N.L.R.B. v. Madison Courier, Inc.
| Decision Date | 11 October 1974 |
| Docket Number | No. 24808,24808 |
| Citation | 164 App.D.C. 284,505 F.2d 391 |
| Parties | 87 L.R.R.M. (BNA) 2440, 32 A.L.R.Fed. 489, 164 U.S.App.D.C. 284, 75 Lab.Cas. P 10,357 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The MADISON COURIER, INC., Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Allen H. Feldman, Atty., N.L.R.B., with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N.L.R.B., were on the brief for petitioner. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., at the time the record was filed, also entered an appearance for petitioner.
Herbert C. Snyder, Jr., Indianapolis, Ind., for respondent.
Before LEVENTHAL, MacKINNON and ROBB, Circuit Judges.
The National Labor Relations Board (the Board) petitions under the National Labor Relations Act, as amended, 1 (the Act) for enforcement of its Second Supplemental Decision and Order issued March 30, 1973, against The Madison Courier, Inc. (the Company or the Employer). 202 N.L.R.B. No. 115 (1973). The order directs the Employer to pay back pay in certain specified sums to members of Local 10, International Typographical Union, AFL-CIO (the Union) who engaged in an unfair labor practice strike against the Employer.
The labor dispute in this case has generated two previous proceedings in this court. On January 4, 1967, the Board issued an order finding that the Employer had committed unfair labor practices in violation of sections 8(a)(1) and (5) of the Act and that these violations had caused the unfair labor practice strike. 162 N.L.R.B. 550 (1967). The order directed the Employer to reinstate the strikers and to make them whole for any loss of earnings resulting from its failure to so reinstate. On December 26, 1967, we enforced the Board's order in full. Louisville Typographical Union No. 10, International Typographical Union, AFL-CIO v. NLRB, 57 L.C. P12,647, 67 L.R.R.M. 2462 (D.C.Cir.1967). 1967).
Early in 1969, Trial Examiner Benjamin Blackburn conducted a hearing to determine the Employer's proper back pay obligation to the claimants. As a principal defense in that proceeding, the Employer contended that the claimants were not entitled to back pay due to their alleged failure to make reasonable efforts to obtain appropriate interim employment. The Trial Examiner's decision rejected this defense and found that 13 claimants were entitled to back pay. On January 16, 1970, the Board issued a Supplemental Decision and Order which completely adopted the findings, conclusions and recommendations of the Trial Examiner. 180 N.L.R.B. 781 (1970). When the Employer refused to pay the back pay sums, the Board sought enforcement in this court. Finding that the Board had incorrectly interpreted and applied the mitigation doctrine and that the Board had failed to explain adequately the reasons for its Supplemental Decision, we refused enforcement and remanded the case to the Board. NLRB v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307 (1972).
On April 5, 1973, the Board issued its Second Supplemental Decision and Order which affirmed the back pay award as to ten of the original 13 claimants but denied back pay to three claimants on the ground that they had failed to make reasonable efforts to locate suitable interim employment. 202 N.L.R.B. No. 115 (1973). The instant enforcement proceeding results from the Employer's refusal to comply with this back pay award. The only issue before the court is whether the ten claimants who were awarded back pay made reasonably diligent efforts to locate suitable interim employment. Finding no substantial evidence on the record considered as a whole to support the Board's Second Supplemental Decision and Order, we refuse enforcement and remand the case to the Board for further proceedings consistent with this opinion.
On April 2, 1965, the printers at The Madison Courier, a newspaper in Madison, Indiana, instituted a strike in protest of alleged unfair labor practices by the Employer. On July 7, 1966, Trial Examiner William Scharnikow issued his decision, ultimately adopted by the Board, finding that the Employer had committed certain unfair labor practices and directing the Employer to reinstate the strikers and to make them whole for any loss of earnings resulting from failure to so reinstate. Two weeks later, on July 22, 1966, the Employer received a letter signed by the strikers in which they unconditionally applied for reinstatement. The Employer did not respond to this letter and the employees continued to picket the Company's plant daily and to engage in other activities usually associated with a strike. These activities continued until January 1968 when, pursuant to our decree enforcing the Board's order of reinstatement, the Employer offered reinstatement to the claimants.
The 18-month back pay period began on July 22, 1966, when the Employer refused to reinstate the claimants, and ended in January 1968 when reinstatement was offered. The Board computed the back pay liability by calendar quarter, deducting each claimant's interim earnings (less transportation expenses, if any) from the gross back pay due. The Board awarded back pay to 13 claimants in the following amounts:
David R. Ashby $7,726.18
Bernard A. Corbin $7,035.61
Albert Lee Dowell $1,313.70
Walter W. Dowell $932.50
Paula B. Feltner $4,617.10
Louis D. Giltner $5,468.41
Rudolph D. Juett $8,365.35
Virginia F. Kerr $7,815,64
Henry Lorenz, Jr. $8,418.66
August Mead $4,355.50
Judith A. Moore $4,735.06
James H. Nichols $6,112.36
Micky D. Storie $6,923.76
Reviewing this back pay award in NLRB v. Madison Courier, Inc.,153 U.S.App.D.C. 232, 472 F.2d 1307 (1972), we explained at length the mitigation doctrine applicable to this case. Included in the Board's remedial arsenal where an unfair labor practice has been committed is the power to order reinstatement with back pay. 29 U.S.C. 160(c) (1970). However, a striker is not necessarily entitled to remain idle during the strike and await reimbursement by the employer for lost earnings. To advance 'the healthy policy of promoting production and employment,' a striker must make a reasonably diligent search for suitable interim employment and must accept such employment if offered. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 241 (5th Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973); NLRB v. Madison Courier, Inc., supra, 153 U.S.App.d.C. at 242-244, 472 F.2d at 1317-1319; NLRB v. Mastro Plastics Corp., 351 F.2d 170, 174 n. 3 (2d Cir. 1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). In addition to promoting production and employment, interim employment provides independent support for striking workers and thus enables them to conduct their labor dispute with less financial hardship. To the extent the employer proves that the employee breached his duty to mitigate losses, the back pay liability may be reduced.
What constitutes 'suitable' interim employment depends on the individual's background and experience as well as on the wages and working conditions of the interim job as compared with the employee's regular jub. NLRB v. Madison Courier, Inc., supra, 153 U.S.App.D.C. at 243, 472 F.2d at 1318. The employee need not search for or accept employment which is " dangerous, distasteful or essentially different' from his regular job' or which is unreasonably distant from his home. Id. at 244, 472 F.2d at 1319, quoting Florence printing Co. v. NLRB, 376 F.2d 216, 221 (4th Cir.), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967).
Our previous Madison Courier opinion described a 'possible corollary' to the mitigation rule, the so-called 'lower sights' doctrine. Under this doctrine, after being unable over a reasonable time to locate the kind of employment to which he is accustomed, an employee whose family is suffering the financial strain of unemployment should 'lower his sights' and consider accepting other suitable employment even at a lower rate of pay than his regular job. NLRB v. Madison Courier, Inc., supra, 153 U.S.App.D.C. at 245-246, 472 F.2d at 1320-1321; NLRB v. Southern Silk Mills, Inc., 242 F.2d 697 (6th Cir.), cert. denied, 355 U.S. 821, 78 S.Ct. 28, 2 L.Ed.2d 37 (1957); NLRB v. Moss Planing Mill Co., 224 F.2d 702 (4th Cir. 1955). We pointed out, however, that even under the 'lower sights' doctrine, the employee need not accept employment which is not consonant with his particular skills, background and experience, or which involves conditions that are substantially more onerous than his previous position. 153 U.S.App.D.C. at 245-246, 472 F.2d at 1320-1321. As will become apparent, this case does not directly involve the 'lower sights' doctrine because the Madison, Indiana, area encompassed numerous employment opportunities at the same or higher wages than the claimants' regular jobs. The central issue is whether any of these jobs were 'suitable' for particular claimants. The 'lower sights' doctrine is relevant here insofar as it is analogous to the approach we take in Section IV, infra, where we hold that for a reasonable time the claimants were entitled to confine their search to jons in the printing industry in which they were primarily skilled and would have preferred to work.
We refused to enforce the Board's first back pay award because the Board had misapplied the mitigation doctrine to the record in this case and had provided an inadequate and partially inconsistent explanation of its reasoning. Particularly, we pointed out the error in the Board's treatment of the printers as a class, rather than as individuals, in determining whether any jobs outside the printing industry would have been suitable...
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