. In relating the manner in which labor is recruited in this
field, and same practices prevailed in 1951, 1952, and 1953, Nance stated that he
determines in advance the approximate number of workers the various growers will
need, including tenant farmers and share-croppers, and then about February or
March contacts migrant workers as well as local crews. According to Nance there
is a group of workers including families originating in Florida, who follow a well-
defined movement up the East Coast and are known as "Florida migrants." Nance
communicates with these migrants by mail and 1 or 2 of his representatives go to.
Florida just prior to their movement north. These workers travel by bus or truck
and ordinarily are under the supervision of a crew leader. When asked the average
number comprising a crew, Nance replied it would be difficult to answer because the
number would vary with the number of acres to be worked. One of Nance's duties
consisted of bringing together the crew leader and grower for the purposes of
bargaining in respect to the work to be performed and in most instances when the
services had been performed the grower would pay the crew leader, who would
then pay the members of his crew. At times the crew furnishes all the labor on a
particular job but on occasions local labor augments the crew and at other times the
crews supplement local labor. Seemingly, there is no fixed practice in this respect,
but in any event the migratory workers total 75 to 80 percent of the entire working
force. A majority of the local labor live in the Aurora area where transportation is
no problem. Occasionally some families and individuals come from Washington
to Aurora but Nance could not estimate the number of such workers. Nance was
not acquainted with individuals who thus worked out of Washington for he dealt
primarily with crew leaders. During each of the seasons of 1951 and 1952 there
were approximately 1,400 migratory workers and in 1953 about 1,000 such persons.
When thus employed the migratory workers live in tenant houses furnished by
the grower, without charge, and ordinarily a central kitchen and messhall is main-
tained under the direction of the crew leader. Nance said the growers do not
furnish transportation between Aurora and Washington, except in a few instances
where a grower would take the workers home on Friday and bring them back on
Monday morning. Ordinarily family groups or individuals from Washington
would live with the migratory crews throughout the week and return to Washington
for the weekend. Thus, individuals could carry their cooking utensils, bedding,
and personal items and if they desired could do their own cooking on stoves supplied
by the grower. However, they would usually eat at the messhall and Nance esti-
mated that meals cost from $5 to $7 per week.
Nance in describing the manner in which potatoes are harvested stated that the
first operation is the digging thereof which is done by a tractor pulling a digger, with
1 or 2 men on the tractor and a group (he did not give the number) around the digger.
The potatoes are then hand picked by women and sometimes children, normally
men do not do this work, and placed into bags. The bags are loaded on trucks
and taken to a shed where they are graded by machine, placed in bags, and loaded
on trucks for shipment. From 12 to 20 persons work in various jobs around the
grader, which operation may be performed by migratory workers or the grower's
own crew. All workers in the foregoing jobs are paid an hourly rate, with the
exception of those picking potatoes who are paid on a piece rate, or bag basis.
Although the hourly rate varies, it usually runs from $0.35 for women on the picking
tables to $0.75 or $0 80 for bag sewers. Nance said there were job opportunities in
Aurora for men living in Washington, apart from picking potatoes in the field, during
the period in question. Nance was asked by the General Counsel to state the average
wage of persons engaged in the potato harvest and he answered, he did not know
what the average would be. When further questioned as to whether the average
worker would earn as much as $5 per day he replied, "He certainly should."
Nance, under close questioning by counsel, stated that every grading operation re-
quires the services of a bag sewer, who sews the bag by hand after it has been
filled, and that this job demands agility in the use of a needle and is considered one of
the highest skilled jobs in the operation. Usually there is a demand for experienced
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bag sewers whose rate varies from $0.75 to $0.80 per hour, although he knew of
some sewers who made as much as $1 per hour. From past experience Nance said
he probably sent bag sewers to Aurora from Washington during the years in question
but he had no records covering these years nor did he have any records indicating
the number of bag sewers living in Washington. While Nance stated on cross-
examination that a skilled shoe repairman could readily pick up the technique
of bag sewing, he later testified on redirect examination that it would not necessarily
follow that because a man could sew shoes on a machine he would be skilled
in sewing bags.
Nance indicated that substantially the same employment conditions prevailed, per-
haps on a smaller scale, at Pentago, a potato growing area, situated about 27 miles
from Washington.
The Trial Examiner finds Nance and Churchill to be reliable and credible wit-
nesses and accepts their testimony, detailed above, concerning employment during
the potato harvest seasons.
Fulcher admitted he never applied for work in Aurora because he had no means
of getting there except on his bicycle He further stated that he could not have
remained in Aurora during the week since he had 12 children at home. This latter
contention is rejected for Fulcher sought work at places outside of Washington and
was in Durham, North Carolina, in November and December 1951.
Wynne did not seek work in Aurora for the reason he had never worked in the
potato harvest and had no experience in the field. He said that all sewing per-
formed by him in his shoe repairing business was done by machine, not by hand.
Concluding Findings
It is undisputed, and the Trial Examiner finds, that the potato farming season ran
from May 15 to July 1, and the only questions presented here are, whether Fulcher
and Wynne were available for employment in those periods and, if so, were there job
openings for which they were qualified In brief, the Trial Examiner finds that Ful-
cher and Wynne were available for work in the seasons of 1951, 1952, and 1953, al-
though they were, at times, registered with the State Employment Commission, had
part-time jobs in the same yearly quarter, and were seeking employment at other places.
The General Counsel contends that Fulcher and Wynne should not be charged with
potato employment in 1951, since Fulcher was not discharged until May 21, and
Wynne was not released from the hospital until May 18. This contention is rejected
for the court has held agricultural employment to be suitable employment and the
Board has already charged Fulcher and Wynne with earnings in the potato season of
1951 Accordingly, the only issue to be resolved is whether there were jobs available
for which they were qualified and how much they would have earned at these jobs.
In line with Nance's job descriptions, the Trial Examiner finds that Fulcher and
Wynne were not required to accept jobs normally performed by women, nor is there
any evidence that either of them was qualified to operate a tractor, to work in a
tractor gang, or drive a truck. Moreover, the Trial Examiner, on the basis of the
testimony of Nance and Wynne, has no difficulty in reaching the conclusion that
Wynne was not employable as a bag sewer for the reason that he could not even
sew a bag much less qualify as an experienced sewer. However, there were jobs in
the grading operation which, obviously, could have been performed by Fulcher and
Wynne and which they probably could have obtained had they diligently looked for
this kind of work. Nance gave the minimum and maximum hourly rates as $0.35
for women and $0 80 or $1 for experienced bag sewers, and while he could not estimate
the average wage he emphatically stated that the average worker could earn as much
as $5 per day. It is also clear that the workers, at least those living outside the Aurora
area, worked a 5-day week The Trial Examiner therefore finds that Fulcher and
Wynne could have secured employment at $5 per day, 5 days a week, during the 6-
week potato seasons in 1951, 1952, and 1953.
It is undisputed that Fulcher and Wynne had no means of transportation and that
they would have been required to live in Aurora throughout the workweek. The
Company, in its brief, concedes that Fulcher and Wynne would have had to pay $7
a week for their food and would have been entitled to their transportation to and
from Washington once a week. In view of the above admission, as well as Nance's
testimony, the Trial Examiner finds $7 per week to be a reasonable allowance for
food. The Company makes no suggestion with respect to the amount to be allowed
for transportation. The General Counsel urges an allowance of 7 cents a mile, ap-
parently on a daily basis, as this corresponds to the rate allowed by the United States
Government, and many private concerns, to employees using their own automobiles
MOSS PLANING MILL CO. 1751
while on official business? Neither Fulcher nor Wynne owned cars, so the Trial
Examiner will allow the cost of public bus transportation to and from Washington,
once a week, at the rate of $1.60 per round trip.3
Accordingly, Fulcher is charged with interim earnings, in the second quarter of
1951, 1952 and 1953, as follows:
Gross interim eai rings
$150 00---------------------------------------------------------------
Food
$42 00
Transpor-
tation
* $9 60
Net interim
earnings
$98 40
*6 trips
Wynne is charged with similar earnings in potato farming. The Trial Examiner
also finds Wynne is entitled to be reimbursed for expenses incurred by him, $22, in
seeking employment in Richmond, Virginia, in the spring of 1953. His interim
earnings for above periods are computed as follows:
Year
Gross
inter im Food
Tianspor-
tation and
Net in-
terim
earnings expenses earnings
1951-----------' --------------------------- $150 00 $12 00 *$960 $98 40
1952------------------------------------------------------- 150 00 42 00 9 60 185 90
87 50 ------------
Total-------------------------------------------------- 237 50
1953---------- ------------------- - ------------------ ---------- 150 00 42 00 *960
87 50 22 00
Total ------------------------------ --- 237 50 31 60 163 90
*G trips
As pointed out by the General Counsel, the amount of gross back pay for Wynne
for the second quarter of 1953 is incorrectly stated in the Board's Second Supple-
mental Decision. The Trial Examiner in his Supplemental Intermediate Report
found gross back pay for this quarter to be $445.23, but since Wynne had become
voluntarily unemployed during a portion of this quarter, gross back pay was reduced
one-half, or to $222 61. Although the Board reversed this finding, it inadvertently
used the lower figure in its Supplemental and Second Supplemental Decisions. The
figure is corrected in Wynne's back-pay computation.
B. The tobacco season
Churchill testified at the previous hearing that there was a demand for workers
during the tobacco harvest season which runs from about July 1 to August 15.
According to Churchill the workers went from farm to farm working I or 2 days
at each farm, except on the larger farms where they might be employed for a week
and would average from $6 to $10 per day priming tobacco, depending upon the
wage fixed by the farmers. As in the case of potato growers, a vast majority of
the tobacco farmers hired their labor without contacting Churchill's office.
At the second hearing J. Albert Mills appeared as a witness for the General
Counsel and, on the basis of some 40 years' experience as a tobacco grower, testi-
fied as to conditions existing at Greenville, North Carolina, during the time in
question. Greenville is about 15 miles from Washington and is situated in Pitt
County, one of the largest tobacco growing areas in the world. Mills said the season
runs from about July 1 to August 15, and the first step in the tobacco harvest is the
priming, or pulling off, leaves from the plant, which are carried to the barn where
2 This sum was used by the Board in Deena Artwiure, Inc, 112 NLRB 371, 374-375,
and accepted by the court, 228 F 2d 871 (C A 6)
'The Trial Examiner obtained the bus sate from Greyhound Lines, Washington, N. C.
Since rates are a matter of public information the Trial Examiner accepts and relies upon
this information.
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are cured and taken to the warehouse. In 1951, 1952, and 1953, Mills had
about 4 men priming and 1 carrying the leaves from the field to the barn. He stated
that the average man worked about 4 or 5 days and that an able-bodied worker
who could prime tobacco could earn around $40 per week, "if he wanted to work
every day." Mills further stated that a majority of the growers, as in his case,
lease their farms to tenants on a share-crop basis, and the tenants as well as the
growers assist each other in harvesting the crop. He said when additional help is
needed during the tobacco season, he and the other growers had no difficulty in
obtaining extra workers. While Mills never hired any hands in Washington he
knew that occasionally some of the growers and his tenants hired "kin-folk" in
Washington and that one year he furnished transportation for workers, prior to 1950
or 1951. Washington, he stated, is outside the normal labor supply area for
Greenville.
Concluding Findings
At this hearing Fulcher and Wynne were not examined as to their efforts to secure
employment during the tobacco season.
In brief, the Board in its Supplemental Decision found that Fulcher made "sincere
efforts" to secure work in the tobacco season during a 3-week period in 1953, and
that he was employed 2 days a week at $8 per day. This finding was affirmed by the
Board in its Second Supplemental Decision and, using Fulcher's 1953 earnings as
a criterion for determining the amount he would have earned throughout the back-
pay period had he diligently sought employment, charged Fulcher with earnings
in the sum of $96 in the third quarter for 1951, 1952, and 1953, respectively. The
Board applied the same formula to Wynne.
It is undisputed that Fulcher made no effort to secure work in tobacco until the
1953 season. It is also undisputed, on the basis of Churchill's testimony, that there
was a demand for workers during the tobacco seasons of 1951, 1952, and 1953, and
that they earned from $6 to $10 a day. When specifically asked if a man could
secure employment priming tobacco for more than 1 or 2 days a week, Churchill
replied, "He could go from one [farmer] to another; of course some of the larger
farmers used them the whole week around." Mills likewise testified that an able-
bodied primer could earn $40 a week, if he wanted to work every day. While
Mills' testimony related to conditions in Greenville, the General Counsel urges that
this evidence supports the Board's finding that Fulcher made a "sincere effort" by
securing work as a primer 2 days a week for 3 weeks in 1953, and the tact that
there was a labor surplus in the Greenville area is a "special circumstance" justi-
fying the Board's conclusion that Fulcher could not be reasonably expected to
prime more than 2 days per week. In the opinion of the Trial Examiner the testi-
mony of Mills not only fails to support these theories, but on the contrary shows
greater employment opportunities for he unequivocally stated an able-bodied primer
could work every day and earn $40 a week, irrespective of whether there was or
was not an adequate labor force. His testimony, therefore, is consistent with that
of Churchill. Since there is no question Fulcher was an able-bodied primer the
Trial Examiner finds that he could have obtained full-time employment priming
tobacco during the seasons of 1951 and 1952, had he made reasonable efforts to
secure such work. The Trial Examiner concludes that he could have earned $240
in each of those seasons. However, insofar as the 1951 season is concerned, the
question is more academic than real for the Board found that Fulcher was not
entitled to any back pay for the third quarter since his interim earnings (based on
a smaller allowance for tobacco work) exceeded his gross back pay .4 In the third
quarter of 1952, Fulcher's gross back pay amounted to $392.49, and he earned
$40 from Day's fish market, plus $100 from preaching. Fulcher is also charged
with $240 as interim earnings in the tobacco harvest. As appears below, the Trial
Examiner further charges Fulcher with $120, covering 4 weeks' employment in
September, at the tobacco redrying plant. The Trial Examiner, in line with the
Board's findings, will not make any allowance for the extra income received by
Fulcher from preaching.
As already stated Fulcher primed 2 days a week for 3 weeks in July 1953. In
explaining this employment, at the first hearing, Fulcher related that farmers were
in town looking for workers and one day "by chance" he was on the street when a
farmer asked him if he would help him 2 days a week, which Fulcher agreed to
do, for $8 a day. He then showed the farmer where he lived and thereafter he
4 Gross back pay amounted to $329 68 and he earned $5 95 from Waters Mill, $136.74
from West Construction Company, $100 from preaching and $96 he could have earned from
tobacco work , or a total of $338.69.
MOSS PLANING MILL CO. 1753
apparently furnished transportation for Fulcher while employed. Fulcher was
willing to work the other 3 days if "anyone would come along would ask me about
helping them in tobacco," but the farmers come in from several directions "and
some don't never see my home." On cross-examination Fulcher said the only way
he could try to find work was by "standing out and I could not make a man hire
me." In answer to company counsel's inquiry as to why he only worked 3 weeks
Fulcher explained there was a heavy rain in the latter part of July or early August
which precluded priming and before he was able to resume this work, as he had
agreed, he received a letter from the Company offering him reinstatement as of
August 10. It is clear that Fulcher did not ask any farmers for work in the
tobacco fields, although he knew they were in town looking for help, and he accepted
a job only when by chance it was offered to him. Again, when he was available
for work the remaining 3 days a week he did nothing other than wait for another
offer to be made to him on the street or at his home. While it is true the farmers
hired men on the street this practice would not have prevented him from seeking
work, or to at least indicate that he was on the street regularly, rather than at home
waiting for an offer. In the absence of any such evidence, the Trial Examiner finds
that Fulcher did not make reasonable efforts to secure additional employment in
the above period. However, the Trial Examiner accepts Fulcher's explanation as
to why he was employed only 3 weeks during this season. Accordingly, the Trial
Examiner concludes that Fulcher could have earned $40 per week for 3 weeks, or
$120, during the third quarter of 1953.
Wynne made no attempt to work in the tobacco harvest seasons in 1951 and
1953. In 1952, he obtained a job priming but he could not stand the strain and was
forced to quit after working half a day. Following this job, seemingly about
September, Wynne, with help from wife, graded tobacco for 2 growers for which
he received a total of $90. The Compary concedes that Wynne, by reason of his
handicap and the physical difficulties of priming, was probably not employable as
a primer. However, the Company urges that there were other jobs in tobacco which
he could have performed. The testimony of Churchill and Mills indicates there
was a demand for workers during the tobacco harvest, other than for priming. The
fact that Wynne actually did some grading warrants the inference that there were
jobs for which he was qualified. At least he should have looked for work during
these periods. The Trial Examiner is of the opinion that Wynne should be charged
with 6 weeks' employment, at $6 per day, or $30 per week (including his earnings
from priming and grading in 1952), during the third quarter of 1951, 1952, and 1953.
C. The tobacco redrying factory
P. Beryl Young, Jr., a witness for the General Counsel, testified he has been
secretary of the Washington Tobacco Company for 18 years and that it maintains a
plant in Washington where it is engaged in the processing of tobacco, that is redrying
the leaves and storing them in casks or hogsheads for its own use or the use of its
customers . The plant commences operations about August 10 and continues until
around Thanksgiving Day. Young said the factory employs about 200 or 210
persons on 2 shifts with approximately 100 employees on each shift and due to labor
turnover the company will employ about 415 persons throughout the season in order
to maintain a working force. About half of the employees are women and of the
approximately 100 men employed only about 28 or 30 report the following year,
while nearly all the women report, with the exception of 10 or 12 persons. In out-
lining hiring methods Young stated no advance preparations are made to secure a
working force, that the people "know pretty well when we are going to start
operating," at which time prospective workers assemble at the back porch of the
plant where the factory manager calls the names of former employees from a
seniority list and after employing those who respond to the call, he then hires
workers on a "first come first serve" basis, assuming equality of physical require-
ments, the company preferring robust and well-built men. When the factory first
commences operations the company has no difficulty in securing help because the
number of applicants exceeds available jobs, but as the work progresses the company
must replace employees who quit or have been fired. The company does not main-
tain job classifications and Young said that its operations consist of sheathing or
nonsheathing tobacco, pushing it through the blending line, and tying and loading
it on trucks for shipment. The work performed by the women requires no skill
and, apparently the same is true regarding the jobs done by the men, although they
work "a lot harder." During 1951, 1952, and 1953, the average rate was about
$0.75 per hour, with firemen getting $0.80 an hour.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young said the company's operations require the employment of 2 firemen, I for
each shift In describing the employment of firemen Young, after checking his
records, stated that in 1951, Sam Farris, a long-time employee, was employed on the
day shift and James Williams, who was employed at Eureka Lumber Company
during the day, was acting part-time fireman on the night shift. The company also
hired Dennis Maudlin, a daytime grocery store operator, as a trainee under Farris,
but Maudlin quit at some unspecified time because he could not work both day and
night William Ebron was then transferred from another job in the factory to the
boilerroom. Young did not give the employment dates of these 3 men and it is
not clear whether Ebron or Williams was retained in 1951. In 1952 the company
had only two firemen, Farris on the day shift and Albert Cobb on the night shift.
Young stated that during the season the company often had trouble in filling
jobs, and in such instances it contacted the State Employment Service for available
workers and "we also tell our workers that if they know of any of their neighbors
that can work or will work to come in." Young was certain Fulcher was employed
during the 1956 season and when asked what Fulcher's chances were of obtaining
work "At any given time," he replied it would be entirely up to the foreman; if
Fulcher came in when workers were needed, he could have competed with other
job applicants and he felt sure the foreman "would have given him a job or
anyone else " Young further stated that although he had no records, he knew that
an able-bodied, one-legged man could do the work as well as any number of the
elderly persons employed by the company.
W. C. Timberlake, a witness for the Respondent, testified he first came to Washing-
ton in June 1950, when he was employed by the Washington Tobacco Company and
remained throughout the tobacco season when he left the area Timberlake returned
to Washington on the night of August 15, 1951, and stayed until August 30.
During this period the company did not have a factory manager, so Timberlake
organized operations and when the plant was operating on a 2-shift basis he returned
to his home in Virginia. Timberlake performed the same duties for the company
from August 14 to August 28, 1952, when he again left and went to his home. In
June 1953, he came back to the factory and has been employed continuously since
that date. Timberlake said the company did not maintain a hiring office but when it
was ready to hire workers about 60 men would appear at the plant and he would call
the seniority list, from which he would employ about 25 or 30 men, and select the
remainder of his crew, "by looking at them and seeing what, picking what I judge to be
the best men in the lot." After the initial hirings, Timberlake stated prospective
employees would come to the plant seeking jobs. Since Timberlake was with the
company for only 2-week periods in 1951 and 1952, subsequent hirings were handled
by other company representatives According to Timberlake operations at the
factory start slowly but increase as the company buys more tobacco which necessitates
the hiring of additional employees.
Timberlake stated that in 1951, Farris was fireman on the day shift and about
August 18, he transferred Ebron from the cooper or receiving department to the
boilerroom as a trainee-fireman under Farris. Ebron seemingly received 3 or 4
days' training and after firing for 2 or 3 weeks Timberlake decided his work was
unsatisfactory so he was replaced by another man, whose name he could not recall.
Timberlake said a third fireman was hired, apparently to replace the second fireman,
but, again, he could not remember his name. Timberlake admitted that of the three
men Ebron was the only man he placed on the firing job. Like Young. Timberlake
stated Farris and Cobb were the only firemen employed in 1952. He further stated
that Cobb had previously worked at the factory in another capacity and he knew that
Cobb was a fireman. Consequently, when Timberlake first organized the night shift,
2 or 3 days after the day shift started, he made Cobb fireman on that shift.
In substance, Timberlake testified on direct examination that if Wynne had applied
to him for a job as fireman during the 2-week period he was at the plant in 1951 and
1952, he would have been given consideration; that is he would have been investigated
and if found to be a fireman he would have been preferred over a man who was work-
ing a day job and firing at night for the company On cross-examination Timberlake
testified that:
The chances are that if he [Wynne] had told me that he was a fireman when I
first came there, the day the market opened, . and told me `I'm a fire-
man' . . . the chances are, and I am certain that I would have given him a job
as a fireman because I did not have a fireman, and probably the day after that
I didn't have a fireman.
The firing job according to Timberlake is an easy one, in fact none of the jobs
are laborious, the most difficult one being the lifting of 250-pound bags, and even this
MOSS PLANING MILL CO. 1755
operation is assigned to 4 men When asked if he had jobs, other than firing, which
could be performed by a one-legged man, he replied there were other jobs, such as
sweepers. Like Young, Timberlake testified the company contacts the State Employ-
ment Service every year
At the first hearing Churchill testified that the Unemployment Compensation Di-
vision of the Employment Security Commission has declared that the season at the to-
bacco redrying factory commences August 18 and ends November 28. He further
stated that there was a demand for able-bodied men at the factory and "that demand
will probably run about four weeks." When asked if there were any jobs at the
factory for a man who could not stand up for any period of time, but could sit, he
answered there were no such jobs available for men In addition he said he did not
believe there were any jobs at the factory suitable for a one-legged man. Churchill
was not questioned as to whether the company had ever made requests for workers
to the State Employment Commission.
At the first hearing Fulcher and Wynne were not questioned concerning any
attempts to secure employment at the redrying plant.
Fulcher, on direct examination at this hearing testified he applied for work to Tim-
berlake on several occasions, perhaps 6 or 7 times, during 1951, 1952, and 1953. He
could not recall the approximate dates on which he sought work, other than he applied
at the beginning of operations, and that Timberlake stated he used seniority in
hiring men, that he had no openings and to come back later, which he did. Fulcher
was not employed at any time during the above period although he did work for
the company during the 1956 season. On cross-examination Fulcher fixed various.
months, from June to October 1951, during which he applied for work and when
informed that he was employed by West Construction Company in August, September,
and October, Fulcher said he must have made application at a time when he was
not working on the construction job. Fulcher stated if he had obtained a job at the
redrying plant he would have worked the night shift and continued in his employment
with West Construction Company. Fulcher applied for work about September 1952,
while he had part-time employment at Day's fish market and in 1953, he believed he
applied for a job sometime around August.
Wynne testified that he went to the plant in August 1951, and when he asked Tim-
berlake for work Timberlake told him there were no jobs available and to come back
later. Wynne returned several mornings but was never hired. In August 1952,
Wynne again asked Timberlake for a job but he paid little or no attention to him.
Later he returned on about two occasions but was not employed. On cross-examina-
tion, Wynne said he had seen Timberlake prior to 1951, apparently "back in the
40's," that during August 1951, he asked Timberlake for a job on 2 occasions without
success and thereafter went back to the plant 2 or 3 times but was not hired. He
stated that while he saw Timberlake on several other occasions he did not ask him
for a job because he "figured he was black-listed by Moss Planing Mill." Wynne un-
successfully applied for a job in August 1952, under substantially the same circum-
stances. Wynne did not give his name to Timberlake nor state his experience as a
fireman for the reason "he didn't spend that much time with me " Wynne knew and
lived near Sam Farris during the years in question and also knew that Farris was
employed at the plant as a fireman He further stated that neither he nor Farris dis-
cussed jobs or the company's need for a fireman although Wynne did learn that Farris
obtained employment for his son and trained him in firing.
Timberlake testified that he could not recall seeing Wynne prior to the date
of the hearing and that he first saw Fulcher in 1956. He further said he employed
many workers and that Fulcher and Wynne may have applied for lobs in 1951, 1952,
and 1953, without his remembering the occasions. Timberlake never heard of any
blacklisting of Fulcher or Wynne.
Concluding Findings
The Trial Examiner finds, as credibly stated by Churchill, that the redrying plant
operated from August 18 to November 28, during the years here involved. Since
the back-pay period for Fulcher and Wynne terminated August 10, 1953, it is not
necessary to enter any findings with respect to their efforts to obtain employment
subsequent to that date.
Company counsel argues that there were excellent job opportunities at the redry-
ing plant for both Fulcher and Wynne, had they sought employment. Counsel also
devotes much of his brief to Fulcher's testimony respecting his efforts to obtain
employment at the plant. In short Fulcher testified he applied for a job to Timber-
lake at various times in 1951 and 1952, when Timberlake was not even employed at
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant. Manifestly, Fulcher could not have applied to Timberlake in such cir-
cumstances and in so testifying he made such applications he was either wholly
mistaken as to dates , or attempting to bolster his claim that he had made reasonable
efforts to obtain work at the factory. In any event the Trial Examiner does not
believe his inconsistencies to be controlling of the issue to be decided. In this
connection it must also be noted that Timberlake, while at the plant for only 2-week
periods in 1951 and 1952, respectively, testified generally as to employment condi-
tions subsequent to his departure and Young, who did no hiring at all, testified at
length concerning the labor force, hiring procedures, labor turnover, and the diffi-
culty at times in securing workers. Again, the company representatives who did
the actual hiring after Timberlake left did not testify at the hearing, nor were any
records produced showing the employment history of the labor force, such as the
approximate occasions when there was a shortage of workers . Of course , if there
was any question of credibility as to whether Fulcher had applied for work to
Timberlake , then his testimony would become important in the resolution of that
question , but such issue is not present in this case . In the opinion of the Trial
Examiner the evidence bearing upon employment conditions and practices at the
factory is general and vague in certain respects , although it is no doubt the best
available evidence, considering the fact that all witnesses were testifying in June
1957, to conditions and occurrences which existed in 1951 and 1952. The Trial
Examiner , therefore , views the evidence in that light , with the reasonable inferences
to be drawn therefrom.
It is clear from the testimony of Young and Timberlake that the company hired
former employees on a seniority system and secured the remainder of its help by
use of the "shape-up" method, whereby Timberlake, or his successors, would select
individuals from a group of applicants with emphasis being placed upon hiring
strong, robust men. It is equally clear, that the company had no difficulty in
recruiting a working force at the commencement of operations but subsequently,
due to increased operations , quittings , and firings, additional employees had to be
hired and the company often experienced trouble in obtaining these workers. As
Timberlake remained at the plant until it was operating two shifts , it seems reason-
able to infer that the company had a full complement of employees and initial hirings
ceased as of that time. The Trial Examiner so finds. The Trial Examiner also
finds that the company employed about 200 employees , 100 being men, and during
the season employed approximately 415 individuals in order to maintain its normal
work force.
The principal issue is whether Fulcher and Wynne made reasonable efforts to
secure employment in 1951 and 1952, at such times as jobs were available , and which
they were qualified to fill.
Fulcher , as a result of a referral by the State Employment Commission, was
employed by West Construction Company as a laborer during August , September,
and October 1951, earning $136.74 in the third quarter and $45.01 in the fourth
quarter of that year. Following his termination Fulcher , in November , went to
Durham , North Carolina , where he sought employment at various places and
remained there through December . The Trial Examiner finds that Fulcher was not
obligated to apply for employment at the redrying plant while employed by West
Construction Company, nor does the company contend the contrary . Unques-
tionably, Fulcher needlessly placed himself in an embarrassing situation with his
conflicting versions of his attempts to secure work at the factory while already
employed , but his testimony does not thereby create an obligation to look for addi-
tional work where there was no legal or moral obligation on his part to do so. As
appears above , Fulcher spent November and December in Durham seeking work,
which indicates sincerity in attempting to find a job. There is, of course , no assur-
ance that had Fulcher remained in Washington and applied for work at the factory
that he would have been employed. The only evidence on this point comes from
Young who stated that Fulcher 's hiring would have been entirely up to the foreman,
and added that if Fulcher, "At any given time," had applied when workers were
needed, he could have competed with other applicants and he felt certain the fore-
man "would have given him a job or anyone else ." There is no evidence suggesting
that the company needed employees or was hiring employees in November. Thus,
in order to sustain a finding favorable to the Respondent , it must be assumed that
jobs were available at that time and that the foreman would have selected Fulcher
over other applicants. These suppositions are purely speculative and insufficient
to support a finding that he would have been employed. Moreover , assuming jobs
were available and Fulcher would have been hired , still there is no evidence from
which it may be determined whether he would have worked the entire period or only
MOSS PLANING MILL CO. 1757
a portion thereof.5 Had rulcher sat idly in Washington throughout November
perhaps a different situation would be presented. However, that is not the case for
the undisputed evidence shows that Fulcher was attempting to find work at Durham.
Under the circumstances the Trial Examiner concludes and finds that Fulcher made
reasonable efforts to secure work in November 1951, and by failing to apply for a
job at the redrying plant he did not thereby incur willful losses.
In August, September, and October 1952, Fulcher had part-time employment at
Day's fish market in Washington and earned a total of $40. Fulcher claimed he
applied to Timberlake for a job about September. Except for his part-time job and
his alleged application to Timberlake, Fulcher did nothing in the way of seeking
employment from August through October. In November he went to work for
Jefferies and Smith, a partnership, which operated a lumber mill and remained there
until April 1953. The Trial Examiner concludes that Fulcher did not diligently seek
employment for the period August through October, and had he applied for work
regularly at the redrying plant, it is reasonable to infer that he would have been
employed. Again, it is difficult on the evidence herein to determine how long
Fulcher would have been employed. Since Fulcher met fully the physical require-
ments of the company, it is reasonable to infer that if he had consistently applied
for work, commencing with the opening of the plant, he would have been employed
by September and continued in its employ through October. The Trial Examiner
so concludes and finds. Therefore, the Trial Examiner will charge Fulcher with
employment for 8 weeks, at $0.75 per hour, for a 40-hour week, as follows:
1952-Third quarter______________________________________________ $120.00
Fourth quarter--------------------------------------------- 120.00
The company, in its brief, contends Wynne could have obtained employment at
the factory "for a number of handicapped persons were steadily employed . . . but
much more important than that, the Tobacco Company was in desperate need for
a fireman " Continuing, the company argues that admitting Wynne made some
trips to the plant, nevertheless he exerted little or no effort to secure a job as
fireman and in addition he lived in the same neighborhood as Farris.
The Trial Examiner accepts Wynne's testimony and finds that he went to the
plant in August 1951 and 1952, respectively, that he asked Timberlake for employ-
ment and was told there were no jobs available. He also made 2 or 3 trips to the
plant subsequent to his applications to Timberlake. Wynne admitted he did not
advise Timberlake of his name or occupation as a fireman because Timberlake
"didn't spend that much time with me." In view of the company's hiring methods
and preference for strong men, it is readily understandable why Wynne was sum-
marily rejected by Timberlake, for Wynne is in fact and appearance neither a robust
nor well-built person Since the company did not maintain an employment office,
nor use written applications, the Trial Examiner is unaware of any additional steps
Wynne could have taken to inform Timberlake or the company that he was a
fireman. While company counsel asserts that a man of Wynne's experience "would
literally have been pennies from heaven" fcr the company, he does not point out
what means Wynne could have employed to bring this to the attention of Timberlake
or the company, other than the action taken by him. The Trial Examiner therefore
concludes that in August 1951 and 1952, Wynne did all that could reasonably be
expected of him under the circumstances and in view of the company's refusal to
hire him after several applications, in each year, it was plausable for him to assume
he would not be employed, hence he was under no duty to thereafter regularly report
at the factory.
Apart from the foregoing facts, the evidence demonstrates that Wynne's chances
of securing employment as a fireman were practically nihil. Company counsel does
not argue that Wynne could have been employed on the day shift for the job was
filled permanently by Farris, but that the company was in desperate need of a
fireman for the night shift.
5 Young could not estimate the average length of employment or hours worked by casual
employees, or those individuals hired subsequent to the employment of former or so-called
permanent employees. As an example, he stated the company will have 17 men on the
sales crew and if business demands this number will be increased to 20 of 28 men, and
then there are times when it will not need the 17 men. Replacements are also made from
other crews before hiring men on the outside . Young concluded by saying that if a
casual worker is hired he will be employed as long as there is work for him, if he "comes
and works regularly when you need him, lie goes on a preferred list"
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear that during the 1951 season the company hired 3 men on the night
shift as firemen or trainees and that Ebron was the only 1 assigned to the job by
Timberlake . In this respect Timberlake related that the boilers are fired 2 or 3
days before the commencement of processing operations and that he transferred
Ebron to this job 1 or 2 days after the tobacco market opened As Timberlake
began his employment on August 16, he fixed August 17, as the date the market
opened, so Ebron went on the job August 18 or 19. Ebron proved to be unsatis-
factory and was later replaced by another man When Timberlake was asked how
long Ebron remainded on the job he answered , "Maybe two weeks, maybe three
weeks. I don't know . I wasn 't there." Timberlake left the factory August 30,
and, of course , did not know the men who succeeded Ebron. The quick placement
of Ebron in the firing job precludes the idea that Wynne could have successfully
competed against him for the position , especially since Ebron was an employee or
former employee of the company . Moreover , this situation remained unchanged
during the 2-week period Timberlake was at the factory. From the foregoing facts
the Trial Examiner has no difficulty in reaching the conclusion that the company
did not need a fireman in August 1951, when Wynne was applying for employment.
The evidence beyond this point simply shows that 2 other men were hired,
obviously , Maudlin next ( since he quit ) and then Williams . In the light of this
meagre evidence it is sufficient to state, as found above , that Wynne was not obli-
gated to report continuously at the plant , although he did go there on 2 or 3
occasions.
In 1952, Timberlake was at the factory from August 14 to August 28. Timberlake
testified the day shift was organized "when I went there ," and 2 or 3 days later he
organized the night shift. Cobb, an experienced fireman who had worked at the
factory on numerous occasions , was hired on the night shift about 3 days after the
opening of the market . In line with Timberlake 's previous testimony , the market
opened on August 15 . Cobb was therefore employed about August 18 , and worked
the entire season. On the basis of these facts the Trial Examiner finds that the
company had no openings for Wynne in this period . Timberlake 's broad assertion
.on direct examination that in August , he would have given Wynne a job as fireman
in preference to "somebody " who had day-time employment was fully contradicted
and refuted on cross-examination , for he then declared; "they [ the company)
wanted to get this fellow , Albert Cobb, who was the fireman over at Eureka, and
they could depend on him." On these facts the Trial Examiner finds that the com-
pany did not need a fireman in August 1952 , when Wynne was applying for
employment.
The speedy employment of Ebron and Cobb in 1951 and 1952, respectively, plus
the fact that the decision to hire these men must have been made some time prior
to the actual hirings, negates Timberlake 's testimony that if Wynne had informed
him he was a fireman the day the market opened ( assuming he had that opportunity)
the chances are he would have been hired.
The Respondent points out that Wynne lived in the same neighborhood as Farris,
so he should have sought employment through Farris . While Wynne and Farris
were friendly , seemingly , neither one of them ever brought up the subject of jobs
at the plant . Perhaps Wynne should have expressed his desire to obtain a fireman's
job at the factory, although Farris had nothing to do with the hiring of employees.
On the other hand, it is reasonable to assume Farris knew Wynne was unemployed
and if the company was so desperately in need of a fireman then it would seem he
should have attempted to relieve this condition by mentioning the fact to Wynne.
The Trial Examiner attached no significance to this point.
Although the Respondent does not stress the point it mentions that a number of
handicapped persons were employed at the redrying plant. There is no evidence to
this effect Young simply testified that a one -legged man could work as well as
some of the elderly employees , while Timberlake stated there were jobs for such
an individual like sweeping . Churchill, who was surely experienced in these
matters, expressed the opinion that there were no jobs suitable for a one -legged
man at the plant. From this evidence and the fact that the company preferred
strong men , the Trial Examiner finds that the plant did not employ handicapped
persons to the extent claimed by counsel for the Respondent.
On all the evidence the Trial Examiner finds that Wynne not only diligently
sought employment at the redrying plant in August 1951 and 1952 , but that the
'company had no jobs available for him.
D. The lumber mills
At the first hearing H. D. Cox, a witness for the Respondent , testified that he
operated both a planing mill and a ground sawmill and had openings for men in
MOSS PLANING MILL CO. 1759
1951, 1952, and 1953, particularly during the tobacco season since many of his men
left to work in the fields. He further stated that he needed an edgerman and if
Fulcher had applied for work during the above period, he would have been employed.
At the second hearing the General Counsel called as a witness Herman M. Cox, son
of H. D. Cox, who testified, on the basis of records, that during the above years
the company had a regularly employed edgerman and two trained substitutes who
filled in occasionally but most of the time the regular edgerman was on the job.
Like his father, Cox stated that during the period in question the company had a
pickup station where most of the men were hired and at times he saw Fulcher, whom
he knew, on the porch of his home which was opposite the station. Neither Fulcher,
nor Wynne, ever applied for employment and, admittedly, Cox did not speak to
Fulcher about working for him because of the "Reverend" sign on his house. Cox
said that if Fulcher had applied "At some times" in 1951, 1952, and 1953, he would
have been employed. When asked to amplify this phrase, Cox explained that the
most important time was the tobacco season when about half his men left to work
in tobacco and "anybody could have gotten a job." Cox also said that at one time
a one-legged man was employed part-time when he "couldn't get anybody else," but
he could not recall how long this individual was employed.
Churchill stated he made a few requests for sawmill workers in 1951, 1952, and
1953. When asked if the tobacco harvest tends to draw workers away from the
mills Churchill replied, "That is what they say, I don't know."
The Respondent called five witnesses on this phase of the case.
Carl F. Pfau, assistant manager of Waters Lumber Company, stated the mill is
a fairly large one and normally employs about 85 men. Pfau said the company
needed additional labor in 1951, 1952, and 1953, especially during the tobacco
seasons and that there were openings for men familiar with lumber throughout those
years.
Robert L. Smith, a partner in Jefferies and Smith Lumber Company, said his
company employed from 25 to 30 men in 1951, 1952, and 1953. In the latter part
of 1952, Smith was looking for a man to take lumber from the planer and help
grade when someone told him about Fulcher. Smith did not know Fulcher, other
than he had worked for the Respondent, so he called Litchfield and asked about
him. Litchfield said Fulcher was a fairly good grader, had set head blocks and was
familiar with lumber. Fulcher was then hired, was considered a good man, and
continued to work until he injured his hand, which resulted in his being off for
some time and he never returned to the mill. As Smith recalled, Fulcher would
have been rehired if he had returned after his injury. Smith said there was a shortage
of labor in 1951, 1952, and 1953, and while there was some surplus after the
tobacco harvest, still there was need for "high class labor," such as Fulcher.
According to Smith the mills require a number of skilled men who know how to
handle and grade lumber and to operate specialized machinery. Ordinarily, the
mills need only two "muscle men."
John S. Leach, treasurer and assistant manager of Eureka Lumber Company,
stated that this mill was the largest in the area and normally employed about 200
men in its mill and logging operations. About November 1950, the mill burned
down and did not resume operations until about June 1952. During this period
the company retained only a few employees and Leach was successful in placing
some of his men at other mills, some of whom called him for workers. In substance
Leach said sawmill labor was scarce in 1951, 1952, and 1953, particularly during
the tobacco seasons, and for this reason the company entertained some doubt
whether it could reopen in June 1952. However, after 2 weeks the company had a
sufficient force to maintain normal operations. Leach denied that Fulcher or
Wynne applied to him for employment, although Fulcher was employed in 1956,
about the time Eureka went out of business. Leach stated that while the mill was
operating the hiring of employees was actually done by the foremen for the company
relied upon their recommendations.
E S Younce testified that he and his relatives operated from I to 4 ground
sawmills from about 1940 to 1954. A ground sawmill consists of a saw and carriage
and power unit. operated by 15 to 20 men, which can be moved from place to
place within I or 2 days. In 1951, 1952, and 1953, Younce was operating out of
Washington and every day picked up his employees, from 50 to 75 men, at the
Champion Oil Company, 5th and Bridge Streets. Younce stated there has always
been a shortage of workers for ground sawmills and at all times from 1940 to 1954,
he hired anyone, for at least a week, who appeared at the pickup station. In fact,
Younce would take on I or 2 men if they were present, even though he had full
crews. He also made it a practice to advise his employees when he needed help
so they could contact available workers Younce said that working around a ground
sawmill is very hard labor and is not desired by "town boys." Younce also stated
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that at one time he had a one-armed man sawing logs and that he would have given
a one-legged man employment, if he was a good worker, because he had some jobs
which could be performed sitting down.
J. B. Messick, who has operated his own planing mill since 1947, stated there
was no overabundance of labor at his mill in 1951, and in 1952 and 1953 labor
conditions were just fair, in that he had a crew most of the time but not always.
Messick knew Fulcher and Wynne when he worked for the company and said
Fulcher was a good man. He could not recall either Fulcher or Wynne applying
to him for work in the years in question, and stated that if Fulcher had applied for a
job he would have put him to work. Since Messick's mill is electrically operated
he had no openings for a fireman. Messick said if Wynne, whom he knew had
only one leg, had asked for a job when he needed a man, he could have used him.
Messick stated his employees were steady workers and that he has not had to hire
many new hands. However, in 1951, 1952, and 1953, he had some trouble with
help, especially during the tobacco season when some of his men left to work in
the fields, and he characterized the tobacco season as "our worst time for labor."
All of the Respondent's witnesses, except Smith, testified that they knew of no
blacklist against Fulcher or Wynne.
The Board and Trial Examiner found in prior decisions that Fulcher made diligent
efforts to find sawmill and other employment (excluding agricultural employment)
during the back-pay period. In substance, Fulcher was registered with the State
Employment Service on May 16, 1951, and reported weekly until July 11, when he
was referred to West Construction Company where he was employed from about
August 15 to October, when he was laid off In the meantime, he applied for a
job at Gerken's mill on two occasions and secured a job at Waters mill the first week
in August. Toward the end of his day's employment, Buff, a Waters' official,
asked if he had been employed by Moss Planing Company and when he admitted
he had, Buff told him he had no more work for him and he was forthwith paid off
and terminated. As already stated, he spent November and December in Durham
looking for work at lumber mills and cigarette factories.
In January and February 1952, Fulcher traveled to Wilson, then to Stantonsberg,
North Carolina, seeking lumber or cigarette-making work and in March and April
did odd jobs for Scott. In May he went to the State Employment Commission and
was referred to Mason, who ran a ground sawmill, but Mason told Fulcher he had
no work for him. During June and July, Fulcher went to New Bern and Bath,
North Carolina, respectively, applying for work at several different lumber mills.
From August to October he worked part-time at Day's fish market and from
November until April 1953, was employed at Jefferies and Smith Lumber Company.
In May and June 1953, he sought employment at a salvage yard, at a lumber mill
in Edenton, North Carolina, and in July worked in the tobacco harvest.
At this hearing Fulcher testified he was fully aware that Cox picked up workers
near his home; that he talked to men about work at the mill and that at least one
man, Willie Long, said he would advise Fulcher when he believed there would be
an opening for him at the mill. In addition Fulcher said that about July 1951, he
asked Herman Cox, who knew him when he was working for the Respondent, for
a job and Cox told him he had no jobs at that time but when he had a vacancy he
would be glad to have Fulcher work for him. While Fulcher was with the employees
at the pickup station on many occasions, Cox never spoke to him about employment.
Fulcher said he knew Messick when he was superintendent or foreman at the
Respondent's mill and admitted that he had not applied to Messick personally for
work However, Fulcher did go to the mill in 1952, when he was working for Scott,
and asked the employees if Messick was hiring any workers The employees informed
him they had plenty of help, so he never inquired about work to Messick.
Fulcher applied for work at Jefferies and Smith on 1 or 2 occasions around October
1952, was hired in November, and worked until April 1953, when he was injured
and was off for about 3 weeks When Fulcher returned to the mill in May, the fore-
man told him that due to a shortage of lumber the company was laying off new em-
ployees and that he would call him when needed
Wynne, at the first hearing, made no mention of applying for work at the lumber
mills. At this hearing he said he applied for work to H. D. Cox in the spring or
summer of 1952, but was not employed. Wynne claimed he and Fulcher were
blacklisted for employment in the lumber mills.
Wynne was first hired by the Respondent on January 10, 1950, as a night watchman
and became a fireman on June 28, 1950. Wynne's experience in lumber mill opera-
tions was confined to firing and he did not perform other duties such as edgerman,
block setter, or grader Wynne never worked at any of the ground sawmills.
MOSS PLANING MILL CO. 1761
Concluding Findings
In the opinion of the Trial Examiner the foregoing evidence relating to employment
conditions in the lumber mills somewhat clarifies and adds to the testimony of H. D.
Cox, Litchfield, and Churchill received at the prior hearing Certainly from this evi-
dence there is no doubt but that these was a shortage of mill labor during the tobacco
seasons of 1951, 1952, and 1953. However, the issue as to whether Fulcher and
Wynne could have secured mill employment during these periods has been resolved
for the Trial Examiner has charged them with employment in the tobacco harvests.
The remaining issue, and the crucial one, is whether Fulcher and Wynne could have
obtained employment in the lumber mills at other times had they exercised reasonable
efforts to secure work. The Trial Examiner is convinced that naturally the mills had
some openings at various times in the back-pay period The Trial Examiner is also
cognizant of the fact that the witnesses, in view of the subject matter upon which they
were questioned, were compelled to give broad and general descriptions of employ-
ment conditions as they existed from 4 to 6 years previous to the date of their
testifying. Manifestly, the witnesses covering such a span of years could not be spe-
cific as to the approximate dates jobs were available or the number or type thereof
because of the lack of iecords and the loose hiring methods. In the few instances
where the witnesses attempted to speak with certainty, their testimony was anyhmg
but helpful to the Respondent.
Thus, Herman Cox, contrary to the prior testimony of his father, said his mill had
not only 1 regular edgerman but 2 additional men at all pertinent times, thereby
eliminating the supposition that Fulcher would have been employed in that capacity,
had he made application. Again, Cox sought to excuse his neglect to mention job
openings to Fulcher, when he allegedly needed help, because of the "reverend" sign
on his house This reason is weak and flimsy for it is plain from this record that he
and many others knew Fulcher as "Preacher" and that he had worked in the mills for
many years. Finally, Cox could cite only one instance when he hired a one-legged
man, on a part-time temporary basis, because he was unable to find anyone else
The testimony of the Respondent's witnesses falls far short of proving any labor
shortage in the mills, except during the tobacco seasons. Even so, Eureka Lumber
Company, according to Leach, was able to recruit an adequate force and resume
operations in June 1952, just prior to the commencement of the tobacco harvest.
Smith testified that there was a surplus of labor after the tobacco harvest, although
there was always need for a high class worker such as Fulcher. Messick said his men
worked steadily and he has hired only a few new workers. The Trial Examiner was
impressed with Smith and Messick and accepts and credits their testimony. Younce's
claim that he would have hired Fulcher, Wynne, or anyone else, irrespective of
whether he had any vacancies, is difficult to believe, and is rejected. Therefore, the
Trial Examiner concludes that there was no acute shortage of millworkers other than
during the tobacco seasons.
The Trial Examiner, on the basis of Fulcher's credible testimony as detailed
herein, finds that Fulcher made diligent and sincere efforts to obtain employment
in lumber mills throughout the back-pay period. The Trial Examiner agrees fully
with the Board's finding that Fulcher was blacklisted by the Respondent. This is
ti ue despite blanket denials to the contrary. Thus, as found by the Board, it is
undisputed that Litchfield, at the time of his discharge, threatened Fuicher, "if I
can keep you from getting a job around here, I am going to do so " Subsequently
Fulcher obtained a job at Waters mill in August 1951, and near the end of his
first day of employment an official asked him if he had worked for Moss Planing
Mill. When Fulcher admitted he had worked there the official told him he had no
more work for him and he was forthwith paid off and terminated It is significant
that although employers who knew Fulcher uniformly testified he was a good
worker, yet he was unable to obtain mill employment until November 1952, when
he was hired at Jefferies and Smith, where he remained until about April 1953
The plain fact that he was denied employment when the mills allegedly needed
help, as claimed by Pfau, refutes the idea that Fulcher was refused employment for
any reason, other than he was blacklisted In respect to Fulcher's employment at
Jefferies and Smith, it must be noted that Smith testified it was his recollection that
if Fulcher had returned after his injury he would have been reemployed. Fulcher
specifically testified that when he had recovered from his injury he went back to
the mill, in May, at which time the foreman told him that due to a lumber shortage
the company was laying off new employees and he would be recalled when needed
Unquestionably, Smith was reciting his best recollection of events, but the TriaL
4 76321-58-vo 1 119-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner accepts Fulcher's testimony, which was not contradicted, and finds that
Fulcher was laid off in May 1953.
On the evidence adduced at both hearings the Trial Examiner finds that Fulcher
exercised all reasonable efforts to secure employment in lumber mills and that his
inability to obtain regular employment was not attributable to any neglect or failure
on his part. The Trial Examiner fully concurs in, and adopts, the Board's con-
clusions and findings, that there were present in Fulcher's case, except for his efforts
to secure agricultural employment, the "special circumstances" which the court has
found 6 excused a discriminatee's failure to make higher interim earnings than he
ordinarily would be expected to earn.
The Trial Examiner finds that Wynne made reasonable efforts to obtain work,
except in agricultural and mill employment. His failure to seek work in the lumber
mills, while inexcusable, is not determinative of his back pay, for the Trial Examiner
is convinced that he would have had little, if any, employment, assuming he sought
work regularly at the mills. Wynne, unlike Fulcher, was, and is, neither able-bodied
nor an experienced millhand and his ability for millwork was limited to that of
boiler fireman. These is no evidence that any of the mills required the services of a
fireman during the back-pay period, and it strikes the Trial Examiner that if in
fact there were openings for a fireman surely the witnesses would have been ques-
tioned on this important aspect of the case. In view of the record the Trial
Examiner concludes that even if Wynne had applied for a firing job he would not
have been hired for the simple reason that no such jobs were available. Certainly,
Wynne could not have obtained general mill employment under Smith's description
of mill help, for he clearly stated the men had to be skilled in the handling, grading,
and operation of machinery, and only two strong men were needed in the operation.
Messick said nothing more than if Wynne had asked for a job when he needed a
man, he could have used him. Herman Cox, as previously stated, could point to
only a single instance when he employed a one-legged man for temporary part-time
work, when he could get no one else.
The foregoing evidence, considered in the light of the finding that there was no
shortage of labor in the lumber mills, other than seasonal, warrants the con-
rlusion that Wynne would not have been employed in the mills, even if he had
made application, and his alleged lack of earnings from this source of employment
cannot be construed as willful losses. The Trial Examiner so finds.
E. The, alleged blacklisting of Wynne
Wynne testified that when Timberlake failed to hire him at the redrying plant in
1951 and 1952, "I just figured that I was black-listed by Moss Planing Mill and
I didn't say any more to him right then."
At the first hearing Wynne said that around May 1952, the State Employment
Commission referred him to Charlie Wright, an electrical contractor, that he asked
Wright for employment on about three occasions and Wright finally told him if
he had anything for him, he would send his truck to pick him up. At this hearing
Wynn reiterated his reference and applications to Wright and added that when he
asked the reason he was not given employment, Wright said he would be afraid
to hire him because he did some work for the company.
Wynne further stated that during 1951 or 1952, he talked to a lady, whose name
he did not know or refused to disclose, in regard to doing some gardening work
and, after talking to him about Litchfield and the case, she refused to give him any
work.
Counsel stipulated that if Wright was called as a witness he would testify that
he refused to hire Wynne for the reason that he had no job for which Wynne was
qualified and he would deny he ever told Wynne he could not give him employment
because he might lose the company's business.
The Trial Examiner concludes this evidence is wholly inadequate to support the
inference that Wynne was blacklisted for employment by the Company.
CONCLUSIONS AND RECOMMENDATIONS
Upon the foregoing findings and computations, as set forth in the Appendix
attached hereto, the Trial Examiner concludes:
1 That the net back pay due Roy E. Fulcher is $1,398.84.
2. That the net back pay due Lee A. Wynne is $2,454.04.
It is recommended that the Board adopt the foregoing findings, conclusions, and
computations.
6 N L R B v Pugh and Barr, Ire, sapia