M Restaurants, Inc. v. N.L.R.B.
| Decision Date | 14 May 1980 |
| Docket Number | No. 79-7014,79-7014 |
| Parties | 104 L.R.R.M. (BNA) 2818, 88 Lab.Cas. P 12,056 M RESTAURANTS, INCORPORATED d/b/a The Mandarin, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert V. Magor, Severson, Werson, Berke & Melchior, San Francisco, Cal., for petitioner.
Candace Carroll, N.L.R.B., Washington, D. C., argued for respondent; Elliott Moore, Washington, D. C., on the brief.
Petition to Review a Decision of the National Labor Relations Board.
Before DUNIWAY and HUG, Circuit Judges, and CROCKER, * District Judge.
M Restaurants, Incorporated petitions this court for review of a supplemental order of the National Labor Relations Board awarding back pay to Billie Meng, an employee unlawfully discharged by M Restaurants. The Board cross-applies for enforcement of the order. M Restaurants contends that the Board should have reduced the back pay award on the grounds that Meng left the labor market and did not take reasonable steps to find comparable alternative employment. We enforce the Board's order.
The Board found that M Restaurants discharged Meng from his position as a waiter because of Meng's union activities, in violation of section 8(a)(1) & (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) & (3). The Board ordered M Restaurants to offer reinstatement to Meng and to compensate him for lost earnings. M Restaurants entered into a stipulation with the Board that the Board's remedy could be challenged in subsequent proceedings, but that the merits of the Board's decision concerning the unfair labor practice would not be relitigated.
A hearing was held before the Administrative Law Judge ("ALJ") to allow M Restaurants to contest the amount of back pay liability. The critical evidence at the hearing was provided by Meng's testimony, which the ALJ found to be "sincere and creditable," as well as unrefuted. Meng testified that for 18 months after his discharge he was unable to find work in the geographical area of his former employment. At the end of that period, he accepted a job from his brother-in-law as a watch salesman in Taiwan. That job provided a base salary of $75 per month plus commissions on sales in excess of a specified minimum. Meng worked in Taiwan for one year before returning to the United States. He earned only the monthly base salary during that time. Meng was able to minimize his living expenses in Taiwan by staying with his parents.
M Restaurants sought to persuade the ALJ that Meng willfully incurred a loss of wages and thus forfeited his right to back pay during the period in which he remained outside of the United States. The ALJ, however, found that Meng acted reasonably in accepting the employment in Taiwan and concluded that M Restaurants had failed to carry its burden of proving grounds for reduction of its liability. The Board adopted the decision of the ALJ and ordered the...
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