Trinity Valley Iron & Steel Company v. NLRB

• Decision Date: 01 May 1969
• Docket Number: No. 23856.,23856.
• Citation: 410 F.2d 1161
• Parties: TRINITY VALLEY IRON & STEEL COMPANY, a division of C. C. Griffin Manufacturing Company, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

410 F.2d 1161 (1969)

TRINITY VALLEY IRON & STEEL COMPANY, a division of C. C. Griffin Manufacturing Company, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 23856.

United States Court of Appeals Fifth Circuit.

May 1, 1969.

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John B. Nelson, John Edward Price, Fort Worth, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marion Griffin, Glen M. Bendixsen, Attys., NLRB, Washington, D. C., for respondent.

Before JOHN R. BROWN, Chief Judge, WISDOM, Circuit Judge, and BREWSTER, District Judge.

JOHN R. BROWN, Chief Judge:

Trinity Valley (the "Employer") and the National Labor Relations Board (the "Board") are before this Court on petition for review and cross-petition for enforcement of a Supplemental Backpay Order stemming from allegedly tardy and inadequate reinstatement of over 80 unfair labor practice strikers who walked off their jobs for approximately six months during a dispute which occurred nearly ten years ago.¹

Certain threshold facts can be severely compressed. On June 8, 1959, the Union² struck the Employer in an economic dispute. Some replacements were hired. On June 30, 1959, the dispute evolved into an unfair labor practice strike by virtue of certain Employer conduct not herein material. Thereafter, the majority of the striker replacements were hired.

On December 11, 1959, the International Representative of the Union informed the Employer by letter that its strike was officially terminated, that all picketing had been ordered discontinued immediately, and that the letter constituted an "unconditional request on behalf of each of the striking employees a list of whose names was supposedly appended to the letter for reinstatement to his former position or alternatively other employment * * *." The letter asked where and when the returning strikers should report for work.

Following a telephone conversation between the Union spokesman and the Employer counsel in which neither was willing to admit that he could then state conclusively what those whom he represented would ultimately do, the Employer replied by letter dated December 14, 1959, that strikers "who desire to individually abandon the strike and report for work" should appear at the foundry on December 19, 1959 and that "problems of feeding these people into the process of production are going to be rather numerous * * *."

No more than 38 strikers reported on the designated date. Two of these, for reasons not material herein, are not involved in the instant backpay proceeding.³ Forty-six other strikers straggled back individually, 35 reporting by December 31, 1959, ten more appearing in January 1960, and one showing up on February 2, 1960. None of the replacements hired during the strike were discharged as the strikers gradually returned to work.

General Counsel noted the following statistical information. The maximum work force before the strike, computed quarterly for the preceding year, averaged only 142 employees. The work force, including returned strikers and retained replacements for the quarter after the strike terminated averaged 164 employees.⁴

Brandishing various other statistics based upon his reading of the Employer's production and employment records, General Counsel made several other observations critical to any disposition of this case. Returning strikers found the Employer had less business than before the strike, he had decreased the work schedule from five to four production cycles per week, yet he maintained a work force averaging 22 more employees (during the quarter immediately following the strike termination when the strikers were returning) than the annual pre-strike average complement. Translated into pocketbook terminology according to General Counsel, less business and fewer production cycles per week with an increased post-strike work force size meant ipso facto that returning strikers worked an average of twelve less hours per week, including virtual elimination of weekly overtime hours for which compensation would have been made at one and one-half the "regular" rate as required by the Wage Hour Law.⁵

Finally, the returning strikers were admittedly reinstated without credit for two five cent per hour periodic wage increases, normally accrued on a regular quarterly basis but denied strikers who were absent when they were awarded. The Employer asserts these were "merit" increases awarded on the basis of performance shown and experience gained; General Counsel, using more elaborate statistics, concluded these periodic increases had been granted to over 90 percent of otherwise eligible employees.⁶

On the above facts, the Trial Examiner and the Board arrived at conflicting conclusions as to what the Employer's backpay obligation should be under the Original Board Order enforced by this Court. Their respective figures for total amount due were over $42,500 apart (with the Board arriving at an amount of $71,979.78 onto which we are asked to stamp our judicial imprimatur).⁷

On review, this case can be reduced to six issues:

(1) Whether rejection by General Counsel of a compromise backpay settlement, agreed upon and signed by a representative of his Regional Office, and issuance by General Counsel thereafter of an amended backpay specification (in an amount eight times the sum of the original specification and formulated on three entirely new theories) constitutes "punishment" prohibited by the Act;

(2) Whether economic strikers allegedly permanently replaced before the dispute became an unfair labor practice strike are entitled to backpay when Employer, without advancing any business justification, seeks to deny them "full and immediate" reinstatement after their timely application;

(3) Whether strikers, who fail to report on the date designated by Employer in response to Union's blanket reinstatement request, have waived any right to backpay or at least a right to any awarded until after expiration of five days from the date on which the striker(s) actually reported for work;

(4) Whether the Employer, in the absence of any proof he would not have granted interim quarterly wage increases but for strike-caused absences, must credit reinstated strikers with two such periodic pay hikes otherwise routinely made in the past "with a high degree of regularity" to eligible employees;

(5) Whether the Employer with a work-cycle rather than work-week method of production operation, with a number of legitimate business reasons for maintaining an employment complement of approximately 165, and with economic justification for holding overtime to a minimum must necessarily reduce his post-strike work force to its 142 man pre-strike annual average by discharging retained striker replacements (and by implication not make any post-strike "new hires" inflating the 142 man pre-strike force) in order to grant returning strikers "full" reinstatement, namely, guarantee them substantially equivalent average post-strike overtime work opportunities as enjoyed during a "representative" pre-strike quarter selected arbitrarily by General Counsel;

(6) Whether the backpay liability of the Employer, whose cycles of operation are ascertainable, should be computed on the basis of available hours of work during the actual discrimination period or on the basis of some arbitrarily selected "representative period," namely, the last full quarter immediately preceding the strike.

I.

We note at the outset that the policy of the Act is to restore the situation as nearly as possible to status quo ante the unfair labor practice. Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271. Accord: NLRB v. Strong d/b/a Strong Roofing & Insulating Co., 1969, 393 U.S. 357, 89 S.Ct. 541, 21 L.Ed.2d 546. Such a purpose requires that those deprived of a recognized and protected interest by violations of the Act should be made whole so as to prevent the violator from profiting from his misdeeds. NLRB v. Coats & Clark, Inc., 5 Cir. 1957, 241 F. 2d 556; NLRB v. J. H. Rutter-Rex Mfg. Co., 5 Cir. 1957, 245 F.2d 594. We are aware that a backpay proceeding is designed to vindicate a public, not a private, right as to deter unfair labor practices; the employee is but a beneficiary. NLRB v. Mooney Aircraft, Inc., 5 Cir. 1966, 366 F.2d 809. Finally, the Act is remedial, not punitive, in its aims. Cf. Fanning, New and Novel Remedies for Unfair Labor Practices, 3 Ga.L.Rev. 256 (1969), 4 CCH Lab.Law Rep. ¶ 8042.

Translated into practical standards in a reinstatement-backpay situation, the balance of the equities is as follows. The Employer is required to place the employee in the same position — with no more advantages and no fewer advantages — than before the discrimination against him for union activities. NLRB v. Goodyear Tire & Rubber Co. Retread Plant, 5 Cir. 1968, 394 F.2d 711, 714; NLRB v. American Steel Bldg. Co., 5 Cir. 1960, 278 F.2d 480, 482. Yet the reinstatement remedy must be adapted to economic-business conditions. NLRB v. R. C. Can Co., 5 Cir. 1964, 328 F.2d 974, 980; NLRB v. American Aggregate Co., 5 Cir. 1962, 305 F.2d 559, 563-565; NLRB v. Biscayne TV Corp., 5 Cir. 1961, 289 F.2d 338, 340; NLRB v. American Steel Bldg. Co., supra. Cf. General Electric Co., etc. v. NLRB, 5 Cir. 1968, 400 F.2d 713, 722-724, cert. denied, 394 U.S. 904, 89 S.Ct. 1012, 22 L.Ed.2d 216.

The Board, in a backpay proceeding, has the sole burden of proving employer liability for unlawful discrimination, with the Employer having the burden of coming forward with facts in mitigation. NLRB v. Miami Coca-Cola Bottling Co., 5 Cir. 1966, 360 F.2d 569, 576. Our role in review of a backpay proceeding has been recently restated in J. H. Rutter-Rex v. NLRB, 5 Cir. 1968, 399 F.2d 356, 359, cert. granted, 394 U.S. 1116, 89 S.Ct. 991, 22 L.Ed.2d 121, quoting from NLRB v. Brown & Root, Inc., 8 Cir....