NLRB v. Brown & Root, Inc.
| Decision Date | 04 January 1963 |
| Docket Number | No. 14680.,14680. |
| Citation | 311 F.2d 447 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROWN & ROOT, INC., et al., Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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William A. Brown, Houston, Tex., for respondent; Ben H. Powell, Jr., Houston, Tex., on the brief.
William J. Avrutis, Atty., N.L.R.B., Washington, D. C., for petitioner; Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William J. Avrutis and Joseph C. Thackery, Attys., N.L.R.B., Washington, D. C., on the brief.
Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HENLEY, District Judge.
This proceeding was brought by the National Labor Relations Board pursuant to section 10(e) of the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947, 29 U.S.C.A. § 160(e), to secure enforcement of a back pay order entered by the Board on July 31, 1961. The order awarded back pay amounting to $54,979.00 to 54 former employees of respondents, which the Board had formerly found to have been discriminatorily refused reinstatement by respondents following a strike in 1948 and 1949. Respondents resist enforcement of the order.
In 1947 respondents, construction contractors, formed a joint venture known as Ozark Dam Constructors, hereinafter Ozark, the purpose of which was to build the Bull Shoals Dam across the White River in north Arkansas. Later in the same year respondents formed another joint venture known as Flippin Materials Co., hereinafter Flippin, the purpose of which was to supply crushed stone aggregate to be used by Ozark in the construction of the dam.
At an early stage in the construction of the dam Ozark became involved in a dispute with the labor union claiming to represent Ozark employees. In 1951 this Court held that the union was in fact entitled to recognition as the collective bargaining agent of the employees in question. National Labor Relations Board v. Ozark Dam Constructors, 8 Cir., 190 F.2d 222.
In December 1948 while the recognition proceedings were pending before the Board a considerable number of Ozark employees went out on strike and were joined by some of the Flippin employees. In December 1949 the strike was settled and it was agreed that the strikers would be reinstated.
Attempted implementation of the reinstatement agreement resulted in further controversy between respondents and the union. This controversy arose in January 1950, and in March of that year the union filed charges against respondents alleging that the latter had discriminatorily refused to grant reinstatement to the employees whose names were included in a written demand for reinstatement made on respondents by the union on January 15, 1950. In 1952 the Board found in effect that the employees whose names were included in the January 15, 1950, list had been discriminatorily denied reinstatement, that the union had the right to represent said employees, and that the January 15, 1950, list constituted a valid request for reinstatement on behalf of the several employees whose names appeared on the list. The Board further found and ordered that the affected employees should be reinstated with back pay as authorized by section 10(c) of the Act, 29 U.S.C.A. § 160(c). However, the Board's findings and order were general. No effort was made at that time to make any dollars and cents award in favor of any particular individual, and in its decision the Board reserved "the right to modify the back pay and reinstatement findings herein if made necessary by a change in circumstances since the hearing or in the future or to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent." The Board's order was directed at both Ozark and Flippin.
Respondents refused to comply with the 1952 order of the Board, and the latter sought enforcement here. On March 24, 1953, this Court granted enforcement as to Ozark, but denied it as to Flippin.1 National Labor Relations Board v. Brown & Root, 8 Cir., 203 F.2d 139, rehearing denied 206 F.2d 73.
Respondents and the Board were not able to agree following our 1953 decision as to which individuals were entitled to back pay or as to the amounts of back pay to be awarded to particular strikers. The controversy, already prolonged, remained in this posture until January 1957 when the Board's Regional Director, acting in accordance with section 102.52 of the Board's regulations, issued and served upon respondents a formal back pay specification awarding specific amounts of back pay to 75 former employees of respondents.2
Respondents answered the back pay specification, and hearings were held before a trial examiner of the Board between August 5, 1958, and December 3, 1958. In January 1960 the trial examiner filed a Supplemental Intermediate Report in which he recommended that back pay be awarded to 46 of the 75 strikers included in the back pay specification. The total amount of the examiner's recommended awards was $46,978.00.
Both sides excepted to the report of the examiner, and after consideration the Board on July 31, 1961, issued and served its Supplemental Decision and Order which is now sought to be enforced. In general, the Board adopted the findings and recommendations of the examiner but made certain modifications therein, some of which were favorable to the respondents and some of which were otherwise. The ultimate finding of the Board was that 54 former employees should receive back pay totaling $54,979.00.
In resisting enforcement of the 1961 order respondents advance a number of contentions: (1) That the Board and the examiner erred in refusing to receive or consider evidence to the effect that some of the strikers included in the January 1950 list were not available for employment and for that reason were not entitled to back pay; (2) That the Board employed an improper and illegal formula in computing back pay; (3) That the Board erred with respect to the incidence of the burden of proof on certain issues; and (4) That some of the Board's findings are not supported by substantial evidence in the record.
We proceed to a discussion of these contentions bearing in mind that the scope of our review of an order of the Board is limited, although we do not sit merely to rubber stamp administrative action, nor are we in passing upon the Board's decision to abdicate our conventional judicial function. Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; National Labor Relations Board v. Brown & Root, Inc., supra. It is not the function of this Court to try the case de novo or to substitute its own appraisal of the evidence for that of the Board. If the Board has conceived the law correctly, if it has not acted arbitrarily or capriciously, and if its findings are supported by "substantial evidence on the record considered as a whole," they are conclusive and binding on this Court even though we might have made different findings upon an independent consideration of the same evidence. Labor Management Relations Act of 1947, § 10(e), 29 U.S.C.A., § 160 (e); Universal Camera Corporation v. National Labor Relations Board, supra; National Labor Relations Board v. Brown & Root, Inc., supra.
It is argued by respondents that the list of strikers submitted by the union in January 1950 contained the names of 350 individuals; that many of those individuals were not in fact available for employment by respondents at that time; and that the hearing examiner and the Board erroneously refused to receive evidence of such alleged unavailability and based their refusal on the doctrine of res judicata, the agency taking the position that an inquiry as to availability for employment of particular strikers was foreclosed by our 1953 decision.
The short answer to this contention is that the examiner and the Board did not refuse to receive or consider evidence as to the availability or nonavailability of particular individuals. Indeed, a great deal of testimony was taken and considered on that question.
What the Board did refuse to receive was evidence offered for the purpose of proving that the January 1950 list was not a valid application for reinstatement filed on behalf of the listed employees. That question was decided specifically in our 1953 holding, and the Board was not required to consider it again. In this connection we said in our 1953 opinion (p. 147 of 203 F.2d):
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