405 F.2d 787 (3rd Cir. 1968), 16638, Buncher v. N.L.R.B.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation405 F.2d 787
Date27 June 1968
PartiesJack G. BUNCHER, d/b/a The Buncher Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, AFL-CIO, Intervenor.
Docket Number16638.

Page 787

405 F.2d 787 (3rd Cir. 1968)

Jack G. BUNCHER, d/b/a The Buncher Company, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent, United Steelworkers of America, AFL-CIO, Intervenor.

No. 16638.

United States Court of Appeals, Third Circuit.

June 27, 1968

Argued March 8, 1968.

John G. Wayman, Reed, Smith, Shaw & McClay, Pittsburgh, Pa. (Scott F. Zimmerman, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief), for petitioner.

Page 788

George H. Cohen, Bredhoff & Gottesman, Washington, D.C. (Elliot Bredhoff, Michael H. Gottesman, Washingon, D.C., Bernard Kleiman, Chicago, Ill., on the brief), for intervenor.

Arthur Horowitz, N.L.R.B., Washington, D.C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, George B. Driesen, Atty., N.L.R.B., on the brief), for respondent.

Elliott Moore, N.L.R.B., Washington, D.C., for respondent on rehearing.

Before HASTIE, Chief Judge, and BIGGS, KALODNER, FREEDMAN, SEITZ, VAN DUSEN, ALDISERT and STAHL, Circuit Judges.

OPINION ON REHEARING OF THE COURT EN BANC

SEITZ, Circuit Judge.

This is the decision on the Company's petition to review and set aside a supplemental backpay order of the National Labor Relations Board and the Board's request for its enforcement.

The present dispute arises out of a finding, approved by this court, that the Company had dismissed certain of its employees in violation of the Act. N.L.R.B. v. Buncher, d/b/a The Buncher Company, 316 F.2d 928 (3rd Cir. 1963). The Regional Director thereafter issued a backpay specification and Notice of Hearing formulated in accordance with § 102.52 of the Board's Rules and Regulations. It contained a statement of the dollar amounts allegedly due each discriminatee as well as the following statement of the method employed by him in determining whether the discriminatees would have been discharged in any event for purely economic reasons after May 12, 1960:

'2. The first reduction in force at the Respondent Company's Nine Mile Run facility subsequent to March 4, 1960, occurred on May 12, 1960.

'3. Each of the discriminatees was entitled to backpay in accordance with the weekly average hours worked by the employees of Respondent at the Nine Mile Run facility until May 12, 1960.

'4. When there was not sufficient work available at the Nine Mile Run facility after May 12, 1960 for all of the discriminatees and all of the other employees who were employed at the Nine Mile Run facility at the time of the discrimination, an appropriate method of determining each discriminatee's entitlement to backpay during the period after May 12, 1960 is:

'(a) By allocating the available jobs at the Nine Mile Run facility among the discriminatees and the aforesaid other employees in accordance with their seniority; and

'(b) Only when sufficient work was not available at the Nine Mile Run facility for a discriminatee, then by allocating the available jobs at all of Respondent's locations, namely, Nine Mile Run, Leetsdale and Yard, among the discriminatees and the other employees who were employed at all of said Respondent's locations at the time of the discrimination in accordance with their seniority.

'5. The seniority referred to in paragraph 4 above is based on an employee's most recent hiring date with Respondent.'1'

The Company filed a response to the specifications in which it challenged the position that seniority was a permissible basis for calculating the backpay. It listed some ten criteria which it indicated were utilized by it to determine whether to retain or re-employ employees. It attached a chart purporting to apply the criteria to the discriminatees, retained employees, and employees first hired during the backpay period. It was admitted, however, that the chart was prepared after the fact on the basis of personal recollections by the Company's supervisors

Page 789

concerning 225 employees over a four and one-half year period.

Thereafter the matter came on for hearing. The Company sought to establish the validity of the chart attached to its response by the testimony of its supervisors. The trial examiner found that no employee was entitled to backpay for the period after May 12, 1960. He so concluded because the backpay claims were based on 'seniority', whereas the Company did not use seniority in effectuating reductions in force. The Board reversed and remanded holding that 'an absence of the use of seniority by the Respondent does not render the General Counsel's utilization of seniority in this proceeding unreasonable, per se.'

Upon remand the trial examiner first considered the Company's evidence in support of its claim that none of the discriminatees would have been rehired after May 12, 1960, because the employees retained or newly hired during that period met the Company's employment criteria, and the discriminatees did not. The examiner, after noting that the evaluations were not based on any written records, concluded from his analysis that the Company's testimony was 'fraught with inconsistencies, internal contradictions, exaggerations and implausibilities'. He noted that the Company's sole proprietor, Jack Buncher, had testified that there was nothing seriously wrong with the discriminatees' work, and that he would rehire them if needed. He also found that the Company trained employees to perform tasks which the discriminatees could have been trained to perform. In the light of these and other findings, the trial examiner decided that 'the charted information was contrived for the purpose of denying backpay to the discriminatees'. He therefore rejected the Company's evidence and recommended that the Board adopt the specifications of the General Counsel.

The Board affirmed the examiner's decision. It pointed out that since the Company's 'system' had been discredited it was impossible to determine precisely the amount of backpay in any particular case. It held further that to prevent the General Counsel from estimating the pay each discriminatee would have earned because he was unable to establish with certainty that the employees would have been retained would permit the Company to profit from its own wrong. In consequence the Board found that the premises underlying the General Counsel's prima facie case were reasonable and directed the petitioner to comply with the examiner's recommended order. The proceedings before this court followed.

Where it has been established, as here, that an employer has discharged employees discriminatorily, but it asserts in mitigation of backpay claims that such employees would have been laid off even absent such discrimination, it has the burden of proving that fact. N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170, 175-176 (2nd Cir. 1965), cert. den. 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1965). The examiner offered and the Company took full advantage of the opportunity to meet its burden of producing credible evidence from which a remedial formula might be adopted by the Examiner to approximate the result in the absence of discrimination.

A chart, prepared after the fact, was introduced into evidence by the Company. It listed numerous non-discriminatory factors and evaluations concerning the employees during the pertinent period, which tended to support the Company's contention that none of the discharged employees would have been rehired. It also offered elaborate supporting testimony. The examiner found, and his findings have substantial record support when the record is considered as a whole, that the Company's evidence contained so many pervasive infirmities that it was not a reliable basis for deciding the backpay issue. The matter being in this posture, was it arbitrary or unreasonable for the examiner to apply the seniority rule suggested by General Counsel? Admittedly, this Company did not have a formal seniority system. But the record in this case does indicate that

Page 790

length of service was a factor in its employment 'policy.' Furthermore, the seniority standard represents 'normal industrial practice generally.' NLRB v. Kartarik, Inc., 227 F.2d 190 (8th Cir. 1955). Thus, in our view, considering the credible evidence in this record, the seniority standard was a rationally permissible device for the examiner to employ in fashioning the remedy.

But the Company argues that there is no substantial evidence to support the use of the seniority formula and, further, that its use was in contradiction to other and previous findings of the Board which are said to have substantial evidentiary support. In our view, these contentions fail to give appropriate recognition to the manner in which these proceedings unfolded. Certainly the previous findings of the Board showed that the Company did not have a formal seniority system. But it does not follow that the use of such a factor in molding relief is automatically unreasonable where the Company, though having the burden and given the opportunity, failed to supply credible evidence in support of some other method of approximating the situation absent discrimination. Having in mind that the examiner was seeking an approximation, the remedy is not objectionable merely because it may not be consistent with the work histories, etc., of some of the employees involved. The Company had a full and fair opportunity to make its record in this already protracted proceeding. Since the burden here was on the Company, and since it failed to carry that burden, we think the examiner and the Board properly adopted the seniority device as a rational remedy on this record.

The Company attacks the examiner's admittedly rough rule that seven consecutive days or less of interruption in employment was not deemed to constitute a break in seniority. The record showed that employees were often discharged for 'cause' and rehired without any economic sanctions. The evidentiary history of...

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8 practice notes
  • Majestic Restaurant & Buffet, (2009)
    • United States
    • September 4, 2009
    ...on the calculations in the specification as amended. Moreover, the Buchner panel decision was in fact reversed in an en banc opinion, 405 F.2d 787, 790-791 (3rd Cir. 1969). Respondents also assert that General Counsel has not established the backpay amounts due “with specificity.” Again, I ......
  • Weldun International, (2003)
    • United States
    • September 30, 2003
    ...close approxi-mations because no better basis exists for determining the exact amount due.” Buncher Co., 164 NLRB 340, 341 (1967), enfd. 405 F.2d 787 (3d Cir. 1968), cert. denied 396 U.S. 828 (1969). Any formula that approximates what the discriminatees would have earned had they not been d......
  • Colorado Forge Corp., (1987)
    • United States
    • August 31, 1987
    ...steadily for Respondent at some point in time afterthat date. It is Respondent who bears the burden ofshowing this.Buncher Co. v. NLRB,405 F.2d 787, 789(3d Cir. 1969), cert. denied 396 U.S. 828 (1969). It haschosen to support its claim that two of them would haveceased work-one on October 6......
  • Holiday Inn of Henryetta, (1972)
    • United States
    • July 26, 1972
    ...was released;and in factboth were later recalled despite thispurportedlack of qualification.37Cf.The Buncher Company,164 NLRB 340, enfd. 405 F.2d 787 (C.A.3), cert.denied396 U.S. 828.3S Bartholic testifiedthat "theother girl,"Carol Rosander,was a maidfor a while beforeshe wentinto......
  • Request a trial to view additional results
8 cases
  • Majestic Restaurant & Buffet, (2009)
    • United States
    • September 4, 2009
    ...on the calculations in the specification as amended. Moreover, the Buchner panel decision was in fact reversed in an en banc opinion, 405 F.2d 787, 790-791 (3rd Cir. 1969). Respondents also assert that General Counsel has not established the backpay amounts due “with specificity.” Again, I ......
  • Weldun International, (2003)
    • United States
    • September 30, 2003
    ...close approxi-mations because no better basis exists for determining the exact amount due.” Buncher Co., 164 NLRB 340, 341 (1967), enfd. 405 F.2d 787 (3d Cir. 1968), cert. denied 396 U.S. 828 (1969). Any formula that approximates what the discriminatees would have earned had they not been d......
  • Colorado Forge Corp., (1987)
    • United States
    • August 31, 1987
    ...steadily for Respondent at some point in time afterthat date. It is Respondent who bears the burden ofshowing this.Buncher Co. v. NLRB,405 F.2d 787, 789(3d Cir. 1969), cert. denied 396 U.S. 828 (1969). It haschosen to support its claim that two of them would haveceased work-one on October 6......
  • Holiday Inn of Henryetta, (1972)
    • United States
    • July 26, 1972
    ...was released;and in factboth were later recalled despite thispurportedlack of qualification.37Cf.The Buncher Company,164 NLRB 340, enfd. 405 F.2d 787 (C.A.3), cert.denied396 U.S. 828.3S Bartholic testifiedthat "theother girl,"Carol Rosander,was a maidfor a while beforeshe wentinto......
  • Request a trial to view additional results

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