W.C. Nabors Co.

National Labor Relations Board - Board Decisions

Dec 7, 1961

134 N.L.R.B. 1078 (N.L.R.B. 1961)

1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. C. Nabors d/b/a W. C. Nabors Company and International
Brotherhood of Boilermakers, Iron Ship Builders and Helpers
of America, AFL, Local No . 79. Case No. 15-CA-45. Decem-
ber 7, 1961
SUPPLEMENTAL DECISION AND ORDER
On April 19, 1950, the Board issued a Decision and Order in the
above-entitled case, finding that the Respondent had discriminated
against certain named employees in violation of Section 8(a) (1) and
(3) of the Act.' Thereafter, the Board's Order was enforced by the
United States Court of Appeals for the Fifth Circuit, and a decree
was entered on April 29, 1952, against the Respondent .2 The decree
provided, inter alia, that Respondent make whole the employees named
therein for any loss of pay suffered by reason of Respondent's discrimi-
nation against them. In February 1955, the Board initiated civil
contempt proceedings against the Respondent in the United States
Court of Appeals for the Fifth Circuit alleging a failure to comply
with the court decree enforcing the Board Order. On May 31, 1955,
that court entered an order which, inter alia, approved a stipulation
entered into by the parties providing for the reinstatement of certain
employees. The order also provided that, "the questions relating to
making whole the employees named in the decree for losses sustained
by them are subject to final determination by interlocutory hearing
before the National Labor Relations Board and proceedings before
this Court."
On March 25, 1959, the Regional Director of the National Labor
Relations Board for the Fifteenth Region issued a backpay specifica-
tion and on April 27,1959, Respondent filed an answer thereto. Upon
appropriate notice issued by the Regional Director, a hearing was held
before Trial Examiner Arnold Ordman, for the purpose of
determining the amounts of backpay due the claimants.
On September 9, 1960, the Trial Examiner issued his Supplemental
Intermediate Report, which is attached hereto, in which he found that
certain of the claimants were entitled to specific amounts of backpay.
Thereafter, Respondent and General Counsel filed exceptions to the
Supplemental Intermediate Report, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing, and finds that no prejudicial error was committed. The
189 NLRB 538.
2 196 F. 2d 272, cert . denied 344 U S. 865.
134 NLRB No. 94.
W. C. NABORS COMPANY 1079
rulings are hereby affirmed.3 The Board has considered the entire
record in this case, including the Supplemental Intermediate Report
and the exceptions and briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.4
ORDER
On the basis of the foregoing Supplemental Decision and the entire
record in this case , the National Labor Relations Board hereby orders
that the Respondent, W. C. Nabors d/b/a W. C. Nabors Company, its
agents, successors , and assigns, shall pay to the employees involved in
this proceeding as net backpay the following amounts :
Jeter C. Adams ------------------------------- $12,876.69
Jessie L. Brown ------------------------------- 17,845.34
Leroy P. Brown ------------------------------- 1,063.94
Vernon D. Davis ------------------------------ 16,872.57
Henry J. Hatcher ----------------------------- 544.86
Alex C. Lafitte -------------------------------- 10,188.15
Luther W. McNeese ---------------------------- 14,314.11
William D. Roark ----------------------------- 728.99
Lawrence L. Whitten -------------------------- 2,374.82
Thomas J. Williams --------------------------- 10,628.38
Willie T. Williams ---------------------------- 12,951.43
MEMBER RODGERS dissenting in part:
I agree with this Supplemental Decision and Order, except to the
extent that: (1) it allocates profit-share payments to individuals
(Hatcher, McNeese, and Roark) who had removed themselves from
the labor market on the various pertinent dates when such payments
3 At the hearing the Respondent moved to dismiss the backpay claims because of lathes.
The Trial Examiner denied such motion . We agree with the Trial Examiner that laches
do not preclude the Board from assessing the claims against the Respondent. The Board
has consistently held that "the doctrine of laches does not apply to an agency of the
United States Government in proceedings which are an exercise of its public or govern-
mental function." Standard Oil Company of California, 61 NLRB 1251 , 1255; N. B.
Quarles, d/b/a Quarles Manufacturing Company, at at., 83 NLRB 697, 698; Highland
Park Manufacturing Company, 84 NLRB 744, 746; Burns and Gillespie , 113 NLRB 434,
437 In any case much of the delay in the instant proceedings is attributable to Respond-
ent's refusal to comply with the Board ' s Order as enforced by the Court of Appeals for
the Fifth Circuit until contempt proceedings were commenced in court
4 a. In computing the backpay award for employee Leroy P. Brown, the Trial Examiner
excluded the expenses incurred by Brown in traveling to Texas and New Mexico while
looking for work, but omitted deducting the sum of $ 30, which represented Brown's
expenses while at his destination This amount should be deducted from net backpay.
The correct amount of net backpay is $1,063.94.
b. The Supplemental Intermediate Report allows employee Vernon D. Davis backpay
for the period July 31 to August 5, 1954 During this period Davis was resting up for
a trip to New Mexico where he was to commence employment Davis had thus removed
himself from the labor market. Accordingly his net backpay is reduced from $16,935.77
to $16,872.57.
c. In computing the interim earnings for employee Willie T. Williams , the Trial Examiner
included the amount of $1,183.70 as earnings from the J. B Beard Company for 1955.
During the course of the hearing there was a question raised as to the correctness of this
amount . Subsequent thereto, a stipulation was entered into between the General Counsel
and the Respondent that $1 ,066.04 was the proper amount. The Trial Examiner in-
advertently overlooked this stipulation . Accordingly , the net backpay should be $12,951 43.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were normally computed-June 30 and December 31 of each year; (2)
it awards backpay for periods during which certain individuals
(Adams , Jessie L. Brown, Leroy Brown, McNeese , and Whitten) were
self-employed; (3) it finds that Adams, Jessie L. Brown, and McNeese
made "diligent searches" for employment; and (4) it awards backpay
to Hatcher who specifically withdrew his claim to backpay.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
The instant proceeding is another phase in an already long sequence of litigation
arising, inter alia, out of the layoff of a number of employees by Respondent, W. C.
Nabors, in 1948 . The purpose of the present proceeding is to determine the amount
of backpay, if any, due to certain of these employees . General Counsel for the
National Labor Relations Board and Respondent were at all times throughout this
proceeding ably represented by counsel . Hearings were held in New Orleans,
Louisiana , on June 19, 1959, and in Mansfield , Louisiana , between July 14 and 21,
1959 , and between January 19 and 29, 1960 .1 At the close of the hearing, the
parties waived oral argument . Because of the length of the record and because
certain exhibits introduced into evidence at the hearing were lost or mislaid,2 time
for filing briefs was extended to May 31, 1960 . On or about that date, General
Counsel and counsel for Respondent filed comprehensive and very helpful briefs
on the evidence and the law which have been carefully considered.
Upon consideration of the pleadings , by observation of the witnesses , my review
of the testimony and the exhibits , and the entire record in the case, I make the fol-
lowing findings and conclusions.
I. BACKGROUND ; PLEADINGS AND RULINGS THEREON
On April 19, 1950 , the Board handed down a Decision and Order, reported at
89 NLRB 538 , finding that Respondent had engaged in certain unfair labor practices,
including the discriminatory layoff in April 1948 of some 19 employees. The
Board 's Order embraced cease-and -desist provisions , reinstatement provisions, and
a provision that the 19 employees be made whole for earnings lost as • a result of the
discrimination against them. Upon petition for enforcement of the Board's Order,
the United States Court of Appeals for the Fifth Circuit , on April 29, 1952, entered
its opinion affirming the Board 's findings and enforcing its order in full . N.L.R.B.
V. W. C. Nabors d/b/a W. C. Nabors Company, 196 F . 2d 272, cert. denied 344
U.S. 865 . In February 1955 , the Board initiated civil contempt proceedings against
Respondent in the Fifth Circuit alleging a failure to comply with the court decree
enforcing the Board Order . In the course of that contempt proceeding , the parties
entered into a stipulation providing for reinstatement of certain of the discrimina-
torily laid-off employees but leaving unresolved other issues , particularly the ques-
tion as to the amount of backpay due the 19 employees concerned . On May 31,
1955 , the court entered an order, unreported , approving the stipulation and further
1 The June 19, 1959, hearing was in the nature of a pretrial hearing to dispose of cer-
tain procedural matters and to seek to narrow the issues Beginning July 14 , 1959, evi-
dence was taken. The recess between July 21, 1959 , and January 19, 1960, ensued when
the Board granted a request by General Counsel for an interim appeal from the Trial
Examiner's refusal to quash subpenas served upon backpay claimants to compel produc-
tion of copies of certain of their Federal and State income tax returns The Board on
September 25, 1959, sustained the Trial Examiner 's ruling and time was then allowed to
obtain the subpenaed documents from the respective governmental agencies involved
2 No claim of prejudice is made by either of the parties in this regard . Under date of
May 11 , 1960, the parties joined in a stipulation to the Trial Examiner relating to the
missing exhibits I have marked that stipulation and the covering letter thereto as
"Trial Examiner 's Exhibit No. 1" and, pursuant to the request contained in the stipula-
tion, hereby admit it into evidence and make it part of the official record. A supple-
mentary letter dated May 12, 1960, and attachment thereto is marked as "Trial Examiner's
Exhibit No . 2" and is likewise admitted into evidence and made part of the official record.
Marked as "Trial Examiner 's Exhibit No. 3," admitted into evidence , and also made part
of the official record , is General Counsel's motion to correct transcript dated April 14,
1960 . That motion , unopposed by Respondent, is hereby granted.
W. C. NABORS COMPANY 1081
providing "that the petition to adjudicate Respondent in contempt of Court and for
other civil relief be withdrawn without prejudice to such other action or proceedings
by or before the National Labor Relations Board as may be deemed necessary to
effectuate the decree of this Court."
Efforts to resolve the backpay issue by informal negotiations failed and on
March 25, 1959, the Regional Director of the National Labor Relations Board for
the Fifteenth Region, pursuant to the Board 's Rules and Regulations , issued a back-
pay specification and notice of hearing setting forth in detail the amounts alleged
to be due the employees required to :be made whole under the terms of the Board's
Order and court decree . The backpay specification named only 17 employees. Two
employees named in the order and decree, R. R. Shoalmire and Larry J. Solice, were
omitted because they refused to cooperate or participate in the backpay proceeding.
Respondent on April 27, 1959, filed an answer to the backpay specification, chal-
lenging the allegations of the specification and, in addition , urging certain affirmative
grounds in support of a request for the dismissal of the proceeding . On May 15,
1959, General Counsel of ' he National Labor Relations Board filed a motion to
strike Respondent 's answer to backpay specification and for judgment on the
pleadings.
The foregoing motion was referred to the duly designated Trial Examiner for
ruling in advance of hearing . A brief summary of the allegations of the back-
pay specification , Respondent's answer, and General Counsel 's motion is appropri-
ate here. Pursuant to Section 102 . 53 of the Board 's Rules and Regulations, the
backpay specification showed specifically and in detail for each employee the back-
pay periods broken down by calendar quarters, the specific figures and basis of com-
putation as to gross backpay and interim earnings , the expenses for each quarter,
and the net backpay due. As further shown by the specification and the appendixes
attached thereto, the gross backpay figures were predicated upon the weekly wages
and semiannual profit shares paid to about 100 employees of Respondent who worked
during the backpay period in job classifications which the laid-off employees would
have held absent the discrimination against them.
Respondent 's answer to the backpay specification raised both general and specific
defenses . By way of general defenses , Respondent urged that the backpay specifica-
tion should be denied in its entirety because:
1. The backpay claims became subject to a liquidated demand upon the date
reinstatement was offered , more than a year passed thereafter before the Board
initiated any proceeding to determine the amounts due, and hence recovery was pro-
scribed by the limitations provisions in articles 3534 and 3536 of the Louisiana Civil
Code.
2. Alternatively, the Board 's long delay in enforcing the claims here involved was
prejudicial to Respondent and constituted ] aches which should bar any relief.
Without waiving these general defenses , Respondent addressed his 'answer to the
specific allegations of the backpay specification . As to gross backpay , Respondent
alleged merely that profit shares were improperly included in the computation on the
ground that the payment of profit shares was an act purely in the discretion of Re-
spondent , was not part of the wage structure , and no showing was made that any
of the claimants were entitled thereto . Respondent denied the remaining allegations
as to gross backpay on the ground that he lacked sufficient information and de-
manded proof. As to the allegations in the backpay specification relating to net back-
pay,3 Respondent , in addition to a general denial, raised a number of affirmative de-
fenses including , but not limited to, the claim that the gross backpay figures were
excessive , that the interim earnings figures were incomplete , that the interim ex-
pense figures were unsupported by competent probative evidence , and that the
periods of unemployment listed for the several employees involved should be omit-
ted from the gross backpay computation on the ground that each had failed during
those periods to make a good -faith , diligent effort to obtain gainful employment.
General Counsel 's motion to strike Respondent 's answer and for judgment on the
pleadings alleged in substance that the Respondent's answer failed to satisfy the re-
quirements of Section 102.54 ( b) of the Board's Rules and Regulations 4 in that
3 Net backpay is computed by deducting interim earnings of the claimants in other
employment from their gross backpay in order to make the employee whole for losses
suffered as a result of the discrimination Expenses incurred in obtaining interim earn-
ings are subtracted from those earnings before deduction is made from the gross backpay.
* Section 102 .54(b) of the Rules and Regulations reads, in relevant part, as follows:
The answer shall be in writing . . The respondent shall specifically admit , deny,(^
or explain each and every allegation of the specification , unless the respondent is
1082 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
the answer did not set forth in detail or in any manner whatsoever Respondent's
position as to the applicable premises or appropriate supporting figures as required
by the Rules and Regulations. General Counsel further averred that the pleas of the
answer invoking the Louisiana Statutes of Limitations and the doctrine of laches as a
bar to the proceedings were not responsive, exceeded the scope of Section 102.54(b)
of the Rules and Regulations, and were without merit. Accordingly, General Counsel
moved to strike Respondent's answer in its entirety pursuant to Section 102.54(c)
of the Rules and Regulations,5 and asked for judgment on the pleadings without
the taking of evidence.
Pursuant to the aforesaid motion, the Trial Examiner issued an order dated May
29, 1959, noting that the backpay specification and the appendixes attached thereto
set forth in detail the "gross back pay" for each employee therein named, and set
forth also, the specific data upon which the gross backpay was computed, that Re-
spondent by reference to its own records was in a position to challenge the propriety
of the data used and the accuracy of the computation, but contrary to the requirements
of Section 102.54(b) of the Rules and Regulations failed in its answer to set forth "in
detail his position" in that regard. Accordingly, pursuant to Section 102.54(c) of the
said Rules and Regulations, the order provided that the allegations of the specification
relating to the amounts of "gross back pay would be deemed to be admitted and that
no controverting evidence in that regard would be taken." The scope of this ruling
was circumscribed by the order so as not to preclude Respondent from challenging
the propriety of including profit shares as part of the gross backpay, nor as precluding
Respondent from adducing evidence as to matters "separate and distinct from the
accuracy of the gross back pay figures as a statement of the wages which the
claimants would have received during particular quarters had they actually worked
during those quarters." Knickerbocker Plastic Co., Inc., 118 NLRB 1607, 1608.6
Ruling as to other issues presented by General Counsel's motion was reserved until
the opening day of the hearing at which time opportunity was afforded the parties
to present oral argument as to the reserved matters and to narrow any remaining
issues raised by the backpay specification and the answer thereto.
As already stated, the hearing opened on June 19, 1959, in New Orleans, Louisiana,
and pursuant to the above order was confined to argument by the parties on the
issues raised by the pleadings theretofore filed and to an effort to narrow the scope
of the controversy remaining to be resolved for the purpose of expediting the entire
proceeding. At the June 19 hearing, Respondent stated that apart from his
objection to the inclusion of profit shares in the gross backpay computation, he did
not propose to contest nor did he quarrel with the method of computation. The
Trial Examiner rejected General Counsel's request that the allegations in Respond-
ent's answer relating to interim earnings and interim expenses be stricken for lack
without knowledge, in which case the respondent shall so state, such statement
operating as a denial.
As to all matter within the knowledge of the respondent , including but not limited
to the various factors entering into the computation of gross back pay, a general
denial shall not suffice . As to such matters, if the respondent disputes either the
accuracy of the figures in the specification or the premises on which they are based,
he shall specifically state the basis for his disagreement, setting forth in detail has
position as to the applicable premises and furnishing the appropriate supporting
figures. [Emphasis supplied.]
The Rules and Regulations here cited are from Series 7 in effect when the instant pro-
ceeding was initiated . Series 8 of the Rules and Regulations became effective on Novem-
ber 13, 1959, but no change was made in any of the rules here relevant
6 Section 102 54 ( c) reads, in relevant part, as follows:
. . If the respondent files an answer but fails to deny any allegation of the speci-
fication in the manner required by paragraph ( b) of this section [ see preceding note],
and the failure so to deny is not adequately explained, such allegation shall be
deemed to be admitted to be true, and may be so found by the Board without the
taking of evidence supporting such allegation, and the respondent shall be precluded
from introducing any evidence controverting said allegation
6 Thus, Respondent during the hearing was permitted to, and did, adduce evidence
seeking to establish that Respondent would not have had work available for the employees
involved throughout the entire period here relevant and hence that gross backpay should
not be credited for such intervals . Evidence was not permitted to be introduced , however,
as to the validity of the data used as the basis for the gross backpay computation and
the method used in making such computation.
W. C. NABORS COMPANY 1083
of specificity and of supporting documentation. Unlike the situation involving the
allegations of the specification respecting gross backpay where Respondent could by
resort to his own records specifically assert and document a contrary position,7 it was
unlikely that Respondent would have access to such information on the question of
the interim earnings or interim expenses of the backpay claimants. Hence, lack of
specificity in that regard would not warrant a direction to strike. At the June 19
hearing argument was also presented by the parties as to other matters put in issue
by the specification and answer including the defenses predicated on the Louisiana
Statutes of Limitations and laches. Discussion was conducted, too, as to the nature
of the evidence to be presented and the burden of. proof on the several issues.
General Counsel renewed his request that Respondent's answer be stricken in its
entirety and that judgment be rendered on the pleadings. Except as set forth in the
order of May 29, 1959, already summarized, and in the order of July 6, 1959, de-
scribed hereunder, that request was denied.
On July 6, 1959, after due consideration of the arguments advanced and au-
thorities submitted at the hearing on June 19, the Trial Examiner issued a further
order denying Respondent's prayer for dismissal based on the Louisiana statutes and
on laches.8 In support of that ruling the Trial Examiner cited N.L.R.B. v. American
Creosoting Company, Inc., 139 F. 2d 193, 196 (C.A. 6); cert. denied 321 U S. 797;
Pacemaker Corporation; and Indiana Corporation v. N.L.R B., 260 F. 2d 880, 883
(C.A. 7); Winn & Lovett Grocery Company, d/bla Margaret Ann Grocery Stores,
115 NLRB 1676, 1678, footnote 2; Gibbs Corporation, 74 NLRB 1182, 1246.9 In
the view of the Trial Examiner, these and like authorities preclude the notion that
administrative delays, even if blameworthy, may be utilized to frustrate the broad
remedial and public policies of the Act, or that State laws or regulations are to be
given controlling effect in a field which Congress under its paramount Federal power
has chosen to occupy by comprehensive Federal regulation. Garner et al. V.
Teamsters, Chauffeurs, etc., Local 776, 346 U.S. 485.10
In the-meantime, pursuant to leave granted at the June 19 hearing over the ob-
jection of General Counsel, Respondent filed an amended answer to the backpay
specification. No material change was made in the amended answer with respect
to the allegations relating to limitations or laches, or with respect to the allegations
respecting gross backpay insofar as the order of May 29 was involved. Accordingly,
the prior rulings as to those issues were reaffirmed. A motion by General Counsel
to strike the amended answer in its entirety was denied.
Upon the basis of the foregoing proceedings and rulings, the hearing was resumed
on July 14, 1959, in Mansfield, Louisiana, the site of Respondent's operations, for
the taking of evidence.
IT. OUTLINE OF THE ISSUES LITIGATED AT THE HEARING COMMENCING JULY 14, 1959;
THE APPLICABLE PRINCIPLES OF LAW
As already stated, the backpay specification set forth claims for 17 employees.
However, as to four of these employees, Truitt L. Bossier, Leon Coker, George W.
Coward, and Robert C. Kenessen, disposition of the claims was made by a stipulation
of settlement which was subsequently approved by the Board. The claim of a
fifth employee, Lee Roy Welborn, was withdrawn by General Counsel during the
course of the hearing. The terminal date of the backpay period for Bryan B.
Norwood, another of the 17 employees involved, was not established inasmuch as
the question concerning his reinstatement has not been resolved. However, the
computations set forth in the backpay specification in his behalf revealed that his
net interim earnings for the period there set forth exceeded the gross backpay
T For example, if the specification had misstated the earnings of the 100 incumbent
employees whose earnings were used as a basis for determining what the claimants would
have earned during the backpay period, Respondent could have, by examining Its own
records, corrected that misstatement and furnished appropriate supporting figures.
8 Opportunity was afforded Respondent to make an offer of proof for the record as to
the extent to which he may have been prejudiced by the alleged laches
9 See also Section 10(a) of the Act which provides in part that the Board's power to
prevent unfair labor practices "shall not be affected by any other means of adjustment or
prevention that has been or may be established by agreement, law, or otherwise: .. "
10 The order of July 6, 1959, also denied a motion by Respondent requiring that the
Board's Regional Director direct backpay claimants named in the motion to produce
certified copies of their respective Federal and State income tax returns for certain
designated years Subsequently, these documents were produced in response to subpoenas
daces tecum served directly upon the individuals concerned . See footnote 1, supra.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would have received from Respondent if he had continued in the latter's employ.
Hence no backpay claim was made for Norwood. This left for resolution the back-
pay claims of 11 employees who are as follows:
Jeter C. Adams Luther W. McNeese
Jessie L. Brown WilliamD. Roark
Leroy P. Brown Lawrence L. Whitten
Vernon D. Davis Thomas J. Williams
Henry J. Hatcher Willie T. Williams
Alex C. Lafitte
The backpay order, as originally framed by the Board and enforced by the
court, provided that these employees were to be made whole,
for any loss of pay they may have suffered by reason of the Respondent's
discrimination against them by payment to each of them of a sum of money
equal to an amount which he normally would have earned as wages during
the period from the date of his layoff to the date of Respondent's offer of rein-
statement less his net earnings 11 during that period.
The amount each of the employees would "normally have earned" is set forth in the
backpay specification as gross backpay. That amount is computed on the basis of the
weekly wages paid to incumbent employees who worked for Respondent on equiva-
lent jobs throughout the respective backpay periods, supplemented by profit shares
which were paid to employees semiannually throughout those periods. The backpay
specification also listed for each of the backpay claimants the amount of his interim
earnings from other employment and the amount of interim expenses incurred in
obtaining such employment. The amounts so derived were duly computed and
appropriate deductions made from the gross backpay so as to fix the amount of net
backpay alleged to be due in each case.
The following issues are raised:
1. As previously stated, Respondent took issue with the propriety of including
profit shares in the computation of the gross backpay. That issue, common to all
the claimants, was thoroughly litigated. The relevant evidence and the findings
thereon will be set forth in section III of this report.
2. Respondent contends, and adduced evidence in an effort to establish, that
because production in his plant fell off in 1948 and during the first several months
of 1949, he would have been required to terminate the employment of the 11
employes here involved at that time even if they had remained in his employ.
Accordingly, Respondent argues that backpay should not be assessed for any period
beyond that time. General Counsel takes a contrary position. The relevant evidence
and findings on this issue will be set forth in section IV of this report.
3. Respondent contends, and sought to establish by evidence, that the interim earn-
ings listed for the several employees in the backpay specification were incomplete,
that the interim expenses listed therein were excessive, and that the individuals
involved did not make good-faith and diligent efforts to obtain substantially equiv-
alent employment, or otherwise to minimize or mitigate their losses. The nature and
substance of that evidence, the evidence to the contrary, and findings thereon, will
be set forth in section V of this report.
Subsidiary matters will also be considered hereunder but the foregoing covers
in substance the issues presented. It is important, however, at the outset to set
forth in brief the principles of law the Trial Examiner deems here controlling as
to the nature and quantum of proof required. Generally speaking, it may be said
that Congress has entrusted to the Board a broad discretion in the fashioning of
backpay orders. Phelps Dodge Corp. V. N.L.R.B., 313 U.S. 177, 197; N.L.R.B. v.
Seven-Up Bottling Company of Miami Inc., 344 U.S. 344, 346-347; Nathanson V.
N.L.R.B. 344 U.S. 25, 30. On the other hand, this discretion is not untrammeled.
The principle of mitigation of damages and questions as to whether a beneficiary of a
backpay order has made an adequate search for employment or has willfully refused
equivalent employment are, as the cited oases also establish, essential items in backpay
computation.
Because of the nature of the considerations involved, "computation of the amount
due may not be a simple matter" (Nathanson, supra, 344 U.S. at 29). This is not
unique to backpay proceedings; the same problems and principles apply in the law
3 'By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for the unlawful discrimination and the
consequent necessity of seeking work elsewhere. W. C. Nabors d/b/a W. C Nabors
Company, 89 NLRB at 571, (footnote 52.
W. C. NABORS COMPANY 1085
of damages generally. Thus, the Supreme Court has established that there is "a
clear distinction between the measure of proof necessary to establish that [a party
has] sustained some damage and the measure of proof necessary to enable [a
tribunal] to fix the amount." Story Parchment Paper Co. V. Paterson Parchment
Paper Co., 282 U.S. 555, 562. "Certainty in the fact of damage is essential. Certainty
as to the amount goes no further than to require a basis for a reasoned conclusion."
Palmer v. Connecticut Ry. & Lighting Co., 311 U.S. 544, 561. The United States
Court of Appeals for the Eighth Circuit has recognized the applicability of the
foregoing principles to backpay proceedings under the Act. N.L.R.B. v. Kartarik,
Inc., 227 F. 2d 190, 192-193 (C.A. 8). Accord: N.L.R.B. v. Cashman Auto Com-
pany, et al., 223 F. 2d 832, 836 (C.A. 1).
So, too, in N.L.R.B. v. East Texas Steel Castings Company, Inc., 255 F. 2d 284
(C.A. 5), the United States Court of Appeals for the Fifth Circuit enforced a
Board backpay order on the basis of its holding that "the findings of the Board
are supported by substantial evidence on the record considered as a whole, and that
the formula used by the Board in computing the backpay was within the dis-
cretionary power of the Board, was not arbitrary, and bears an appropriate relation
to the policies of the Act."
The formula used in computing a backpay in the instant case was identical to that
used in the East Texas and Katarik cases and is traditionally applied by the Board
in such situations. More specifically the earnings made by incumbent employees
who continued to work in equivalent jobs are used as the measuring stick for
computing the gross backpay lost as a result of the discrimination. The reasonable-
ness of this measuring stick is as apparent here as it was in the cited cases. See
also N.L R.B. v. Ozark Hardwood Company, 282 F. 2d I (C.A. 8). Moreover,
as already demonstrated, Respondent made no serious challenge in that regard.
Gross backpay may therefore be taken and, as the Trial Examiner has already ruled,
has been taken as established, and is subject only to diminution by the amounts
which the backpay specification itself concedes as net earnings and by such other
diminution as Respondent can properly establish.
In this connection it merits note that while the burden of proof is upon the
General Counsel to establish by a preponderance of the evidence the damage which
has resulted from Respondent's discriminatory layoffs, i e., the gross backpay, and
while General Counsel has,,in accordance with controlling law, voluntarily under-
taken to deduct from gross backpay the amounts of net interim earnings disclosed
by his investigations, the burden of proof as to diminution of damages rests upon the
Respondent. It is familiar doctrine in the field of general law that the burden of
proof in diminution of damages arising from a wrongful act is upon the wrongdoer.
That is also true in backpay proceedings. And it is particularly true in the situations
later to be discussed herein "where the issue is whether the employee has reasonably
attempted to find other employment to minimize damages." Fisher Governor Con-
struction Co. v. Lerche, 232 F. 2d 508, 509-510 (CA. 9), citing 5 Williston on
Contracts, Section 1360. Accord: N.L.R.B. v. J. G. Boswell Co., 136 F. 2d 585, 589
(C.A. 9); Southern Silk Mills, Inc., 116 NLRB 769, 770. See also N.L.R.B. v.
Cambria Clay Products Company, 215 F. 2d 48, 56 (C.A. 6).
In the light of the foregoing principles, we turn now to a consideration of the
evidence on the issues outlined above.
III. EVIDENCE AND FINDINGS AS TO PROFIT SHARES
General Counsel contends that the profit shares paid by Respondent to his
incumbent employees semiannually during the backpay period are to be considered
as "pay" lost by the claimants herein as a result of the discrimination against them
and that they are entitled to be made whole therefor. Respondent contends, equally
vehemently, that the profit-share payment, occasionally referred to as a bonus,
was a mere gratuity wholly within the discretion of the Respondent and is not
properly encompassed within the terms of the make-whole provision of the Board's
order and court decree.
The relevant facts are undisputed. Respondent started distributing profit shares
to his employees between 1916 and 1920 and with relatively few exceptions con-
tinued that practice until July 1959 when he sold his business. The profit share,
as its name indicates, was derived from a percentage of the profits. On each
occasion when a profit-share payment was to be made, Respondent unilaterally deter-
mined what percentage of profits for the period covered he would allocate to the
clock (production) employees and thereupon allocated that sum without discrimina-
tion among those employees on the basis of the regular hours of employment each
employee 'had put in during that period.' The sole requirement for eligibility to
receive such profit shares was that the employee be on Respondent's payroll at
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the time payment was made. If an employee had been terminated for any reason
whatever on the date payment was made, he was not eligible for such payment.
An additional requirement that the employee be in "good standing," meant merely,
according to Respondent, that the employee be on the payroll on the date of
payment. .
Pursuant to the foregoing formula, Respondent throughout the backpay period
made profit-share payments to his incumbent employees semiannually in June and
December of each year. The only exception was in June 1949, when no payment
of profit shares was made and none was credited for that period in the backpay
specification.
As indicated above, the profit-share payment although paid with considerable
regularity was a purely voluntary and gratuitous act on the part of Respondent
and was wholly within his discretion. There was no contract, promise, or other
commitment by Respondent either to pay a profit-share at all or to pay it in any
specific amount or manner. The percentage of profits allocated for that purpose
varied from year to year, as Respondent saw fit. Respondent on numerous occasions
told the employees that the profit-share was not part of their pay. In Respondent's
own words, the profit-share was the product of "an earnest effort to try to share
the profits of the business with my employees as if they might have owned capital
stock in the business without having them actually own it and participate in the
management." Moreover, Respondent did not take profit-share payments into
consideration in determining the regular hourly rate of each employee, and agents
of the Wage and Hour Division of the Department of Labor who were apparently
familiar with Respondent's practice in that regard made no remonstrance.ia Simi-
larly, the profit-share payments were not taken into account in determining Respond-
ent's premium rate for coverage under the Louisiana Workmen's Compensation Act
under which premiums are determined on the basis of a percentage of the com-
pensation paid to the employees.
On the other hand, the amount of the profit share paid to each employee varied
in direct ratio with the number of regular hours he worked during the relevant
period and no other considerations entered into the determination of that amount.
Taxes and social security payments were withheld from the profit-shares just as they
were from the regular pay of the employees. In fact, the employee received only
one W-2 form at the end of the year which reflected both his regular and overtime
pay and his profit-share payments. Finally, Respondent often told his employees
that they received the profit shares because they "earned" them and that "they
would earn more money and I could pay more money by cooperating on that basis."
Preliminarily, it should be noted that the backpay claimants herein did not "tech-
nically" qualify for profit shares in that they were not on Respondent's payroll at the
time the payments here sought to be credited to them were made. But the reason
they were not on the payroll was because of Respondent's unlawful discrimination.
Restoration of the status quo would appear to dictate, therefore, that they be awarded
those payments in that, but for the discrimination, they would have received them.
Moreover, not to award these payments would be to permit Respondent to benefit
from his unlawful discrimination.
The same result follows, in the view of the Trial Examiner, from literal application
of the provisions of the Board order and court decree. Those provisions prescribe
that the employees be made whole "for any loss of pay . . . by payment to each of
them of a sum of money equal to an amount he normally would have earned as
wages. ." It has long been settled under uniform holdings of the Board and the
courts that wages, as construed under the National Labor Relations Act and inde-
pendent of the construction of that term under other legislative enactments, State
or Federal, includes emoluments of value arising out of the employment relationship
in addition to or supplementary to the actual rate of pay per hour worked or per
unit produced. Thus, the term "wages" has been construed to include pension plans
(Inland Steel Company v. N.L.R.B., 170 F. 2d 247 (C.A. 7), cert. denied 336 U.S.
960), group health and accident insurance programs (W. W. Cross and Company,
Inc. v. N.L.R.B., 174 F. 2d 875 (C.A. 1) ), merit increases (N.L.R.B. v. J. H. Allison
& Company, 165 F. 2d 766 (C.A. 6), cert. denied 335 US. 814, rehearing denied
335 U.S. 905), and a Christmas bonus (N.L.R.B. V. Niles-Bement-Pond Company,
199 F. 2d 713 (C.A. 2)). Here, as in the cited cases, there is no question but that
12 There has been no formal adjudication as to whether the profit shares herein would
be required to be considered in computing "the regular rate of pay" as prescribed by the
Fair Labor Standards Act (29 U S C. 201). Respondent and General Counsel have differ-
ing views thereon . I deem it unnecessary, for reasons stated hereunder , to determine
that issue even assuming it to be justifiable in this proceeding.
W. C. NABORS COMPANY 1087
the added compensation represented by the profit shares derived directly from the
employment relationship, was directly related to the number of working hours put
in by the employees, and with the exception of the June 1949 payment was distributed
regularly at 6-month intervals. Taxes and social security payments were withheld
and Respondent made no secret of the.fact that the employees received the profit
shares because they "earned" them and because in his view this form of additional
compensation was better for them than any alternative scheme. The fact that Re-
spondent also denominated the profit shares as "gifts" or "gratuities," granted only
as a matter of discretion, is no more significant here than in the Niles-Bement-Pond
case or in the other cases cited inasmuch as "the so-called gifts were so tied to the
remuneration which employees received for their work that they were in fact a part
of it, they were in reality wages and so within the statute," 199 F. 2d 713 at 714.
Respondent can draw no comfort from the fact that the holdings in the cited cases
arose on the issue of whether the various "gratuities" were "wages" within the mean-
ing of the collective-bargaining obligation. Respondent cites no authority, and I am
aware of none, holding that the term "wages" is to be given a different meaning in a
backpay context. On the contrary, the Board and the courts have regarded both
situations alike in that they have ordered reimbursement of such "gratuities" in
backpay cases. Moss Planing Mill Co., 110 NLRB 933, 935, enfd. with modifica-
tions not relevant here 256 F. 2d 653, 654 (C.A. 4); Century Cement Manufacturing
Company, Inc., 100 NLRB 1323, 1324-1325; Industrial Fabricating et al., Inc., 119
NLRB 162, 171, 173. It likewise does not avail Respondent that profit shares may not
have been regarded as "wages" or included in the computation of "rates of pay" by
Wage and Hour agents for purposes of the Fair Labor Standards Act, or that they were
not considered for the purpose of computing premiums for workmen's compensation
coverage. See Tower Hosiery Mills, Inc., 81 NLRB 658, 659, enfd. 180 F. 2d 701
(C.A. 4), cert. denied 340 U.S. 811, where the Board rejected a virtually identical
contention.
The backpay specification based the amount of the profit share credited to each
claimant on the same basis that it based the amount of regular earnings they would
have received-namely, the amounts in those respective categories which comparable
employees who continued to work on equivalent jobs during the backpay period
received. Respondent did not quarrel with the formula or with the computation
and offered no alternative. I find, therefore, that subject to any limitation in the
length of the backpay period, the backpay claimants are entitled to profit shares as
listed in the backpay specification and should be credited with those amounts.
IV. EVIDENCE AND FINDINGS AS TO THE EFFECT OF THE 1948 AND 1949
REDUCTION IN FORCE ON THE BACKPAY ASSESSED HEREIN
Subject to a few exceptions later noted, the backpay sought for the 11 claimants
here involved extends from April 9, 1948, the day following the discriminatory lay-
off, to April 20, 1955, when reinstatement was offered pursuant to the contempt
proceedings already described. Respondent contends. however, that the cutoff date
for backpay, if it is asessed at all, is May 25, 1949, on the ground that the employ-
ment of these 11 claimants would have been terminated by that date for economic
reasons even if they had not been discriminatorily laid off prior thereto.i3
Certain underlying facts in this regard are undisputed. Beginning in 1948, Re-
spondent's business suffered a decline in production and sales. Indeed , in its Decision
and Order in the earlier unfair labor practice proceeding, the Board recognized that,
discrimination aside, "Respondent was economically justified in laying off some of his
employees on April 8, 1948." (89 NLRB 538 at 545.) Thereafter between the dates
of April 9, 1948, and May 25, 1949, Respondent laid off 60 additional employees
leaving a total working complement on the latter date of 168 14 Respondent contends
that in the course of this economic reduction in force, all 11 claimants would have
been included.
Statistical probability suggests that in so large a reduction in force, one or more
of the 11 claimants might well have been reached. But statistical probability hardly
suffices to deny or even curtail remedial rights accruing to specific individuals by
virtue of a Board order and court decree. What must be determined here, difficult
as that determination is, is what Respondent would have done with respect to the con-
tinued employment of each of the 11 claimants if it had not already laid them off.
13 The cutoff date originally alleged by Respondent in its amended answer was April 16,
1949. Because of the nature of the proof adduced at the hearing , Respondent in its
brief to the Trial Examiner substituted the date of May 25, 1949
16 Thereafter for the remainder of the back period , employment varied from a low of
165 employees at the end of 1949 to a high of 208 employees at the end of 1951
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Necessarily involved, therefore, is the nature of Respondent's employment policy and
the kind of considerations taken into account by Respondent in making selections for
layoff. That information is peculiarly within Respondent's possession particularly
where, as here, Respondent had no publicized policy in that regard. Accordingly,
the burden of adducing the relevant evidence falls primarily upon him. N.L.R.B. v.
Reed & Prince Manufacturing Company, 130 F. 2d 765, 768 (C.A. 1); Salmon and
Cowin, Inc., Mining Engineers & Contractors, et al., 57 NLRB 845, enfd. 148 F. 2d
941 (C.A. 5), cert. denied 326 U.S. 768. This accords also with the principle appli-
cable both in backpay proceedings and in general law that the burden of proof in
mitigation of damages where liability has already been established is upon the
wrongdoer ( see cases cited supra).
It follows that mere self-serving and conclusionary statements by Respondent
that he would have laid off the 11 claimants herein for economic and nondiscrimina-
tory reasons do not suffice to deprive those claimants of their remedial rights. On
the other hand, because the policy of the Act is remedial and not punitive, Respond-
ent is entitled upon a proper showing to abate the amount of backpay which might
otherwise be assessed against him. Whether Respondent made such a showing is
the question here.
Respondent testified that he himself made the selections for layoff and that he
made these selections on the basis of his own observation of the employees sup-
plemented by discussions with his supervisory staff. According to Respondent, he
applied as his basic criterion the productivity level of the employee. Pressed as to
whether he used any other measuring stick, Respondent said he also considered the
employee's versatility. As Respondent explained in another connection, job classi-
fications mean "nothing to us because in our employment our employees go from
one job to another." Based largely on the foregoing criteria, Respondent testified
at the hearing as to the qualifications of the 11 claimants here involved. Notwith-
standing his statement that he had discussions with his supervisory staff Respondent
did not proffer any supervisors as witnesses nor did he explain his failure to do so.
Moreover, Respondent, insofar as he testified concerning lack of productivity or
other shortcomings of the claimants, offered no substantiating evidence whatever in
the form of business records. On the other hand, it appeared that Respondent had
no time-study records and may have lacked the kind of records frequently avail-
able in other plants in that regard. At any rate, as subsequently appears, the evi-
dence tendered in Respondent's behalf on the issue here presented derives almost
entirely from Respondent's own testimony. That evidence, as to each of the claim-
ants, is here summarized.
1. Jeter C. Adams: Respondent testified that even before the discriminatory lay-
off of this employee on April 8, 1948, there had been numerous complaints about his
work. Respondent testified further that Adams had been performing his work
carelessly, that he had ruined steel which had to be sent to the scrap pile, and that
his attitude had been one of general indifference to his work. On this basis Respond-
ent asserted that Adams would have been among those selected for layoff during
the period here in issue ending May 25, 1949. No corroborating evidence was
offered to buttress Respondent's statement as to the complaints about Adams' work
or as to the quality of that work. Significantly, moreover, as shown by the Board's
Decision and Order in the unfair labor practice proceeding, no such criticisms were
voiced by Respondent at that time (89 NLRB 538 at 545). In fact, no explanation
was there given to explain Adams' layoff. In addition, as also shown in the De-
cision and Order, Adams was one of Respondents oldest employees in terms of
years of service. His retention over that long period, including prewar years when
competent help was presumably available, tends to negate Respondent's present
claim that his work was unsatisfactory and that he would have been discharged for
that reason. I find Respondent's claim here with respect to Jeter C. Adams with-
out merit.
2. Jessie L. Brown: Respondent testified that this employee was hired during the
war years and would have been terminated during the period ending May 25, 1949,
due to his lack of versatility. Jessie L. Brown was used only, according to Re-
spondent, to drive nails in crates. His classification, however, was that of car-
penter. Moreover, in the unfair labor practice proceeding Respondent predicated
his discharge solely on the ground that he was a relative newcomer even though, as
also shown in that proceeding, Jessie L. Brown had more seniority than others in
his classification who were then retained (89 NLRB 538 at 548). And even after
the reductions in force here under consideration, Respondent still had a need for
carpenters. In view of the continuing need for carpenters, in view of the fact that
Jessie L. Brown's asserted lack of versatility was not so noteworthy as to merit
mention in the earlier unfair labor practice proceeding, and in view of the fact
W. C. NABORS COMPANY 1089
that no corroborating evidence was adduced , I find that Respondent has failed to
establish that this employee would have been reduced in force as Respondent alleges.
3. Leroy P. Brown: The reason assigned by Respondent at the unfair labor prac-
tice proceeding for the layoff of this employee is that he, like Jessie L. Brown, was
a relative newcomer, although, like the latter, Leroy P. Brown had seniority over
others in his classification who were retained (89 NLRB 538 at 548). In the
instant hearing, however, Respondent described Leroy P. Brown as being "down
the list" as a welder, incompetent in that regard, and lacking the versatility required
to remain on Respondent's payroll during the 1948 and 1949 reduction in force.
Unlike the situations heretofore discussed, there was corroborating evidence in this
regard. Leroy P. Brown himself testified that he could not have passed a welder's
test. On the other hand, when Leroy P. Brown was reinstated in April 1955 (pur-
suant to stipulation in the contempt proceeding), Respondent retained him on his
payroll until the sale of the plant in 1959. This fact, plus the fact that Leroy P.
Brown's incompetence was not raised as an issue in the earlier unfair labor practice
proceeding tends to put in question the seriousness of his shortcoming in that regard.
Yet in view of the fact that Respondent did have to make a drastic cut in personnel
during the period here involved and in view of the fact that Respondent's asserted
evaluation of Leroy P. Brown's work is corroborated by the latter's own evaluation,
I believe and find that Leroy P. Brown would have been terminated by May 25,
1949, as part of Respondent's reduction in force and that he would not have been
rehired thereafter.
4. Vernon D. Davis: Respondent testified that Vernon D. Davis was a crate
builder during the war years and that he had no other qualifications. No corrobo-
rating evidence was adduced. In fact, Respondent conceded that when Davis re-
turned to Respondent's employ several years later, "he had progressed much further
than I thought he would." When Respondent urged before the Board in the unfair
labor practice proceeding as he did in the instant proceeding that Davis was an un-
satisfactory employee, the Board there noted that only 2 months before laying off
Davis Respondent had given him a merit increase (89 NLRB 538 at 546). In
that proceeding Respondent's claim that Davis would have been laid off because he
was an unsatisfactory workman was found wanting in persuasiveness. I find it
wanting in persuasiveness here also.
5. Henry J. Hatcher: Respondent testified that the record of- absenteeism of this
employee was so bad that on this factor alone he would have been included in the
economic reduction in force which followed his discriminatory layoff. Although
it would appear that a claim of absenteeism could readily be documented by pay-
roll or other records, Respondent testified he was unable to furnish any "detailed
history" of that absenteeism. Nor does Respondent explain the fact that despite
his ostensibly grave concern over that absenteeism, Respondent brought Hatcher
back to work in August 1950, long before any of the other claimants, and kept
him on the payroll continuously thereafter. Finally, Respondent's contention here
does not wholly square with his contention in the unfair labor practice proceeding
that Hatcher was selected for layoff on April 8, 1948, because Respondent wanted
to spread the hardship of the layoff among as many families as possible and
Hatcher's father was being retained on the payroll (89 NLRB 538 at 544). No
evidence was there adduced that Hatcher's work was unsatisfactory and it was
further established that Hatcher had a great deal of seniority as a welder. In sum,
I find evidence wholly lacking to support Respondent's claim that he would have
laid off Hatcher during the period here in question.
6. Alex C. Lafitte: Alex C. Lafitte was originally employed by Respondent in
1946 and was put on the brake press and shear machine. According to Respondent,
the production of that machine between 1946 and 1949 "was cut probably more than
half was being cut on a declining scale over that period" In addition, Re-
spondent testified that Lafitte lacked versatility, had never run a drill press or lathe,
was not a welder, and had not done various other jobs around the plant. Respond-
ent, however, made no claim that the press brake and shear machine ceased oper-
ating and furnished no documentation or corroboration either with respect to the
cutdown in the operation of that machine or with respect to the comparative quali-
fications of the employee or employees who operated that machine thereafter.
Significantly, too, the only reason offered by Respondent in justification of Lafitte's
April 8, 1948, layoff was that he was a relative newcomer (89 NLRB 538 at 548).
Finally, it is likewise significant that Lafitte was one of the few discriminatorily
laid-off employees-three in all-to whom Respondent offered reinstatement prior
to the institution of the contempt proceedings hereinbefore described. Viewing all
the evidence relating to Lafitte in its entirety, I am not persuaded, nor ca- I find
630849-62-vol. 134--70 '
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Lafitte would have been laid off for economic reasons during the period ending
May 25, 1949.
7. Luther W. McNeese: Respondent testified that McNeese would have been re-
duced in force by May 25, 1949, because he was incompetent and "Just couldn't
deliver the work satisfactorily and comparably to almost any other employee on
the payroll." No other witness, supervisory or otherwise, was offered to corroborate
this broad characterization, and if comparative data to substantiate it was avail-
able, such evidence was not produced. It appears, moreover, from the Board's De-
cision and Order in the unfair labor practice proceeding (89 NLRB 538 at 546) that
McNeese had been hired in June 1944, that he had the highest seniority of all the
mechanics in his department, that he had the second highest seniority of all six me-
chanics in Respondent's employ, and that, at least as of April 8, 1948, he was the only
mechanic laid off. Had McNeese's ineptitude been as glaring as Respondent now
suggests, this would hardly have been the case. In this connection it is note-
worthy that at the earlier unfair labor practice hearing, the reason Respondent
assigned for McNeese's layoff was that he had engaged in a fight a year earlier which
caused his adversary in the fray to leave Respondent's employ. Under all these
circumstances, I am unable to accept Respondent's claim that McNeese's work per-
formance was so inferior as to compel the inference that he would have been dis-
charged as part of the 1948 and 1949 reduction in force.
8. William D. Roark: Respondent conceded that Roark was an experienced
machinist who "could do most anything you needed done with an engine lathe."
Respondent testified, however-but again adduced no corroborating evidence-that
Roark had been operating an old machine which was busy during the fall employ-
ment period, but that when the reduction in manpower came, the machine was idle
and hasnever been fully employed since. Relevant here are Respondent's repeated
assertions that 'a prime objective he sought to attain in compressing his working force
was to eliminate inferior employees and retain a competent crew. It was on this
basis that the Board in the Decision and Order in the unfair labor practice pro-
ceeding said with respect to Roark (89 NLRB 538 at 547) :
In view of the Respondent's frequently announced desire to build up a first-
rate crew, it seems unlikely that he would have laid off an admittedly ex-
cellent worker... .
I reach the same conclusion here.
9. Lawrence L. Whitten: Whitten was hired in 1943 when, according to Respond-
ent, many of his regular employees were in the service and it was difficult to get
competent help. Respondent testified that Whitten would have been dropped from
the payroll during the period here in issue because on the basis of his work per-
formance "you couldn't get your money back from him." In the unfair labor
practice hearing Respondent also testified that Whitten was a substandard worker
and in that hearing his testimony in that regard was corroborated by Inspector Wof-
ford (89 NLRB 538 at 548). True, there was no evidence then, nor is there now,
that Whitten was ever given a reprimand. On the other hand, because Respondent
has apparently had a long-standing belief that Whitten's work was below par and
because this opinion was shared by Inspector Wofford, I believe that Respondent
would have elected to release Whitten from his employ during the period ending
May 25, 1949, and that Respondent would not have reinstated Whitten thereafter.
10. Thomas J. Williams: Respondent testified that the productivity record of this
employee had been down for quite some period prior to his termination on April 8,
1948, and that he had not been working as he had in previous years. Accordingly,
Respondent contends that he would have been dropped in the reduction in force
which occurred thereafter during the period from April 9, 1948, to May 25, 1959.
Respondent made the identical contentions as to Thomas J. Williams' productivity
in the unfair labor practice proceeding. The Board had this to say there (89 NLRB
538 at 546-547):
He [Thomas J. Williams] was the only Negro employee laid off. His seniority
was sixth among the Respondent's 56 Negro employees. According to the Re-
spondent, Williams was laid off because others could do more work although
the Respondent admitted that Williams was a good worker and there is no
evidence that the quality of his work was ever criticized. In view of Williams'
high seniority standing, his good work record , and the Respondent's testimony
that it was not necessary to lay off Negro employees generally as they could
be easily shifted around the plant, we find that Williams was laid off on ac-
count of his union activities.
The considerations here enumerated are equally relevant to the question as to
whether Thomas J. Williams would have been reduced in force thereafter for eco-
W. C. NABORS COMPANY 1091
nomic reasons. No new evidence was adduced. Moreover, the record shows that
Respondent's need for laborers continued in his subsequent operations. I conclude
and find that Thomas J. Williams would not have been released during the period
ending May 25, 1949.
11. Willie T. Williams: Willie T. Williams was employed as a press brake operator
and remained on that machine until August 1946 when he became a turret lathe
operator. Turret lathes were used for the building of axles and, according to
Respondent, the number of axles produced during the period here in question took
a substantial drop. Respondent testified that a number of press brake operations
were also being terminated during this same period. Accordingly, Respondent con-
tends that no work was available for Willie T. Williams during this period and
he would have been dropped from the payroll. Unlike the situation respecting
others of the claimants here involved, however, Respondent had no criticism of the
caliber of this employee's work, and his versatility as a drill press operator or as
a lathe operator was not in question. In the unfair labor practice hearing Re-
spondent urged only that Willie T. Williams was a relative newcomer (89 NLRB
538 at 548). Work for which he was qualified continued to be available. Indeed,
Respondent had occasion to hire a number of employees who did work for which
Willie T. Williams was admittedly qualified.15 By way of contrast Willie T. Williams
was not reinstated until 1955 pursuant to the stipulation in the contempt proceeding
hereinbefore discussed. I find that Respondent has not established that Willie T.
Williams would have been included in the reduction in force which occurred during
the period ending May 25, 1949.
Recapitulating, I find that Leroy P. Brown and Lawrence L. Whitten would have
been included among those who were reduced in force during the period ending
May 25, 1949, and that the terminal date for their backpay should be May 25, 1949,
as Respondent contends. With respect to the remaining nine claimants I find that
they would not have been reduced in force during this period.
V. EVIDENCE AND FINDINGS AS TO INTERIM EARNINGS, INTERIM EXPENSES,
AND NET BACKPAY
As already explained, the backpay specification sets forth in detail for each
claimant the amount of gross backpay, including profit shares, he would have
earned during the backpay period. Excluded from this computation are the periods
during which a particular claimant was unwilling to work or was willfully idle.
The backpay specification also sets forth the amounts and sources of earnings which
each claimant derived from interim employment during the backpay period. Finally,
the backpay specification sets forth in detail the nature and amount of interim ex-
penses which each claimant incurred in seeking or holding such interim employ-
ment. All these amounts are broken down into calendar quarters for ease of refer-
ence and computation. The net backpay sought for each claimant is derived by
deducting interim earnings less interim expenses from the gross backpay due him.
Challenges to the accuracy of the gross backpay computation and to the propriety
of including profit shares therein have already been resolved. Likewise already
resolved are Respondent's contentions that the 11 claimants would have been dis-
charged by May 25, 1949, pursuant to an economic reduction in force. The sole
question remaining, therefore, is whether adequate deductions have been made from
the gross backpay in other respects. Thus, Respondent is entitled to abate his liabil-
ity to the extent that the claimants did derive, or, in the exercise of due diligence,
should have derived, net earnings from interim employment during the backpay
period. Phelps Dodge Corp. v N.L.R.B., 313 U.S. 177, 198. Authorities have
already been cited to establish that the burden of proof in that regard is upon
Respondent, and Respondent seeks to discharge that burden.
Respondent does not, of course, question the deductions which are conceded
in the backpay specification by way of interim earnings. Its claim is rather that
those deductions are inadequate. More specifically, Respondent contends that the
interim earnings figures are incomplete, that the interim expense figures are not
supported by competent probative evidence, and that further deductions should be
15 Thus, as General Counsel correctly points out, L. T. Breeland was hired as, inter
alsa, press brake operator on October 15, 1948; 0 H Reed was hired on June 16, 1950,
as a drill press operator ; S. A Marshall, Jr, was rehired as a turret lathe operator on
August 28, 1950; J. W Parker was rehired on January 15, 1951, as a drill press operator,
Vance W. Ryan was employed for the 'first time as a drill press operator ; James P
O'Brien was first hired on January 8, 1951, as a drill press operator, and was rehired
for that position on July 21, 1952; and in 1948 Bill Welborn was converted to turret
lathe operator.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made for various other reasons including, inter alia, the failure of the particular
claimants to make an adequate search for employment. These and corollary mat-
ters are considered hereunder with respect to each of the 11 claimants.
Jeter C. Adams
The gross backpay listed in the backpay specification for this employee is
$28,008.74, covering a period from April 9, 1948, the day after his discriminatory
layoff, to April 20, 1955, when he was reinstated. The backpay specification also
lists by date, amount, and source, interim earnings in the sum of $15,302.35 which
Adams derived during the backpay period from various named employers and from,
periods of self-employment. Finally, the backpay specification lists specified interim
expenses in the amount of $173.60. On this basis, the net backpay claimed to be
due Adams is $12,879.99.
Preliminarily, Respondent contends that no backpay should be assessed for the
period between June 12 and September 18, 1948, because during that period Adams
leased and operated a Texaco Service Station, devoted his entire efforts to running
such station, and made no effort to search for other employment. Respondent
argues that during this period of self-employment, Adams removed himself from
the labor market and no backpay should accrue. In support, Respondent cites
N L.R.B. v. Armstrong Tire and Rubber Company, The Test Fleet Branch, 263 F.
2d 680 (C.A. 5). Parenthetically, it may be noted that Adams concededly earned
$200 from this activity which was duly deducted in computing the net backpay
due him. Respondent makes no claim in this regard for the period between
January 1, 1952, and April 20, 1955, when Adams was for the most part likewise
self-employed but with substantially larger interim earnings. The short of the
matter is, however, that Respondent's claim is without merit. As the Armstrong
decision held, in accord with authorities there cited, "bona fide full self employment
will be regarded as complying with the obligation imposed upon a discharged
employee to use reasonable diligence to keep himself in gainful employment.. .
The court's disagreement with the Board in the cited case arose from the court's
view that the claimant there involved was not involved in "bona fide full self
employment" and hence was not relieved of his duty to seek other employment.
Respondent here makes no such contention; on the contrary, Respondent in his brief
specifically asserts that Adams "devoted his entire efforts to such self-employment."
Proceeding further, Respondent musters no support for the allegation in the
amended answer that the interim earnings figures listed for Adams are mcomplete.i&
Respondent does, however, challenge the interim expense figures. These figures
are based on Adams' use of his personal automobile in making seven trips from,
his home in Mansfield, Louisiana, to Shreveport to look for work and 26 more
trips to the same city while employed there. All of these expenses-$173.60 in-
all-were incurred between April 9, 1948, and August 7, 1949; none are claimed
thereafter. Respondent established that Adams' recollection as to the details of
the trips listed were not precise and in fact were based on Adams' estimates The.
Trial Examiner recognizes the possibility of error in such estimates. That error
may tilt in either direction, however, and as pointed out at the outset, "certainty-
as to the amount [of damage] goes no further than to require a basis for a reasoned
conclusion " I find that such a basis is furnished here. See West Texas Utilities
Company, Inc., 109 NLRB 936; also Deena Artware, Incorporated, 112 NLRB 371,
375, enfd. 228 F 2d 871 '(C.A. 6). Subject to one correction, I find that the back-
pay specification correctly states the amount of interim expenses. That correction
arises from the fact, established by the record, that Adams had to travel 2 miles a
day while employed at Respondent's plant. The specification makes no allowance
for this item in calculating the expenses incurred by Adams in making the 33 trips
here involved. Applying the same yardstick there applied, a deduction of $3.30
19 The backpay specification reveals that in addition to regular work done by Adams
for the Gulf Refining Company in 1949 and 1950, the earnings for which are included in
the total interim earnings figure, Adams also did part-time night work for which he was
paid a total of $131 03 which is treated as supplemental income and is not included in
the interim earnings figure This is in accord with the Board's settled practice of not
deducting from gross back income from work which is in addition to and supplementary
to regular full-time employment since such supplemental income could have been obtained
even if the claimant had continued on his original job See Acme Mattress Company, Inc,
97 NLRB 1439, 1443. In passing, it should be noted that Respondent makes no claim In,
this regard in his brief to the Trial Examiner.
W. C. NABORS COMPANY 1093
prom the amount of interim expenses is proper. This deduction will be made also
from the net backpay figure.
Respondent's last contention with respect to Adams is that he did not make an
.adequate search for employment and hence defaulted in his obligation to minimize
damages. Respondent elicited testimony from Adams tending to show that Adams
made only a limited search for employment in Shreveport, that he did not exhaust
all the employment possibilities in Mansfield, and that while he registered often
with the Louisiana Employment Security Office and received unemployment checks,
he did not specifically ask that office for a job. On the other hand, review of
Adams' interim employment record which is set forth in the backpay specification
.and which Respondent does not challenge reveals that the periods of complete
unemployment or part-time employment are only a small segment of the 7-year
span involved and that for the most part Adams either worked for himself or
for different employers. Adams credibly testified that he made extensive efforts to
,obtain gainful employment 17 and the record shows that he obtained and held jobs in
different fields of endeavor. While he did not ask for a job at the Louisiana Em-
ployment Security Office, it likewise appears that he was never offered one by that
office. In that regard Adams credibly testified that during the entire backpay period
and until he was reinstated by Respondent, he never quit a job or refused one
that was offered The fact that Adams did not exhaust every job possibility, even
assuming that he would be qualified or eligible or that he was aware of every
job possibility, does not necessarily disqualify him. The criterion here is not suc-
cess; it is whether, all factors considered, the individual involved made an honest
good-faith effort. N.L.R.B. v. Cashman Auto Company, et al., 223 F. 2d 832
(C.A. 1); N.L.R.B. v. Armstrong Tire and Rubber Company, supra. The record
here in my view amply establishes that he made such an effort and I so find.
Accordingly, I conclude that deducting the $3.30 herein mentioned Adams is
entitled to net backpay in the amount of $12,876 69.
Jessie L. Brown
The gross backpay for this employee as listed in the backpay specification extends
from April 8, 1948, the date of discrimination, to April 20, 1955, the date of rein-
statement and totals $27,266.90. Excluded from this computation are two periods
when Jessie L. Brown was hospitalized. Interim earnings during the relevant
period total $10,269.46 and the interim expenses total $847.90.18 The amount
of net backpay claimed to be due, therefore, is $17,845.34.
Starting in February 1949 and for several years thereafter Jessie L. Brown op-
erated a farm. His earnings from that source are credited to his interim earnings
as are payments he received in connection with that work under the G.I. Farm Train-
ing program of the Veterans Administration. However, as in the case of Adams,
Respondent claimed that the farming activity constituted self-employment which
precluded Brown from seeking work elsewhere and that the period during which
Jessie L. Brown operated the farm should be excluded from the backpay computa-
tion altogether. For the same reasons stated in Adams' case and in reliance upon
the same authorities, I find no merit in Respondent's claim in this regard as to
Jessie L. Brown. It might be noted that the Board has previously rejected such
contentions under almost identical conditions. Ozark Hardwood Company, 119
NLRB 1130, 1133; Columbia Pictures Corporation, et al., 82 NLRB 568, 584-585.
Respondent attempted to show that Jessie L. Brown had additional interim
earnings which he did not report. In the course of Respondent's questioning, Brown
did admit that in 1954 or about that time he worked a week for a Mr. Carnahan
and received $6 a day which he did not report as interim earnings . Brown was
"pretty certain" that there were no other such instances and Respondent did not
adduce evidence of any others. However, since nothing in the backpay specification
reflects the Carnahan earnings, I will add $30 to the interim earnings figure and
make a corresponding deduction from the amount of net backpay.
With respect to the claimed interim expenses , Respondent did elicit countervailing
evidence, the backpay specification was amended to reflect that evidence, and a
correspondent reduction was made in the claimed interim expenses As to the re-
17I do not regard Adams ' testimony in this regard as being impeached because in some
instances lie could not recall the names of employers, firms, or individuals whom he had
solicited for jobs approximately 10 years before
IS The interim expense figures were amended at the hearing My calculation of these
amended figures yields a total of $847 90 rather than $856.44 as claimed by General
Counsel I have corrected the net backpay figure to correspond thereto
1094 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
maining expenses, Respondent urges that insufficient evidence was adduced to sub-
stantiate a claimed trip to Lufkin, Texas, and that various trips alleged to be made
in search of work "appear unnecessary" because Brown did not exhaust all the
possibilities of obtaining employment in the immediate area of his home. As to
the trip to Lufkin, Texas, Adams credibly testified that he went to Lufkin, Texas,
to search for work and named the places there where he sought work. While
questions can obviously be raised as to the necessity of "various trips" in search
of work, particularly where they are unsuccessful, I find nothing in the record to
demonstrate that Jessie L Brown acted unreasonably in that regard. I find that
Respondent's contentions respecting Jessie L. Brown's interim expenses are with-
out merit.19
As to the adequacy of Jessie L. Brown's search for employment, Respondent points
out that he did not exhaust all the possibilities of employment. This does not
gainsay the fact that Brown did make, as the record shows, extensive efforts to obtain
work and in fact was employed, on his own farm or elsewhere for the bulk of the
backpay period. Under these circumstances and'on the authorities previously set
forth, I find that'Jessie L. Brown fulfilled his obligation to make an adequate search
for work in order to minimize damages.
Accordingly, I find, for reasons hereinabove set forth, that Jessie L. Brown is
entitled to backpay in the amount of $17,845.34.
Leroy P. Brown
The net backpay claimed for this employee in the backpay specification is
$11,620.14 and covers a period from April 9, 1948, to April 20, 1955. The Trial
Examiner has already found, however (supra), that Leroy P. Brown's employment
would have been terminated for economic reasons by May 25, 1949. Accordingly,
the backpay period runs from April 8, 1948, to May 25, 1949. During this period,
the backpay specification reveals that Leroy P. Brown would have earned $3,255.75
in gross backpay from Respondent. 20 During the same period, he actually earned
$2,471,31 working for Brown & Root, Inc., in Bald Knob, Arkansas. His interim
expenses for this period were $369.40. On this basis the net backpay due Leroy
P. Brown would appear to be $1,153.84.
The only element in this computation seriously challenged by Respondent is the
expense item . Insofar as those expenses relate to obtaining and holding a job with
Brown & Root at Bald Knob, Arkansas, I find that the claim is proper and sub-
stantiated by the record. I find that the expenses involved in looking for jobs in
Eunice and Lake Charles, Louisiana, and in Carthage, Texas, are also proper and
substantiated by the record. However, I find an expense item of $59.90 fora round
trip to Odessa, Texas, and Hobbs, New Mexico, unwarranted. Purportedly, this
was in search of employment. I do not believe it was reasonable for Brown to
take a 1,198 mile trip in search of a job particularly when he had no positive assur-
ance that a job would be available for him there. Accordingly, I will deduct $59.90
from the amount to be paid to Leroy P. Brown. I find, therefore, that Leroy P. Brown
is entitled to backpay in the amount of $1,093.94.
Vernon D. Davis
The backpay period for this employee runs from April 9, 1948, to April 20, 1955,
the date of reinstatement. Excluding periods when Davis would not have been avail-
15 Respondent established that Jessie L. Brown lived 10 miles from Mansfield where
Respondent's plant was located but that no allowance was made against interim expenses
for the 20-mile round trip he was required to take while employed by Respondent Unlike
the situation with Adams, however, the record shows that the mileages claimed were from
Mansfield to point of destination and that no claim was made for the mileage from
Brown's home to Mansfield even though, as Brown testified, he had to go through Mansfield
to reach that destination.
20 The gross backpay figure is computed as follows:
1948 gross backpay---------------------------------------------- $2,496 09
1949 first quarter gross backpay----------------------------------- 704.47
1949 second quarter gross backpay (1 week only ) -------------------- 55. 19
Total----------------------------------------------------- 3,255.75
As in the backpay specification, the period from July 26 to August 22, 1948, and the
period from April 8 to June 30, 1949, have been excluded for purposes of computing the
gross backpay here.
W. C. NABORS COMPANY 1095
able for work, his gross backpay would have totaled $27,634.87. Interim earnings
in the amount of $11,180.62 were conceded. Taking into account $481,52 of interim
expenses , the net backpay due as alleged in the backpay specification is $16,935.77.
There is no showing in the record that Davis had more interim earnings than are
shown on the face of the backpay specification. Respondent's conjecture that Davis
could well have obtained other employment which has not been reported furnishes
no basis for a finding in that-regard. Respondent does quarrel, however, with, the
items claimed under interim expenses on the ground that Davis kept no records in
this regard and that the figures submitted in the backpay specification were "approxi-
mations." It is clear that the expense figures in question were "approximations" or
estimates and that the possibility of error one way or another exists. On the other
hand, the evidence preponderates in favor of a finding that the claimed expenses were
incurred and, as already noted, the fact that the precise figures are based on esti-
mates does not preclude their acceptance if those figures are essentially reasonable in
all the circumstances. See cases cited supra. I find that the estimates were reason-
able.
There remains only Respondent's claim that Davis did not make an adequate
search for work and that there were individuals or firms who may have had work
available to whom Davis did not apply for work. The record, however, refutes any
notion that Davis showed lack of diligence in looking for work. Within 3 days after
his discriminatory layoff by Respondent, Davis was at work. His periods of un-
employment were for the most part brief and during those periods he assiduously
sought employment from private, semipublic, and public sources. During the back-
pay period Davis worked for more than two score employers. In only one instance,
in October 1954, toward the end of the backpay period did Davis quit a job, and in
that instance no claim is made for backpay thereafter until he resumed work the
following month. Indeed, Respondent, in its brief to the Trial Examiner, admitted
that "Mr. Davis in some respects exercised a higher degree of diligence than many
of the other claimants here under consideration, in obtaining employment." On the
whole record it clearly appears that Davis made an adequate search for work.
I find, therefore, that Davis is entitled to backpay in the amount of $16,935.77
as alleged in the backpay specification.
Henry J. Hatcher
The backpay period for this employee terminates at the end of August 1950. The
gross backpay he would have earned from Respondent during this period, figuring
in only the intervals during which he would have been at work, is $1,169.78. Actual-
ly, he was in interim employment throughout these intervals, hence no issue is pre-
sented concerning the adequacy of his search for work. The interim earnings figures
and the times and places of his interim employment are conceded. He derived
$749.04 from such interim employment. His interim expenses during that period,
set forth in the backpay specification as amended at the hearing, were $124.12.21
Accordingly the amount of backpay sought for Hatcher totals $544.86.
Respondent poses only two contentions in this regard. The first is that the claim
for Hatcher should be stricken in its entirety because Hatcher testified at the hearing
that he was withdrawing his claim 22 The second is that in any event there is a lack
of credible evidence to support the claimed expenses.
As to the first contention, it is clear that Hatcher did in fact seek at the hearing
to withdraw the claim in his behalf and testified further that "I don't think Mr. Will
[Nabors] owes me a thing." On the other hand, it is equally clear that this testimony
at the hearing was the first intimation of Hatcher's desire to abandon the claim, and
that theretofore he had cooperated with Board agents and furnished relevant informa-
tion. Indeed, Hatcher admitted, on questioning, that on the night before he testified,
he told counsel for the General Counsel he thought he should have several thousand
dollars coming. Hatcher furnished no credible explanation for his change of mind
and .the record furnishes no concrete aid in that regard 23 The question presented,
21 There was $4 60 added to the 1950 Interim expense figure for a trip from Mansfield to
Shreveport, Louisiana.
zz Ruling on a motion to that effect made at the hearing was reserved and is disposed
of by the findings and conclusions made herein.
za The record does reveal that Mr. Nabors was in the hearing room while Hatcher was
testifying and that Hatcher was currently employed by Mr. Nabors. This was also true,
however , as to several of the other claimants who likewise testified in the presence of
Mr Nabors . The record does not suggest that any pressure or intimidation was involved,
and Hatcher denied that his testimony was influenced by fear of losing his job
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore , is whether the withdrawal at a hearing of a backpay claim by the claimant,
where such withdrawal is not shown to have been coercively or fraudulently obtained,
is effective. If the Board were concerned only with the adjudication of private rights,
such a withdrawal should certainly be given effect. The Board , however, acts in a
public capacity to prevent the commission of unfair labor practices and to vindicate
,the declared policies of the Act . "The Board is not , as Respondents suggest, merely
the statutory representative of the employees for the recovery of their losses . [Foot-
note omitted .] Its primary function under § 10, in connection with which it makes
specific monetary orders for specific employees, is to prevent the conduct defined as
unfair labor practices in § 8." N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398, 411-
412 (concurring opinion ). Pursuant to this well-settled principle , the Board has on
numerous occasions held that "the desires of individuals cannot be allowed to block
the public purpose behind the Board's requirement that they be made whole." J. B.
Wood, an individual, d/b/a Wood Manufacturing Company, et al., 95 NLRB 633,
642. See also N.L.R.B. v. E. A. Laboratories, Inc., 188 F. 2d 885 (C.A. 2), cert.
denied 342 U.S. 871; Newspaper & Mail Deliverers' Union of New York, 93 NLRB
237, 266. And as to closely related matters, see Arista Service, Inc., 127 NLRB 499;
Clayton-Willard Sales, 126 NLRB 1325.24 Application of the same principle here
requires a like result . The motion to strike the claim for Hatcher because of the
latter's assertion at the hearing that he desired to withdraw his claim is denied.
Respondent argues that Hatcher should not be credited with interim expenses be-
cause of lack of specificity in his testimony in support of those expenses . Inasmuch
as the expenses involved only travel from home to work at specified places on speci-
fied dates and the places and times relevant are not in dispute , the asserted lack of
specificity in the supporting testimony is without merit. In find that the allegations of
interim expenses are adequately established on the record . See cases previously
cited on this issue.
Accordingly , I conclude ad find that Hatcher is entitled to backpay in the amount
of $544.86.
Alex C. Lafitte
The net backpay claimed for this employee is $10,188 . 15.25 The backpay period
for Lafitte extends from April 9, 1948, through December 24, 1954, a period of over
80 months. During this period, Lafitte worked for various employers at various
jobs and was unemployed for less than 6 of the 80 months. The fact that Lafitte did
not exhaust every single possibility for employment during his occasional periods of
unemployment does not gainsay the fact that he did make, as the evidence shows,
,an exhaustive search for employment . His overall employment record , moreover, is
itself persuasive evidence that he was diligent in seeking and finding work.
Apart from the $40 expense item which General Counsel conceded should properly
be deducted (see footnote 25, supra), the listed expense items derived from Lafitte's
trips to work at J. B. Beard Company in Shreveport, Louisiana, where he was admit-
tedly employed in 1948 and 1949. No expenses are claimed for the remainder of the
,backpay period. I find, therefore, that this interim expense figure of $976.80 is ade-
quately established in the evidence.
The correctness of the interim earnings figure of $17,475.34 is conceded. The
gross backpay listed in the backpay specification is $26,686.69. Respondent argues
that a 2-week deduction should be made from the gross backpay figure to compensate
for the corresponding period during which Lafitte did not work because of the strike
at J. B. Beard. Implicit in this argument is that Respondent should not be obliged
to subsidize a strike effort at another plant. On the other hand, it appears that
Lafitte was not willfully idle during the strike, that he was ready to come back
whenever the Beard Company personnel office called him as that office informed
him it would do, and that in the meantime he sought work elsewhere. Under these
circumstances, I deem it improper to penalize Lafitte by disallowing gross backpay
for the period of the strike.
24 A very early case where the Board reached an opposite result is Botany Worsted
HW8, 4 NLRB 292. There the Board refrained from directing payment of backpay but
noted that the amount involved was small ( approximately $11).
25 The backpay specification lists this figure as $10 ,228.15. However , a 2-week strike
occurred at the J. B. Beard Company in Shreveport while Lafitte was employed there.
The backpay specification lists transportation expense to and from work for Lafitte during
this period . Accordingly , Respondent argued and General Counsel conceded that $40
should be deducted from the expense figure to reflect the fact that Lafitte was not working
during the period of the strike.
W. C. NABORS COMPANY 1097
Accordingly, I find that Lafitte is entitled to net backpay in the amount of
$10,188.15.
Luther W. McNeese
The gross backpay for this employee is listed in the backpay specification as
'$20,884.69 and covers a period from April 9, 1948, through April 20, 1955, at which
time Respondent reinstated him. His interim earnings figure, to which Respondent
stipulated subject to the right to introduce evidence as to further interim earnings,
is $7,058.84. The backpay specification sets forth $488.26 in interim expenses which
were incurred for transportation and room and board in connection with interim
employment. The net backpay claimed to be due therefore is $14,314.11.
The backpay period for McNeese can be conveniently divided into two periods.
(1) The period from April 9, 1948, to December 31, 1951, when McNeese sought
other employment, and (2) the period from September 12, 1952, to April 20, 1955,
when McNeese was engaged in the taxicab business on his own 26 As to the latter
period, the 21/2 years when McNeese was running his own taxi business, Respondent
argues that this was a period of self-employment, that McNeese devoted his full time
and attention to his taxi business, that he did not seek other work, and that his right
to backpay should be abridged during this period. It should be noted, however,
that McNeese was 57 years old in September 1952 when he went into the taxi busi-
ness?') Opportunities for outside employment were therefore increasingly narrowed.
Under these circumstances it was wholly proper for McNeese to resort to self-em-
ployment as a means of earning a livelihood. Moreover, for the reasons and on
the basis of the authorities already cited with respect to Jeter C. Adams and Jessie
L. Brown, I reject Respondent's claim that backpay should be disallowed to McNeese
for the period of his self-employment.
There remains for consideration the period between April 9, 1948, and December
31, 1951. During this period McNeese worked for a series of oil well drilling com-
panies with consequent periods of unemployment as a particular job was completed
and before he obtained work on another job. Respondent urges that by confining
himself to this kind of work McNeese failed to make a good-faith and diligent effort
to minimize damages by obtaining gainful employment and that backpay relief should
be denied him. Respondent also points to the fact that McNeese's testimony was
"vague and indefinite."
The record reveals that McNeese did have difficulty in remembering specific names
and dates relating to his activities during the backpay period. The fact is, however,
that this period extended back almost 12 years before the date of the instant hearing.
In view of the fact also that McNeese was nearing his 65th birthday when he testi-
fied, the Trial Examiner does not find it surprising that McNeese's testimony was not
as precise as might otherwise have been expected. The evidence does show, however,
that McNeese did seek and obtain work from oil drilling companies, that whenever
he was laid off from one of these jobs he made extensive efforts to get another, job,
that in addition to applying to oil field companies, he "was always trying to get a job
doing something," that he applied to lumber companies for work, and that he regu-
larly registered at the Louisiana Employment Security Office for work. Considering
all the circumstances, and particularly the fact that McNeese's age was an obvious
hindrance to his search for employment, I find that McNeese made an adequate
search for employment and that the periods of unemployment are not attributable
to any shortcoming in his efforts to find work.
McNeese's testimony as to his interim expenses also lacked the kind of precision
which might be deemed desirable. However, all the expenses claimed related to
jobs which McNeese admittedly held during the backpay period-no interim expenses
are claimed during the period of self-employment. I find that the evidence in the
record, albeit somewhat imprecise, sufficiently supports the interim expenses claimed.
See cases cited supra.
Accordingly, I conclude that McNeese is entitled to be made whole for lost earn-
ings in the amount of $14,314.11.
William D. Roark
On March 2, 1958, William D. Roark signed an affidavit stating that he would
not accept reinstatement from Respondent. This would normally mark the termina-
- No claim for backpay is made for the intervening period from January 1 through
September 11, 1952. The following periods are likewise excluded for purposes of a back-
pay claim : January 12 through August 3, 1949; December 6, 1950, through August 5,
1951 ; and January 1 through September 11, 1952.
27 McNeese was nearing his 65th birthday when he testified at the instant hearing.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of his backpay period. However, General Counsel concedes that Roark with-
drew from the labor market on February 18, 1950, and makes no claim for backpay
beyond that date. At that time Roark was just short of 68 years of age and about a
year earlier had started receiving old age benefits. Respondent contends, however,
that Roark actually withdrew from the labor market on December 31, 1948, when.
his last employment terminated and that backpay should not be assessed beyond that
date.
I have already found that, if not for his discriminatory layoff on April 8, 1948,
Roark, an experienced and competent machinist, would have been retained on Re-
spondent's payroll even through the reduction in force which ensued the following
year. It does not follow, however, that Respondent thereby became liable for back-
pay throughout that period. Roark still had the duty to minimize the damages fol-
lowing from his April 8, 1948, layoff. Respondent argues that Roark did not carry
out that duty.
On the day following his discharge Roark registered with the Louisiana Employ-
ment Security Office. Ten days later, on April 19, 1948, he obtained employment with
Modern Iron Works in Shreveport, Louisiana, and worked there until May 28, 1948.
He did not work again until September 27, 1948, when he went to work for Sollen-
berger Engineering Company in Marshall, Texas, where he remained at work until
December 31, 1948. This was Roark's last employment.
Roark, according to his own testimony made no effort to get a job at Mansfield
where he lived and, except for his job at Modern Iron Works, apparently did not look
for work at Shreveport. Indeed, Roark testified that he was not interested in work-
ing either at Shreveport or at Mansfield. Instead, during the period between his jobs
at Modem Iron Works and Sollenberger Engineering Company, he went to Odessa
and Andrews, Texas, a 1,170-mile round trip, where he said he spent several days
looking for work. Roark then decided conditions there would not be good for his
wife and returned to Mansfield. Thereafter he and his wife moved to Doddridge,
Arkansas,28 where his wife's mother had a vacant house. Roark testified that there
were no jobs available at Doddridge but that he did look for work at Texarkana,
about 30 miles away. On the other hand, it appears that Roark's primary reason for
moving to Doddridge was that his wife wanted to be near her mother who was an
aged woman. Under all these circumstances I do not believe it can fairly be said
that during the interim period of unemployment here involved Roark made a good-
faith and diligent effort to seek gainful employment. To take an 1,170-mile trip in
search of work without first making reasonable efforts to find work in Mansfield
and nearby Shreveport, hardly comports with the criterion of a reasonable good-faith
effort to minimize damages, and the move to Doddridge would appear to have been
dictated by personal reasons unrelated to a bona fide search for employment. Ac-
cordingly, I find that Roark is not entitled to backpay between May 29 and September
26, 1948.
I find further that Roark is not entitled to backpay after December 31, 1948. The
evidence as to his search for employment thereafter is wholly lacking in substantiat-
ing detail. All that appears certain is that he held no jobs thereafter and that within
a matter of a few weeks he started receiving old age benefits. In effect, I believe, as
Respondent contends, that Roark withdrew himself from the labor market when
he stopped working on December 31, 1948. I predicate this finding not on the fact
that Roark was unemployed thereafter-a man of his advanced years obviously
has difficulty in finding a job-and not on the fact that he was receiving old age
benefits, but rather on the fact that on the basis of his own testimony, it appears
that Roark did not meet the minimum standards required to carry out his duty of
minimizing damages.
Limiting gross backpay, thereafter, to the period from April 9 to May 28, 1948,
and from September 27 to December 31, 1948, I find that Roark would have earned
$1,981.95.29 His interim earnings for those periods were $1,348.46. His interim
expenses including only those directly related to his employment at Modern Iron
Works and Sollenberger Manufacturing Company were $95.50.30 Accordingly, I
find and conclude that Roark is entitled to be made whole for loss of earnings in the
amount of $728.99.
28 Also referred t0 in the transcript of hearing as Dodge Ridge
29 As in the case of the other claimants, the gross earnings figure here includes profit
shares for the relevant periods
31 General Counsel concedes that the initial $10 of interim expenses listed in the back-
pay specification are not supported by the evidence in the record
W. C. NABORS COMPANY 1099
Lawrence L. Whitten
I have already found that this employee would have been terminated by May 25,
1949, pursuant to a reduction in force. Consequently, his backpay period extends
from April 9, 1948, to May 25, 1949, during which his gross backpay would have
totaled $3,889.08 . His interim earnings during that period, derived from self-
-employment were $1,514.26.31 No interim expenses are claimed. On this basis,
the amount of backpay due would appear to be $2,374.82.
The record shows that for almost 3 weeks after his discriminatory layoff on April
8, 1948, Whitten looked for work both in Mansfield and Shreveport, and also regis-
tered twice at the Louisiana Employment Security Office. Failing in this effort,
he resorted to self-employment and purchased the East End Drive-In, a cafe, to
which he devoted his entire efforts during the period here relevant. As Armstrong,
Cashman Auto, and other cases heretofore cited establish, resort to self-employment
under these circumstances does not disqualify Whitten from backpay, nor does the
fact that his self-employment was not conspicuously rewarding disqualify him.
The fact is that Whitten devoted his earnest and entire effort to his cafe and dur-
ing the period here involved derived $1,514.26 from that effort. Respondent seeks
to discredit Whitten on the ground that his income tax return for 1948 showed
that he netted u profit of only $464.58 from the 8-month operation of the cafe that
year whereas the backpay specification states his interim earnings for that period
at $864.58 or $400 more. Apart from the fact that this discrepancy operates in
favor of Respondent, it appears further that a $50 monthly allowance was made in the
backpay specification for the value of the food consumed at the cafe by the Whitten
family. That item, included in the subsequent tax returns, was not included in the
1948 tax return. Accordingly, I find that Respondent is obligated to pay Lawrence
L. Whitten $2,374.82 to make him whole for loss of earnings.
Thomas J. Williams
Thomas J. Williams' backpay period extends from April 9, 1948, through Janu-
ary 5, 1955, when he was reinstated by Respondent. Williams was a laborer when
employed by Respondent and earned 60 cents an hour. During the backpay period,
his gross backpay would have been $16,305.55. His interim earnings were set forth
in the backpay specification as $5,772.17. Interim expenses for the period of almost
7 years were listed as $95. Accordingly, the amount alleged as net backpay was
$10,628.38.
In his amended answer to the backpay specification, Respondent urged that the
report of interim earnings was incomplete, that the interim expenses were unsup-
ported, and that Thomas J. Williams failed to make a good-faith effort to find em-
ployment to minimize his damages. In his brief to the Trial Examiner, however,
Respondent confined himself to the single claim that the periods of unemployment
should be stricken from the backpay period on the ground that this employee did
not make an adequate search for employment during those periods. In that connec-
tion Respondent pointed out that Thomas J. Williams admittedly did not seek jani-
torial work at any of the retail stores, service stations, and garages in Mansfield
or at the local banks even though he had done janitorial work for Respondent.
On the other hand, the evidence is clear that Thomas J. Williams made exhaustive
efforts to find work both in Mansfield and elsewhere, that he looked for any kind
of work he could do to make a living, and that he was not "choosey." Moreover,
the record shows that Williams was never totally unemployed for long, that he
worked for numerous employers, for many of them on more than one occasion,
and that he did not slight any likely avenue of employment. The expenses he
claimed in this regard were minimal and were substantiated by probative evidence.
Under these circumstances I find that the allegations of the backpay specification
are supported by a preponderance of the evidence in the record and that Thomas J.
Williams is entitled to backpay in the amount of $10,628.38.
Willie T. Williams
The net backpay allegedly due this employee under the backpay specification is
$12,965.43. Gross backpay is there listed as $23,755 85, interim earnings as
$14,836.32, and interim expenses as $4,045.90.
31 Whitten earned $1,343.33 in 1949. Prorating that figure, it appears that he earned
$649.68 for the period between January 1 and May 25, 1949 His earnings for 1948 were
$864 58, making his total interim earnings $ 1,514 26
1100 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
Respondent makes two basic contentions in opposition to this claim. The first
contention is that Willie T. Williams did not make an adequate effort to obtain gain-
ful employment so as to minimize the damages flowing from his discriminatory
layoff. This contention is substantially negatived, however, by the fact that Willie T.
Williams was never unemployed during any of the time for which backpay is claimed
and from February 1952, on was continuously engaged in full-time employment.
Consequently, Respondent is reduced to the claim that prior to February 1952,
when Willie T. Williams was engaged in only part-time employment, he was remiss
in not having full-time employment. The record shows, however, that throughout
that period, Williams was constantly seeking work from riggers, drilling companies,
machine shops in the area, and from the Louisiana Employment Security Office.
As soon as he found a full-time job he took it. Indeed, Williams had applied to
the J. B. Beard Company in Shreveport, Louisiana, four different times before he
was taken on in March 1952, as a full-time employee. Under these circumstances
Respondent's claim that Willie T. Williams defaulted in his obligation to find full-
time remunerative employment is without support in the record.
Respondent's second contention is that the interim expenses claimed in William's
behalf are not supported by competent probative evidence. Concededly, Williams'
expenses, like the expenses of other claimants herein, are not supported by precise
documentation. As shown in the backpay specification, no expenses were claimed
in Williams' behalf for the years 1948 through 1951. The expenses claimed there-
Williams' behalf for the years 1948 through 1951. The expenses claimed there-
after arouse out of transportation costs and incidental expenses in connection with
the interim jobs which Williams held. While the amounts thus involved were based
on estimates, these estimates were on their face reasonable and adequately support
the expenses claimed West Texas Utilities Company, Inc., 109 NLRB 936; Deena
Artware, Incorporated, 112 NLRB 371, 375, enfd. 228 F. 2d 871 (C.A. 6).
The foregoing contentions aside, however, the evidence developed at the hear-
ing respecting Willie T. Williams did develop certain discrepancies with respect to
the figures set forth in the backpay specification. Thus, the record shows and
General Counsel concedes that the 1952 expense item of $117.60 for travel to
Jefferson, Texas, should be $103 60 since the mileage actually traveled by Williams
was less than that set forth in the specification. It also appears from evidence in
the record that Williams received 1955 earnings from the J. B. Beard Company
in the amount of $1,183.70 rather than $1,166.04 as set forth in the specification32
The net amount due Willie T. Williams should be abated accordingly.
I find therefore that Willie T. Williams is entitled to be made whole for loss of
earnings in the amount of $12,933.77.
CONCLUSION AND RECOMMENDATION
Upon the foregoing findings, the Trial Examiner finds and concludes that the
employees listed hereunder are entitled to payment by Respondent of the sums listed
opposite their names:
Jeter C. Adams--------------------------------------- $12,876.69
Jessie L. Brown--------------------------------------- 17,845.34
Leroy P. Brown--------------------------------------- 1,093.94
Vernon D. Davis-------------------------------------- 16,935.77
Henry J. Hatcher-------------------------------------- 544.86
Alex C. Lafitte---------------------------------------- 10,188.15
Luther W. McNeese----------------------------------- 14,314.11
William D. Roark------------------------------------- 728.99
Lawrence L. Whitten---------------------------------- 2,374.82
Thomas J. Williams----------------------------------- 10,628.38
Willie T. Williams------------------------------------- 12,933.77
It is recommended that the Board adopt the foregoing findings and conclusions.
as On the basis of prior investigation including examination of Williams' social security
records, General Counsel alleged in the backpay specification that Williams had interim
earnings of $1,173.83 for the year 1950 In the course of the hearing Williams' with-
holding statement (W-2) for 1950 was introduced and showed earnings of only $1,123 83.
General Counsel urges that the lower figure should be adopted with a consequent increase
of $50 in the net earnings figure payable to Williams by Respondent . Contrary to
General Counsel's contention, I see no reason for attaching more weight to a withholding
statement than to a social security record . On the whole record and in view of the fact
that General Counsel had ample time to investigate the work record of Williams before
drawing up the backpay specification , I am inclined to the view , and I find, that the
interim earnings figure for 1950 Is $1,173 83 , as originally alleged.