Moss Planing Mill Co.

National Labor Relations Board - Board Decisions

Nov 19, 1954

110 N.L.R.B. 933 (N.L.R.B. 1954)

MOSS PLANING MILL CO. 933
into effect some of its provisions, and signed a formal contract within
a reasonable time after agreement had been reached. None of these
circumstances are present in the instant case.
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. We find that all production and maintenance employees at the
Employer's Mt. Clemens, Michigan, plant, excluding office clerical
employees, professional employees, experimental designers, guards,4
and supervisors as defined in the Act constitute an appropriate unit
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election omitted from publication.].
4 The three employees who spend a portion of their time in the performance of usual
watchmen's duties are excluded as guards within the meaning of the Act. Walterboro
Manufacturing Corporation, 106 NLRB 1383.
MOSS PLANING MILL CO. and INTERNATIONAL WOODWORKERS OF AMER-
ICA, CIO. Case No. 11-CA-308 (formerly 34-CA-308). Novem-
ber 19,1954
Supplemental Decision and Recommendation
On March 10, 1953, the Board issued a Decision and Order i in the
above-entitled proceeding. Thereafter on July 24, 1953, the Order
was enforced by a decree of the United States Court of Appeals for the
Fourth Circuit. The Respondent and the representatives of the Board
were subsequently unable to reach agreement with respect to the
amounts of back pay due Roy E. Fulcher and Lee A. Wynne under
the terms of the decree, and the Board directed that a hearing be held
to resolve the disagreement. Accordingly, a hearing was held before
Trial Examiner Reeves R. Hilton, who issued a Supplemental Inter-
mediate Report on June 30,1954. As set forth in the copy of the Sup-
plemental Intermediate Report attached hereto, the Trial Examiner
found specific amounts of back pay due Fulcher and Wynne and rec-
ommended that the Respondent reimburse them in accordance with his
findings. The General Counsel and the Respondent filed exceptions
to the Supplemental Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Sup-
plemental Intermediate Report, the exceptions and briefs, and the
1 103 NLRB 414.
110 NLRB No. 155.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record 2 in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following correc-
tions 3 and modifications :
1. The Respondent excepts to the Trial Examiner's finding that
Fulcher and Wynne were entitled to vacation pay for the years 1951
through 1953. The Trial Examiner allowed the dischargees vaca-
tion pay as well as straight back pay for the vacation period. The
record shows that each year the Respondent closed its plant and gave
its employees vacation pay for that time. The record also shows that
the Respondent's employees received the vacation pay in lieu of, but
not in addition to, their regular pay. We find merit in the Respond-
ent's exception because the Trial Examiner's allowance of vacation pay
to Fulcher and Wynne gives them double pay and actually places them
in a better position than the employees who continued to work for the
Respondent. We shall therefore allow Fulcher and Wynne back pay
during the vacation period, but, unlike the Trial Examiner, we shalt
not allow them vacation pay.
2. The Respondent contends that the Trial Examiner relied im-
properly upon the Supreme Court's opinion in the Gullett Gin 4 case
in his refusal to deduct from Wynne's gross back pay the $432 award
received from the North Carolina Industrial Commission as compensa-
tion for the crippling injury inflicted upon Wynne by the Respond-
ent's agent. We reject the Respondent's contention. In agreement
with the Trial Examiner, we find that the workmen's compensation
award received by Wynne was the product of a North Carolina statute
in furtherance of the public welfare. Such an award, like the unem-
ployment compensation of the Gullett Gin case, is the very type of
collateral benefit which the Supreme Court has established is not
deductible from back pay. In this regard, it is clear that our dissent-
ing colleague has misconstrued the meaning and effect of the Gullett
Gin opinion. In finding that collateral benefits are not deductible
'The Respondent contends that, in making his findings , the Trial Examiner failed to
consider the medical report of Dr. John Glasson . In reaching its decision herein, the
Board has given due consideration to Dr. Glasson 's report.
8 The Supplemental Intermediate Report contains minor misstatements or inad-
vertencies , none of which affects the Trial Examiner 's ultimate conclusions . Accord-
ingly, we note the following corrections :
Wynne's job with the Respondent was that of boiler fireman , not boiler foreman as
stated at one point in the Supplemental Intermediate Report.
Wynne's final visit to Dr. Piver was on about December 8, 1951
Wynne testified he had never used a crutch prior to his discharge from the hospital in
January 1951 , not prior to May 1951.
The Supplemental Intermediate Report states at one point that "it cannot be said that
in failing to work at such jobs . . Wynne did not thereby wilfully incur any losses "
The Trial Examiner clearly intended to state that Wynne did not mncui any wilful losses
in failing to work at the jobs in question.
The Trial Examiner reported witness Cox 's testimony to be, in effect, that he required
help only for a 6 -week period in each of the years 1951 through 1953. However, Cox
otherwise testified that he had a job opening for an edger for a much longer time.
4 N. L. R. B. v. Gullett Gin Company, Inc., 340 U. S. 361.
MOSS PLANING MILL CO. 935
from back pay, the Supreme Court stated, "To decline to deduct state
unemployment compensation benefits in computing back pay is not
to make the employees more than whole ... [In] framing an order to
reimburse employees for their lost earnings, manifestly no considera-
tion need be given to collateral benefits which employees may have
received." [Emphasis supplied.]
3. The General Counsel excepts to the Examiner's deduction of
$240 from Wynne's back pay for each third quarter in the years 1951
through 1953. The record shows that exclusive of his visits to the
Employment Security Commission of North Carolina and his direct
efforts to obtain work from independent employers, Wynne did not
specifically seek work at the lumber mills in the Washington, North
Carolina, area. The Trial Examiner deducted $240 from Wynne's
gross back pay in each of the 3 years, because Wynne failed to apply
for work at the lumber mills. The Trial Examiner otherwise found
that Wynne had made reasonable search for employment and that
there was no critical labor shortage in the lumber mills.' We find, in
agreement with the Trial Examiner, the record establishes that Wynne
made adequate and reasonable efforts to find work and that there was
no labor shortage in the lumber mills during the periods in issue. We
do not therefore agree with the Trial Examiner's $240 deductions.
Accordingly, we shall not adopt the Trial Examiner's $240 deductions
from Wynne's gross back pay.
4. The General Counsel otherwise excepts to the-Trial Examiner's
failure to allow Wynne $22 in expenses incurred when he went to
Richmond, Virginia, seeking work, or to allow both Fulcher and
Wynne the $10 Christmas gifts (suits) the Respondent gave its em-
ployees in 1951 and 1952. The examiner indicated in the Supplemen-
tal Intermediate Report that he would credit Wynne with the $22 ex-
penditure, but he overlooked the expense in his computations. The
Examiner credits the discriminatees with bonuses but did not refer to
the $10 gifts; failure to include the gifts in his computations also ap-
pears to have been an oversight. We find that the record establishes
both the $22 expenditure by Wynne and the presentation of the suit
gifts. We shall therefore make appropriate allowances in the dis-
criminatees' back pay.
5. The General Counsel also excepts to the Trial Examiner' s failure
to allow Fulcher back pay for the time prior to his actual discharge
when the Respondent refused to allot him his normal quota of work.
The Examiner did not grant this back pay because, in his opinion, the
record evidence did not support the loss of pay by Fulcher prior to his
discharge. We note that the issue of Fulcher's right to back pay for
the period prior to his discharge was decided by the court of appeals
5 Thus, the Trial Examiner found that Fulcher sought , but was unable to find, employ-
ment in lumber mills, during the periods in question
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Fulcher's favor. We consider the court's decision binding in this
regard. Furthermore, the amount of Fulcher's loss in pay prior to his
discharge is established by the same uncontradicted record evidence
which was the basis for the Examiner's computation of the gross back
pay otherwise due him.6 Accordingly, we find that Fulcher was en-
titled to back pay for the period prior to his discharge in the amounts
claimed by the General Counsel.
Recommendation
Upon the basis of this Supplemental Decision and the entire record
in this case, the National Labor Relations Board hereby respectfully
recommends to the United States Court of Appeals for the Fourth
Circuit that its decree, entered on July 24, 1953, be amended to in-
corporate therein the respective amounts of back pay required to be
paid by the Respondent to each of the employees unlawfully discharged
herein, as follows :
Roy E. Fulcher__________________________ $2,184.42
Lee A. Wynne____________________________ 3,782.37
MEMBER BEESON, dissenting in part :
I dissent from the refusal of my colleagues, in computing the net
back pay due to Wynne, to credit the amount received by him under
an award of the North Carolina Industrial Commission.
The purpose of Board back pay orders is to indemnify employees
for earnings lost as a result of discriminatory discharges. Nothing
punitive is involved. Accordingly, earnings received from other
sources are offset against such awards. A similar purpose underlies
awards pursuant to workmen's compensation acts where benefits are
paid to indemnify employees for earnings lost as a result of industrial
injuries. Again nothing punitive is involved and earnings received
are offset against benefits payable.
Whether paid by the employer directly or by a carrier after pay-
ment of premiums by the employer, workmen's compensation benefits
are paid in lieu of wages. Therefore, I see no reason to distinguish
them from other earnings of discriminatorily discharged employees.'
If the recommendation of my colleagues is followed in this case,
Wynne will now receive both workmen's compensation and wages for
the period of his physical disability, permitting him to recover sub-
stantially more than his lost earnings. Deserving as Wynne may be
6 Because of minor errors in the Trial Examiner 's computations and the modifications
of the Supplemental Intermediate Report contained herein, there is attached an appendix
with the itemizations of the net back pay due Fulcher and Wynne.
7 N. L R. B. v. Gullett Gm Company, Inc., 340 U. S . 361, is clearly distinguishable.
The unemployment compensation payments in that case were made by the State out of
public funds derived from taxation . Here the benefits were paid by the Respondent's
private insurance carrier and were derived from premiums paid to that carrier.
MOSS PLANING MILL CO. 937
under the circumstances of this case, I do not believe it proper to
recommend a recovery in excess of that which will indemnify him for
his lost earnings.
Appendix
BACK PAY COMPUTATION
ROY E. FULCIIER
Year Quarter
Gross-back
pay
Interim
earnings
Expenses I
Net back,
pay
1950----------------- Fourth ----- ------------ $12 00 -------------- -------------- $12 00
First------------------- 23 29 -------------- -------------- 23 29
Second------------------ 263 36 -1951_________________
Third___________________ 329 68
2
$242 ______________ 86 99
Fourth_____ ____________ 432 28 145 01 ______________ 287 27
First____________________ 377 52 17 50 ______________ 360 02
Second__________________
Seco
404 71 17 50 ______________ 387 21
1952_________________
d___________________ 392 49 8140.00 _ 252.49
3448.39 7379 99 $10.50 78.90
First____________________ 381 75 8457 70 19 50
375 01 94 98 3 00 283 03
Third___________________ 197 86 948.00 ______________ 149.86
Total---------- -------------------------- ---------- -------------- ------------- 2,184 42
LEE A. WYNNE
Ftrst ------------------- $408 04 - 04
1951--- --
I
Second------------------ 419 30 -
fluid------------------- 432 49 - 49
Fourth__________________ 3420 . 80 $62 50 _ 36
Fhst ____________________ 372 87 1122 50 _
ISecond__________________ 400 03 1352 50 _ 53
1952_________________
Third_ ------ ---- 423 43 13110 . 70 _
Fourth __________________ 3,175 12 1487 50 -------------- 387 62
First ____________________ :393 95 1487.50 _ 45
1953 _________________ Second __________________ 222 61 35 50 18$22 00 209.11
Third___________________ 262 87 12 . 50 -------------- 250 37
Total---------- -------------------------- ------------- -------------- -------------- 3,782 37
1 All of Fulcher's expenses incurred on Jefferies -Smith job.
2 Earned from M. G. Waters-$5.95; West Construction-$136.74; additional preach-
ing-$100
3 Includes Christmas bonus and gift-$35.
4 Earned from West Construction-$45.01 ; additional preaching-$100.
5 Earned from Scott.
6 Earned from Day-$40 ; additional preaching-$100.
7 Earn( d from Jefferies-Smith-$279.99 ; additional preaching-$100.
8 Earned from Jefferies-Smith.
0 Earned from farm work.
10 Earned from Copeland-$50; total earnings of $100 from Allegood divided into 8
quarters of $12 50 each and applied to each quarter from 4th quarter, 1951 thratigh 3rd
quarter, 1953
11 Earned from Copeland-$10.
12 Earned from Moss-$40.
13 Earned from Craig-$8 ; Hodges-$40.20; Gurganus-$50.
14 Earned from Mills-$75.
IZ Earned from McNeal-$12; Vann-$11.
26 Expenses incurred on trip to Richmond, Va., for job
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supplemental Intermediate Report
On March 10, 1953, the National Labor Relations Board, herein called the Board,
duly issued its Decision and Order in the above-entitled proceeding wherein it
found that Moss Planing Mill Co., herein called the Respondent or the Company,
had discriminatorily discharged Lee A. Wynne and Roy E. or Roy Ersiel Fulcher
and ordered the Respondent to reinstate these individuals and to make them whole
for any loss of pay they may have suffered by reason of the discrimination against
them. (103 NLRB 414.) The order was enforced in N. L. R. B. v. Moss Planing
Mill Company, 206 F. 2d 557 (C. A. 4).
Pursuant to due notice, a further hearing was held at Washington, North Caro-
lina, on March 23 and 24, 1954, for the purpose of determining the amount of back
pay due the above-named discriminatees. The General Counsel and the Respondent
were represented by counsel, who participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, arid to introduce
relevant evidence. At the conclusion of the hearing counsel were afforded oppor-
tunity to present oral argument in the matter. Thereafter briefs were submitted
which have been considered by the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. LEE A. WYNNE
The Board found that Wynne was unlawfully discharged on January 13, 1951,
and at the time of his termination he was severely kicked in the groin by Thomas
D. Litchfield, a company official. As a consequence of this injury Wynne was hos-
pitalized until January 18 and remained under the care of his physician, Dr. W. C.
Piver, until May 18, 1951. The Board pointed out there was some testimony by
Dr. Piver that Wynne was capable of performing his duties as a boiler foreman
on and after the latter date. Since Wynne's incapacity to work for at least a portion
of the period following his discharge was due to the assault upon him, the Board,
in granting remedial relief, did not abate back pay for that period. The Board
further held that in view of the nature of Wynne's injury and the probability that
he might suffer a recurrence thereof, expressly reserved the right to modify the
back-pay and reinstatement provisions of its order, if required by a future change
in Wynne's physical condition.
There is no dispute concerning the period during which Wynne is entitled to be
made whole, namely, January 13, 1951, to August 10, 1953.
At the hearing the General Counsel submitted his computation of gross back
pay, on a quarterly basis, which was received in evidence, and counsel for the Com-
pany has accepted and adopted the quarterly amounts in his back-pay computation
and brief, submitted to the Trial Examiner after the close of the hearing.
The principal issues are: (1) Whether Wynne was fully recovered from his injury
on May 18, 1951, and (2) whether he thereafter, within the back-pay period,
made reasonable efforts to obtain suitable employment.
The only expert medical evidence pertaining to Wynne's condition comes from
the stipulated testimony of Dr. Piver given in a trial upon a suit for damages by
Wynne against Litchfield in the Superior Court of Beaufort County, North Caro-
lina, during the December 1951 term, as well as his testimony at the original hearing
in this matter, and the report of Dr. Charles B. Watts,' who examined Wynne on
December 15, 1953, in accordance with arrangements made by representative of the
General Counsel.
In brief, the testimony of Dr. Piver discloses the physical condition of Wynne
when he was first brought to the hospital, the nature of his injury, the treatment
prescribed, his release therefrom on January 18, and 18 visits between that date and
May 18, 1951 On the latter date Dr. Piver discharged Wynne because- "I felt
he was able to go along without any treatment; in other words, I thought that the
man was able to return to work at that time." Since then he had seen Wynne but
once, about December 18, 1951, and at that time Wynne complained "he was
r The Trial Examiner granted permission to the General Counsel to submit this report,
with a copy to counsel for the Company, after the close of the hearing The report and
forwarding letter were received by the Trial Examiner on March 29, 1954, and are now
received in evidence as General Counsel's Exhibit No. 5. and made a part of this record.
MOSS PLANING MILL CO. 939
, mot getting along good ," although he made no mention of any particular pain or
trouble. Dr. Piver made no examination of him on this occasion.
Dr. Watts, in his report , expresses the opinion that Wynne 's injury was not of a
permanent nature and he saw no evidence of "excessive tenderness " at the time of
his examination , December 15, 1953 . According to Dr. Watts the "only positive
findings" of the physical examination were "a mild hypertension , a moderate
amount of nervousness and an unexplained lower back pain localized over his
third lumbar vertebra ." Dr. Watts felt that Wynne's "pain is real" although he could
offer no good explanation for it on the basis of his examination . Dr. Watts con-
'cluded that Wynne suffered a severe back injury and recommended orthopedic
consultation , necessitating short hospitalization and X -rays to determine whether
further pathology might be found by this method.
Wynne is 49 years of age and has been wearing an artificial leg for about 29
years. He testified that he was employed by the Company in 1950, and prior to
that time he farmed , worked in a shoe repair shop , was employed in the log woods,
and generally performed all types of jobs available in the area to a man of his
ability and skill. He further stated that up to the time of his injury he could do
practically anything "a two-legged man could do " but thereafter he was unable
to perform such tasks and had to seek "light work." Wynne testified that he never
used a crutch prior to May 1951, but for 12 months subsequent to this date he
was required to continuously use one and since then he has found it necessary to
iptermittently use some aid or support in order to walk. He also stated he suf-
fered various aches and pains and that he was unable to wear his artificial leg
regularly, whereas previously he removed it only upon retiring at night.
Wynne related that he was under Dr. Piver's care until May 18 when the doctor
told him "he was going to turn me loose." He denied that Dr. Piver told him he
was able to resume his employment with the Company . Wynne saw Dr. Piver only
-once since then , about November or December 1951 , but he did not testify con-
cerning the nature of this visit or meeting . Wynne also consulted with Dr . Swindell
in connection with his damage action against Litchfield . In 1951 and 1952, Wynne
visited Dr . Kelly 2 or 3 times and explained how he had received his injury. In
June 1951, Wynne was with relatives in Mount Vernon , New York, and visited a
doctor , whose name he could not recall, when he suffered pains in his back. Wynne
made no mention of his injury and the doctor stated the pain might be attributable
to a disc condition . In the spring of 1952 , Wynne visited Dr. Davis because of
his pains and hurts but he could not remember whether he informed the doctor of
his original injury.
A. Wynne's interim earnings ; efforts to secure employment
About the latter part of May 1951 , Wynne went to the Employment Security
Commission of North Carolina, herein referred to as the employment commission,
and talked to a Mr . Ross in regard to employment . Ross stated he would see what
could be done for him. Wynne then attempted unsuccessfully to obtain light work
or something he could do . In early June , Wynne's brother and sister came to visit
in the area and suggested that he return to Mount Vernon, New York, with them
where they would help him to secure employment . Wynne agreed to go with them.
While there , he and his brother went to Bridgeport , Connecticut, seeking employ-
ment with an electrical contractor but Wynne was informed that due to a shortage
of materials he had no openings at that time. Wynne's nephew also took him to
a pocketbook factory but he was unsuccessful in securing a job. Wynne likewise
went to a construction project at Long Island where hod carriers were needed but
Wynne could not do this work since he would have been required to carry mortar
and brick up ladders and on scaffolds. He remained in New York until the latter
part of June or early July when he returned to his home.
Since about 1920 , Wynne owned and operated a shoe repair shop located next
door to his home. He maintained this business while employed by the Company
and as he worked the 11 p . in. to 5 a. in. shift he spent considerable time in his
shop . During the interval of his employment with the Company Wynne averaged
around $ 35 per week from his business although apparently he made no allowance
for rent or depreciation on machinery and equipment . Upon his return from New
York , Wynne said he tried to operate his shop , with some help from his son, who
was a high school student, but he was on crutches and was unable to operate the
machinery which required him to stand up for long periods of time. In addition,
the shop had been closed during the time of his hospitalization and convalescence,
about 6 months , which resulted in the loss of practically all of his business, conse-
quently when he reopened he averaged but $9 per week for a short time , seemingly
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 1 month . Wynne's physical condition precluded him from operating his
business so he gave up the same . The same condition existed in 1952 and 1953,
and in the latter year Wynne sold his equipment to the State.
About July 1951, Wynne went to his father's farm , located in an adjoining county,
where he stayed about a month during which time he did a little work , such as feed-
ing the stock , in return for his room and board . While living with his father, Wynne
applied for work at Fad 's Shoe Parlor and to a Mr. Winslow, farmer and livery
stable owner , both of Greenville , but neither had a job for him.
Commencing about September 1951 , or the fall , Wynne worked off and on for
a Mr. Copeland , an electrical contractor , for a period of about 4 or 5 months.
Wynne 's duties consisted of making up boxes, which he could do sitting down, and
handing them to Copeland , for installation . Although Wynne said , he was on an
hourly basis he could not estimate the amount due to the irregular hours and days
he worked , but throughout the entire time he was employed by Copeland he earned
about $60 . In early 1952, Copeland secured a contract at Norfolk , Virginia, and
told Wynne that while he would like to have him on that job the pay would hardly
cover the expense of his room and board away from home.
In May 1952 , Wynne again talked to Ross of the employment commission and
he referred him to Charlie Wright , an electrical contractor . Wynne saw Wright on
three occasions in May, June, and July but was unable to obtain any work and the
last time Wright told him he would send for him , if needed.
In the spring of 1952, Wynne did some carpentry work for a Mrs. Moss for
which he received about $40.
In July or August , Wynne obtained a job priming tobacco for a Mr. Craig. Ad-
mittedly , this is a most difficult job and after working about half a day he was forced
to stop . He was paid a full day's pay, $8, which is allowed in the third quarter for
this year.
Sometime later, apparently about September , Wynne graded tobacco for Earl
Hodges and Harry Gurganus for which, counsel stipulated , he was paid $40 -and
$50, respectively . Wynne said his wife assisted him in these jobs.
During the fall or the latter part of 1952 and early 1953, Wynne did some gar-
dening for a Mr. Mills, of Mills Motor Company , and also worked at the garage
greasing and washing cars. However , he had to give up the latter job because he
was unable to stand the work. Wynne earned $150 from these jobs, which is cred-
ited in the fourth quarter of 1952.
During 1952 , Wynne visited his father on occasions and would remain with him
for 2 or 3 days at a time.
In the spring of 1953, Wynne went to Richmond , Virginia , and applied for a job
at the American Tobacco Factory. Wynne said he was told there were no open-
ings at that time and that an applicant had to be around when a job was available.
He remained in Richmond for 2 days when he returned to Washington. The trip
cost him about $22.
Wynne then went to his father 's farm where he remained for most of the spring
season . There he did light tasks such as raking straw and working around the
potato plants. He received no wages for this work . During this period he did some
gardening for Seal McNeal , for which he received $12.
Wynne returned to Washington , and did some gardening work for a Mr. Vann
for which he was paid about $11.
Wynne also unsuccessfully applied for a job with Wilbur Chance, a painter.
At various times in 1951 , 1952, and 1953 , Wynne did garden work for a Mrs.
Allegood for which he received a total of $100.
B. The Company's contentions
Counsel for the Company , in his brief, concedes that if Wynne 's injury affected
him to the extent he claims then he has "done about everything that could be ex-
pected of him in the way of securing employment." Counsel also recognized that
Wynne is the only person who can testify with absolute "subjective certainty" con-
cerning the pain he has suffered as a consequence of his injury. On the other hand
counsel vigorously argues that there is no medical evidence to support Wynne's as-
sertions and that Dr. Piver's testimony clearly shows that on May 18, he was able
to resume his former employment. The report of Dr. Watts does not contradict
this testimony, according to counsel , for while he is of the opinion Wynne is suf-
fering pain he could offer no satisfactory explanation therefor and further states
that Wynne may have suffered a back injury . Finally, counsel urges that Wynne's
medical history subsequent to May 18, refutes the contention that his condition was
as serious as he related at the hearing.
MOSS PLANING MILL CO. 941
As a corollary to this position the Company contends that Wynne did not avail
himself of the opportunities for employment in lumber mills and agriculture avail-
able "to any normal middle age negro" in the area, nor did he remain in the em-
ployment of Copeland.
C. Concluding findings
On the basis of the evidence of Dr. Piver and Dr. Watts the Trial Examiner finds
that Wynne, insofar as this proceeding is concerned, was not permanently injured
and, as related by Dr. Piver, was able to resume his duties as fireman on May 18,
1951. However, the Trial Examiner is convinced that at times Wynne suffered
pains and aches in his back and had trouble wearing his artificial leg, although not
to the degree stated at the hearing.
The next question to be determined is whether Wynne made reasonable efforts to
secure substantially equivalent employment.
In the opinion of the Trial Examiner the undenied and credible evidence of
Wynne's attempts to obtain employment, except as discussed below, clearly estab-
lishes the fact that he did not sit idly by and incur any willful losses during the back
pay period.
The Company contends that there were certain agricultural jobs available during
the unemployment period. In this respect Guy W. Churchill, manager of the local
office of the Employment Security Commission, stated that in 1951, 1952, and 1953,
there was a demand for seasonal workers to harvest green tobacco, the season com-
thehcing about July 1 and running for about 6 weeks, and that workers averaged
from $6 to $10 per day. According to Churchill, the workers went from farm to
farm, working 1 or 2 days at each place, except on the larger farms where they
were employed for about a week. After the harvesting season , Churchill said
there were some jobs at the tobacco redrying plant, which jobs lasted for about 4
weeks. Churchill also stated that his office has had requests for workers to har-
vest the potato crop in the Aurora area, about 30 miles from Washington. The
potato season commences about May 15, and usually runs approximately 11
months. Churchill could not estimate the daily earnings in this field because the
workers are under a crew leader who receives a stated amount for each bag of po-
:.':.tato6s dug by the entire crew. Churchill admitted that the vast majority of farm-
ers do not use the employment office but obtain their workers off the streets.
Wynne admitted he knew tobacco farming and had performed various jobs in
that line, except for tying, which was done by women. Apart from his attempt to
work for Craig, Wynne did no field work in tobacco. Wynne was not questioned
concerning efforts to secure employment in the tobacco redrying plant or in har-
vesting potatoes.
Churchill stated there were about 7 or 8 lumber mills in the area, including the
Company, and that he has had some requests for mill workers. These mills, plus
the tobacco redrying plant, offer the only factory employment in Washington, which
has a population of approximately 10,000 persons.
H. D. Cox testified that during the time in question he operated a planing mill
and sawmill and employed about 16 men in both operations. Cox stated that every
season a number of his employees would leave to work in tobacco and he had diffi-
culty in obtaining help. Cox did not use the facilities of the employment service
but did his own hiring and also told his employees to spread the word around that
he needed workers. He, as well as 1 or 2 other mill operators, maintained a pickup
service for employees in the colored section, which service was well known to the
working people in the area. Although Cox tried to get all available men in the
area he had no knowledge of Wynne ever applying for work. Cox stated his
average hourly rate was $1 and the employees worked about 40 hours per week
during the 6-week tobacco season.
Litchfield likewise testified to the shortage of all types of workers in lumber mills
during the tobacco season, which he fixed as extending from about June to early
September or October. Litchfield stated that the men make more money working
tobacco than they do in the mill and even his skilled hands left their jobs for employ-
ment in tobacco. As a result he had vacancies in these periods for "any one who
could pick up a board." There is no evidence in the record indicating that Wynne,
while an employee of the Company, left his employment for such work. Similarly,
there is no indication that Litchfield ever offered Wynne a job during these critical
employment intervals.
It is, of course, well established that the requirement of back pay is an appropriate
remedy under the Act (N. L. R. B. v. Jones-Laughlin Steel Corp., 201 U. S. 1, at
40-50) and the purpose thereof is twofold: to discourage the discharge of employees
contrary to the Act (Waterman Steamship Corp. V. N. L. R. B., on contempt, 119
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. 2d 760, 763 (C. A. 5), and to restore the dischargee to the position , as nearly
as possible , to that which would have obtained but for the illegal discrimination
(Eagle-Picher Mining tI Smelting Co., 16 NLRB 727, 824, enfd. 119 F. 2d 903
(C. A. 8). In passing upon the power and discretion of the Board to award back'
pay as part of its remedial action against unfair labor practices and particularly with
respect to willful losses, the Supreme Court, in Phelps Dodge Corp. v. N. L. R. B.,
313 U. S. 177, stated at pages 198-200: 1
The remedy of back pay, it must be remembered , is entrusted to the Board's
discretion ; it is not mechanically compelled by the Act. And in applying its
authority over back pay orders, the Board has not used stereotyped formulas,
but has availed itself of the freedom given it by Congress to attain just results
in diverse , complicated situations . LCases cited.] . . The Board has a wide
discretion to keep the present matter [willful losses] within reasonable bot}nds.
through flexible procedural devices. The Board will thus have it within,,its
power to avoid delays and difficulties incident to passing on remote and specu-
lative claims by employers, while at the same time it may give appropriate
weight to a clearly unjustifiable refusal to take desirable new employment.
[Emphasis supplied.]
The Court of Appeals for the Ninth Circuit in granting enforcement of the Board's-
order in N. L. R. B. v. Alaska Steamship Co. and American Radio Ass'n., 211 F.
2d 357, which included a provision for back pay, had this comment to make upon
the subject of willful losses : (page 360)
We are of the opinion that back pay computation may not include losses
accruing to a worker through his willful refusal of equivalent employment.
The record indicates that certain jobs of equivalence were refused by Underwood
for the reason they were not with the Company . The proposed award for losses,
accruing to him in the period commencing with the year 1951 appears to
assume that Underwood would have stood by awaiting the recommencement`
of operations by the Alaska, the Company ship on which he was discriminatorily,
denied employment on May 5, 1950. The respondents tell us that usually all
radio operators did not stand by after the outbreak of the Korean war when,
employment for radio operators became relatively plentiful . [ Emphasis-
supplied.]
The court recognized that the question of the amount of back pay was not before
it but plainly stated that its decree enforcing the order would be subject to the above
limitation.
Applying the foregoing principles to the instant matter , the Trial Examiner has
no difficulty reaching the conclusion , and finding, that jobs in the tobacco field or
in the various processing steps, as well as the harvesting of the potato crop are
manifestly not substantially equivalent to the position Wynne held at the time of_
his unlawful discharge , nor can such jobs under the circumstances herein be con-
sidered as desirable new employment . Consequently, it cannot be said that in
failing to work at such jobs, assuming they were available to him under the loose
hiring methods , Wynne did not thereby willfully incur any losses . The Trial Ex-
aminer finds accordingly and rejects the Company's contention that it be allowed-
estimated earnings for failure to obtain such work during the unemployment period.
The testimony of Cox and Litchfield is to the effect that there was a shortage of
help at lumber mills during the tobacco season, which the former placed as existing,
for about 6 weeks and the latter fixing the period at about 3 or 4 months. Again,
the hiring procedures used by mill owners are rather loose and from the record it
is clear that neither Cox nor Litchfield ever offered employment to Wynne. The
record is equally clear that Wynne did not apply for work at any of these mills or-
at the pickup station. While the Trial Examiner entertains serious doubt that the
evidence would warrant a finding that Wynne thereby willfully incurred losses,
nevertheless, equity and fairness require that some monetary allowance be made
to the Company because of Wynne's neglect to apply for work at the mills, even
though he may not have been without reason in so acting . The Trial Examiner
comes to this conclusion despite the fact that Cox made no mention of requiring
a fireman and Litchfield's untenable stand that although he was in desperate need
of men, yet he refused to offer employment to an experienced hand like Wynne,
whose reinstatement had been recommended by Trial Examiner Bean on April 29,
1952, which recommendation was adopted by the Board in its order of March 10,
1953. Therefore, had the Company been genuinely concerned with mitigating the-
amount of Wynne's back pay it was certainly in an easy position to do so, and
without prejudice to its right to litigate the matter in court.
MOSS PLANING MILL CO. 943
As appears above there is a variance in the testimony of Cox and Litchfield as
to the length of the tobacco season which, caused a shortage of men in the lumber
mills. Cox, an experienced lumber man and a disinterested witness, fixed the
period as running for about 6 weeks, from July to the middle of August. Churchill
testified to the same effect. The Trial Examiner accepts and credits this evidence.
The Trial Examiner also accepts the testimony of Cox that the men averaged $1
per hour and normally worked a 40-hour week. In summary, the Trial Examiner
finds that employment in lumber mills may have been available to Wynne, had he
made application, for a period of 6 weeks, at $40 per week during 1951, 1952, and
1953. The Trial Examiner will therefore credit the Company with $240 as earnings
during the third quarter in each of the above years. The foregoing finding, in line
with Cox's testimony, is limited to temporary employment during the stated intervals
and is not to be construed as indicating that Wynne would thereafter have been
made a permanent employee for the reasonable inference from the evidence is that
regular mill workers were reemployed at the close of the tobacco season.
The Company claims that allowance, in the sum of $60, should be made for room
and board which Wynne received while staying at his father's farm on various occa-
sions. While Wynne did receive room and board there is not the slightest implication
that this gratuity was conditioned upon his rendering services to his father or in
return therefor. Clearly such benefits cannot be termed earnings for services ren-
dered, so the contention is rejected. (N. L. R. B. v. Brashear Freight Lines, on
contempt, 127 F. 2d 198, 200 (C. A. 8).) However, the Trial-Examiner is of
the opinion that in staying at his father's farm for extended and continuous periods
Wynne may have thereby become voluntarily unemployed , hence not entitled to
back pay. (Harvest Queen Mill ct Elevator Company, 90 NLRB 320, 324.) The
Trial Examiner finds these periods to be July 1952 and part of the spring of 1953.
Allowance for the former period has been made in the preceding paragraph, so
no further deduction is necessary. In the latter interval Wynne received $12 from
Seal McNeal, while at his father's farm, which indicates he was looking for work.
Upon his return to his home he earned $11 from Vann. In view of his lengthy
stay at the farm the Trial Examiner believes some allowance should be made even
though there is no positive evidence he could have obtained employment had he
remained in Washington. Admittedly, the facts preclude a finding with mathematical
certainty but the Trial Examiner believes substantial justice will be done by allowing
only one-half the amount of gross back pay for the second quarter of 1953. The
amount claimed by the General Counsel is $445.23. The Trial Examiner finds.
gross back pay for this quarter to be $222.61.
The Company maintains it is entitled to an allowance of $300 for the first
quarter in 1952, on the theory that Wynne could have worked for Copeland in
Washington and Norfolk and would have earned that amount had he so desired.
The undisputed evidence is that Wynne earned only $60 in sporadic employment
with Copeland over a period of 4 or 5 months and further when Copeland left
for Norfolk in early 1952, he not only failed to offer a job to Wynne but discouraged
his even contemplating going with him because the pay would hardly cover his
room and board. Of course, Wynne was under no obligation to leave Washington
to accept employment in Norfolk, even if it was offered to him. The company
theory is without merit or substance and is therefore rejected.
The Company concedes that Wynne had no earnings in the first quarter of 1951.
However, counsel contends that it should be allowed $432, the sum awarded to
Wynne, in November 1953, by the North Carolina Industrial Commission as com-
pensation for his injury. Wynne conceded the granting of this award and that
he received $332, while his attorney was given $100, as counsel fees. This award
is clearly in the nature of a collateral benefit, as distinguished from wages, and it
has been the practice of the Board to disallow deduction for such benefits. (N. L R B.
v. Gullett Gin Company, 340 U. S. 361, at 365-366.) Certainly it would not effectu-
ate the policies of the Act to permit the deduction in this case. The contention of
the Company is, accordingly, rejected.
The General Counsel in his opening statement advised the Trial Examiner that
the Company granted a bonus of $25 to each of its employees at Christmas 1951
and 1952, and also granted vacation benefits in each of these years, which in
Wynne's case amounted to a total of $34.40 In addition the Company, pursuant
to the terms of a collective-bargaining contract dated January 1, 1953, agreed to
grant vacation pay computed on the basis of 2 percent of each employee's earn-
ings during the period July 1, 1952, to June 30, 1953, and payable between July 1
and August 1, 1953. Under this provision Wynne would have received $35.78
Counsel for the Company admitted payment of the Christmas bonuses and conceded
the existence of the above agreement, and the fact that the discriminatees would
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been included in the unit had they not been discharged . Counsel pointed out
that vacation pay simply constituted pay for a period the employees did not work.
These points were not raised or discussed in his brief . The Trial Examiner on the
basis of the record finds that the dischargees would have received the bonuses and
vacation pay had they not been discriminatorily discharged.
On the basis of the foregoing findings , the Trial Examiner computes Wynne's
back pay as follows:
Year Quarter Gross
back pay
Interim
earnings
Net back
pay
First______________ $404 95 None $404.05
1901-- ------------------------------------------------
Second____________ 419 30 None 419.30
Third------------- 432 33 $240 00 192.33
Fourth____________ 385 87 60 00 325 87
First______________ 372 87 None 372 87
1952-------------------------------------------------
Second____________ 400 03 40 00 360.03
11 Third_____________ 423 44 248 00 175 44
Fourth____________ 440 12 240 20 199 92
First____ 390 94 None 390.94
1953-------------------------------------------------- Second___________ 222 61 23 00 19? 61
Third_____________ 262 86 240 00 22.86
1,155 32 1,091 20 3,063 22
Less earnings from Mrs Allegood during back-pay
period.
100 00
2.963.22
Plus Christmas bonus 1951 and 1952__________________ -------------------- 50 00
Vacation pay 1951 and 1952__ _________________________ -------------------- 34.40
Vacation pay 1953____________________________________ -------------------- 35 78
Total------------------------------------------ 3,083 40
H. ROY E . FULCHER
The Board found that Fulcher was unlawfully discharged on May 21 , 1951, and
that the Company discriminated against him with respect to work assignments
between November 28, 1950 , and the date of discharge . The Board entered its
order directing the Company to reinstate Fulcher and to make him whole not only
for any loss of pay he may have suffered by reason of his discharge but also as a
result of the discrimination in work assignments. It is undisputed that the back-pay
period runs from November 28, 1950, to August 10, 1953.
The General Counsel submitted a computation of gross back pay on a quarterly
basis, as well as a statement of the Social -Security Administration showing reported
employment and earnings of Fulcher during the back -pay period.
The Company has not presented any proposed back-pay computation in regard
to Fulcher for the reason that it contends that he was highly skilled in both mill
and agricultural work , and that he did not make reasonable efforts to obtain such
jobs although there was at all times a demand for workers of his skill and ability.
Since he could have been employed throughout the back-pay period and his earnings
would have equaled his losses, the Company asserts he is not entitled to any back
pay.
As the Company does not contest or question, the General Counsel 's gross back-
pay computation or record of employment and earnings reported by the Social-
Security Administration , the Trial Examiner accepts and credits the same.
A. Interim earnings; efforts to secure employment
On the basis of the credible and undenied testimony of Fulcher , the Trial
Examiner finds as follows:
Fulcher was employed by the Company for about 9 or 10 years and at the time
of his discharge he was setting head blocks , or block setter, at the mill. Admittedly
Fulcher was a skilled employee and could perform practically all types of jobs at
the mill.
MOSS PLANING MILL CO. 945
Fulcher testified that he was getting but little work at the mill and when he
complained to Litchfield , the latter told him that while he had work he would give
it to Fulcher when he was ready to do so . Thereupon , Fulcher , on May 16, 1951,
went to the employment commission for aid and , after explaining his situation
to representatives of the commission , he was informed they had no jobs at that time.
As already stated Fulcher was discharged on May 21, 1951. From May 16 to
July 11 , he reported to the employment commission every week . In the meantime,
Fulcher , in June, applied for work on two occasions at Girken 's lumber mill but
he was advised they had no jobs for him. About July 11, Fulcher was referred
by the employment commission to the P. S. West Construction Company, which
was engaged in building a new high school , and he was told to report back the
second week in August . During the first week in August, Fulcher obtained a job
handling lumber at M. G. Waters' mill. Toward the end of his first days' employ-
ment Fulcher was called to the office where a Mr. Buff, a company official, asked
him if he had worked at the Moss Planing Mill Co. and Fulcher admitted he had
been employed there. Buff then told him he had no more work for him and paid
him $5.95 as wages for the day.
The following week Fulcher secured a job as laborer with West Construction
Company and worked until October 1951, when he was laid off. The social-
security records show that for the third quarter, ending September 1951, Fulcher
earned $136.74, and for the fourth quarter, ending December 1951, he earned
$45.01.
Fulcher was aware of various industries located at Durham, North Carolina, so
in November he went there seeking employment . He remained in Durham through
December and unsuccessfully sought employment at different places including
Coleman Lumber Co., Candy Lumber Company, and two cigarette plants.
In January and February 1952, Fulcher went to Wilson and Stantonsberg, North
Carolina, where he applied for work at a lumber mill and a cigarette plant but was
told there were no jobs available. Fulcher explained that he went to the above
places looking for work because Litchfield, at the time of his discharge , had warned
him he would , if possible , prevent him from obtaining employment in Washington,
and thereafter Fulcher had been unable to secure a job at Girken's lumber mill or
to maintain his position at Waters ' mill for more than 1 day. Litchfield did not
deny uttering the above threat to Fulcher.
In March and April 1952, Fulcher did odd jobs for a Mr. Scott, an attorney
in Washington , such as cleaning his office and helping in the repair of his home.
Fulcher was paid $35 for this work. This amount is allowed for the first quarter
of 1952.
In May, Fulcher reported to the employment commission office and one of its
representatives suggested that he see a Mr . Mason, who operated a ground sawmill
just outside of the city. Fulcher asked Mason for employment but was told there
was nothing available at that time.
In June, Fulcher returned to his hometown , New Bern , North Carolina, on two
occasions where he attempted to find work at two lumber companies.
Fulcher at one time worked in the sawmill of Jathen March at Bath, North
Carolina, so in July he went there looking for a job but March had no employment
for him.
During August, September, and October, Fulcher obtained a part-time job at
Ted Day's market in Washington where he did such jobs as running errands and
cleaning and unloading fish. The parties stipulated that if Day was called as a
witness he would testify that Fulcher worked for him at odd times during the
above period and that he paid him a total of $40 in wages Since there is no
breakdown on the weekly or monthly earnings the Trial Examiner considers these
earnings as accruing in the third quarter of 1952.
In November, Fulcher secured a job with Jefferies and Smith, a partnership,
which operated a lumber mill at Wootentown, about 1 mile outside of Washington.
Fulcher worked for this firm until April 1953, when he injured his wrist and as a
consequence , on Dr . Piver's orders , he was unable to perform his duties for a
period of 2 or 3 weeks. After his recovery from his injury the foreman advised
him that the company was laying off the new employees because of a lumber short-
age, so he did not thereafter work for this firm. The social-security records show
that during the fourth quarter of 1952, Fulcher earned $279.99 from this employ-
ment and counsel stipulated that such record would show that he earned $457.70
in the first quarter of 1953, and $94.48 in the second quarter of this year. During
the time he worked for this company Fulcher had transportation expenses to and
from work which amounted to $1.50 per week.
338207-55-vol 110-61
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In May, Fulcher attempted to obtain employment at Wood's salvage yard.
In June, he went to Edenton, North Carolina, and applied for work, without suc-
cess, at Halsey Lumber Mill.
Fulcher returned to Washington in July and worked for a tobacco farmer, who
hired him off the street, 2 days a week, at $8 per day for 3 weeks. Although
Fulcher was ready and willing to accept tobacco jobs for the remainder of each week
he was unable to secure any employment in this field. Therefore, during the third
quarter of 1953, Fulcher earned $48.
Fulcher had no further earnings during the back-pay period.
B. Concluding findings
For the reasons already stated (supra, pp. 941-942) the Trial Examiner concludes
and finds that agricultural employment was not substantially equivalent to the em-
ployment held by Fulcher, nor was it desirable new employment. Accordingly, he
was under no obligation to perform work of this character, assuming it was offered
to him. In any event, the credible evidence establishes that Fulcher made sincere
efforts to obtain work during the tobacco season . Thus, between May 16 and
July 11, 1951, he reported to the employment commission every week and in addi-
tion applied for work at Girken's mill. He also secured a job at Waters' mill,
which lasted but 1 day when this company learned he had previously worked for
Moss. Clearly, these facts tend to negate the contention that there was a critical
shortage of labor in the lumber mills. During July 1952, Fulcher was seeking
employment at Bath and from August to October he worked at Day's fish market.
It is true Fulcher received a meager $40 from this employment, but as he stated,
while "it was not much of a job" it was permanent and "a lot of people could not
get that" kind of work. In 1953, Fulcher worked 2 days a week for 3 weeks in
tobacco and, seemingly, he is criticized for not obtaining additional employment
during that period. Fulcher explained that he was willing to accept employment
and "the only way I could try and find work, I would be standing out, and I could
not make a man hire me."
Fulcher was aware of the pickup service maintained by Cox and Younts lumber
mills and testified that since his discharge he asked some of the hands about work
but he was unable to obtain employment. Fulcher also applied for work to Cox's
son and to Younts but they told him they had more help than they could use.
Cox testified he needed help at his mill during the tobacco seasons of 1951, 1952,
and 1953. He did not know Fulcher and had no knowledge of his having applied
for work during these periods. Cox added that if Fulcher had made application at
such times he would have employed him. Cox admitted he was not at the pickup
station regularly and that his son also looked after the picking up and hiring of
employees. The testimony of Cox in respect to Fulcher is rather vague, as might
be expected under his hiring methods, and in view of Fulcher's positive assertion
that he did attempt to secure employment from his son, the Trial Examiner accepts
and credits the testimony of Fulcher. Since the record plainly demonstrates that
Fulcher sought employment in lumber mills in Washington, as well as other places,
during the so-called critical labor shortage occurring during the tobacco seasons,
and was unable to find employment, the Trial Examiner will not make any allow-
ances for failure to secure such work, as was done in Wynne's case.
Fulcher testified that he was ordained a minister in the Christian Church about
1939, but had no regular appointment, nor did he receive any salary, until about
September 1953, when he was appointed pastor of a church. During the time he
was employed by the Company, Fulcher engaged in evangelistic work and con-
ducted services and revivals at various churches. These services were held at
night and on weekends and did not interfere with the performance of his duties at
the mill. In return for his services Fulcher received a portion of the collections
which varied from $3 to $50, from which he paid his expenses amounting to about
$10, apparently for each service conducted away from his home. According to
Fulcher, most of his income from preaching came in the period June to December,
particularly in the fall when revivals were held and "money begins to be in circu-
lation." Fulcher stated that from June to December 1950, while still employed by
the Company, he received approximately $600 from conducting services. Following
his discharge, Fulcher had more time to devote to preaching and as a result he
earned more money in the same period. The Company asserts that $800 should be
deducted as earnings , while the General Counsel takes the position that the deduc-
tion should be limited to $200, less expenses, which represents the amount received
in excess of his income while employed by the Company. In questioning Fulcher
concerning these earnings , the Trial Examiner concludes that Fulcher received an
CASCADE NATURAL GAS CORPORATION 947
additional $200 from preaching in the 6-month periods in 1951 and 1952, respec-
tively. The cross-examination by company counsel seemed to be predicated upon
the theory that Fulcher during the entire back-pay period , received $800 more than
he would have earned had he not been discharged . The record fails to support
this contention . Since Fulcher conceded his income from preaching was greater
after his discharge because he could devote more time to this calling , the Trial
Examiner will therefore allow $200 to be deducted from his gross back pay for
the fourth quarter of 1951 and 1952, respectively. There is no credible evidence
establishing his expenses during these periods, so no allowance will be made for
any such items. As the bulk of Fulcher 's earning from this source came in the fall,
no allowance will be made for such income in 1953, for the reason that the back-pay
period ends in August of that year.
The Trial Examiner finds no evidence in the record to support the conclusion that
Fulcher willfully incurred any losses during the back-pay period.
Fulcher , like Wynne , would have received Christmas bonuses in 1951 and 1952,
plus $32 vacation pay, as well as vacation pay in the sum of $33.28 for 1953, had
he not been unlawfully discharged. These sums will. be added to his net back pay.
The Board directed -that Fulcher be made whole for any loss of pay he may
have suffered by reason of discriminatory work assignments from November 28, 1950,
to May 21, 1951. The General Counsel in his gross back-pay computation claims
the sum of $12 and $23.29 for the fourth quarter of 1950 and the first quarter in
1951, respectively. The Company has not questioned these amounts. However,
there is no evidence in the record to support the contention that Fulcher actually
suffered losses in the above amounts, hence the Trial Examiner rejects the same
in the computation of gross back pay.
On the basis of the foregoing findings the Trial Examiner computes Fulcher's
back pay as follows:
Year Quarter Cross Interim Expenses Net backback pay earnings pay
(Second________________ $263.36 None ------- -
1951 ----------------------------------
Third________________- 329.68 $142 . 69
- -
__________ 186.99
Fourth________________ 397.28 245.01 __________ 152.27
(First__________________ 377.52 35.00 __________ 342.52
1952___________________________________ Second ---------------- 404.71 None __________ 404.71
Third_________________ 392.49 40 . 00 __________ 352.49
Fourth________________ 413.39 479.99 $12.00 None
1953 _________________ _
fFirst__________________ 381.75 457.70 18.00 None
__ _______________
SSecond________________ 375.01 94.98 6.00 286.03
lThird ----------------- 197.86 48.00 _
3,633.05 1,543.37 36.00 2,138.23
Christmas bonus 1951 and 1952________ ________________________ __________ __________ __________ 50.06
Vacation pay 1951 and 1952____________ ______ _--_____ ---------- ---------- __________ 32.00
Vacation pay 1953--------------------- ------------------------ --------- ---------- ---------- 33.28
Total.--------------------------- ----------------------- ---------- --------- --------- 2,253.51
[Conclusions and recommendations omitted from publication.]
CASCADE NATURAL GAS CORPORATION and LOCAL 481, UNITED ASSOCIA-
TION OF JOURNEYMEN & APPRENTICES OF THE PLUMBING AND PIPE-
FITTING INDUSTRY OF THE U. S. AND CANADA, AFL, PETITIONER.
Case No. 36-RC-1040. November 19, 1954
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, the parties to this proceeding entered into a stipulation
110 NLRB No. 154.