Southern Household Products Co., Inc.

National Labor Relations Board - Board Decisions

May 24, 1973

203 N.L.R.B. 881 (N.L.R.B. 1973)

SOUTHERN HOUSEHOLD PRODUCTS 881
Southern Household Products Company , Inc. and Un-
ited Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 15-CA 3369, 15-
CA-3393, and 15-CA-3393-2
May 24, 1973
SUPPLEMENTAL DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
On November 30, 1972, Administrative Law Judge
Fannie M. Boyls issued her Supplemental Decision in
Backpay Proceeding, attached hereto, finding that
specific amounts of backpay be awarded to certain
employees of the Respondent.' Thereafter, the Re-
spondent and the General Counsel filed exceptions to
the Administrative Law Judge's Supplemental Deci-
sion and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order, as modi-
fied herein.
The Administrative Law Judge found that backpay
claimant George Yarber's search for work during the
second quarter of 1969 was not reasonably diligent
and disqualified him for backpay during that quarter.
Since Yarber's backpay period was tolled on May 5,
1969, the essence of the Administrative Law Judge's
finding is that Yarber failed to seek work diligently
during April and the first 5 days of May. The General
Counsel excepts; we find merit in his exceptions.
Yarber worked, thereby reducing the Respondent's
backpay liability, during 3 of the 4 backpay quarters.
The Respondent did not question the reasonableness
of Yarber's search during the fourth quarter of 1968
or the first quarter of 1969. The Administrative Law
Judge found Yarber's efforts were reasonable during
the third quarter of 1968. Yarber testified that he had
visited several places looking for work between April
1 and May 5, 1969, although he could name only one
place with certainty and was unsure whether he had
i On December 16, 1969, the National Labor Relations Board issued a
Decision and Order in the above -entitled proceeding ( 180 NLRB 369) find-
ing, inter aba, that Respondent had discriminatorily discharged I I employees
in violation of Sec . 8(a)(3) and (I) of the Act and directing that Respondent
offer them immediate reinstatement and make them whole for any loss of
earnings suffered by reason of the discrimination against them . On October
27, 1971, the Board 's Order was enforced by the United States Court of
Appeals for the Fifth Circuit (449 F.2d 749).
sought work at the shipyard in Pascagoula, Mississip-
pi, during that period. Relying on the fact that Yarber
cound name only one place where he sought work
during that quarter, the Administrative Law Judge
found Yarber did not make a reasonable search for
work. In so doing she, in effect, transferred
Respondent's burden of proof to Yarber since Re-
spondent offered nothing to rebut the uncontradicted
testimony of Yarber or in fact of any of the backpay
claimants? The Respondent in attempting to meet its
burden of proof limited itself to cross-examining the
backpay claimants who were called by the General
Counsel, and offered no evidence to show the efforts
of the backpay claimants were unreasonable or that
suitable jobs were available in the area for persons of
the claimants' ages and experience or that registration
at the state employment service would have produced
actual or potential employment.
In the circumstances of this case: we believe Yarber
made a reasonable effort to secure employment dur-
ing the second quarter of 1969. He had made reason-
able efforts to secure work and had worked in the 3
preceding quarters. His uncontradicted testimony
shows he did look for work during the 35 days in
question .3 On the other hand, the Respondent, with
whom the burden of proof rests, did not show or even
offer evidence of any source of actual or potential
employment for Yarber, nor did it show that Yarber
rejected any offer of employment during the 35-day
period in question. Contrary to the implication of the
Administrative Law Judge, the backpay claimant
should receive the benefit of any doubt rather than
the Respondent:4 the wrongdoer responsible for the
existence of any uncertainty and against whom any
uncertainty must be resolved. For these reasons we
shall award backpay to Yarber for the April to May
5, 1969, period. Accordingly, we find that George
2 The General Counsel contends that in general the Administrative Law
Judge has accepted the Respondent 's position that the burden of proof is on
the backpay claimant to establish reasonable effort was made to secure work.
Although we do not agree that she adopted this position , we set forth the
following to remove any doubts with respect to burden of proof. Under the
applicable law, willful loss of earnings is an affirmative defense , and the
burden of proof is on the Respondent . As the Eighth Circuit Court said in
N L.R.B. v. Brown & Root, Inc, 311 F 2d 447, 454.
. in a back pay proceeding the burden is upon the General Counsel to
show the gross amounts of back pay due. When that has been done , however,
the burden is upon the employer to establish facts which would negative the
existence of liability to a given employee or which would mitigate that liabili-
ty.
Moreover, "any uncertainty is resolved aginst the wrongdoer whose conduct
made uncertainty possible ." N L.R.B v Miami Coca-Cola Co., 360 F.2d 569
(C A. 5).
7 We note that the Board has held that it is not required that a search be
made in each and every backpay quarter (see Cornwall Company, 171 NLRB
342).
4 We note that the backpay hearing was held more than 3 years after the
backpay quarter in question ; it is therfore not unusual that Yarber could not
remember the specific details of his search for work.
203 NLRB No. 138
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yarber is entitled to backpay in the amount of $1,285
rather than $967, as found by the Administrative Law
Judge.
The General Counsel excepts to the backpay cutoff
or tolling dates found applicable to claimants Clifton
Cox, James V. Jones, and Luther J. Mercer. For the
reason set forth below, we find merit in the General
Counsel's exceptions.
On April 7, 1969, Respondent sent a letter to 8 of
the 11 backpay claimants, including Cox and Jones,
which reads in part:
... You are hereby offered reinstatement to
your old or equivalent position which you occu-
pied at the time of your separation from the
Company. The offer of reinstatement is without
qualification.
If you desire such reinstatement, you are to
report to work on Wednesday, April 9th, at 7:00
a.m. Should you fail to report to work as offered,
or advise the Company as to your position con-
cerning reinstatement on the 9th of April or not
later than the 18 of April, it will be considered
that you do not desire such reinstatement and no
longer desire to work for the Company... .
In discussing Cox, who was deceased at the time of
the hearing: the Administrative Law Judge found that
the final cutoff date of April 18, 1969, mentioned in
the letter should not be construed as a voluntary offer
to extend its liability to that date but is merely recog-
nition by Respondent that some employees might not
be immediately available for reinstatement and a will-
ingness to hold the jobs open until that date. The
Administrative Law Judge then found that since Cox
was at home and not working on April 8 when he
received the letter his backpay should be terminated
as of April 8. She noted that there is no evidence on
the record as to why Cox did not return to work on
April 9, 1969, or reply to Respondent's letter. She
made a similar finding with respect to Jones and cut
off his backpay on April 8, although Jones did not
even receive Respondent's letter until April 9 For
both Cox and Jones this amounted to a reduction in
backpay of $95.5
Respondent sent Mercer a letter dated April 22,
1969, requesting him to report to work on Friday,
April 25, or not later than Monday, April 28, or it
would assume he was no longer interested in working
for Respondent. Sometime after April 22 (no date was
given) Mercer requested an extension of time because
a strike was in progress against Respondent. Respon-
dent denied Mercer's request on April 28. The Ad-
ministrative Law Judge found Mercer's backpay
5 The Administrative Law Judge apparently failed to deduct the $95 from
Cox's backpay, since the amount of backpay she calculated for Cox is the
same as requested by the General Counsel.
should be terminated on April 24, rather than April
28 because Respondent should not be required to pay
Mercer backpay for a time when he voluntarily ab-
sented himself from work because of the strike. She
therefore reduced his backpay by $27 for Friday,
April 25, and Monday, April 28.
According to clear wording of Respondent's letter
of April 7, the backpay claimants were given until
April 18 to report. In spite of this, the Administrative
Law Judge cut off backpay on April 8, 1969, although
she noted that the reporting date of April 9, standing
alone, "represented a very short notice." In fact, as the
General Counsel points out, the April 9 reporting
date, standing alone, was an invalid offer as it provid-
ed too short notice without the alternative April 18
"advise date." Under the Administrative Law Judge's
finding, the Respondent was permitted to utilize the
alternative April 18 "advise date" to its benefit to
make the offer of reinstatement valid. On the other
hand, the claimants were not allowed to use the alter-
native date provided by the Respondent to their bene-
fit. In our opinion, the Administrative Law Judge
neglected the fundamental right of these backpay
claimants, who had been discriminatorily discharged,
to a reasonable time to consider whether to return to
Respondent's employ, how they were to get there, and
what they were likely to face upon arriving there. Put
differently, the Administrative Law Judge's finding
places too stringent a burden on the claimants to the
benefit of the Respondent, against whom any uncer-
tainty must be resolved.,' In addition, as the General
Counsel points out, the Administrative Law Judge's
finding overlooks applicable Board precedent. In
American Manufacturing Company of Texas, 167
NLRB 520, the respondent by letter of December 16,
1965, requested the claimants to report to work and
indicated that if it did not hear from them by Decem-
ber 26, 1965, it would assume the offer was declined.
The Board held that backpay was tolled as of Decem-
ber 26, because it is "settled backpay is tolled on the
date of actual reinstatement, on the date of rejection;
or in the case- of those who did not reply on the date
of the last opportunity to accept."' We therefore con-
clude that the backpay period for Cox and Jones was
tolled on April 18 and we shall adjust their backpay
accordingly.
With respect to Mercer, whose backpay the Admin-
istrative Law Judge tolled on April 24, we note that
Respondent's answer admits that Mercer's backpay
period ended on April 28. Notwithstanding
Respondent's admission, however, it is clear that the
notice given to Mercer to report on April 25, standing
6 With resepct to Jones, the Administrative Law Judge's finding is clearly
unreasonable since he did not even receive Respondent's letter until April 9,
the day the Administrative Law Judge found he should have reported.
r See also Eastern Die Company, 142 NLRB 601.
SOUTHERN HOUSEHOLD PRODUCTS
alone , was too short a period to constitute a valid offer
of reinstatement , when it is considered that Mercer
probably did not receive Respondent 's letter until
April 23 or April 24 and it directed him to report on
April 25, a Friday , or at the latest on the following
Monday, April 28.8 In any event, for the same reasons
set forth in our discussion of Cox and Jones including
the applicable precedent , we find that Mercer was
entitled to backpay through April 28 and we shall
adjust his backpay award accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Southern
Household Products Company, Inc., Shubuta, Missis-
sippi, its officers, agents , successors , and assigns: shall
make the employees involved in this proceeding
whole by payment of the amounts set forth by the
Administrative Law Judge in the attached Supple-
mental Decision , plus interest less any deductions re-
quired by state and Federal law, with the following
modifications.
Clifton Cox (estate) $2,610
James V. Jones $2,105
Luther J. Mercer $2,218
George B . Yarber $1,285
MEMBER KENNEDY, dissenting:
I do not agree with the majority's modifications of
the Supplemental Decision of the Administrative Law
Judge herein. I would affirm her rulings, findings,
conclusions, and recommended Order in their entire-
ty -
8 Had Mercer been employed at the time , and there is no evidence Respon-
dent had knowledge to the contrary, the Friday reporting date would have
been patently unreasonable.
SUPPLEMENTAL DECISION IN BACKPAY
PROCEEDING
STATEMENT OF THE CASE
FANNIE M. BoyLs , Administrative Law Judge : This sup-
plemental proceeding to determine the amounts of backpay
due 11 employees , whose employment has previously been
found to have been discriminatorily terminated ,! was heard
before me on July 25 , 26, and 27, 1972, at Meridian, Missis-
sippi, on the specifications of the General Counsel issued on
April 28 , 1972, as amended at the hearing , and the answer
of Respondent . Subsequent to the hearing the General
Counsel and counsel for Respondent filed helpful briefs.
1 180 NLRB 369, enfd . 449 F .2d 749 (C.A. 5, 1971).
883
Upon the record made before me and my observation of
the demeanor of the witnesses and after carefully consider-
ing the briefs, I make the following:
FINDINGS OF FACT
I THE ISSUES IN GENERAL
The 11 employees here involved were discharged in July
and in September 1968 and were offered reinstatement in
April or in May 1969. Despite denials in its answer, Respon-
dent at the hearing and in its brief agreed that the formula
for computing backpay used by the compliance officer in
his backpay specifications is correct and proper and that the
hourly rate used by him in computing the amount of back-
pay is correct except for employees Clifton Cox and Nehe-
miah Trotter and possibly also for employee George
Yarber. The hourly rate for these three employees will be
treated infra.
In addition to contending that most of the 11 discrimina-
tees did not make a reasonable effort to obtain interim
employment during the backpay period , Respondent makes
certain general objections to the backpay specifications
which are considered below.
1. Respondent contends that the expenses incurred by an
employee during a quarterly period in seeking employment
should not be deducted from the amounts earned by the
employee during that quarter but should, instead, be prorat-
ed over the entire backpay period and that the amounts thus
prorated should be deducted from the interim earnings dur-
ing each quarter. This contention must be rejected. The
Board's order in the unfair labor practice case , 180 NLRB
369, enforced 449 F.2d 749 (C.A. 5, 1971), expressly provid-
ed that backpay should be computed in a manner consistent
with Board policy set out in F. W. Woolworth Company, 90
NLRB 289, 293-294. In that case the Board provided that
backpay would be computed on a quarterly basis in con-
formity with the practice of the Social Security Administra-
tion in determining wages within the meaning of the Social
Security Act and defined " net earnings" which were to be
deducted form backpay during any quarter as "earnings less
expenses , such as for transportation, room and board, in-
curred by an employee in connection with obtaining work
and working elsewhere than for Respondent, which would
not have been incurred but for his unlawful discharge and
the consequent necessity of his seeking employment else-
where." Under that formula, as the Board states in the
Woolworth case , "earnings in one particular quarter shall
have no affect upon the backpay liability for any other
quarter." The formula devised by the Board in Woolworth
in 1950 and thereafter consistently applied in other backpay
cases was expressly approved by the Supreme Court in N.L.
R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S.
344 (1953). The same reasons for requiring earnings to be
computed on a quarterly basis, which were spelled out by
the Board in Woolworth and approved by the Supreme
Court in Seven-Up, apply equally to the requirement that
expenses in seeking employment should also be computed
on that same quarterly basis. In either case , the failure to
figure these sums on a quarterly basis might make it profit-
able for the employer to delay an offer of reinstatement as
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long as possible to reduce the backpay liability and might
put pressure on the employee to waive his right to reinstate-
ment in order to prevent the continuing reduction of the
sum coming to him (344 U.S. at 347).2
2. Respondent asserts that the compliance officer in his
specifications should have offset the amount of backpay
due each employee by the amount of unemployment insur-
ance each received or could have received had he applied
for unemployment insurance. It has long been settled that
the Board properly declines to deduct unemployment com-
pensation benefits from backpay awards. Gullets Gin Com-
pany, Inc. v. N.LR.B., 340 U.S. 361 (1951). Respondent's
contention in this respect is accordingly rejected.
3. Another objection raised by Respondent relates to the
cutoff date for backpay. It is undisputed that during a con-
tract negotiating session between representatives of Re-
spondent and the Union on April 3, 1969, when Respondent
was complaining of financial difficulties, the union repre-
sentatives suggested that Respondent could save money by
recalling the discriminatees and thereby cutting off further
backpay liability. After a conference apart from the union
representatives, Respondent's representatives returned to
the bargaining session and announced that Respondent was
"going to call all of the discriminatees back with the excep-
tion of three or four."
Thereafter, Respondent sent to 8 of the I 1 discriminatees
a letter dated April 7, 1969, the body of which reads as
follows:3
You are hereby offered reinstatement to your old or
equivalent position which you occupied at the time of
your separation from the Company. The offer of rein-
statement is without qualification.
If you desire such reinstatement, you are to report to
work on Wednesday, April 9th, at 7:00 a.m. Should you
fail to report to work as offered, or advise the Company
as to your position concerning reinstatement on the 9th
of April or not later than the 18th of April, it will be
considered that you do not desire such reinstatement
and no longer desire to work for the Company and
your records will be marked accordingly.
The Representative , the President and Committee of
Local Union 2575, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, were notified on
the 3rd day of April, 1969 of the Company's offer to
reinstate you to your former or equivalent position
2 The record shows that some of the discmmmatees incurred expenses in
seeking employment during quarters when they did not find employment
The General Counsel's backpay specifications , however, do not charge Re-
spondent with liability for these expenses . Since each discnminatonly dis-
charged employee is legally required to use reasonable diligence in seeking
employment in order to qualify for backpay from his employer , it would seem
logical that he should be reimbursed for his expenses incurred in attempting
to find employment whether or not he is successful in such an attempt.
Nevertheless, since the record was not fully developed in this regard and
because the Board in the past does not appear to have assessed the employer
with liability for this type of expense in its make -whole orders, I shall not
attempt to do so in this case.
3 The eight employees to whom this letter was sent are . Earlie Trotter, John
Wesley Harper , Raymond Hams, Nehemiah Trotter, Clifton Cox, Robert
Kennedy, James V . Jones , and Lewis Strickland
without qualification. We assume that you have been
notified by the Union Representative, but this letter is
written in order that you might have official notice
from the Company.
None of the eight returned to work prior to April 18, the last
day mentioned in the letter on which employees might re-
turn and the backpay specifications uniformly charge Re-
spondent with backpay liability through April 18. I reject
Respondent's contention, implicit in the last paragraph of
this April 7 letter and expressed in its brief, that the employ-
ees must have been notified by their union representatives
on April 3 of Respondent's offer to reinstate them. Respon-
dent at that time told the union representatives, including
employees Kennedy and Jones who were on the bargaining
committee: that it was "going to" offer reinstatement to all
but 3 or 4 of the 11 employees but did not say when it would
reinstate them. A later written communication by Respon-
dent and offer to each employee was obviously contemplat-
ed.
I do not, however, agree with the General Counsel that
April 18 should necessarily be the appropriate backpay cut-
off date for each employee. Respondent's April 7 letter
clearly offered reinstatement to each employee as of 7 a.m.
on April 9. That, as Respondent must have realized, was a
very short notice to give employees to whom Respondent
had denied employment for over 8 months and who must
have obtained employment elsewhere or made other adjust-
ments in their lives during the interim. It is obviously for this
reason that Respondent mentioned in its letter that should
any employee "fail to report to work as offered," he would
be given until April 18 to advise Respondent with respect
to his position regarding reinstatement before Respondent
would consider that he no longer wished to work for Re-
spondent.4 Whether that date or April 9 or some date in
between would be most appropriate depends on the circum-
stances of each case and this matter will be considered
below in dealing with the amount of backpay due each
semployee
4. Another objection of a general nature made by Re-
spondent is that the compliance officer has credited three of
the discriminatees, Cox, Earlie Trotter, and George Yarber,
with increases in their rate of pay comparable to increases
received on the same date by some of the other employees
in the same wage rate category who had less or at least no
more seniority than the discriminatees. The compliance of-
ficer assumed that because 12 of the 105 employees making
$1.60 an hour and who were hired subsequent to the date
of Cox's employment received a 10-cent-an-hour increase
on August 12, 1968, Cox, who also was making $1.60 an
hour, would have received a 10-cent increase on that date.
4 Pat Izzi Trucking Co, 162 NLRB 242, 249, cited by the General Counsel
in support of his position, is distinguishable from this case in that the
employer's first offer of reinstatement in that case did not state a definite date
and hour on which employees were to return to work (as Respondent's letter
does) and could reasonably have been interpreted as a promise of future
reinstatement at a time to be arranged by the parties See the decision of the
Court of Appeals for the First Circuit in remanding the case to the Board
on this point , 395 F.2d 241.
5 It is noted that the specifications for two of the eight employees, Harper
and Harris , show no backpay coming to them during the last quarter of the
backpay period and the amount of backpay due them is therefore unaffected
by the compliance officer's selection of April 18 as the cutoff date
SOUTHERN HOUSEHOLD PRODUCTS
He assumed that because 7 of 123 employees hired subse-
quent to George Yarber were increased from $1.60 to $1.70
an hour on October 7, Yarber, too, but for his discriminato-
ry discharge, would have received a similar increase on that
date .6 He assumed that because 12 employees classified as
painters received 5-cent-an-hour increases-most of them
on October 7, 1968-Earlie Trotter, a painter who had
trained a number of the other painters, would also have
received a 5-cent-an-hour increase on October 7 if he had
not been discriminatorily discharged. Respondent adduced
no evidence to indicate that any of the three discriminatees
would not have received increases on the dates they were
credited with increases by the compliance officer. I find,
under all the circumstances , that the assumptions of the
compliance officer in this regard were reasonable.
11 CONTENTIONS WITH RESPECT TO
INDIVIDUAL DISCRIMINATEES
Let us now turn to the issues presented with respect to
each of the 11 discriminatees.
1. Clifton Cox was discharged on July 26, 1968, and was
reinstated on April 21, 1969. Respondent attacks the relia-
bility of the evidence regarding Cox's attempts to obtain
employment and contends that, in any event, the cutoff date
for Respondent's backpay liability should be April 9 instead
of April 18 as stated in the specifications.
Cox died on November 12, 1970. Testimony regarding his
efforts to obtain employment was given by his widow, who
drove him to various places where he sought work and filled
out applications for employment for him at those places
accepting applications. Cox himself could not read or write.
Mrs. Cox credibly testified that she made notations on sepa-
rate pieces of paper regarding the dates and places where
her husband sought work and later copied all this informa-
tion onto one piece of paper. This paper, which she pro-
duced at the hearing, shows that between July 29, 1968, and
March 31, 1969, Cox sought work at 36 places in a wide area
around Quitman, where he lived, and other towns in south-
east Mississippi and also at one place in Alabama . Cox also
registered with the Mississippi Employment Security Com-
mission on August 1, 1968, and reported back to that agency
on August 8, August 15, August 22, October 3, November
7, and December 12, 1968, as shown by his unemployment
card introduced in evidence. He was, however unable to
obtain any employment. Respondent adduced no evidence
to rebut any of the evidence summarized above. I am con-
vinced on the basis of all the evidence that Cox made a
reasonable effort to obtain employment between the date of
his discharge and Respondent's offer to reinstate him.
I find merit, however, in Respondent's contention that
the cutoff date for Cox's backpay should be Wednesday,
April 9, rather than Friday, April 18, 1969. Cox was at home
and not working on April 8 when he received Respondent's
letter requesting that he report to work at 7 a.m. on April
9. There is no evidence in the record as to why he did not
6 Most of the employees on Respondent 's payroll records, particularly
those in the minimum wage rate category like Cox and George Yarber, did
not have job classifications and the record does not show what jobs they
performed.
RM
do so. As already pointed out, merely because Respondent's
letter gave those who might "fail to report to work as of-
fered" until April 18 in which to advise Respondent of their
position regarding reinstatement before Respondent re-
corded on its records that the employee did not desire rein-
statement, Respondent did not, as the General Counsel
argues, automatically extend the backpay cutoff date. The
latter statement in the letter is merely a recognition by Re-
spondent that some employees might not be immediately
available for reinstatement and a willingness to hold their
jobs open until April 18. It should not be construed as a
voluntary offer by Respondent to extend its backpay liabili-
ty cutoff date.
Cox's backpay computation will accordingly be adjusted
to show backpay liability of Respondent only through April
8 for the second quarter of 1969. This involves 6 working
days of 8 hours each at $1.70 an hour-amounting to $82.
With this adjustment, Cox's estate is entitled to the follow-
ing amounts, plus interest:
Third quarter, 1968 $624
Fourth quarter, 1968 915
First quarter, 1969 894
Second quarter, 1969 177
$2,610
2. John W. Harper was discharged on July 31, 1968 and
was offered reinstatement on April 9, 1969. Except for
Respondent's general contentions already rejected, Respon-
dent has not contested the accuracy of the backpay compu-
tations for Harper. They are accordingly approved. He is
entitled to the following amounts of backpay, plus interest:
Third quarter, 1968 $400
Fourth quarter, 1968 175
$575
3. Raymond Harris was discharged on July 31 and was
offered reinstatement on April 9, 1969. He did not respond
to the offer or return to work for Respondent, apparently
because, except during the third and fourth quarters of 1968
(when Respondent is charged with backpay for him), he was
employed elsewhere at greater compensation than he would
have earned with Respondent. The backpay specifications
were amended at the hearing to list transportation and room
and board expenses, previously omitted, which the General
Counsel contended should be deducted from Harris' third
and fourth quarter 1968 interim earnings.
Respondent contends that no backpay award should be
given Harris because his testimony regarding his employ-
ment during the backpay period, particularly in regard to
his employment by Dizzy Dean Enterprises, Inc., is so con-
fusing and lacking in clarity that it cannot form the basis for
an accurate decision. Respondent contends that, in any
event, the General Counsel has incorrectly computed the
amount permissible for room and board as well as for mile-
age when Harris, during the fourth quarter of 1968, was
working at Owensboro, Kentucky.
As shown by his social security records covering the peri-
od from January 1, 1968, to September 30, 1970, Harris
worked for 12 different employers during that period. It is
therefore understandable that he was confused in placing
the correct dates and even sequence of his employment at
those various places. His testimony was particularly confus-
ing as to the dates when he worked for Dizzy Dean Enter-
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prises, Inc., an employer for whom he has worked on several
occasions . In his last testimony on this subject , he places the
date of his first employment by Dizzy Dean as sometime
after he left Quitman Pole & Timber Co., Inc. He testified
that he worked for Dizzy Dean for 3 or 4 months. This
testimony would be consistent with his social security re-
cords, which show his employment with Dizzy Dean was
during the third and fourth quarters of 1969-subsequent to
his employment by Quitman Pole and outside the backpay
period. I find no basis on the record before me to doubt the
accuracy of the social security records and shall follow the
Board 's practice in other cases of giving controlling weight
to such records.7
During the fourth quarter of 1968, Hams was engaged in
construction work for 4 weeks at Daniel Construction Co.,
Inc. in Owensboro, Kentucky, leaving his wife and five
children at home near Shubuta, Mississippi, during that
period. On one occasion while working there he drove home
to see his family. While on the construction job he stayed
at a motel , the nearest to his jobsite , which was 20 miles
away. He estimated that he paid $25 or $30 a week for his
motel room and a similar sum for his food . He estimated
that while living at home a food bill for himself and his
entire family was between $25 and $30 a week . He also
estimated that the distance between Owensboro and his
home was between 450 and 500 miles. The General Counsel,
using a Rand-McNally map, now correctly figures 477 miles
to be the distance between Owensboro and Shubuta.8 He
gave Hargis credit , as a transportation expense in connec-
tion with his job in Owensboro, for the cost of the one trip
home to see his family as well as for the initial travel to the
job and his return to Shubuta at the end of his employment.
Respondent asserts that the trip to see his family was "un-
necessary" and not chargeable to Respondent. If Harris had
declined the job offer at Owensboro on account of the dis-
tance from his home and his unwillingness to be separated
for long periods of time from his family, such a refusal
would have been justified and Respondent might have been
liable for full backpay to Harris during the entire 4 weeks
of his employment at Owensboro.' The single trip home
during Harris' long separation from his wife and family
does not, in the circumstances , appear to me an unreasona-
ble travel expense in connection with his job. I find: more-
over, that the $50 a week room and board expense allowed
by the General Counsel (which is the minimum figure in
Harris' estimate) for the 4 weeks Harris worked at Owens-
boro is a reasonable amount.10
I Associated Transport Company of Texas Inc, 194 NLRB 62, and cases
cited therein.
a Standard Highway Mileage, Rand-McNally and Co, p 158 This has
been found by the Board to be an acceptable method of determining dis-
tances between towns . Tennessee Packers, Inc., 160 NLRB 1496, 1502. The
General Counsel concedes in his brief that the amended specification, G C
Exh. 20, erroneously states the mileage between Owensboro and Shubuta to
be 736. Respondent's counsel had pointed out this error in his brief.
9 In Florence Printing Company, 158 NLRB 775, 792, enfd. 376 F 2d 216,
221 (C.A. 4, 1967), it was held that an employee was not obliged to accept
employment 100 miles from his home in order to qualify for backpay, and
in Nickey Chevrolet Sales, Inc., 160 NLRB 1279, 1280, it was held that an
employee was entitled to reject a job because it would have entailed traveling
50 or 55 miles each day from his home , thereby doubling his normal traveling
time and traveling expense.
It is accordingly found that Harris is entitled to backpay
for the third and fourth quarters of 1968 in the amounts
shown in the amended specifications (G.C. Exh. 19 and 20),
with mileage adjustment noted above. As thus adjusted
Hams is entitled to the following amounts, with interest:
Third quarter, 1968 $354
Fourth quarter, 1968 263
$617
4. James V. Jones was discharged on September 16, 1968,
and was reinstated on April 21, 1969. Respondent contends
(1) that Jones should be denied backpay after the third
quarter of 1968 because he did not keep returning to the
unemployment office after registering with it on the day
after his discharge; (2) that Respondent should not be
charged with backpay for Jones during the two occasions
when he was in a Veterans Hospital; and (3) that, in any
event, his backpay cutoff date should be April 9 rather than
April 18.
Jones, a 52-year-old man, registered with the Mississippi
State Employment Service on September 17, 1968, the day
following his discharge, and thereafter received the full
amount of unemployment compensation due him. In the
meantime , between September 23, 1968, and March 27,
1969, he sought employment at 23 different places , covering
a wide area in Mississippi and two places in Alabama but
was unsuccessful in obtaining employment. A list of the
places where Jones sought employment and the dates are
contained in a letter to the Board's Regional Director in
response to the latter's inquiry of March 19, 1971. Jones'
social security records also show that he had no earnings
during the backpay period. Respondent has not challenged
the accuracy of the information given by Jones to the Board
office . I am satisfied from all the evidence that Jones made
a reasonably diligent effort to obtain interim employment.
Respondent's contention that it is being charged with
backpay for time when Jones was hospitalized and unable
to work is without support in the record. The contention is
apparently based upon the following circumstances: In
March 1971, in connection with seeking compliance with
the Board's order in the unfair labor practice case, the
Board's compliance officer wrote each of the discriminatees
a form letter, seeking pertinent information. Question 2 in
that letter reads:
Did you ever have any medical, doctor, or otherwise
bills during the period of on or about October 25, 1968
through May 22, 1969 that would have been covered by
the hospitalization insurance in effect at Southern
Household Products at the time of your discharge?
If you did, would you please be specific as to the
amounts, the kinds of treatment, and supply copies of
any doctor or medicine bills you may have received
during that period.
In his letter of March 25, 1971, responding to that inquiry,
Jones wrote:
Item 2: I did have some medical bills and doctor bills
which occurred during October 25, 1968 through May
22: 1969, but was treated at the Keesler Air Force Base,
10 The fact that this calculation is based upon an estimate does not, of
course, preclude its acceptance . W C Nabors Company, 134 NLRB 1078,
1095
SOUTHERN HOUSEHOLD PRODUCTS
Biloxi, Miss. (4-28-1969 & 4-29-1969) and Maxwell
Air Force Base : Montgomery, Ala. 12-30-1969.
This reply shows that Jones' periods of hospitalization were
subsequent to his reinstatement with Respondent and there-
fore outside the backpay period.
I find merit, however, in Respondent's claim that Jones'
backpay cutoff date should be April 9, 1969. Jones was
available for work on April 9 and the record discloses no
reason why he failed to return to work until April 21. His
backpay for the second quarter of 1969 will accordingly be
limited to the period through April 8 This involves 6 work-
ing days of 8 hours each at $1.70 an hour-amounting to
$82. With this adjustment, Jones' backpay for the four quar-
ters of his backpay period should be the following amounts,
plus interest:
Third quarter, 1968 $119
Fourth quarter, 1968 915
First quarter, 1969 894
Second quarter, 1969 82
$2,010
5. Robert B. Kennedy was discharged on July 25, 1968,
and was reinstated on April 21, 1969. Respondent appears
to question the quality of the evidence adduced regarding
Kennedy's attempts to obtain interim employment and also
contends that its backpay liability should end on April 8,
1969, rather than on April 18, the date set by the General
Counsel and compliance officer.
Kennedy credibly testified that he registered at the State
Employment Agency during the week after his termination
and also during the following week'[ and that he received
unemployment compensation. He also made applications
for employment at 32 places between August 1968 and April
1969, traveling over wide areas in Mississippi and making
two trips to Alabama and one to Louisiana, all without
success . The only work he obtained was some carpentry
work he performed for a cousin during the second quarter
of 1969 in exchange for the cousin's bush hogging some land
for Kennedy. No cash was exchanged but the value of these
services each performed for the other was estimated to be
$102. Kennedy kept a list of the places where he sought
work and the approximate dates and turned this list over to
Union Representative Smith, who, in Kennedy's presence,
prepared Kennedy's letter of March 29, 1971, responding to
questions by the Board's compliance officer, and listing the
places and dates. When Respondent's counsel at the hearing
appeared to question the reliability of the letter as evidence
of the attempts by Kennedy to seek work, the General
Counsel started questioning Kennedy about each place list-
ed in the letter, whereupon Respondent's counsel an-
nounced: "You can offer that [the letter] into the record, for
what it's worth." Respondent, though given ample opportu-
nity, did not question Kennedy regarding the detailed list.
I am satisfied that Kennedy did apply at the places and on
the dates listed and that he made a reasonably diligent
search for work.12
11 This testimony is corroborated by that of Lewis Strickland with whom
he traveled to the employment office in Meridian on both occasions, once
in his own car and once in Strickland's car
12 In searching for employment, Kennedy traveled a total of 2,656 miles,
60 of which were during the second quarter of 1969 when he is credited with
887
Were it not for the fact that the carpentry work performed
by Kennedy during the second quarter of 1969 was "just
before" his reinstatement, I might find persuasive
Respondent's argument that its backpay liability as to him
should terminate on April 8. Since Kennedy had apparently
arranged to do the carpentry work for his cousin in ex-
change for the bush hogging services prior to the time he
received Respondent's offer of reinstatement, Kennedy was
entitled to a reasonable time up to and including April 18
(a date which Respondent itself recognized as reasonable
notice) in which to complete his carpentry work and notify
Respondent of his desire for reinstatement. It is noted that
Kennedy, by doing this carpentry work, apparently reduced
the amcunt of backpay liability of Respondent for that
quarter from $82, which would have been due if Kennedy
had returned to work on April 9, to only $75.
I find that the backpay specification correctly states the
amount of Respondent's backpay liability for Kennedy. Ac-
cordingly, Kennedy is entitled to the following amounts,
plus interest:
Third quarter, 1968 $654
Fourth quarter, 1968 915
First quarter, 1969 894
Second quarter, 1969 75
$2,538
6. Luther J. Mercer was discharged on September 9, 1968.
On April 22, 1969, the first day of the strike at Respondent's
plant, Respondent wrote Mercer requesting him to report
for work on Friday, April 25, at 7 a.m. and stated that if he
did not report for work then or advise Respondent on that
date or not later than Monday, April 28, as to his position
regarding reinstatement, Respondent would consider that
he was no longer interested in working for it. During this
period Mercer requested an extension of time within which
to return because of the strike in progress and Respondent,
by letter dated April 28, denied this request. Mercer was
finally reinstated in August 1969. The General Counsel and
compliance officer have charged Respondent with backpay
for Mercer through April 28, 1969.
Respondent asserts that Mercer should be given no credit
for backpay because he did not register with the State or
Federal employment agencies and that, in any event, his
backpay cutoff date should be April 24 rather than April28,
1969.
Mercer, a 60-year-old man, did not apply for unemploy-
ment insurance because it was his understanding that he
was not qualified for it and he did not register at any Gov-
ernment employment agency. However, during the period
between his discharge and his offer of reinstatement, he let
all his friends and relatives know he was looking for work
and sought work at 33 places on as many separate dates
between September 18, 1968, and April 24, 1969. I am con-
vinced that he made a reasonably diligent search for em-
ployment. The only work he obtained was a temporary job
at Gulf Coast Drilling & Exploration, Inc., during parts of
the fourth quarter of 1968 and the first quarter of 1969.
Respondent does not question the amounts reported as
earned during those quarters and the transportation expen-
earnings of $102. The General Counsel has not claimed any credit for Kenne-
dy based on these mileage figures and I shall ignore them for purposes of this
Decision.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ses incurred in seeking work during those quarters.
I find merit in Respondent 's contention that Mercer's
backpay cutoff date should be April 24 rather than April 28
since , regardless of whether Respondent was willing to
grant his request for any extension of time in which to
accept reinstatement , it should not be required to pay him
for the time when he voluntarily absented himself from
work because of the strike . The amount of backpay due
Mercer for the second quarter of 1969 should , however, be
reduced by only 2 days (Friday, April 25, and Monday,
April 28) rather than by 4 days as suggested by Respondent.
The 2 days of 8 hours each at $1.70 an hour amount to $27.
This, deducted from the $250 shown in the specification,
leaves $223 due Mercer for the second quarter of 1969. With
this adjustment , Mercer is entitled to backpay in the follow-
ing amounts, plus interest:
Third quarter, 1968 $190
Fourth quarter, 1968 915
First quarter, 1969 863
Second quarter, 1969 223
$2,191
7. Lewis Strickland was discharged on July 26, 1968, and
was offered reinstatement as of April 9, 1969 . He did not
accept reinstatement , however, because by the time he re-
ceived the offer he had apparently made arrangements to
work at a more remunerative job in LaPorte, Texas.
Respondent concedes that Strickland made a diligent ef-
fort to obtain employment and attacks only the compliance
officer's computation of mileage in connection with trans-
portation to and from interim employment and to and from
places where Strickland sought work . In his brief, the Gen-
eral Counsel concedes that there were some errors in the
computations, some favorable and some unfavorable to
Respondent's interests.
A careful examination of the record reveals that the fol-
lowing changes should be made in the computations regard-
ing interim expenses for the third quarter of 1968:
Strickland made two round trips (instead of one) in his own
car from Quitman (where he lived) to the employment office
in Meridian. The round trip to San Antonio, Texas, was
1,560 miles (instead of 1,528 as shown on the specification).
The round trip distance between Strickland's abode and
Acme Building and Supply Company where he obtained
employment is 50 miles instead of 52 (stipulated). The
round trip distance between Quitman and Southern House-
hold is 20 miles instead of 12 (stipulated at the conclusion
of Harris' testimony). Refiguring third quarter 1968 expen-
ses in the light of the above corrections requires a finding
that Strickland's transportation cost in seeking work was
$166 and that his transportation cost in going to and from
his interim employment was $90-a total of $256 in reim-
bursable expenses.
In view of my finding that the round trip distance be-
tween Strickland's abode and Acme Building and Supply
Company was 50 miles and that the distance between his
abode and Respondent 's plant was 20 miles-resulting in a
difference of 30 miles a day in traveling distance,
Strickland's interim transportation expenses should be re-
vised to show $195 for the fourth quarter of 1968 and for
the first quarter of 1969 and $42 for the second quarter of
1969.
Accordingly, Strickland is entitled to the following
amounts of net backpay, plus interest:
Third quarter, 1968 $374
Fourth quarter, 1968 47
Second quarter, 1969 19
$440
8. Earlie Trotter was discharged on September 12, 1968,
and was offered reinstatement on April 9, 1969 , in a letter
which Trotter did not receive until that date. Trotter did not
return to work becuase , as he explained , he "wasn't treated
right" when he was there before and thought he would be
treated the same way if he returned.
Respondent 's principal objection to the backpay compu-
tations as to Trotter is that he did not make reasonable
efforts to obtain other employment during the backpay peri-
od. Trotter owns a farm and has lived there all his life,
raising produce for himself and family even while working
for Respondent. He did not apply for unemployment com-
pensation or register with any employment agency after his
discharge although he sought work at a number of places
and obtained a few temporary jobs. He kept no records of
the places where he sought or obtained employment or the
dates . His testimony was based solely upon his recollection,
which was not very clear. The only interim employment
shown on his social secunty records is $43.60 paid him
during the fourth quarter of 1968 by Lewis Trucking Co.,
Inc., at Pachuta , Mississippi , also referred to by Trotter as
the Ford Motor place.
Piecing together his bits of testimony regarding the se-
quence in which he sought or obtained employment and his
social security records, it would appear that shortly after he
was terminated-he did not know whether it was in Septem-
ber or later-he drove to Pachuta, about 12 miles from his
home, a couple of times, seeking work. He obtained a job
at Lewis Trucking Co in Pachuta (which is listed on his
social security records), painting two trucks, for which he
was paid $44 , sometime in the fourth quarter of 1968. Also
in the fourth quarter of 1968, within 2 or 3 days or a week
after completing his job at Lewis Trucking Co., Trotter
drove to Laurel (about 72 miles round trip from his abode,
according to Compliance Officer Norton), on three occa-
sions, seeking work, and on his second trip got a job with
Bon Ton Motors painting one truck, for which he received
about $40.
Thereafter Trotter bought a truck which he "turned in"
or resold after about a week. While he owned it he hauled
about four or five loads of wood and masonite at $12 a unit.
The truck could carry two units. Accordingly, he earned a
maximum of $120 at this work. Trotter, however, could not
be sure whether he earned this money before or after he
received Respondent's reinstatement offer but was sure it
was in 1969.
The next money Trotter earned was working for a Shows
Body Shop at Laurel. He worked there about a week doing
body work and earned "around $60."13 Trotter could not
13 This business was first described in the record as "Mr . Shouls" at the
"Rambler place" in Laurel, then as Wilson 0 Shaws Body Shop. Trotter's
social security records indicate that Trotter worked for "Wilson D. Shows,
owner, Shows Body Shop" during the third quarter of 1969 and I am satisfied
that these various references are to the same employer, which I shall refer to
as Shows Body Shop
SOUTHERN HOUSEHOLD PRODUCTS
remember, however, whether this money was earned before
or after he received Respondent's offer of reinstatement.
Trotter drove to Heidelberg, Mississippi, about 12 miles
from his home, in an unsuccessful attempt to obtain work
at the Bums Motor Co. there, prior to the receipt of
Respondent's offer of reinstatement, but he could not place
the dates in any particular backpay quarter. He also testi-
fied that he made two or three trips to Abney Motor Co. in
Bay Springs, Mississippi, about 27 miles from his home, in
an attempt to find work but did not remember whether this
occurred in the same year he received the offer of reinstate-
ment.
Although I do not regard Trotter's failure to register with
an employment agency as critical to a determination as to
whether he should be entitled to any backpay, it is an impor-
tant factor to consider. Another important factor is his fail-
ure to keep any records of the places or dates he worked or
applied for work.
Trotter was 56 years old at the time of the hearing and
had lived all his life on a farm 27 miles from Respondent's
plant and a substantial distance from other places where
work might be available. He impressed me as an honest man
who earnestly sought the kind of work he felt qualified to
do but except perhaps for the fourth quarter of 1968 his
efforts to obtain work do not appear to me to have been
sufficiently persistent to warrant a conclusion that he pre-
ferred earning wages to tending his farm.
A determination as to the precise amount of backpay, if
any, due a discriminatorily discharged employee is perhaps
not subject to mathematical precision in most cases and it
is most certainly not subject to such precision in this case.
A fair appraisal of the evidence, however, leads me to the
conclusion that Trotter's trips to Pachuta, 12 miles from his
home, in seeking work (which he obtained at the Lewis
Trucking Company there) and his three trips to Laurel,
about 36 miles from his home, seeking work (which he
obtained at Bon Ton Motors there), all during the fourth
quarter of 1969, constituted a reasonably diligent effort on
Trotter's part to obtain employment during that quarter.
The General Counsel suggests that the transportation costs
to Pachuta and Laurel should be deducted from Trotter's
earnings during that quarter. However, since Trotter lived
27 miles from Respondent's plant, his transportation expen-
ses to and from the plant, if he had not been discharged,
would have more than offset his transportation expense in
seeking and obtaining work elsewhere. He is therefore not
entitled to reimbursement for transportation expenses.
It appears doubtful that during the remaining three quar-
ters of Trotter's backpay period, he made a sufficiently
diligent effort to obtain employment to warrant a finding of
backpay liability by Respondent for those quarters. No one
but Trotter could have supplied the information necessary
to determine when and where he sought employment during
those quarters. For this reason, any doubts as to the dates
when he sought work should be resolved against him. The
only attempt during these periods to find work which he was
sure occurred prior to Respondent's offer of reinstatement
was that at Heidelberg, Mississippi, about 12 miles from his
home. This effort clearly did not satisfy his obligation to
attempt to mitigate Respondent's backpay liability, particu-
larly since he had not registered at any employment office.
889
Subtracting the $84 earned by Trotter in the fourth quar-
ter of 1969 from the $965 he would have earned at
Respondent's plant if he had not been discriminatorily dis-
charged, leaves $881: the amount of backpay due him plus
interest.
9. Nehemiah Trotter was discharged on September 13,
1968, and was offered reinstatement on April 9, 1969. He
did not return to work, as he testified, because he "didn't
feel justified in going back" because of the way in which he
had been terminated.
Respondent contends that Nehemiah Trotter failed to
make a reasonable effort to obtain other work during the
backpay period and that he is not entitled to any backpay.
Trotter was 30 years old at the time of the hearing. He has
lived all his life on a farm about 12 or 13 miles west of
Pachuta and about 26 miles from Respondent's plant at
Shubuta. He and his wife and child live with his uncle and
he works on his uncle's farm and his mother's farm nearby,
without pay, as he did prior to his employment by Respon-
dent. After his discharge he made no application for unem-
ployment compensation and did not register with any
employment agency, though he knew there was such an
agency in Laurel, Mississippi. His only efforts to obtain
interim employment were as follows: About 2 weeks after
his discharge, he inquired about work at a service station at
Heidelberg, about 9 miles from his home. About November
1968 he asked McGill, the foreman of an oil field contractor
who was hauling gravel off his mother's farm, whether Mc-
Gill had any work for him and later repeated this inquiry.
In December Trotter earned $75 for clearing a neighbor's
pasture. About February 1969 he inquired about work at
Heidelberg Parts, Inc., in Heidelberg. In late February or
early March 1969 he again inquired about work at the ser-
vice station in Heidelberg. Also, at some date not shown in
the record, Trotter talked to a Mr. McCullough, "board
supervisor" in Heidelberg, about employment.
These isolated inquiries about work over the approxi-
mately 7-month backpay period, especially in view of
Trotter's failure to register for work at any employment
agency, do not, in my opinion, constitute reasonable efforts
to obtain interim employment.
It is accordingly found that Nehemiah Trotter is not enti-
tled to any backpay.
10. George B. Yarber was discharged on July 31, 1968.
Respondent sent him a letter on April 29, 1969, during the
course of a strike at its plant, requesting him to report back
to work on Wednesday, May 7. He received this letter on
May 5 and immediately requested an extension of time in
which to return because of the strike situation. This request
was denied. He was, however, reinstated sometime in Au-
gust 1969. The compliance officer and General Counsel
have agreed that his backpay cutoff date should be May 5
when he indicated to Respondent that he would not return
on May 7 because of the strike.
Respondent challenges the amount of backpay shown by
the specifications to be due Yarber in the third quarter of
1968 and the second quarter of 1969, stating that, during
those two quarters, he did not make a reasonable effort to
obtain interim employment. Respondent does not challenge
the accuracy of the backpay specifications for the fourth
quarter of 1968 and the first quarter of 1969.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that on August 1, 1968: the day after
his discharge , Yarber applied for work at a glove factory in
Waynesboro , Mississippi, where he knew the personnel
manager ; that on August 13 he applied at a cotton mill at
Stonewall , Mississippi ; that on September 8 he applied at
Davis Brothers Contracting Co. in Shubuta (where he later
obtained employment); and that on September 16 he ap-
plied at Plastic Oil Co. in Shubuta . I am persuaded that
Yarber made a reasonably diligent effort to obtain employ-
ment during August and September 1968 and that he is
entitled to backpay as computed in the specifications during
the third quarter of 1968.
Yarber's employment with Davis Brothers Contracting
Co. was during the fourth quarter of 1968 and the first
quarter of 1969. Because he was the least senior employee
on the job, he was laid off there in connection with a reduc-
tion in force.
Yarber did not obtain any further employment after his
termination at Davis Brothers and before he was offered
reinstatement on May 7 . Respondent contends that he
made no reasonable effort to find other work during the
second quarter of 1969 . Yarber testified that he went to
several places and asked for jobs, but could name only one
place , Smith Franklin Co. in Laurel, 18 or 19 miles from his
home , where he went during this period. He testified that he
went to Pascagoula Ship Yards looking for work but could
not remember whether this was before or after his employ-
ment at Davis Brothers . He further testified that his friends
and relatives knew he was looking for work and that he was
available for work but that he did not sign up for unemploy-
ment insurance . (The nearest unemployment office was in
Laurel .) It may be that Yarber sought work at several places
during April and early May 1969 which he did not name but
only he was in a position to furnish accurate information in
this regard and I cannot accept as reliable evidence his
statement that he went to "several places" looking for work
when he could name only one . I am not persuaded that he
made a reasonably diligent search for work during that
period and therefore find that he is not entitled to backpay
for the second quarter of 1969.
Accordingly, it is found that George Yarber is entitled to
net backpay in the following amounts, plus interest:
Third quarter, 1968 $562
Fourth quarter , 1968 94
First quarter, 1969 311
$967
11. M. D. Yarber: Respondent , at the hearing, did not
challenge the accuracy of the backpay specification as to
Yarber and it concedes in its brief that he "earnestly at-
tempted to obtain work and did obtain work for the most
part."
It is accordingly found that M. D. Yarber is entitled to
the following backpay , as set forth in the specifications, plus
interest:
Third Quarter, 1968 $60
First quarter, 1969 337
Second quarter , 1969 249
$646
Recommendations
On the basis of the foregoing findings of fact , conclusions,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the National Labor Relations Act, there is
hereby issued the following recommended:
SUPPLEMENTAL ORDER 14
Southern Household Products Company, Inc., its offi-
cers, agents , successors , and assigns , shall pay to each of the
individuals listed below (in the case of Clifton Cox, to his
estate or to any other person or persons as their interest may
appear in the backpay) the amounts set forth opposite their
names. Interest is to be added at the rate of 6 percent per
annum on the basis of the quarterly amounts of backpay
due, in accordance with the formula set forth in Isis Plumb-
ing and Heating Co., 138 NLRB 716. There shall be deduct-
ed from the amounts due each individual any tax
withholding required by law.
Clifton Cox (estate) $2610
John W. Harper 575
Raymond Harris 617
James V . Jones 2010
Robert B. Kennedy 2538
Luther J. Mercer 2191
Lewis Strickland 440
Earlie Trotter 881
Nehemiah Trotter 0
George B . Yarber 967
M. D. Yarber 646
14 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Supplemental Order herein shall, as provid-
ed in Section 102.48 of the Rules and Regulations , be adopted by the Board
and become its findings , conclusions , and Supplemental Order, and all objec-
tions thereto shall be deemed waived for all purposes.