Hickman Garment Co.

National Labor Relations Board - Board DecisionsAug 13, 1975

219 N.L.R.B. 1112 (N.L.R.B. 1975)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hickman Garment Company and Amalgamated Cloth- ing Workers of America , AFL-CIO. Case 9- CA-6579 August 13, 1975 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS , AND PENELLO On May 8, 1975, Administrative Law Judge Mar- ion C. Ladwig issued the attached Supplemental De- cision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. 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 Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Hickman Garment Company, Hickman, Kentucky, its officers, agents, successors , and assigns , shall take the action set forth in the said recommended Order. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MARION C . LADwIG, Administrative Law Judge : This is a supplemental proceeding to determine the amount of back- pay due 11 discriminatees . On February 16, 1973, the Board issued an unpublished Order, adopting (in the ab- sence of timely exceptions) the findings and conclusions of Administrative Law Judge Paul E . Weil in his December 27, 1972, Decision , in which he found that the Company (after a series of earlier violations) discriminatorily failed to recall the 11 laid-off employees and otherwise violated the National Labor Relations Act, as amended . On July 26, 1973, the Court of Appeals for the Sixth Circuit entered its judgment, granting summary enforcement of the Board's Order and requiring the Company , the Respon- dent, to make the I1 employees whole for any loss of pay and to otherwise remedy the 8(a)(1), (3), and (5) violations of the Act. A controversy having arisen over the amount of backpay due under the terms of the Board 's Order, the Regional Director for Region 9 issued on June 28, 1974, a backpay specification and notice of hearing (amended by an erra- tum on July 1, 1974, and later amended at the hearing). The Company filed an answer on July 17, 1974, and also an amended answer on July 29, 1974, following the Gener- al Counsel's motion for summary judgment, which the Board denied on October 29, 1974. The backpay hearing was held on January 7-8, 1975, at Mayfield, Kentucky. Upon the entire record, including my observation of the demeanor of the witnesses , and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS The Company does not contest the formula for measur- ing the average weekly earnings , nor the accuracy of the gross backpay computations (including the Christmas bo- nus where applicable) in the backpay specifications. I ac- cept the alleged computations as being accurate. At the hearing, I permitted an amendment of the back- pay specification to allege the date of May 18, rather than May 3, as the date Adell Anderson's "back pay period begins." Accordingly, I reduce the number of weeks in her gross backpay for 1971-2 (the second calendar quarter of 1971) from 8.8 weeks to 6.4 weeks, thereby reducing her gross backpay for that quarter (at $67.25 per week) from $591.80 to $430.40. Following this amendment of the backpay specification, the Company has not contested the date the "back pay period begins" for any of the other discriminatees-with the single exception of the beginning date for Mildred Kin- ney. I agree with the Company that her correct beginning date is June 24, rather than June 3, 1971. (After being re- called on June 23 from layoff , she worked a total of I1 hours , earning $ 17.60 in regular pay, before again being laid off.) I therefore find that her gross backpay for 1971-2 is $66.33 for the final week of June, rather than $265.32 for 4 weeks in June . Accordingly, I make that correction in the backpay specification , and accept as accurate the date the "back pay period begins" as alleged for the nine remaining discriminatees. Although many of the 11 discriminatees incurred extra travel expense in search of, and during , interim employ- ment, the backpay specification-without explanation-al- leged , "No expenses are involved ." At the hearing, the General Counsel raised the question of whether extra trav- el expense should be deducted from interim earnings, but he failed to seek any amendment of the backpay specifica- tion to allege such expenses. I shall therefore ignore the customary reduction of extra travel expense from interim earnings. Apart from various subsidiary questions discussed with reference to some of the individual discriminatees, the principal issue in this case is whether the II discriminatees made adequate efforts to secure interim employment. 219 NLRB No. 178 HICKMAN GARMENT COMPANY 1113 11. GENERAL CONSIDERATIONS A. Scarcity of Jobs The Company' s plant was the only factory hiring women in the town of Hickman (population about 1,500) in a rural area in western Kentucky . When the laid-off employees applied for unemployment compensation at Mayfield, Kentucky, about 45 miles away, they were not referred to any jobs, either in the Hickman area , or in the Mayfield area where there was a factory out of work. There were several sewing plants and other factories within about a 15- to 20-mile radius of Hickman in north- ern Tennessee (and one in Kentucky ), but there was no evidence that any of the plants had any vacancies in May and June 1971 when some of the laid -off employees began searching for out-of -town employment. Several of the dis- criminatees who began applying at out-of -town plants at that time credibly testified that they were advised that the plants were not hiring . Some of the discriminatees went to the Tennessee unemployment office in Union City for re- ferrals, but were not able to find jobs . Thereafter, a num- ber of the discriminatees who had transportation were able to find out-of -town work. In its brief, the Company ignores its failure to produce any evidence of job availability at the out -of-town plants, and argues that "the discriminatees' contention that there was no work available for which they could apply , must be rejected in view of a number of business establishments in the area," citing Missouri Transit Company, Inc., 125 NLRB 1316 (1959). That decision is clearly inapplicable, as found by the Board in an earlier backpay proceeding, Hickman Garment Company, 196 NLRB 428, 429-430 (1972), enfd. December 11, 1972 (unpublished per curiam opinion , C.A. 6). B. Employees Misled In order to conceal its discriminatory motivation (found by Judge Weil upon hearing of the merits of this case) for not more promptly recalling the 11 laid -off employees, the Company indicated at the time that the layoffs were only temporary, and that the employees would be recalled as the civilian coat production replaced the canceled military coat production . It gave the employees "layoff" (not termi- nation or discharge) slips, which were accepted by the State unemployment office in Mayfield as indicating tem- porary layoffs . The testimony is undisputed that many of the employees called the plant frequently , sometime as of- ten as weekly-and particularly after the Company began advertising in the local newspaper about June 15, 1971, for both experienced and inexperienced employees-to de- termine when they would be called back . They were never told that they were terminated , or that they would not be called back when needed . It is further undisputed that in a negotiating session with the Union in the latter part of July 1971, the Company 's counsel , John Weiss , advised discri- minatee Evelyn Jackson and other union negotiators that "it was just a temporary layoff," and that "everyone that was out would be called back just as soon as the work picked up." Meanwhile , Mildred Kinney had been called back on June 23 (for less than a day and a half ); Jackson (who had previously been reinstated with backpay pur- suant to a Board order) was recalled on August 2; and Allene Ferrell was recalled on September 15, 1971. (The original charge was filed by the Union on November 8, 1971. On March 11 , 1972, while amended charges were being investigated , the Company offered reinstatement to Pamela Caldwell Dinwiddie , Kinney , and Minnie Rob- inson . It recalled Glenda Edgin on July 27, 1972, after is- suance of the complaint, and offered reinstatement to Mar- cia Murphy on November 14, 1972, after the hearing. It later offered reinstatement to the remaining four discrimi- natees on August 7 , 1973, after the court 's enforcement of the Board's Order.) Now, in its brief , the Company is contending, in effect, that the laid-off employees should not have relied on the Company's word ; that they should have realized (even contrary to Company Counsel Weiss ' promise of recall) that the Company was discriminatorily refusing to recall them ; and that instead of awaiting recall to their jobs, se- niority, and other benefits at the only factory (hiring wom- en) in their hometown , they were required to search for out-of-town employment-to mitigate the company dam- ages . In its words , the Company argues that "Any rational person would realize that there was no job available to them at the Hickman factory . . . to any sensible individu- al, it would seem that calling the Hickman Garment Com- pany for a job was a futile gesture . . . . Nowhere in any of the cases having to do with back pay awards is there any authority or authorities which state that endeavoring to reobtain your old job with your former employer is to be considered in mitigation of damages. . . . Newspaper ads requesting experienced and inexperienced people would make any rational person realize that if the company in- tended to reemploy her, there would be no need to adver- tise . They could have just called her on the phone to come to work . . . any reasonable individual would realize that she was not going to be called back." Thus the Company is shifting its position , depending upon the occasion . In the summer of 1971, the Company contended that the 11 layoffs were only temporary-and did reinstate 3 of the 11 laid-off employees (in June, Au- gust, and September). At the hearing of this case in Sep- tember 1972, the Company contended that it had not dis- criminated against any of the 11 employees . Now the Company is contending that the employees should have realized that it was discriminating against them , and that they should have been seeking out-of-town employment- as most of them eventually did. The Company has cited no authority for the proposition that if, by its own deceit , it misled laid-off employees into believing that the layoffs were temporary and that they would be recalled immediately when work was available, and that if, by its own conduct , the Company thereby caused some of the employees not to seek less desirable, out-of-town employment while reasonably expecting promised recalls to their jobs , these employees forfeited their right to any backpay because of their "willful loss -of earnings." I consider such a proposition untenable. Before discussing the individual discriminatees and their individual circumstances, I find that , if the particular em- 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee did act reasonably in expecting recall from tempo- rary layoff, and if her failure to seek out-of-town employ- ment for a reasonable time was in fact caused by the Company's deceit, the Company is now estopped from benefiting from its own misconduct by claiming that the employee did not exert reasonable diligence in finding in- terim employment during that period of time. III. INDIVIDUAL DISCRIMINATEES A. Adell Anderson Anderson's backpay period begins on May 28, 1971, and ends on March 1, 1973, when she became ill and unable to work. (Anderson revealed on cross-examination that her doctor advised her that the lint in the factory at her interim employment was "not good" for her. The General Counsel did not litigate whether there was a causal relationship be- tween her illness and the Company's discriminating against her.) Anderson registered at the Mayfield unemployment of- fice, but was not referred to any jobs. While receiving un- employment compensation , she frequently contacted the Company about returning to work, and applied in Hick- man at the variety store and the pecan plant for employ- ment . She had a car, but was unable to drive. In June, she began a sustained search for out-of-town employment, with discriminatee Marcine Murphy (discussed later) driv- ing Anderson's car for her. They first went to Union City, Tennessee, "making the rounds," seeking employment at various factories . They applied at Salant & Salant (a pants factory herein called Salant); went to Lear-Siegler (an au- tomobile seat plant) where they were told the plant was not hiring people over 40 years of age (both Anderson and Murphy being about 50 years of age); and at Brown Shoe Company. Anderson also applied at the Henry I. Siegel Company (a pants factory herein called H.I.S.) at both its Fulton and South Fulton plants; at a shower door factory in Union City; and at Brown Shoe in Clinton, Kentucky. She was unaware that she could apply for work at the Ten- nessee unemployment office in Union City. Being unable to find work either in Hickman or out of town, she contin- ued to call the Company, "sometimes every other week I sat at home a lot of times and wouldn't even go nowhere , waiting on them, thought maybe they might call me back." As Anderson credibly testified, she applied at Salant about three times while she was receiving unemployment compensation in 1971. Finally that employer telephoned her, and she went to work at the Salant plant in Union City on December 7, 1971. (I note that she neglected to list Salant, and several other places where she applied in 1971, when she made a list for the Board investigator in 1973.) Anderson was not satisfied with her job at Salant, and quit on January 20, 1972. She did not work again until May 1972, when her daughter succeeded in getting her a job at H.I.S. in Fulton , where the daughter was working, driving Anderson's car. Because of her low seniority and the shortage of work m that union plant, she was unable to work full time , and accepted a job on May 31, 1972, at Brown Shoe in Clinton, after that employer called her to work . She worked at Brown Shoe (earning more in 1972-3 than her gross backpay) until late October 1972, when her low seniority began permitting her only part-time work, and she returned to H.I .S., where she worked through Feb- ruary 28 , 1973, before entering the hospital on March 1, 1973. (She did not recall being absent in January or Febru- ary, but recalled perhaps working less than full time when "we just . . . run out of work and had to clock out early.") I find that, with the exception of 1972-1 and 1972-2, Anderson made a reasonably diligent search for employ- ment during all the time she was unemployed , and is enti- tled to backpay as set forth in the backpay specification. However, I agree with the Company that she is not entitled to backpay for the first two quarters of 1972, when it is assumed that she would have had no net backpay if she had not unjustifiably quit her job at Salant, thereby incur- ring a willful loss of earnings for an approximate 4-month period. B. Pamela Caldwell Dinwiddie Dinwiddie's backpay period begins on April 30, 1971, and ends on April 11, 1972, when she kept her interim employment at Salant and refused the Company's offer of reinstatement. In May 1971, Dinwiddie registered for unemployment, and "kept calling" the Company , being "under the impres- sion I was just laid off." In late May or early June, she went to the Tennessee unemployment office in Union City and applied for employment at Kincaid (which manufac- tures shower curtains and window facings), Big K (a new department store), Brown Shoe, and Salant . She continued calling the Company for work and, using a friend's car, made repeated trips to Union City in June and July look- ing for work. She was hired by Brown Shoe about the mid- dle of August. She credibly testified that she did not apply in Clinton, Fulton, or South Fulton because she could not find transportation to work there . Because of lack of work, Brown Shoe laid her off about the middle of September, and she found employment about October 5 at Salant, where her earnings exceeded her gross backpay. I find that Dinwiddie was diligently searching for em- ployment, and that she is entitled to the backpay alleged in the backpay specification for 1971-2 and 1971-3. C. Glenda Edgin Edgin's backpay period begins on May 12, 1971, and ends when the Company reinstated her on July 27, 1972. Edgin is one of the employees who had no transporta- tion for out-of-town employment, and who relied on the Company's word that "we would come back when they had work ." When questioned at the unemployment office at the time she registered , she said , "I planned to be called back because I was temporarily laid off," and that "We were expecting to be called back when work picked up." Thereafter, she repeatedly called the Company, and it is undenied (as she credibly testified) that the management official , Gayle Gray , advised that "they didn' t need me right then; that they was expecting more work and that they would call us. We were temporarily laid off." (Edgin's HICKMAN GARMENT COMPANY brother was still employed there as a supervisor.) When Edgin saw the Company's ad in the newspaper for experi- enced and inexperienced operators, she telephoned Gray and mentioned the ad. It is undenied that Gray stated "they were expecting to have some more work and they'd let me know and they'd call me." (Gray did not testify.) On cross-examination, when questioned about her search for work between the dates of her layoff and her employment by Brown Shoe in December 1971, she credibly responded: "I told you that I called the factory. I was expecting to go back to work. . . . I was temporarily laid off. . . . I had a job at Hickman Garment Company. I had had for about ten years." Meanwhile, during the time she was receiving unemploy- ment compensation, Edgin was seeking employment at the local bank in Hickman, and also seeking employment at Brown Shoe through a friend, with whom she could ride. This friend, a Brown Shoe employee to whom she spoke every week, "was helping me get on , and the foreman told her that when he had an opening he would call me." When asked on cross-examination if these were the only jobs she was trying to get, Edgin credibly testified, "That's right. I had a job. I thought I had a job" (at the Company). Finally, the Brown Shoe foreman sent for her, and Edgin went to work at that Union City plant on December 29, 1971. Although her pay was higher at Brown Shoe, she lived only a mile from the Company's plant and she con- tinued contacting the Company in the hopes of being re- called. (I credit her testimony that, when she testified in September 1972 at the hearing about first contacting the Company, she was referring to this period of time, after she began working out of town.) The Company contends that Edgin "must be suspect be- cause she made no positive or obvious move to obtain a job until her unemployment was exhausted" (contrary to her credited testimony that, while receiving unemployment compensation, she was repeatedly seeking employment at the local bank and-by a means which later proved suc- cessful-at Brown Shoe). Also, ignoring the facts that (a) other discriminatees were being recalled, (b) Edgin was being told by the Company that it was expecting more work and it would call her, and (c) she was in fact called about a year later, the Company argues in its brief: "News- paper ads requesting experienced and inexperienced people would make any rational person realize that if the compa- ny intended to reemploy her, there would be no need to advertise. They could have just called her on the phone to come to work." To the contrary, I find that Edgin was misled into believing that she was to be recalled immedi- ately when work was available, and that her actions (in continuing to seek reemployment until it was offered) dem- onstrate her good faith in expecting to be recalled. I find that she was not only deceived by the Company, but that she was diligently seeking work at one of the few pros- pective jobs in Hickman and also at Brown Shoe, an out- of-town plant where she would have transportation to work. I therefore agree with the General Counsel that Edgin made a good-faith effort to secure employment and is enti- tled to the backpay for her unemployment in 1971, as set forth in the backpay specification. D. Allen Ferrell 1115 Ferrell's backpay period is from May 7 until September 15, 1971, when she was reinstated. On each of her previous layoffs, during her 10 years of employment, the Company had reinstated her. It is undis- puted that, during her 1971 layoff, she telephoned the Company about every week or so, and each time the Com- pany advised her either that "they didn't have anything for me, that they would call me when they needed me," or that she should "keep calling back, that they didn't have any- thing then." When she saw the Company's ad in the paper, she mentioned it to the management official, Gray, and "said I was needing some work and wanted to know when I would be called back, and she said when they got work available." Upon being questioned about why she received unemployment compensation but did not apply at various out-of-town plants, or at the Tennessee employment office, before her reinstatement in September, she credibly an- swered: "I was temporarily laid off and I expected to be called back. They told me they would call me back when they needed me and that's what I was expecting." Although the Company had previously called her back from layoffs, repeatedly promised to do so on this occa- sion, and did so in September 1971, the Company asks in its brief, "was this claimant's conduct reasonable in failing to seek other employment because she was waiting to be called back with all of the evidence staring her in the face like ads for help, and we will call you if and when we have enough work?" I find that Ferrell did act reasonably, and in good faith, in seeking recall rather than out-of-town em- ployment during her layoff, and that she is entitled to the backpay in 1971-2 and 1971-3, as alleged, in the backpay specification. E. Evelyn Jackson Jackson's backpay period is from May 14 until August 2, 1971, when she was reinstated. Although Jackson was repeatedly told that she would be recalled as soon as the work picked up, and although she was recalled 6 weeks before discriminatee Ferrell was re- called (as discussed above), the Company contends that Jackson's "excuse" for not seeking other employment "was that she was waiting to be called back," and by such logic, "she could have waited two years until she was called back." However, she did not await recall for such a long period, and she credibly testified that she never- thought that she would have to go out and get another job because the Company might not bring her back in view of her asso- ciation with the Union (being on the negotiating-commit- tee). Also, "At my age [over 50 at the time] you don't go out and get a job overnight." I find that the Company misled her into believing that she would be recalled sooner, and that she acted reason- ably in seeking recall instead of searching for out-of-town employment before her reinstatement. I therefore find that she is entitled to backpay in 1971-2 and 1971-3 as set forth in the backpay specification. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Mildred Kinney Kinney's backpay period (as corrected above) is from June 24, 1971, until April 11, 1972, when she refused rein- statement and continued working for her interim employer. She is the employee who was recalled on June 23, 1971, for less than a day and a half of work. As she credibly testified, she waited until the beginning of the third week, thinking "I was going to be called back ." She then applied in Union City at Salant (where she would have transporta- tion) and was employed on July 14, earning more than at the Company after the third quarter. I find that she made a good -faith effort to secure em- ployment and is entitled to the small amount of backpay in 1971-2 and 1971-3 as alleged in the backpay specification. G. Leone Luter Luter's backpay period is from May 21, 1971, until Au- gust 7, 1973, when she was earning more at her interim employer than at the Company , and she refused the Company's offer of reinstatement. She was unable to drive . In early June 1971 , she hired someone to drive her to the Tennessee unemployment of- fice in Union City, in order that she could place an appli- cation for employment at Brown Shoe , where her husband was working . While in that office , she also filed her appli- cation to work at Kincaid . At the time, she did not apply at Salant, because she had been told in the past, when she placed her application there , that they did not hire persons over 40 years of age . (Luter is now 54 years old.) Later she learned that Salant had changed his hiring policy, and she telephoned them . They advised that they still had her ap- plication , that there was no use filing another one, and that they would call her when they needed her. Meanwhile, Luter sought employment in Hickman, and made a sustained effort to return to the Company. As she credibly testified, "I even went to the restaurants in Hick- man" although "that would have paid me . . . even less than I was being paid" in unemployment compensation. "I was ready to work at anything because I needed to work, and I rather work than be sitting around." She frequently called the Company, speaking to differ- ent managers . When she first heard that the Company had someone else on her machine, she immediately inquired about it and was told that the person was "just on it doing a few bundles," and that she would be recalled "when the work got up" to her machine . When she first saw the Company's ad in the paper, she talked to Manager Peter Holcombe, who asked her about the many jobs she had performed at the plant during her 11-1/2 years of employ- ment. He then responded that "We just don't have any- thing right now , but I'll call you if we need you." The ads continued , and she would call as often as once or twice a week . Finally, she concluded that the Company would not recall her, and she began seeking out-of-town employment again. She had heard nothing from Salant, so on September 30, 1971, she had her son drive her to that plant, where she had her application changed to reflect her married name. Sa- lant called her a few days later, and she began working there on October 5 (her husband driving 3 miles out of the way in the morning and afternoons to give her transporta- tion). Her earnings were low at the beginning, because she was unfamiliar with operating the straight-stitch machine Salant assigned her. However, she later began earning more than she had at the Company (having excess earnings in 1972-2 and from 1973-2 until her offer of reinstate- ment). I find that Luter made a reasonably diligent effort to find work and that she is entitled to the backpay alleged in the backpay specification. H. Marcine Murphy Murphy's backpay period begins on May 4, 1971. There is a dispute about whether her backpay period ends on November 14, 1972, or August 7, 1973, when the Company sent her reinstatement offers , or on January 21, 1974 (as alleged in the backpay specification) when the Company reinstated her. Ascertainment of the facts in her case is difficult, be- cause of her obviously poor memory (although she im- pressed me as an honest witness, attempting to recall accu- rately what happened). After considering her poor memory and a statement she signed in 1973, stating "Got a letter on Nov. 14, 1972 offer- ing me a job , but I didn't take it. Working Siegel Co. Ful- ton, Ky.," I find that she did receive the Company' s first reinstatement offer on that date, and that she declined the offer because of her employment at H.I .S. in Fulton. Ac- cordingly, I find that she is not entitled to any backpay after November 14, 1972. Because of her obviously poor memory, she testified at first that she did not apply at Salant in Union City, nor at any sewing factory until June 1972 when she placed her application at H.I.S. However , as found above, she is the person who drove discriminatee Anderson's car, beginning in June 1971 , when she and Anderson went to Union City, "making the rounds," seeking employment at various fac- tories. (She herself had an old, 1965 model car, which she testified she drove "when it was running .") It was not until late in her testimony that she recalled that she and Ander- son had gone to Salant to apply for work in 1971 after her layoff. Even then, her memory was quite hazy, and she recalled that she and Anderson could not place their appli- cations at Salant at that time because of a no-hiring-past- 40 policy. (Actually, as credibly testified by Anderson, this occurred at Lear-Siegler, not at Salant-where Anderson was later called to work but Murphy was not.) At another point, Murphy positively testified that she did go to Salant in 1971 and did put in her application there . Thus, al- though she had not recalled it earlier, she had applied for out-of-town employment when she drove with someone who would have more reliable transportation to the job if they were hired . I therefore find that, despite her poor me- mory, the deciding factor concerning whether she would seek employment in, and travel to work to , one of the Ten- nessee plants was the matter of securing adequate trans- portation . This is demonstrated by her credited testimony that when she applied for work at H.I.S. in Fulton about June 5 , 1972, she rode with a H. I.S. employee , who later HICKMAN GARMENT COMPANY furnished her transportation when she obtained the job there on July 22, 1972. (Particularly upon considering the fact that it was the Company, not Murphy, who was the wrongdoer in causing the unemployment , I deem it im- proper to disqualify her from receiving backpay because of her honest , but mistaken , testimony .) I note that in its brief, the General Counsel refers to the transportation problem and argues : "This was a hardship matter as Mur- phy had only a five -minute walk from her home to the Hickman Garment plant . Murphy, a 52-year-old woman, with limited education , having gone through a long period of unemployment in a poverty area ," had a "dim" memory, and was somewhat embarrassed at the backpay hearing. (She did not testify at the hearing on the merits.) Murphy did recall , and credibly testified , that in June 1971 (when she began "making the rounds" with Anderson in Union City) she placed her application at the hospital in Clinton , Kentucky , to work in the kitchen . She registered for, and received , unemployment compensation , and also applied for employment at the pecan house in Hickman. Meanwhile , the Company was encouraging her to con- tinue calling the plant for work . (She had worked for 10 years as a machine operator .) It is undisputed that, after her layoff in May 1971, "I'd call about every other week" and Gayle Gray "told me to call back and check with her." Gray would say that the Company did not have work for her at the time . It is undisputed that Murphy continued to call the Company in 1972 . (Murphy could not remember how many times.) Despite Murphy 's poor memory on many matters, I find that the credited evidence does establish that the Company did encourage her to, and she did , continue seeking recall to her employment at the Company; that she sought what- ever employment there was in Hickman and Clinton-even in lower paying jobs; and that she lacked adequate trans- portation for out-of -town employment , but sought (and fi- nally succeeded in securing) such employment when she had the prospects of arranging transportation to the out-of- town work . After considering her individual circumstances, including her age and limitations , I find that she made a reasonable diligent effort to find work , and that she is enti- tled to backpay for the period from 1971 -2 through 1972-3 , as set forth in the backpay specification. 1. Minnie Robinson Robinson's backpay period is from May 10, 1971, until April 11, 1972, when she declined reinstatement in order to remain on her higher paying interim job. When she was laid off, her supervisor told her "that we would be called back ." She registered for unemployment compensation, and in June went to the Tennessee unem- ployment office and applied for work at Brown Shoe in Union City . On July 13, she applied for work at Salant and was hired . She credibly testified that she did not apply there earlier because "I figured they'd call me back. They said it was a temporary layoff ." (I note that Salant told others in June that it was not hiring employees at the time.) I find that the Company misled her into believing that she would be recalled earlier , and that she is entitled to backpay for 1971-2 and 1971-3 as alleged in the backpay specification. 1117 J. Barbara Jean Vaught Vaught's backpay period is from May 21 , 1971, until August 7 , 1973, when she declined reinstatement to keep a better job. It is undisputed that , when Vaught was laid off , manage- ment official Gray told her, "when the work picks back up we'll call you." It is also undisputed that , when Vaught went to the plant to talk to Gray in person , about the latter part of June (after the Company began advertising for em- ployees), Gray promised to "call me when she had some- thing for me ." Because of her family situation (having a 1-year-old baby), Vaught was particularly eager to return to work at the Company , whose plant was about a mile from her home , rather than giving up her job and looking for out-of-town work. (After the birth of her baby, Vaught had returned to work until her layoff.) She continued call- ing the Company and, while receiving unemployment com- pensation , she was able to await the repeatedly promised recall . However , by November 1971 (when the Union filed the original charge), she realized that the Company was probably not recalling her, her unemployment compensa- tion was running out, and she applied for out-of-town work . She found employment at Salant in Union City on December 27 , 1971, and she continues to work there. The Company contends that "It is apparent that with a one-year old baby at home , she decided she would rather stay home and take care of the baby until her compensa- tion ran out." However , I find that Vaught acted reason- ably in expecting recall from the purportedly temporary layoff; that the Company misled her into believing that she would be recalled ; and that her failure until November to seek less desirable out-of-town employment was caused by the Company 's deceit . I therefore find that she did exert reasonable diligence in finding employment and that she is entitled to backpay until 1972-2 (when her interim earn- ings exceeded her gross backpay), as set forth in the back- pay specification. K. Bertie Williams Williams' backpay period is from May 7 , 1971, until Au- gust 7 , 1973, when she declined reinstatement. This discriminatee did not have transportation for out- of-town employment , and could not have worked out of town for a period of time after her husband became ill. However, she had to find some work , and worked at vari- ous low-paying jobs around Hickman. She repeatedly called the Company , seeking work. When speaking to Peter Holcombe, one of the managers, she asked , "Pete, have you forgot me?" He said, "No, Bertie, I haven 't. I'll keep you in mind , but we don't have anything and I 'll call you if we have anything." On other occasions, she would call the management official , Gray, who simi- larly would say, "Bertie , we've got you in mind. We'll let you know when we have something ." (However, she was never recalled until after court enforcement of the Board's Order.) Before her husband became ill in October 1972, she 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought out-of-town transportation in order to obtain facto- ry work. She contacted some Hickman residents who were working at Salant in Union City, but was told that they did not have room in the car . She made other inquiries about a ride, but also unsuccessfully . As she credibly testified, "Ev- eryone I asked had a load and they didn't know of any- body." When she asked one neighbor, the neighbor agreed to let her ride to a packing house in Union City where the neighbor was working , but "they wasn't hiring over there." When pressed on cross-examination about her efforts to find transportation , she answered, "Well, after working at everything you could do , Mr. Weiss, I didn't have much time for conversation on the phone. . . . I didn't know who all was laid off and who wasn 't, Mr. Weiss . I didn't know who worked outside of Hickman.... Don't you suppose that I would have worked if I could have, other than working at $1.25 an hour? ... I never thought about putting an ad in the paper . I might have gotten a ride that way." (She impressed me favorably , as an honest, forth- right witness .) She received unemployment compensation. In Hickman, she sought employment at the pecan house and also at the variety store . Being unable to find any other employment , she earned whatever she could, working at a kindergarten, staying nights with an elderly lady who fell and broke a hip , giving personal care to another woman, babysitting , and (after her husband's illness) taking over her husband's job of reading the water gauge on the river (at $1 a day) for the Army Corps of Engineers. She was questioned at length about her availability for work at the Company or out of town after her husband became ill (and when she was working at various odd jobs). After giving thought to the matter , she credibly testified that up until the time she was offered reinstatement in Au- gust 1973, she could have worked at the Company-giving her husband his medicine before going to work, at lunch- time, and after work . However, having no one to take care of him, she could not have worked out of town during the times he was released from the hospital , and after April 18, when he was last released from the hospital. She did not have any interim earnings until 1971-2, when she found the kindergarten and babysitting work, and thereafter earned from $160 to $661 each quarter until her eventual offer of reinstatement. Her gross backpay was about $804 per quarter. The General Counsel contends that "Williams, 52 years old, was unable to get transportation out of Hickman and was trying to make a living the best she could with an invalid husband . . . . the record shows that she took any type of work that was available , including sitting up with the sick , babysitting and working with kindergarten chil- dren." He also argues that each of the discriminatees must be judged on her own efforts and job prospects, and that her inability to find better interim jobs does not prove a want of reasonable, diligent efforts . The Company, on the other hand, contends that Williams' "constant cry through- out this entire period is no transportation ," and that "if she had really made a diligent effort to seek" transportation and one of the "numerous job opportunities," she would have been successful . It argues that she did not make "an honest, good faith effort to find employment for which she was best suited," and then argues that "her failure to ob- tain a job in her capacity as an experienced sewing ma- chine operator for a period of over two years constitutes a loss of earnings 'willful incurred' "-citing the inapplicable N.LR.B. v. Southern Silk Mills, Inc., 242 F .2d 697, 700 (C.A. 6, 1957), which established the so-called lower sights doctrine (disregarding the fact that Williams , being unable to obtain factory employment , did "lower her sights" and took whatever work was available). After considering all the evidence and her individual cir- cumstances , including her age and her limitations, I find that she made an honest, good faith effort to obtain em- ployment at the Company and at other employers in Hick- man, to secure transportation for out-of -town factory em- ployment , and to obtain a job at one out-of-town plant where she was offered transportation , and that after she failed in these efforts, she "lowered her sights" and took whatever low-paying jobs she could find , including baby- sitting and caring for the ill . I also find that , when her husband became ill, limiting her availability for out-of- town employment, she remained in the labor market, con- tinued her employment on various interim jobs in Hick- man, and was available for work at the Company (until after her backpay period, when her husband 's condition deteriorated). Accordingly , I find that she was available for work and exerted reasonable diligence in obtaining em- ployment throughout her backpay period, and is entitled to the net backpay as alleged in the backpay specification. Upon the foregoing findings of fact and the entire rec- ord, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent, Hickman Garment Company, Hickman, Kentucky, its officers, agents , successors, and assigns, shall make whole the discriminatees named below by paying them the amounts set forth adjacent to their names plus interest at 6 percent per annum as prescribed in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962), until all backpay due is paid , less the tax withholdings as required by law. Adell Anderson $2,323.42 Pamela Caldwell Dinwiddie 1,134.86 Glenda Edgin 1,978.29 Allene Ferrell 1,050.17 Evelyn Jackson 946.40 Mildred Kinney 220.71 Leone Luter 2,531.48 Martine Murphy 3,315.60 Minnie Robinson 594.98 Barbara Jean Vaught 1,804.35 Bertie Williams 5,119.11 1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings and recommended Supplemental Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings and Supplemental Order , and all objections thereto shall be deemed waived for all purposes.