Nabors v. NLRB

• Decision Date: 03 October 1963
• Docket Number: No. 19530.,19530.
• Citation: 323 F.2d 686
• Parties: W. C. NABORS, d/b/a W. C. Nabors Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

323 F.2d 686 (1963)

W. C. NABORS, d/b/a W. C. Nabors Company, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 19530.

United States Court of Appeals Fifth Circuit.

October 3, 1963.

George E. Duncan, Wells, Duncan & Beard, Beaumont, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Paul Elkind, Atty., N. L. R. B., Washington, D. C., Stuart Rothman, Gen. Counsel, Judith Bleich Kahn, Atty., N. L. R. B., for respondent.

Before RIVES, JONES and BROWN, Circuit Judges.

RIVES, Circuit Judge.

Pursuant to the opinion reported as N. L. R. B. v. Nabors, 5 Cir., 1952, 196 F.2d 272, this Court, on June 28, 1952, entered its decree upholding the Board's determination that on April 8, 1948, the petitioner discriminatorily discharged, among others, the 11 employees involved in the present decision because they had engaged in union activity, and enforcing the order of the Board in 89 NLRB 538 which directed the petitioner to make whole the employees involved.

On February 11, 1955, the Board initiated civil contempt proceedings against the petitioner, alleging a failure to comply with the decree enforcing the Board's order. The parties thereafter entered into a stipulation which was filed with this Court, and the Court entered an order dated May 31, 1955, approving the stipulation and providing, inter alia, that "the questions relating to making whole the employees named in the Decree for losses sustained by them were subject to final determination by interlocutory hearings before the National Labor Relations Board and Proceedings before this Court * * *."

The back pay specification did not issue until March 25, 1959, nearly four years after this Court's order of May 31, 1955. On September 9, 1960, the Trial Examiner issued his supplemental intermediate Report, finding that 11 of the claimants were entitled to specific amounts of back pay. On December 7, 1961, the Board issued its Supplemental Decision and Order, and on March 29, 1962, its Correcting Order that the petitioner pay to the 11 employees involved in this proceeding as net back pay the following amounts:

                  Jeter C. Adams ........... $12,876.69
                  Jessie L. Brown ..........  17,845.34
                  Leroy P. Brown ...........   1,063.94
                  Vernon D. Davis ..........  16,872.57
                  Henry J. Hatcher .........     544.86
                  Alex C. Lafitte ..........  10,188.15
                  Luther W. McNeese ........  14,314.11
                  William D. Roark .........     728.99
                  Lawrence L. Whitten ......   2,374.82
                  Thomas J. Williams .......  10,628.38
                  Willie T. Williams .......  12,951.43
                

The petitioner insists that the back pay claims are prescribed by Articles 3534¹ and 3536² of the LSA-Civil Code, or else are barred by laches. The claimed prescriptive period is that between this Court's order of May 31, 1955 and the issuance of the back pay specification on March 25, 1959.

We may assume, arguendo, that that delay of nearly four years was such as to constitute laches or as to prescribe a private action for wages or damages in Louisiana. Compare also Article 3519 of the LSA-Civil Code.³ It is well settled that the United States, or any agency thereof, is not bound by state statutes of limitation or subject to the defense of laches in enforcing a public right. United States v. Summerlin, 1940, 310 U.S. 414, 416, 60 S.Ct. 1019, 84 L.Ed. 1283. The National Labor Relations Board "does not exist for the `adjudication of private rights'; it `acts in a public capacity to give effect to the declared public policy of the Act to eliminate and prevent obstructions to interstate commerce by encouraging collective bargaining.' National Licorice Co. v. Labor Board N.L. R.B., 309 U.S. 350, 362 60 S.Ct. 569, 84 L.Ed. 799; and see Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261 60 S.Ct. 561, 84 L.Ed. 738." Phelps Dodge Corp. v. N. L. R. B., 1941, 313 U.S. 177, 193, 61 S.Ct. 845, 852, 85 L.Ed. 1271. The fact that these proceedings operate to confer an incidental benefit on private persons does not detract from this public purpose. See Jacksonville Paper Co. v. Tobin, 5 Cir., 1953, 206 F.2d 333, 334, 335; Creedon v. Randolph 5 Cir., 1948, 165 F.2d 918, 919, 920.

There is no indication that Congress intended to overrule this long-settled doctrine by the enactment of the Administrative Procedure Act. 5 U.S.C.A. § 1001 et seq. Indeed, sections 6(a) and 10(e) of that Act⁴ gave Nabors a remedy to "compel agency action * * * unreasonably delayed."

We agree with the Board that the claims set forth in the back pay specifications are not barred by limitations or laches, and further that the evidence offered by the petitioner to show irreparable injury caused by the delay was irrelevant.

The petitioner urges very strongly that "profit shares" should not have been included in the computation of the gross back pay of the claimants. The relevant facts as to the profit shares are undisputed and are well narrated in the examiner's findings:

"* * * Respondent started distributing profit shares to his employees between 1916 and 1920 and with relatively few exceptions continued that practice until July 1959 when he sold his business. The profit share, as its name indicates, was derived from a percentage of the profits. On each occasion when a profit share payment was to be made, Respondent unilaterally determined what percentage of profits for the period covered he would allocate to the clock (production) employees and thereupon allocated that sum without discrimination among those employees on the basis of the regular hours of employment each employee had put in during that period. The sole requirement for eligibility to receive such profit shares was that the employee be on Respondent\'s payroll at the time payment was made. If an employee had been terminated for any reason whatever on the date payment was made, he was not eligible for such payment. An additional requirement that the employee be in `good standing,\' meant merely, according to Respondent, that the employee be on the payroll on the date of payment.

"Pursuant to the foregoing formula, Respondent throughout the back pay period made profit share payments to his incumbent employees semiannually in June and December of each year. The only exception was in June 1949, when no payment of profit shares was made and none was credited for that period in the Back Pay Specification.

"As indicated above, the profit share payment although paid with considerable regularity was a purely voluntary and gratuitous act on the part of Respondent and was wholly within his discretion. There was no contract, promise, or other commitment by Respondent either to pay a profit share at all or to pay it in any specific amount or manner. The percentage of profits allocated for that purpose varied from year to year, as Respondent saw fit. Respondent on numerous occasions told the employees that the profit share was not part of their pay. In Respondent\'s own words, the profit share was the product of `an earnest effort to try to share the profits of the business with my employees as if they might have owned capital stock in the business without having them actually own it and participate in the management.\' Moreover, Respondent did not take profit share payments into consideration in determining the regular hourly rate of each employee, and agents of the Wage and Hour Division of the Department of Labor who were apparently familiar with Respondent\'s practice in that regard made no remonstrance. Similarly, the profit share payments were not taken into account in determining Respondent\'s premium rate for coverage under the Louisiana Workmen\'s Compensation Act under which premiums are determined on the basis of a percentage of the compensation paid to the employees.

"On the other hand, the amount of the profit share paid to each employee varied in direct ratio with the number of regular hours he worked during the relevant period and no other considerations entered into the determination of that amount. Taxes and social security payments were withheld from the profit shares just as they were from the regular pay of the employees. In fact, the employee received only one W-2 form at the end of the year which reflected both his regular and overtime pay and his profit share payments. Finally, Respondent often told his employees that they received the profit shares because they `earned\' them and that `they would earn more money and I could pay more money by cooperating on that basis.\'"

The examiner found that the back pay claimants are entitled to profit shares calculated on the same basis as the profit shares received by comparable employees who continued to work on equivalent jobs during the back pay period.

It is, of course, settled that the authority of the Board to take affirmative action is remedial, not punitive. Republic Steel Corporation v. N. L. R. B., 1940, 311 U.S. 7, 11, 12, 61 S.Ct. 77, 85 L.Ed. 6. Its power as expressed in section 10 (c), 29 U.S.C.A. § 160(c), is "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter." In effectuating the policies of the Act, the Board has taken the position that the "make whole" concept does not turn on whether the pay was wholly obligatory or gratuitous, but on the restoration of the status quo ante. See Moss Planing Mill Co., 110 NLRB 933, 935, enforced as modified on other grounds, N. L. R. B. v. Moss Planing Mill Co., 4 Cir., 1958, 256 F.2d 653, 654. In that case there was included in back pay an amount representing clothing given gratuitously as Christmas gifts. The Board's discretion to take such affirmative remedial action as will effectuate the purposes of the Act includes more than placing the employee in position to assert contractual or legally enforcible obligations. "Back pay" as used in section 10(c) includes the moneys, whether...