The Firestone Tire and Rubber Co.

National Labor Relations Board - Board Decisions

Dec 11, 1973

207 N.L.R.B. 810 (N.L.R.B. 1973)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firestone Synthetic Fibers and Textile Company,
Division of the Firestone Tire and Rubber Compa-
ny and United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO. Cases
9-CA-5226 and 9-CA-5272
December 11, 1973
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
before me on July 9, 1973, at Bowling Green, Kentucky, on
the Backpay Specification of the General Counsel issued
on June 5, 1973, and the answer of the Respondent dated
June 20, 1973. All parties were afforded full opportunity to
introduce and to meet material evidence, and to argue the
issues on the record. Briefs were filed by the General
Counsel on August 6, 1973 and by the Respondent on
August 13, 1973, along with a Correction dated August 14,
1973, and have been considered.
Upon the record made before me, and from my
observation of the demeanor of the witnesses, and
consideration of the contentions of counsel, I make the
following:
On August 31, 1973, Administrative Law Judge
Charles W. Schneider issued the attached Supple-
mental Decision in this proceeding. Thereafter,
Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings, and conclusion) of the Adminis-
trative Law Judge and to adopt his recommended
Supplemental Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Firestone Synthetic
Fibers and Textile Company, Division of The
Firestone Tire and Rubber Company, Bowling
Green, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Supplemental Order.
I Since we agree with Administrative Law Judge's conclusion that under
the circumstances herein Milton's interim employment involving daily
commuting to and from Louisville was acceptable in terms of any
reasonable standard, we find it unnecessary to decide, as the Administrative
Law Judge did, whether the test of reasonableness is less rigorous "when the
issue is the reimbursability of expenses incurred to secure or retain gainful
interim employment, than where the issue is the adequacy of efforts to
secure such employment."
SUPPLEMENTAL DECISION AND ORDER
CHARLES W. SCHNEIDER, Administrative Law Judge:
This supplemental proceeding to determine the amount of
backpay due Edward L. Milton, whose employment was
discriminatorily terminated by the Respondent,' was heard
1 See 185 NLRB 817.
2 To judge from the map, Union City appears to be in the neighborhood
FINDINGS OF FACT
A. The Issue
The issue is relatively narrow: whether travel expenses
allegedly incurred by Milton in seeking and holding
interim employment during the backpay period were in
fact incurred, and if so whether, in the circumstances, they
were a necessary expense for which Milton is entitled to be
reimbursed.
There is no dispute over the amount of wages due or
earned. The controversy is solely over the legitimacy of the
claim of traveling expenses.
B. The Facts
Milton's home is in or near Glasgow, Barren County,
Kentucky, approximately 30 miles from Bowling Green,
Kentucky, which is in Warren County. The Respondent's
plant is near Bowling Green , and some 21 miles from
Milton's home.
The backpay period begins July 16, 1969, the date of
Milton's discharge , and ends December 31, 1970, the
expiration date of a written offer of reinstatement which
the Respondent gave Milton on December 10, 1970.
Milton's uncontradicted and credited testimony , given at
the backpay hearing before me, establishes the following
facts.
Immediately following his discharge on July 16, and on
the same day, Milton went to the union office in Bowling
Green and asked the union representatives if they knew of
any work. They advised him that he might be able to
secure employment at a Goodyear factory in Union City,
Tennessee, a substantial distance from Glasgow, Kentuc-
ky.2
On the day following his discharge, Milton filed a claim
for unemployment compensation with the Glasgow office
of the Kentucky Department of Employment Security,
Division of Employment Service, simultaneously register-
ing for employment. His claim for unemployment compen-
sation was denied after, and presumably because, the
Respondent advised the compensation authorities, as it
contended in the unfair labor practice proceeding, that
Milton had been discharged for violation of company rules
of 175 miles from Glasgow, as the crow flies. Milton estimated the round
trip distance at 200 to 250 miles--seemingly an underestimate.
207 NLRB No. 139
FIRESTONE SYNTHETIC FIBERS 811
regarding staying on the job. Although registered for
employment, Milton was not referred to any jobs by the
Employment Service. In the meantime he made his own
efforts, ultimately successful, to find work by applying to
various employers. In each instance where he applied for
employment, Milton filled out a written application, on
which inquiry was made inter alia as to prior places of
employment and the reason for leaving such employment.
In each case Milton responded to the effect that his
termination was for union activity.
Milton's efforts to find employment, apart from registra-
tion at the government office and inquiry at the union
office, were as follows:
On July 21, 1969, Milton applied at a construction
project in Glasgow involving a plant being constructed for
the R. R. Donnelly Company, where he was told that there
was no work available. On the following day Milton
applied at another construction project, Barren River
Dam, some 12 or 15 miles from Glasgow, where he was
also told that there was no work available. Several days
later, on either July 24 or 25, 1969, Milton applied at the
plant of Tyson Bearing Company, a manufacturer of
automobile bearings located in Glasgow,3 where, after
filling out the, application, he was interviewed by Tyson's
personnel manager, Johnson, who then told Milton that if
help was needed he would- call Milton. Milton was not
called.
Unable to locate work in or near Glasgow, on July 25,
1969, at the suggestion of a friend, Milton drove to
Louisville, Kentucky, 'to the plant of Tube Turns Division
of Chemetron Corporation, some 103 miles from his
residence in Glasgow. However, he found the Tube Turns
shut down for 2 weeks and he was advised to return August
18. He was unable to file an application.
On the same day, July 25, Milton also applied at the
plant of Brown and Williamson Tobacco Company in
Louisville. There he was advised to return in 10 to 12 days
in order to give the Company an opportunity to check his
references.
On August 1, 1969, Milton applied at the plant of Holly
Carburetor in Bowling Green. After filling out the
application he was told that if the Company needed any
help they would notify him. Though, according to the
testimony of its personnel director, a witness called by the
Respondent, Holly Carburetor hired 370 people during the
third quarter of 1969, it did not hire Milton-for what
reason is not disclosed.
On August 14, 1969, Milton traveled to Union City,
Tennessee, to the Goodyear plant to which reference has
been made before. Told that he must make application at
the local State employment office-which was apparently
processing the applications for Goodyear-Milton stayed
over night in Union City and on the following day filed an
application and took a 3-hour test at the State employment
office. Following completion of the test he was told that
the office would check his references and notify him if
there was an opening. He heard nothing further.
On August 18, 1969, when the Tube Turns plant
reopened, Milton went back to Louisville and filed an
application with Tube Turns. On the same day he also
went again to Brown and Williamson Tobacco Company
where he had applied on July 25. Here he was told that he
was not qualified.
On the following day, August 19, Milton went back to
Tube Turns, was interviewed , and was hired . He has been
continuously employed at that plant since that date.
As has been related, in December 1970, the Respondent
offered Milton reinstatement, which , after consideration,
he declined , substantially because he liked the job at Tube
Turns and there was a union there.
Milton is married and has five young children. Appar-
ently due to reluctance of landlords to rent to so large a
family, Milton has been unable to find a place to live in
Louisville, though, according to his testimony , he searched
for the better part of a year. He therefore commutes
between his home and his work every day; a round trip of
about 206 miles, involving some 4 to 4 -1/2 hours of driving
each day. Originally he drove his own car. However since
January 1971 he has been riding with a resident of the
Glasgow area who also commutes to Louisville. Prior
thereto Milton sought unsuccessfully , he says, to find
pooling arrangements.
Milton began on the night shift at Tube Turns working
from 11 p .m. to 7 a .m. and remained on that shift some 6
months. Thereafter he went on the day shift, 7 a.m. to 3
p.m., on which he has since remained except for a period of
about 6 weeks in 1972 when he was on the 3 to 11 p.m.
shift. After beginning work at Tube Turns Milton did not
actively seek work in the Glasgow-Bowling Green area,
except that some time about September 1969 he inquired of
a neighbor of his who is employed at the Bowling Green
Telephone Company as to the possibilities of employment
there . The neighbor told, Milton that he did not know if
there were openings but that if there were he would notify
Milton . Milton heard nothing further.
In addition to the foregoing efforts to find employment,
Milton also read the want ads in the Glasgow newspaper,
which sometimes carries ads for work in the Bowling
Green area . However, Milton does not subscribe to the
Bowling Green newspaper , which is apparently not
generally circuated in Barren County.
Although he registered at the State employment office in
Glasgow, and the office at Union City, Tennessee , Milton
did not register for employment at the State employment
office in Bowling Green.
C. Contentions
In the Backpay Specification the General Counsel claims
as an allowable expense mileage at the rate of 10 cents per
mile for Milton's travel to find employment, and for his
daily commuting between his home and Tube Turns in
Louisville during the backpay period, less the round trip
distance from Milton's home to the Respondent's plant (42
miles)-since the latter is an expense which, had Milton
not been discriminatorily discharged, he would have been
required to defray himself.4 The Respondent contends that
Milton is not entitled to recover for this expense for the
3 Milton's application for employment in this instance, which is in
evidence, is dated July 24; the July 25 date is from Milton's testimony.
4 Paragraph 8 of the Backpay Specification setting out the General
Counsel's formulae and his calculations for determination of the Respon-
dent's monetary liability, is in the Appendix attached hereto.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason that there was employment available in the Bowling
Green area, and therefore the commuting expense was not
legitimately incurred. Alternatively the Respondent con-
tended in its answer and at the hearing that, even if the
commuting expense was found to be a reimburseable item,
the claim here was either (1) not actually incurred to the
extent claimed, or (2) is excessive for the reason that
Milton could have shared a pooling arrangement with
other commuters. However no evidence was introduced by
the Respondent, nor do I discern any in the record,
negating Milton's testimony to the effect that he made the
searches and trips in connection therewith which he
described, and that he drove to and from Louisville in his
car on each day that he worked at Tube Turns during the
backpay period. Nor is there evidence that during the
backpay period Milton participated in or was aware of any
pooling arrangement of which he could have taken
advantage, or that such opportunities existed. As we have
seen, his testimony is to the direct contrary. Thus Milton
testified that up to the time he was offered reinstatement
by the Respondent he knew of no one who commuted
between the Tube Turns and the Glasgow area, and
further, that no one employed at the Tube Turns plant
lived in the Glasgow area. There is no evidence of any
more economical method of transportation which Milton
could have utilized. In the absence of any evidence tending
to impair Milton's testimony concerning transportation
expenses I credit it. The Respondent's brief does not
advert to the issue.
The sole issues therefore, are whether Milton made a
reasonable search for interim employment, and whether
the commuting expense is a legitimate item for reimburse-
ment as a necessary concomitant of obtaining and
retaining gainful employment. There is no dispute over the
method of calculation. The net mileage charged after
deducting the distance between Milton's home and the
Respondent's plant is correctly 164 miles per day at 10
cents per mile plus $1.20 per day turnpike tolls. It is
conceded that the mileage rate is reasonable, and the
amount of the tolls is not contested. In addition the
General Counsel claims $7 per month reimbursement for
union dues during the backpay period, resulting from the
undenied fact that there is a union-shop agreement at the
Tube Turns plant under the terms of which a union
membership and dues payment was required of Milton. I
do not understand that either the fact of the union-shop
agreement or the amount of union dues payable thereun-
der is contested. Milton's testimony that he paid the dues is
uncontradicted and credited.
5 The most recent statement of this principle is in the case of Southern
Household Products Company, Inc., supra, where the Board , quoting
N.LR.B. v. Brown & Root, Inc., 311 F.2d 447, 454 (C.A. 8, 1963), said that,
"Under the applicable law, wilful loss of earnings is an affirmative defense
In the Brown & Root case the court said:
... In a backpay proceeding the burden is upon the General Counsel
to show the gross amounts of backpay due. When that has been done,
however, the burden is upon the employer to establish facts which
would negative the existence of liability to a given employee or which
would mitigate that liability.
D. The Applicable Legal Principles
A backpay claimant is required to make a reasonable
search for substantially equivalent interim employment.
Earnings wilfully lost by the claimant are deductible from
the amount of backpay due. Phelps Dodge Corp. v.
N.L.R.B., 313 U.S. 177, 197-198. Registration at a
government employment office is prima facie but not
conclusive evidence `of a reasonable search for work.
Conversely, failure to register, while no doubt prima facie
evidence of absence of reasonable effort, does not ipso
facto establish it. Southern Household Products Co., Inc.,
203 NLRB No. 138. The test is whether the record as a
whole reflects diligent search. Saginaw Aggregates, Inc., 198
NLRB No. 78.
The burden of proving a wilful loss of earnings is an
affirmative defense and is on the Respondent.5 Any
uncertainty is to be resolved against the Respondent.
N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d
569 (C.A. 5, 1966); Southern Household Products Company,
Inc., supra; United Aircraft Corp., 204 NLRB No. 131, and
cases there cited.
The claimant is entitled to recover expenses such as
room and board and transportation, reasonably incurred in
seeking or retaining gainful employment occasioned by the
discrimination. Crossett Lumber Co., 8 NLRB 440, enfd.
102 F.2d 1003 (C.A. 8); Southern Household Products Co.,
Inc., supra.6
The questions to be decided are thus whether other
employment in the Glasgow-Bowling Green area was
available to Milton, and if so whether his failure to seek or
pursue such employment constituted a wilful loss of
earnings sufficient to require denial of reimbursement for
his expenses.
In this connection it is to be noted that the employment
which Milton secured in Louisville was at a substantially
higher wage rate than that which he had enjoyed with the
Respondent. Thus the backpay specification discloses that
though Milton had no earnings for over a month after his
discharge, his wages at Tube Turns during the backpay
period were in excess of what he would have earned with
the Respondent-$8,810.24 as compared with $8,270.88.
E. The Alleged Equivalent Employment
The Respondent introduced evidence designed to estab-
lish that during the backpay period suitable employment
was available in the Bowling Green and Glasgow area.
This evidence consisted of the following.
Harold Willis, personnel manager of Tyson Bearings,
Glasgow, testified that, at the time of Milton's application
for employment at Tyson Bearings, that Company was
6 To the same effect see also West Texas Utilities Company, Inc., 109
NLRB 936; Kartarik, Inc., Ill NLRB 630, enfd . 227 F.2d 190 (C.A. 8); East
Texas Steel Castings Company, Inc., 116 NLRB 1336, enfd. 255 F.2d 284
(C.A. 5, 1958); Story Oldsmobile, Inc., 145 NLRB 1647; General Engineering,
Inc., 147 NLRB 936; Herman Brothers Pet Supply, Inc., 150 NLRB 1419;
Rice Lake Creamery Company, 151 NLRB 1113, enfd. in part 365 F.2d 888
(C.A.D.C., 1966); The Richard W. Kaase Company, 162 NLRB 1320;
American Manufacturing Company of Texas, et al., 167 NLRB 520; Ambrose
Distributing Co., 178 NLRB 721, enfd. 439 F.2d 720 (C.A. 9, 1971).
FIRESTONE SYNTHETIC FIBERS
hiring employees in categories for which it appears that
Milton was qualified. More specifically Willis' testimony is
to the effect that from July 1969 thru December 1970 (the
backpay period) Tyson Bearings hired 282 people, mostly
unskilled. Willis became personnel manager at Tyson in
September 1970-after Milton's application for employ-
ment there.
Willis' testimony further discloses that although Tyson's
records, consistent with Milton's testimony, indicate that
Milton was interviewed by the then personnel manager,
Johnson, Willis did not know whether Milton was offered a
job. Milton's testimony, as we have seen, is that he was not.
Since Milton went to Tyson for the purpose of securing
employment, it may safely be inferred that Milton's
testimony is correct. Milton seems to have complied with
Tyson's procedural requirements for employment consid-
eration, that is, he had filled out an application and had
been interviewed. Nevertheless, Willis' testimony contains
no indication or suggestion as to why Tyson did not offer
him employment.
Thomas E. Lutes, personnel manager at the Kentucky
plant of Chrysler Air-Temp. This plant, a new operation,
began hiring some time in October 1969, and by December
9, 1970, it had approximately 530 employees, most of them
in categories, I infer, of employment suitable for Milton. It
will be noted that the Company's hiring program did not
begin until some 2 months after Milton had secured
employment at Tube Turns. Therefore, unless Milton was
required to apply at Chrysler after beginning work at Tube
Turns (an issue decided infra) the situation at Chrysler has
no relevance to the issue here.
Delton F. Duke is personnel director at Holly Carburetor
Company, also known as The Bowling Green Manufactur-
ing Company. It will be recalled that on August 1, 1969,
Milton applied for employment at Holly Carburetor, filled
out an application, and was told that if Holly needed any
help he would be notified. He was not called. Duke, who
was personnel director of Holly at that time, as he is today,
testified that during the third quarter of 1969 Holly hired
370 employees and that in the fourth quarter of 1969 it
hired 51, all or substantially all in categories apparently
suitable for Milton. Nevertheless Duke's testimony con-
tains no explanation for the failure of Holly to hire Milton.
Marilyn Windham, a subordinate of Richard Webber,
manager of industrial relations for the Respondent,
testified-and her testimony is corroborated by copies of
the newspaper ads--that a check of the Park City Daily
News, a newspaper published in Bowling Green and the
only newspaper of general circulation in 'Warren County,
between the periods July 11, 1969, and about March or
April 1970, disclosed want ads by some five employers
offering employment of a character seemingly suitable for
Milton.?
Richard Webber, the Respondent's manager of industrial
7 These ads, some of which appeared more than 1 day, were as follows:
July 11, 1969-permanent or summer employment, general factory. A
blind ad , giving telephone number, but no employer 's name.
July 17, 1969-American Chain & Cable Company. Production and
maintenance workers. This ad was repeated on December 14, 1969.
813
relations now and at the time of Milton's discharge,
testified that throughout 1969, and particularly in the third
quarter of that year, the Respondent had difficulty
obtaining and retaining help, a condition which he
attributed to pirating by other employers. He stated as his
opinion that it was "very easy" for an unskilled individual
to find a job in plants in the Bowling Green area during the
backpay period. Over objection by the General Counsel,
Webber testified that in a survey by him of 7 employers in
the Bowling Green area, personnel directors of those
employers advised him that in the period July 1969 thru
December 1970 they had hired a total of some 2,800
employees.
Bob C Brown, manager of the State of Kentucky
employment service in Bowling Green, testified that during
the second half of 1969 his office made some 886 job
placements, about 45-50 percent of them unskilled. During
1970, according to Brown, he made some 1,773 placements,
a large number in the second quarter of 1970 when the
Chrysler Air-Temp plant was hiring in substantial num-
bers. Brown's further testimony was that normally his
office registers about 600 applicants a month. This would
seem to suggest that the service normally places about 25
percent of the registrants. Brown also testified that
although an individual wishing to find employment
through the Bowling Green office would have to register
there, unemployed persons normally file, in the employ-
ment office of their residence.
Conclusions
What conclusions then, relevant to the issues here, are to
be drawn from this evidence of the Respondent? In the
first place it may be argued that the evidence has no
relevance whatever, and this for the reason that the
existence of job opportunity is of significance only where
there has been a loss of wages. Here there has been no loss
of wages. As we have seen, Milton's wages in his interim
employment exceeded the wages he would have earned had
he remained with the Respondent during the backpay
period. Consequently there has been no wilful loss of
earnings, and the existence of other job opportunities is
therefore immaterial. Whether the existence of any such
opportunities, assuming their existence, is relevant with
respect to Milton's expenses is discussed at a later point.
The significant point here is that there is not, indeed there
could not be, any allegation of wilful loss of wages in view
of the successful search which Milton made for employ-
ment, recited heretofore.
If however, contrary to my view expressed above, the
existence of the job opportunities recited by the Respon-
dent's witnesses is relevant, the existence of the opportuni-
ties by no means impels or warrants an inference that if
Milton had applied at any of the places mentioned in the
Respondent's evidence he would have been hired. Indeed,
August 13, 1969-local vending service, two men to service equipment.
September 21, 1969-Griffin Electric Company, a delivery and
warehouse man.
September 26, 1969-the Master Division of Koehring Company,
production workers.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insofar as that evidence can be tested against Milton's
experience it seems to establish quite the contrary. Thus it
will be noted that Milton actually applied for employment
at the plants of two of the three personnel directors
(excluding the Respondent) who testified for the Respon-
dent. By their own testimony those plants were purportedly
hiring for jobs which Milton was qualified to fill, and yet
he was not hired. No explanation is given. While the
General Counsel suggests that the reason Milton was
unable to find employment in the Bowling Green area or
his home area was because of the declaration on his
applications in each case that the reason for leaving his
prior employment was that he had been discharged for
union activity, I do not find it necessary to make any such
determination and I suggest none. However the significant
and inescapable fact is that, if the Respondent's testimony
is credible, employment opportunities existed in those
plants, and though other applicants were hired, Milton was
not. In the face of this experience it cannot be conjectured
that if, as the Respondent's evidence suggests, other
employers in the Bowling Green-Glasgow area were hiring
employees of Milton's qualifications, Milton would have
been hired by any of them.
Ordinarily it is probably true that a showing of the
existence of a reasonable number of available job opportu-
nities warrants the inference that a failure of a backpay
claimant to secure interim employment is attributable to
his failure to make proper application for it. Here,
however, the evidence affirmatively establishes the contra-
ry: wherever he applied for such opportunities, the
discriminatee was rejected.
It is significant, I believe, that none of the personnel
officials who testified for the Respondent represented that
if Milton had applied they would have hired him, or
explained their failure to do so where he had applied. In
this context their testimony to the effect that they hired X
number of employees during the backpay period is thus of
no significance whatever with respect to the issue as to
whether Milton would have secured employment had he
applied. As we have seen, he did apply without success at
the plants of two of them.
I therefore conclude that, in these circumstances, the
Respondent's evidence does not tend to establish any
reasonable probability that a personal application by
Milton in each case, or a registration by him with the
Bowling Green employment office, would be likely to have
resulted in his being offered suitable employment. A failure
to register at, and to seek work in, the local area does not
necessarily constitute a wilful loss of earnings where
search, ultimately successful, is made in other areas. East
Texas Steel Castings Co., 116 NLRB 1336, 1361, 1362. Nor
does a failure to read out-of-town newspapers. Efco
Manufacturing, Inc., 111 NLRB 1032, 1036.
The Reasonableness of Milton's Decision to Seek
Employment Outside the Glasgow-Bowling Green
Area
In my opinion Milton made reasonable effort to find
employment in the Glasgow-Bowling Green area.
Thus Milton began to seek employment on the very day
of his discharge when he went to the union office in
Bowling Green and asked union representatives about
employment possibilities, who advised him that he might
apply at the Goodyear plant in Union City.8 On the
following day he registered at the State employment office
at his residence in Glasgow-the normal place to file an
unemployment compensation claim. Thereafter he report-
ed every 2 weeks but was not referred to any jobs. In the
meantime, as we have seen, Milton made his own search
for employment. He applied first in his own area, twice at
construction jobs, at which he had had some experience,
and once at Tyson Bearings , as I have related. These
efforts being unsuccessful, on July 25, 9 days after his
discharge, he went to Louisville to Tube Turns and also to
the Williamson Tobacco Company. A week later he
applied at Holly Carburetor in Bowling Green and 2 weeks
later applied at Goodyear in Union City, remaining over
night to file his application and take an examination. On
August 18, 4 days after that, he returned to Louisville, was
rejected at Williamson, and filed his application at Tube
Turns. On the following day, August 19, he returned to
Tube Turns, was interviewed and was hired.
In my opinion that conduct establishes an adequate
search for employment by Milton. His explanation for
seeking employment outside the Glasgow-Bowling Green
area is reasonable: he was unable to find work in the area;
wages were lower around Glasgow; he was under the
apprehension that he might run into the same problem that
he had at Firestone-risk of discharge for union senti-
ments; and finally, in the more highly unionized Louisville
area, hourly wage rates were substantially higher-a fact
which, as we have seen, has inured to the benefit of the
Respondent. If, as the Respondent's brief suggests, the
travel expenses made the Louisville job not a substantial
equivalent, it must be noted that, so far as this record
reveals, there was no other employment available.
There is no evidence to suggest that Milton deliberately
chose to work in Louisville in order that he might be able
to charge the Respondent with his traveling expenses-a
rather fanciful supposition at best. Milton's efforts to find
employment suggest only the picture of a man with a large
family, denied unemployment compensation, and anxious
to find a job. To conjecture that he would in such
circumstances deliberately incur out-of-pocket expenses
which he could at best only recoup, and then only if he
won litigation before the Board and perhaps in the circuit
court, is not a tenable hypothesis. It is simply not credible
that Milton would deliberately choose to spend 4 to 4-1/2
hours a day traveling a distance of 206 miles if he did not
in good faith consider it necessary.
As the Board said in a somewhat similar situation in the
8 The statements of the union representatives are in obvious contrast to the union representatives , they tend to support Milton's good faith in
the Respondent's evidence as to the plentitude of work opportunity in the seeking employment outside the area.
Bowling Green area . But, however accurate or inaccurate the estimates of
FIRESTONE SYNTHETIC FIBERS 815
case of West Texas Utilities Company Inc., 109 NLRB 936
at 938: "We cannot believe that Huddleston, persistent as
he was in seeking interim employment, would deliberately
have chosen to live an unreasonable distance away from
such employment. We shall allow the estimated cost on
this item." In that case the Board allowed room and board
expenses incurred by the claimant while seeking interim
employment. See also Southern Household Products Co.,
203 NLRB No. 138, where the Board additionally
approved an expense item of $50 per week room and
board, and transportation costs, for one trip home, where
the claimant accepted interim employment at too great a
distance from his residence to commute.
It may be added that Milton's increased earnings from
the Louisville job has substantially decreased the Respon-
dent's liability even for Milton's out-of-pocket travel
expenses. In a very real sense the Respondent is thus a
beneficiary by windfall of Milton's initiative in securing
better, employment and in devoting a substantial and
uncompensated part of his free time to travel for the
purpose of maintaining that employment. Even if it be
concluded that Milton may have acted hastily, because of
the asserted'work opportunities in Bowling Green, it must
be observed that it was his necessity to secure gainful
employment which impelled his decision, and that it is the
Respondent who created his dilemma.
Of course a discriminatee should not recklessly accept
lower paying employment. But his judgment in that regard
should not be lightly treated as a wilful loss of earnings. It
must be kept in mind that he is,required to seek suitable
employment, and that under certain circumstances he may
be required to "lower his sights" and accept less desirable
and less remunerative employment .9 Caught between these
two pincers, a discriminatee who seeks and accepts interim
employment in good faith should not be penalized for his
anxiety to comply with the dictates of the Board and the
courts, or because he succumbs to compelling financial
pressures, or even if he exercises what to the comfortably
employed or affluent may seem bad and hasty judgment.
I therefore find that under any standard of reasonable
conduct, Milton's decision to accept interim employment
in Louisville was an acceptable one in the circumstances.
Thus, even if it be concluded that a backpay claimant who
incurs expenses to secure and retain gainful interim
employment must exercise the same high degree of
diligence and care to minimize those expenses as is
required in the seeking of interim employment, I find that
Milton's actions here meet that test.
However, alternatively, I believe the test of reasonable-
ness is less rigorous when the issue is the reimburseability
of expenses incurred to secure or retain gainful interim
employment, than where the issue is the adequacy of
efforts to secure such employment. This for several
reasons: (1) The public policy of the Act, and the Board's
remedial programs, are designed to encourage the seeking
and retention of interim employment policies, as we have
seen, in the Respondent's pecuniary interest. Effectuation
of these policies dictate a reasonable attitude toward the
reimbursement of employment expenses incurred by a
discriminatee, in order that his efforts to find employment
not be discouraged. (2) There are built-in mechanisms
which automatically deter wilful or heedless incurring of
such expenses. Thus, (a) the employee must advance the
money from his own pocket at a time when, presumptively,
he can least afford it, and (b) he assumes a risk that he may
never recover it. These deterrents are not so effectively
operative where the issue is one of failure to diligently seek
employment: one may be eligible for unemployment
compensation or public assistance, or may simply be able
to afford a rest or a perfunctory search. In those cases the
claimant makes no investment in employment and takes no
risk of collateral loss. His sole direct pecuniary injury is a
liability to denial of wage reimbursement from the
Respondent.
In summary, then, the test of reasonableness is less
onerous where there has been a diligent and successful
search for gainful interim employment, and the issue is the
extent of recovery for necessary expenses, than it is where
the issue is whether an adequate search for employment
has been made. In- the former case, I find the test to be
whether the expenses were incurred in good faith and are
not obviously profligate. Applying that as an alternative
test here, I conclude that Milton's expenses were made in
good faith, were not profligate in character, and hence are
reimburseable.
The Respondent makes two final points which require
attention. The first is based on the fact that after securing
the job at Louisville, Milton ceased to make further search
in the Bowling Green-Glasgow area. The Respondent
contends that, because of the travel expense, the, Louisville
job was not substantially equivalent employment, and
therefore by ceasing to search for employment Milton did
not comply with his obligations. As a consequence, the
Respondent says, any losses after he began the Louisville
job were wilfully incurred. This contention is rejected. In
my judgment, for purposes of determining discharge by
Milton of any obligation which he owed the Respondent,
the Louisville job, with its substantially higher rate of pay,
was employment at least the equivalent of the job he had
lost. Moreover, a discriminatee who accepts appropriate
interim employment, even at a lower rate of pay, is not
required to continue search for better employment. Efco
Mfg. Co., 111 NLRB 1032, 1035; East Texas Steel Castings
Co., 116 NLRB 1336, 1343-44. In addition, Milton's
employment at Tube Turns, and the substantial commut-
ing time required each day, would have made continued
search in the Glasgow-Bowling Green area difficult if not
altogether impractical. I doubt that reasonable search
implies that in addition to holding appropriate gainful
employment, and spending over 4 hours a day traveling, a
discrimmatee must also devote some of the remaining
hours of daylight to finding employment which will further
reduce a respondent's back pay liability.
The Respondent's other contention is that Milton
"wilfully preferred to work at a union plant," most of the
plants in the Glasgow-Bowling Green area are nonunion,
and Milton thus effectively removed himself from the area
labor market.
9 See N.L.RB. v. Southern Silk Mills, Inc., 242 F2d 697 (C.A. 6, 1957);
N.L.RB. v. Madison Courier, Inc, 472 F.2d 1307 (C A D.C., 1974).
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not so interpret Milton's conduct. While it is true
that Milton stated that the existence of a union at Tube
Turns was a desirable feature of the employment there, I
do not construe that as the determinative consideration.
The Respondent's plant was nonunion and Milton accept-
ed employment there.
Except for Tyson Bearings, apparently a union plant,
there is no evidence as to whether the places where Milton
applied in the Glasgow-Bowling Green area were union or
nonunion. That Milton may have considered employment
at a union plant more desirable than comparable employ-
ment at a nonunion plant, does not establish a "wilful"
preference, or imply a rejection of suitable nonunion
employment. So far as this record reveals, there was no
nonunion employment available to Milton in Glasgow-
Bowling Green, or elsewhere. In this context, Milton's
acceptance of the Tube Turns job seems more readily
imputable to the facts that (1) it was the only offer he had,
and (2) the pay scale was substantially higher than he
could expect in Glasgow-Bowling Green.
I therefore find, on the whole record, in accordance with
the Backpay Specification and the evidence, that Milton is
entitled to recover from the Respondent the net sum of
$5,478.25, with interest to make him whole, in accordance
with the Board's Order, for loss of, earnings suffered by
reason of the discrimination against him.
On the basis of the foregoing findings of fact, conclu-
sions, and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, I hereby issue the following recommended:
SUPPLEMENTAL ORDER 10
Firestone Synthetic Fibers and Textile Company, Divi-
sion of The Firestone Tire and Rubber Company, Bowling
Green, Kentucky, its officers , agents, successors, and
assigns, shall pay to Edward L. Milton the sum of
$5,478.25. Interest is to be added at the rate of 6 percent
per annum on the basis of quarterly amounts of backpay
due, in accordance with the formula set forth in Isis
Plumbing and Heating Co., 138 NLRB 716. There shall be
deducted from the amount due any tax withholding
required by law.11
10 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall , as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order and all objections thereto shall be
deemed waived for all purposes.
11 It is perhaps arguable that the award , realistically viewed , constitutes
reimbursement for out-of-pocket expenses, and not for lost pay . I express no
opinion as to whether the sum is to be regarded as income under applicable
tax laws. That is a question to be determined by tax authorities.
APPENDIX
8. Milton's rate of pay, gross back pay, interim
employment, expenses, net interim earnings and net back
pay by calendar quarters are as follows:
Net
Year &
Quarter
Gross
Backpay
Interim
Earnings
2/
1969-3 $1155.60 $ 597.41
4/
1969-4 1391.00 1756.53
1970-1 1391.00 1568.52
1970-2 1391.00 1738.80
8/
1970-3 1453.91 1303.93
10/
1970-4 1488.37 1845.05
2 10.8 weeks at $107 .00 per week.
3 Milton incurred $105.20 expenses between July 16, 1969 and August 18,
1969, by traveling 1052 miles at 10 cents per mile looking for employment in
and around Bowling Green , Kentucky; Glasgow , Kentucky ; Louisville,
Kentucky ; and Union City, Tennessee . In addition, he had 28 working days
auto and turnpike expenses of $17.60 per day, or $492.80 . One month's
union dues were $7.00. No expenses are claimed for Labor Day.
4 13 weeks at $ 107 per week.
S 61 days worked with auto and turnpike expenses of $17.60 per day, or
$1073.60 plus 3 months' union dues at $7.00 per month for a total of
$1094.60. No claim for expenses has been made for 2 days off at Christmas
and 2 days off at Thanksgiving.
6 64 days worked with auto and turnpike expenses of $17.60 per day, or
$1126.40 , plus 3 months' union dues at $7.00 per month, for a total of
$1147.40. No claim for expenses has been made for January 1, 1970.
7 63 days worked, with auto and turnpike expenses of $17.60 per day, or
Expenses
Interim
Earnings
Net
Backpay
3/
$ 605.00 $ 0 $1155.60
5/
1094.60 661.93 729.07
6/
1147.40 421.12 969.88
7/
1129.80 609.00 782.00
9/
953.80 350.13 1103.78
11/
1094.60 750.45 737.92
$1108.80, plus 3 months' union dues at $7.00 per month , for a total of
$1129.80. No claim for expenses has been made for one day off on
Memorial Day, and one day off on Good Friday.
8 4.6 weeks at $107 .00 per week , or $492.20; 8.4 weeks at $114.49 per
week, or $961 .71; total, $1453.91.
9 53 days worked with auto and turnpike expenses of $17.60 per day, or
$932.80, plus 3 months' union dues at $7.00 per month , for a total of
$953.80. No claim for expenses has been made for 10 days vacation, one day
off on July 4th and one day off on Labor Day.
10 13 weeks at $114.49 per week.
11 61 days worked with auto and turnpike expenses of $17.60 per day, of
$1073.60, plus 3 months ' union dues at $7.00 per month , for a total of
$1094.60. No claim for expenses has been made for 2 days off at Christmas
and 2 days off at Thanksgiving.