Marine Welding & Repair Works, Inc. v. NLRB

• Decision Date: 12 April 1974
• Docket Number: No. 73-2218.,73-2218.
• Parties: MARINE WELDING & REPAIR WORKS, INC., Williamson Engine & Supply, Inc., Greenville Manufacturing & Machine Works, Inc., Greenville Propeller Works, Inc., Petitioners-Cross Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 526 (1974)

MARINE WELDING & REPAIR WORKS, INC., Williamson Engine & Supply, Inc., Greenville Manufacturing & Machine Works, Inc., Greenville Propeller Works, Inc., Petitioners-Cross Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 73-2218.

United States Court of Appeals, Fifth Circuit.

April 12, 1974.

William W. Cody, Alan I. Berger, St. Louis, Mo., for petitioners-cross respondents.

Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D. C., John J. A. Reynolds, Jr., Director N.L. R.B., Region 26, Memphis, Tenn., John Depenbrock, Atty., N.L.R.B., Washington, D. C., for respondent-cross petitioner.

Before COLEMAN, CLARK and GEE, Circuit Judges.

COLEMAN, Circuit Judge:

The prologue to the proceedings here under review is to be found in Marine Welding and Repair Works v. National Labor Relations Board, 8 Cir., 1971, 439 F.2d 395. There, the United States Court of Appeals enforced a Board finding that Marine Welding and Repair Works, Inc. and its associated Companies had violated Section 8(a) (3) of the Act by discharging Isiah Layton and Freddie Lee Walker.

That Court said:

"In sum, on this record, we observe conduct by an employer which violated the Act to a degree where we can say with certainty that the employees\' rights to engage in concerted organizational activity were interfered with and restrained to a point of almost total obliteration", 439 F.2d at 398.

This precipitated backpay proceedings pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Board's Supplemental Decision and Order is reported, 202 NLRB No. 85. Marine Welding and Repair Works, Inc. petitions for review and the Board cross petitions for enforcement. The Order requires the Company to pay Layton $3,456 and Walker $10,312, with interest, for the periods elapsing between the time they were discharged and the subsequent offer of reemployment.

We enforce the order as to Isiah Layton, but deny enforcement as to Freddie Lee Walker, with remand for further proceedings consistent herewith.

The Company raises numerous objections to computations by which the Board arrived at the amount of the back pay awards: claiming in some instances that there was no evidentiary support for certain items; in others, that there were mathematically incorrect computations; and in yet others, that the Board failed to give the Company credit for sums clearly established by the evidence. While these items have been ably and vigorously contested at all stages of the proceedings, our review of the record and briefs constrains us to hold that, except as hereinafter set forth, these matters fall within the statutory and credibility discretion conferred on the Board. That the Company was improperly denied the right to adduce certain evidence which might have affected the result is the sole point necessitating further analysis.

The principles governing the determination of the amount of a back pay award are well settled. At the outset, the Board has the burden only to show the gross back pay due the claimant¹ J. H. Rutter-Rex Manufacturing Company, Inc. v. N. L. R. B., 5 Cir., 1973, 473 F.2d 223, cert. denied 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973). The burden then shifts to the employer to establish affirmative defenses in mitigation of his liability. Mitigation usually assumes any or all of three forms: (1) the unavailability of employment where not caused by discriminatory factors, (2) wilful loss of earnings, and (3) interim earnings which are due to be deducted from the award, N. L. R. B. v. Mooney Aircraft, Inc., 5 Cir., 1966, 366 F.2d 809; N. L. R. B. v. Miami Coca Cola Bottling, 5 Cir., 1966, 360 F. 2d 569; N. L. R. B. v. Brown and Root, Inc., 8 Cir., 1963, 311 F.2d 447.

The ultimate issue then becomes, what would not have been taken from the employees if the Company had not contravened the Act, Virginia Electric and Power Company v. N. L. R. B., 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943).

As already indicated, the Company defense in this case was built around all three of these grounds. The major contention is that it was denied a fair hearing because its efforts to subpoena records of the Mississippi Employment Service were defeated by the withdrawal of the subpoena.

At the request of the Company, the Board on March 13, 1972, issued the following subpoena duces tecum (omitting the formal opening and close):

"To Mr. Clarence Morris, Manager, Employment Service, Mississippi Employment Service, 121 S. Harvey Street, Greenville, Mississippi 38701

"YOU ARE HEREBY REQUIRED AND DIRECTED TO APPEAR BEFORE a Trial Examiner of the National Labor Relations Board, at a hearing to be held at Courtroom, Washington County Courthouse in the City of Greenville, Mississippi, on the 15th day of March, 1972, at 9:30 o\'clock A.M., of that day, to testify in the Matter of Marine Welding and Repair Works, Inc., et al., Cases Nos. 26-CA-2736, et al.

"And you are hereby required to bring with you and produce at said time and place the following books, records, correspondence and documents:

"A. All records, files, reports, correspondence on the following:

a) Freddie Lee Walker Social Security No. XXX-XX-XXXX

b) Isiah Layton Social Security No. XXX-XX-XXXX

and for the period of time from May 5, 1967, through August 13, 1971, showing the dates each appeared and registered for employment referral during said period of time. Italics added by this Court

"B. All records, reports, schedules, summaries, statistics and/or files for the periods of time between May 5, 1967, and August 13, 1971, showing the positions of employment for which each of the above named persons would have been considered. The number of such positions available, the date the positions were available, the location and the approximate wage of said positions, during the periods of time from May 5, 1967, and August 13, 1971.

"C. All records, reports, schedules, summaries and statistics showing, for the type of work indicated below, the number of openings, their location, the approximate rate of pay, and the date said opening became available, during the period of time from May 5, 1967, and ending August 13, 1971; said positions are:

1. Truck driver

2. Laborer

3. Welder\'s helper

4. Pipe fitters helpers

5. Painter — and helper

6. Barge cleaner

7. Mechanic — diesel and engine

8. Mechanic\'s helper."

In response to the subpoena, the Mississippi Employment Security Commission presented its claim of privilege, asserting that "Said records and information are required by Section 7411, Mississippi Code of 1942, to be held confidential and shall not be published or opened to public inspection except to the extent necessary for the proper administration of the Mississippi Employment Security Law".

The law judge granted the claim of privilege and revoked the subpoena. The Board denied the Company's special appeal, and Board General Counsel refused to seek enforcement of the subpoena in the United States District Court.

Section 7411 of the Mississippi Code of 1942 reads as follows:

"§ 7411. Records and reports.

"Each employing unit shall keep true and accurate work records, containing such information as the commission may prescribe. Such records shall be open to inspection and be subject to being copied by the commission or its authorized representatives at any reasonable time and as often as may be necessary. The commission, board of review, and any referee may require from any employing unit any sworn or unsworn reports, with respect to persons employed by it, which they or any of them deem necessary for the effective administration of this act. Information thus obtained, or obtained from any individual pursuant to the administration of this act, shall, except to the extent necessary for the proper administration of this act, be held confidential and shall not be published or be opened to public inspection (other than to public employees in the performance of their public duties), in any manner revealing the individual\'s or employing unit\'s identity, but any claimant (or his legal representative) at a hearing before an appeal tribunal or the board of review shall be supplied with information from such records to the extent necessary for the proper presentation of his claim. Any employee or member of the board of review or any employee of the commission, who violates any provisions of this section, shall be fined not less than twenty dollars ($20.00), nor more than two hundred dollars ($200.00), or imprisoned for not longer than ninety (90) days, or both. The commission may make the state\'s records relating to the administration of this act available to the railroad retirement board, and may furnish the railroad retirement board, at the expense of such board, such copies thereof as the railroad retirement board deems necessary for its purposes. The commission may afford reasonable cooperation with every agency of the United States charged with the administration of any unemployment insurance law."

So far as we can ascertain, the Mississippi Supreme Court has never had occasion to construe the nature or scope of the confidentiality conferred by Section 7411.² The Code Section mentions only the records kept by an employing unit when those records are furnished the Commission under the terms of the statute. That is not the type of record at issue in this appeal. Nevertheless, we need decide the "confidentiality" issue only to the extent that it...