Burinskas v. NLRB
| Decision Date | 01 February 1966 |
| Docket Number | No. 18054,19222.,18054 |
| Citation | 357 F.2d 822,123 US App. DC 143 |
| Parties | Andrew BURINSKAS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Ferrell-Hicks Chevrolet, Inc., Intervenor. FERRELL-HICKS CHEVROLET, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Mozart G. Ratner, Washington, D. C., with whom Mr. Robert M. Lichtman, Washington, D. C., was on the brief, for petitioner in No. 18,054.
Mr. Karl W. Grabemann, Chicago, Ill., for petitioner in No. 19,222.
Mr. Solomon Hirsh, Atty., N.L.R.B., for respondent. Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stephen B. Goldberg and Richard P. Lawlor, Attys., N.L.R.B., were on the brief, for respondent. Mr. Hans J. Lehmann, Atty., N.L. R.B., also entered an appearance for respondent in No. 18,054.
Before BAZELON, Chief Judge, BASTIAN, Senior Circuit Judge, and McGOWAN, Circuit Judge.
The employer, petitioner in No. 19,222, seeks to set aside a final order of the National Labor Relations Board, and cross-petition has been filed for enforcement thereof. The subject matter of this controversy was before the Court on a prior occasion. Burinskas v. National Labor Relations Board, No. 18,054, order dated January 8, 1964, hereinafter referred to.
The case originated in a complaint filed with the Board by the General Counsel, claiming that Ferrell-Hicks (employer) had engaged in unfair labor practices proscribed by Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, by discharging Burinskas for union activities. The trial examiner to whom the case was referred by the Board filed his intermediate report, finding that Burinskas had been wrongfully discharged because of union activities and recommending his reinstatement with back pay. The case came before the Board and, by its decision and order dated April 22, 1963, the majority of the Board concluded that the General Counsel had failed to establish by a preponderance of the evidence that the employer had violated Section 8(a) (1) and (3) of the Act by discharging Burinskas. The Board directed that the complaint be dismissed.1
Thereupon, Burinskas filed a petition in this Court (No. 18,054) seeking reversal. It appeared that while the Board had adopted the findings of the trial examiner, it had concluded that his inference to the effect that Ferrell-Hicks had discharged Burinskas for union activities was mere speculation. The case then came on for argument and on January 8, 1964, this Court, by order, remanded the case to the Board for reconsideration of its decision with a view to its clarification. The order of remand was in substantial part as follows:
Upon remand, the Board issued a notice to show cause stating its intention to issue an order setting aside the Board's original order and adopting the findings, conclusions and recommendations of the trial examiner. In response to the notice to show cause, Ferrell-Hicks filed an answer thereto protesting the proposed action of the Board. On December 9, 1964, a majority of the Board issued a supplemental order setting aside its original order and adopting the trial examiner's findings, conclusions and recommendations.
On appeal from the supplemental order, the employer claims (1) that the scope of the Court's remand did not permit the Board to take the action it did; (2) that the Board's finding that the employer violated Section 8(a) (1) and (3) by discharging Burinskas was not supported by substantial evidence considered on the record as a whole; and (3) that the Board's remedy is inappropriate in the event the Court determines that the Board's supplemental decision and order should be enforced.
We think the scope of the Court's mandate was sufficient to permit the Board to take the action that it did. We further hold that the Board's findings as to the violation of Section 8(a) (1) and (3) are supported by substantial evidence on the record as a whole.
The employer argues that the remedy of the Board as to back pay, in the event the Court orders enforcement, is inappropriate for the reason, among others, that the Board failed to toll back pay during the period between the Board's original decision favorable to the company and the date of this Court's enforcement of the Board's supplemental order.
The Board answers that the employer is foreclosed from raising this point because it failed to make proper objection in the Board proceedings, and so is barred by Section 10(e) of the Act, which reads:
"No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances."
We believe, however, that it is reasonably clear from the record that adequate objection was made to the failure of the Board to toll, and that the case is properly before this Court. In the employer's exceptions to the original report of the trial examiner, objection to the remedy as to pay was made in the following terms:
The employer, in its answer to the order to show cause, made reference to the exceptions to the intermediate report of the trial examiner and specifically adopted those exceptions by reference, and asked that they be made a part of the answer.
When the Board was first considering the examiner's report, the objection to the provision for back pay was before it but the issue became moot when the Board first ruled with the employer on the merits and dismissed the complaint. However, when the case was remanded, the Board, by the issuance of the order to show cause why the examiner's report should not be adopted, restored the situation to its status before the original order was issued. The employer, at this point, had the right to believe that the Board, in taking up the matter the second time, considered as still standing the objections which the employer had made to the examiner's report. Certainly this particular objection to the back pay award had not lost any of its force. Indeed, it had taken on additional weight. The Board, in considering anew whether to adopt the examiner's report in whole or in part, could not properly have ignored the exception to the remedy as it stood. We think it more likely than not that the Board, with its expert sensitivities alerted by some considerable past familiarity with the tolling issue in this context of a change in litigating fortunes, took that more limited objection to be comprehended within the broader exception; and, in deciding that back pay was to be awarded for the full period, the Board consciously failed to exercise its discretion to withhold it in part.
Furthermore, upon issuance of the supplemental decision and order, an attempt again was made to have the Board toll back pay.2 While it is not clear from the record in what manner or to whom the post-decisional objection was made, the Board, through its agent, the Compliance Officer, having considered the objection, cannot now claim that the objection to its failure to toll back pay was not properly before it.
Holding, as we do, that there was in fact sufficient compliance with Section 10(e) to merit consideration by this Court of the employer's claim that part of the back pay should be tolled, we pass to petitioner's third...
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