National Labor Relations Board v. Kartarik, Inc., 14958.

Citation227 F.2d 190
Decision Date22 November 1955
Docket NumberNo. 14958.,14958.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. KARTARIK, Inc., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Norton J. Come, Atty., National Labor Relations Board, Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, Chicago, Ill., David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel and William J. Avrutis, Attys., National Labor Relations Board, Washington, D. C., with him on the brief), for petitioner.

Harold Shear, St. Paul, Minn., for respondent.

Before JOHNSEN, COLLET and VAN OOSTERHOUT, Circuit Judges.

JOHNSEN, Circuit Judge.

A consent decree has previously been entered by us, 8 Cir., 209 F.2d 956, granting enforcement of an order issued by the National Labor Relations Board against respondent, 103 N.L.R.B. No. 64. One of the prescriptions of that order was that respondent should make whole three named employees for such loss of pay or earnings as they had sustained from respondent's unlawful discharge of them.

Following the entry of the consent decree, the Board engaged in a further hearing to determine the amount of the back-pay owing to each employee and issued a supplemental order directing respondent to pay the amounts which it so found to be due. The matter is now before us on a motion by the Board for a supplemental decree of enforcement as to this order. Cf. N. L. R. B. v. Bird Mach. Co., 1 Cir., 174 F.2d 404, 407, footnote.

Respondent resists the granting of the motion, upon the grounds, in substance, (1) that the Board has, since the issuance of its original order and the entry of our enforcement decree, changed its jurisdictional standards,1 so that the plant of respondent no longer comes within the dollar volume of interstate business required to bring an employer's operations under the Board's cognizance, and the Board thus has precluded itself from exercising further jurisdiction in the situation; and (2) that, in any event, the determinations of back-pay made by the Board were clearly erroneous, because they were predicated upon the unwarranted assumption that the three employees would have received the same amounts of wages as respondent had paid to other comparable employees during the period involved, when the facts were that respondent's business had at the time materially declined in volume; that respondent had not hired any replacements for the three employees discharged; that respondent had no established seniority system or business practice from which it reasonably could be concluded that it would have laid off some of its later-hired employees, in favor of the three employees involved, if they had not been wrongfully discharged; and that respondent therefore could (and was as much entitled to have it assumed that it would so have done as otherwise) have prorated the available work and pay among all of its 12 employees (inclusive of the 3 discharged), with the result that the discharged employees should have been allowed, not the amount found by the Board to be due them, but merely their proportional share of the total wages which respondent actually had paid.

The first of respondent's contentions, set out above, is grounded upon the holding of this Court, in N. L. R. B. v. National Gas Co., 8 Cir., 215 F.2d 160, 162, 163, involving a similar situation, that, from the accompanying declaration which the Board had made in the adoption of its changed jurisdictional standards, that "The new standards will be applied to pending cases as well as those filed hereafter", it appeared to the Court that the Board itself had "denied its jurisdiction for all purposes, including the enforcement of a previous order over respondent and other employers similarly situated" and that the attempt made to enforce its previous order was therefore entitled to be regarded as "an arbitrary and capricious discrimination against respondent".

Within a short time thereafter, however, the Board, in Edwin D. Wemyss, 110 N.L.R.B. No. 134, at page 843, made it clear that the National Gas Co. case had not correctly interpreted its intended policy in the adoption of its changed standards and the accompanying declaration made of their application to pending cases, by stating: "The present Board had no thought, indeed no basis, for overruling prior Board decisions correctly made under jurisdictional criteria in effect at the time of determination. * * * Accordingly it was, and is, Board policy for the future, to proceed as follows: The Board will apply the recently announced jurisdictional standards to all future and to all pending complaint cases which have not yet resulted in the issuance of a decision and order either finding unfair labor practices or dismissing the complaint. As to all other complaint cases in which a decision and order has already issued, the Board will proceed with compliance, enforcement and contempt proceedings, depending upon the status of the case, without regard to whether...

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  • Trinity Valley Iron & Steel Company v. NLRB
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 1, 1969
    ...Brown & Root, Inc., 8 Cir. 1963, 311 F.2d 447, 452; NLRB v. East Texas Steel Castings Co., 5 Cir. 1958, 255 F.2d 284; NLRB v. Kartarik, Inc., 8 Cir. 1955, 227 F.2d 190. See Buncher v. NLRB, 3 Cir. 1969, 405 F.2d 787 (en banc); NLRB v. Rice Lake Creamery Co., 124 U.S.App.D.C. 355, 365 F.2d 8......
  • Sullivan v. Murphy
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 16, 1973
    ...illegally discharged. NLRB v. Tiidee Prods. Co., 138 U.S.App.D.C. 249, 257-258, 426 F.2d 1243, 1251-1252 (1970) ; NLRB v. Kartarik, Inc., 227 F.2d 190 (8th Cir., 1955). In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), an employer who compounded his ......
  • Weekley v. Prostrollo
    • United States
    • Supreme Court of South Dakota
    • February 10, 2010
    ...see also Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265-66, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946); Nat'l Labor Relations Bd. v. Kartarik, Inc., 227 F.2d 190, 192-93 (8thCir.1955). "The rule which precludes recovery of uncertain and speculative damages applies only where the fact of damag......
  • Brady v. Thurston Motor Lines, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 6, 1985
    ...NLRB 1329, 1332 (1982); East Texas Steel Castings Company, Inc., 116 NLRB at 1347; Kartarik, Inc., 111 NLRB 630, 635 (1955), enf. 227 F.2d 190 (8th Cir.1955). It is apparent to us from a review of the decisions that the rule merely represents a particular application of the statutory duty t......
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