NLRB v. Miami Coca-Cola Bottling Company

• Citation: 360 F.2d 569
• Decision Date: 11 August 1966
• Docket Number: No. 20288.,20288.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA-COLA BOTTLING COMPANY, Respondent.

360 F.2d 569 (1966)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIAMI COCA-COLA BOTTLING COMPANY, Respondent.

No. 20288.

United States Court of Appeals Fifth Circuit.

May 10, 1966.

Rehearing Denied August 11, 1966.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Paul J. Spielberg, Bernard M. Dworski, Attys., N. L. R. B., Washington, D. C., for petitioner.

O. R. T. Bowden, David A. Bartholf, Jacksonville, Fla., for respondent.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and FISHER, District Judge.

WISDOM, Circuit Judge.

In 1962 the National Labor Relations Board found that Miami Coca-Cola Bottling Co. had unlawfully discharged employees Coughlin, Shepard, Elgie, and Gonzales because of their union activities. The Board ordered the company to make whole the employees for loss of pay caused by their unlawful discharge. 138 NLRB 1209 (1962). This Court enforced, per curiam, the order of the Board. NLRB v. Miami Coca-Cola Bottling Co., 5 Cir. 1963, 324 F.2d 501. The parties were unable to agree on the backpay. The Board therefore reopened hearings, June 15-16 and August 5, 1964. The Board adopted the examiner's determinations except that it reduced Shepard's backpay award to $1,842.70 and Gonzales' interest award to $240. Miami Coco-Cola Bottling Co., 150 NLRB (No. 160) (1965), 1965 CCH NLRB ¶ 9266.

Coca-Cola has paid the backpay awards to Elgie and Gonzales. On seven counts, Coca-Cola objects to the Board's order determining backpay due Shepard and Coughlin:

(1) Should Coca-Cola\'s annual $100 safety award be included in Shepard\'s backpay in view of the fact that his unlawful discharge before the end of the year 1961 makes it impossible to determine whether he would have earned the award?

(2) Was the $142.16 Coughlin earned driving taxicabs "supplemental income" not to be included in his gross interim earnings?

(3) Did Coughlin make timely acceptance of the offer of reinstatement?

(4) Should the hiring hall registration fees Coughlin paid seeking new employment be deducted from his gross interim earnings?

(5) Is there substantial evidence in the record to support the Board\'s conclusion that Coughlin and Shepard made reasonable efforts to obtain interim employment?

(6) Was it an abuse of the examiner\'s discretion to deny the respondent\'s motion for continuance of the hearing?

(7) Was it an abuse of the examiner\'s discretion to prohibit the employer\'s attempt to cross-examine Shepard about his other sources of income during the backpay period?

On the first six issues, we find in favor of the Board. To that extent we enforce its supplemental order. As to the seventh issue, we agree with Coca-Cola. To obtain a full and true disclosure of the facts, the examiner should have permitted the employer to cross-examine Shepard. We remand the case to permit the respondent that opportunity.

I. Shepard's $100 Safety Award

Had Shepard completed 1961 without an accident, he would have earned Coca-Cola's annual driver's safety award of $100. Shepard was accident-free at the time of his unlawful discharge October 5, 1961. Since Shepard's discharge made it impossible to determine whether he would have completed the year accident-free, the Board resolved the uncertainty against the wrongdoer, the respondent, and included the full $100 in Shepard's backpay. We agree with the Board.

A safe-driving award which an employee would have earned absent unlawful discrimination is includible in backpay. See NLRB v. Exchange Parts Co., 5 Cir. 1965, 339 F.2d 829, 831, 832; Nabors v. NLRB, 5 Cir. 1963, 323 F.2d 686, 690. Ordinarily the general counsel must prove with certainty that the employer's unlawful discrimination caused the employee's loss of backpay. NLRB v. Katarik, Inc., 8 Cir. 1955, 227 F.2d 190, 192; Mastro Plastics, 136 NLRB 1342, 1346 (1962). Here however that burden is impossible to carry. Failure to qualify for the $100 award might have resulted either from the unlawful discharge or from Shepard's having an accident during October, November, or December, 1961.

The respondent argues that the general counsel's inability to carry the burden of proof decides the issue. But the Board has, as a matter of policy — one that seems reasonable — consistently taken the view that when an employer's unlawful discrimination makes it impossible to determine whether a discharged employee would have earned backpay in the absence of discrimination, the uncertainty should be resolved against the employer. Merchandise Press, Inc., 115 NLRB 1441, 1332 (1956); Spitzer Motor Sales, 102 NLRB 437, 453 n. 52 (1953).

This Court has approved the Board's rule. East Texas Steel Castings Co., 116 NLRB 1336, 1339-40 (1956), aff'd, NLRB v. East Texas Steel Castings Co., 5 Cir. 1958, 255 F.2d 284 (per curiam). In East Texas unlawfully discharged backpay claimants were members of a union which struck employer February 19, 1952. The employer later offered the discharged employees reinstatement. In proceedings to determine the backpay due employees, the employer argued that the date of the strike should be the cut-off date for his backpay liability since the claimants would probably have struck with their union. Instead, the Board placed the cut-off date at the time of the offer of reinstatement because the employer's discrimination made it impossible to determine whether the backpay claimants would have gone on strike absent the discrimination.

We enforce the part of the Board's order which includes in Shepard's backpay the $100 safety award.

II. Coughlin's Taxicab Earnings

If an unlawfully discharged employee finds interim work, his earnings are deducted from gross backpay due. But the rule requiring deduction of interim earnings applies only to earnings during the hours when the employee would have been employed by the employer in question. Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 198 & n. 7, 61 S.Ct. 845, 85 L.Ed. 1271, citing Pusey Maynes & Breish Co., 1 NLRB 482, 486 (1936). Thus, the Board has held that if, during the backpay period, a discriminatee maintains a full-time job and supplements his income by casual, part-time employment, his supplemental earnings are not deductible from gross backpay. Belle Steel Company, Inc., 135 NLRB 1378, 1380 (1962); Acme Mattress Co., 98 NLRB 1439; Link Belt Co., 12 NLRB 845, 872.

Coughlin was discharged March 1, 1961. The Miami Teamsters hired him as an organizer in July 1961 at $75 per week. The trial examiner credited Coughlin's testimony that he was "putting in an average of 40 hours a week with the Teamsters" during the two quarters of the backpay period in question (1961-4 and 1962-1). During the same period Coughlin worked at various hours between 5 p. m. and 4 a. m. as a taxicab driver. He admits to having earned from this "moonlighting" $142.16 over a six-week period, or about $22 a week. The examiner found these were "indeed supplemental earnings for employment held outside Coughlin's full working hours for the Teamsters and were properly * * * not deducted from gross backpay. * * *"

The employer makes two attacks on the Board's affirmance of the trial examiner. First, it asserts that the taxicab earnings are not "supplemental", because Coughlin's job with the Teamsters was not full-time. Coughlin did testify that he sometimes reported to work as late as 10 a. m., sometimes worked in the evening on organization campaigns, and did not work under strict supervision. Nevertheless, this testimony does not contradict Coughlin's earlier testimony that his work was full-time. Maintaining a rigid 8 a. m. to 5 p. m. schedule is not necessary to a full-time job if the employee works an average of 8 hours a day, 5 days a week.

Coca-Cola also argues that Coughlin's taxicab earnings are not "supplemental", because he did not work part-time as a taxicab driver before the discharge. The reported cases permitting non-deduction of supplemental earnings involve situations where an employee who had spare-time earnings prior to discharge from his regular job continued in the same spare-time job during his period of discharge. E. g., Belle Steel Company, Inc., supra; Acme Mattress Co., supra; Melrose Processing Co., 151 NLRB 134 (1965). Coughlin had never driven a cab while working for Coca-Cola, but he had been "moonlighting." Before his discharge, he had worked during the football season at the Orange Bowl for Union News Co., a company operating concessions dispensing Coca-Cola. In 1958 he supplemented his earnings by working nights and weekends in the mailroom of the Miami Daily News.

Since Coughlin worked full-time with the Teamsters while he drove a taxicab at night, and since he had been moonlighting before his unlawful discharge, we think that the fact that he changed his spare-time employment is not enough to prohibit characterization of his taxicab earnings as supplemental.

We enforce that part of the Board's order refusing to deduct the cab earnings from gross backpay.

III.

Coughlin's offer of Reinstatement

After this Court ordered enforcement of the Board's order requiring Coughlin's reinstatement the employer wrote Coughlin the following letter:

In conformance with an order of the United States Circuit Court of Appeals, you are hereby offered reinstatement to your former, or substantially equivalent position which you held when discharged by Miami Coca-Cola Bottling Co.

Please notify the undersigned within 10 days of your decision, in writing, to accept reinstatement with our company.

In the event we have not heard from you in 10 days, we shall assume that you do not desire reinstatement.

Your early advice is appreciated so that the necessary arrangements can be made.

The employer mailed the letter January 29, 1964. Coughlin received it February 1. In a letter dated and mailed February 8, which the company received February 10, Coughlin unequivocally accepted the offer of reinstatement. The employer...