604 F.2d 375 (5th Cir. 1979), 79-1174, N.L.R.B. v. Pilot Freight Carriers, Inc.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation604 F.2d 375
Date11 October 1979
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. PILOT FREIGHT CARRIERS, INC., and BBR of Florida, Inc., Respondents.
Docket Number79-1174

Page 375

604 F.2d 375 (5th Cir. 1979)



PILOT FREIGHT CARRIERS, INC., and BBR of Florida, Inc., Respondents.

No. 79-1174


United States Court of Appeals, Fifth Circuit

October 11, 1979

Page 376

Elliott Moore, Deputy Associate, Gen. Counsel, Carol DeDeo, Supervisor, Patricia Matthews, Atty., N.L.R.B., Washington, D.C., for petitioner.

Blakeney, Alexander & Machen, Whiteford S. Blakeney, J. W. Alexander, Jr., Charlotte, N.C. for Pilot Freight Carriers, Inc.



Before BROWN, Chief Judge, and KRAVITCH and JOHNSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

On March 25, 1976, the National Labor Relations Board issued a decision and order against respondents Pilot Freight Carriers, Inc., and BBR of Florida, Inc. (referred to collectively as "the Company"), finding that the Company had violated Section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. §§ 151, Et seq., by discharging Melvynn Johnston for protected union activities and

Page 377

that a strike against the Company which began two weeks later was an unfair labor practice strike, in part because of Johnston's discharge. The Board ordered the Company to reinstate Johnston and to reimburse him for lost earnings. On May 21, 1976, the Board filed an application for enforcement of its order with this Court. This Court subsequently granted a motion to withdraw the application for enforcement after the parties entered into a stipulation in which the Company "waive(d) its right to contest in any future proceeding in this Court any of the Board's findings and conclusions with respect to the unfair labor practices alleged and found . . . to have been committed against Melvynn Johnston" and further agreed that "if Pilot seeks judicial review of a subsequent Board decision awarding backpay to Melvynn Johnston . . ., it is understood that Pilot will be precluded in such proceeding from challenging the propriety of the unfair labor practice findings or remedial provision in the Board's original decision and order." 1 Because the parties were unable to agree on the amount of backpay to which Johnston was entitled, a hearing was held on September 13, 1977, in which the Board claimed that backpay in the amount of $5,110.89 plus interest was owing to Johnston for the period from February 7, 1974, when he was discharged, to September 9, 1976, when he was reinstated. The Administrative Law Judge concluded that an order should be issued in accordance with the Board's specification. On September 26, 1978, the Board issued its decision and order, adopting without modification the Administrative Law Judge's proposed order. The case is now before the Court for enforcement of that supplemental order.

The Board enjoys broad, discretionary authority to formulate a remedy where an unfair labor practice has been committed. N. L. R. B. v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969). " When the Board . . . makes an order of restoration by way of backpay, the order 'should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' " N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377 (1953). Upon the record in this case, we cannot say that the Board has overstepped its authority.

Where backpay is in dispute, the sole burden on the Board is to show the gross backpay due the claimant. J. H. Rutter-Rex Mfg. Co. v. N. L. R. B., 473 F.2d 223 (5th Cir. 1973); Marine Welding & Repair Works v. N. L. R. B., 492 F.2d 526 (5th Cir. 1974). While the law is clear that actual interim earnings and losses willfully incurred will be deducted from gross pay, Phelps Dodge v. N. L. R. B., 313 U.S. 177, 197-200, 61 S.Ct. 845, 85 L.Ed. 1271 (1941), the burden is on the employer to prove such earnings or losses. Failure to mitigate damages by a refusal to search for alternative work or by a refusal to accept substantially equivalent employment is an affirmative defense. N. L. R. B. v. Mooney Aircraft, Inc., 366 F.2d 809 (5th Cir. 1966); N. L. R. B. v. Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). However, the employer does not meet its burden by proving that the employee failed to find interim employment. The law only requires of the employee "reasonable exertions in this regard, not the highest standard of diligence." N. L. R. B. v. Arduini Mfg. Corp., 394 F.2d 420, 423 (1st Cir. 1968); N....

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34 practice notes
  • 557 F.Supp. 642 (D.S.C. 1982), Civ. A. 78-1010-0, Donovan v. Peter Zimmer America, Inc.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 29 Junio 1982
    ...the sole burden on the [employees] is to show the gross backpay due [them]" ( N.L.R.B. v. Pilot Freight Carriers, Inc., supra, 604 F.2d at 377). The complainants have done this here. "Failure to mitigate damages is an affirmative defense, the burden of which is not met by an emplo......
  • 386 Mass. 414 (1982), Southern Worcester County Regional Vocational School Dist. v. Labor Relations Com'n
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Junio 1982
    ...See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197-200, 61 S.Ct. 845, 853-55, 85 L.Ed. 1271 (1941); NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir. 1979); NLRB v. Mercy Peninsula Ambulance Serv., Inc., 589 F.2d 1014, 1017-1018 (9th Cir. 1979). However, in formulating its ba......
  • N.Y. Party Shuttle, LLC v. Nat'l Labor Relations Bd., 112221 FED5, 20-61072
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 22 Noviembre 2021
    ...General counsel bears the burden of proving the gross amount of backpay due to each claimant. NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir. 1979). The burden then shifts to the employer to put on affirmative defenses and to mitigate liability. Id. (citing NLRB v. Miami C......
  • 669 P.2d 768 (Okla. 1983), 52672, Mann v. State Farm Mut. Auto. Ins. Co.
    • United States
    • Supreme Court of Oklahoma
    • 13 Septiembre 1983
    ...and Remedies, 14 Okl.L.Rev. 125 (1961). [8] Also see Stone v. Beneficial Standard Life Ins. Co., 273 Or. 594, 542 P.2d 892 (1975). [9] 604 F.2d at 376, fn. 16. See Wynn v. Reconstruction Finance Corp., 212 F.2d 953, 956 (9th [10] See Maybury v. City of Seattle, 53 Wash.2d 716, 336 P.2d 878 ......
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9 cases
  • Colorado Forge Corp., (1987)
    • United States
    • 31 Agosto 1987
    ...of the employ-ee `reasonable exertions in this regard, not the higheststandard of diligence."'NLRB v. Pilot Freight Carriers,supra, 604 F.2d at 377. Finally, "an employee, discrimina-torily laid off or discharged need not instantly seek newwork; rather the test is whether, on the ......
  • Intermountain Rural Electric Association, (1995)
    • United States
    • 25 Mayo 1995
    ...method hasbeen approved by the Board DeLorean Cadillac, 231 NLRB329 (1977), and by the courts. NLRB v. Pilot Freight Car-riers, 604 F.2d 375, 379 (5th Cir. 1979); NLRB v. CharleyTopprino & Sons, 358 F.2d 94, 97 (5th Cir. 1966); NLRB v.Rice Lake Creamery Co., 365 F.2d 888, 891 (D.C. Cir.......
  • Dependable Tile Company, (1988)
    • United States
    • 28 Abril 1988
    ...formula designed to approximate what em-ployees would have earned absent the unfair labor prac-tice. NLRB v. Pilot Freight Carriers, 604 F.2d 375 (5thCir. 1979); NLRB v. Brown & Root, Inc., 311 F.2d 447(8th Cir. 1963). Uncertainties in fixing the backpay dueare resolved against the wron......
  • Greyhound Taxi Co., Inc., (1985)
    • United States
    • 27 Febrero 1985
    ...been held to be in-sufficient tomeet the burden of showing the backpayclaimant's searchwas not reasonable.NLRB v. PilotFreight Carriers,604 F.2d 375 (5th Cir. 1979);NLRB v.Cashman Auto Co.,233 F.2d 832 (1st Cir. 1955);DeLor-ean Cadillac,231 NLRB 329, 331 (1977);Southern House-hold Products ......
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