National Labor Rel. Board v. Moss Planing Mill Co.

• Decision Date: 01 August 1955
• Docket Number: No. 6605.,6605.
• Citation: 224 F.2d 702
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOSS PLANING MILL CO., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

224 F.2d 702 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MOSS PLANING MILL CO., Respondent.

No. 6605.

United States Court of Appeals Fourth Circuit.

Argued June 14, 1955.

Decided August 1, 1955.

Frederick U. Reel, Atty., National Labor Relations Board; Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, Chicago, Ill., David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and John E. Jay, Atty., National Labor Relations Board, Washington, D. C., on brief), for petitioner.

John A. Wilkinson, Washington, D. C., for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case was initially before us upon the petition of the National Labor Relations Board to enforce its order of March 10, 1953, which directed Moss Planing Mill Company (hereinafter called Moss), among other things, to reinstate employees Lee A. Wynne and Roy Ersiel Fulcher and to make them whole for any loss of pay they may have suffered because of the unlawful discrimination practiced against them. On July 24, 1953, we rendered an opinion and entered a decree enforcing the order of the Board in full, 206 F.2d 557. Thereafter, on August 10, 1953, Moss apparently offered Wynne and Fulcher reinstatement, thereby setting a terminal date to its back pay liability.

Informal negotiations to determine the precise amount of back pay failed. The Board directed the holding of a supplemental hearing for the purpose of taking evidence and making a determination of the amount of losses incurred by each employee as a result of the discrimination practiced by Moss.

Upon all the evidence contained in the record of the supplemental proceeding, the Board concluded that Wynne suffered a net loss in pay of $3,710.29 during a period of about 30 months, including the time during which he was physically incapacitated as a result of the bodily injuries inflicted upon him by Moss's Secretary-Treasurer at the time of his discriminatory discharge. Similarly, the Board concluded that Fulcher suffered a net loss in pay of $2,184.42 over a period of nearly 3 years, including the time Moss discriminatorily denied him regular employment prior to his discriminatory discharge in May, 1951. The proceeding is now before us on the Board's motion to amend the decree by incorporating in it the specific amounts found by the Board to be due Wynne and Fulcher.

The Board found that Wynne would have earned $4,454.19 from Moss but for the discrimination against him. The Board offset against that figure the sum of $449.20, which represented Wynne's net earnings during the period between his discharge and the offer of reinstatement, and the sum of $294.70 which represented losses which Wynne may have incurred by remaining away from the employment market for two extended periods. Accordingly the Board awarded Wynne $3,710.29. Moss challenges the computation on two grounds: (1) that the Board should have found that Wynne wilfully incurred loss by failing to secure more employment; and (2) that the sum of $432, received by Wynne under the North Carolina Workmen's Compensation Act for the injury inflicted at the time of his discharge, should likewise be deducted from the amount due him.

The Board further found that Fulcher's earnings, had Moss not discriminated against him, would have been $3,638.34, instead of his actual earnings of $1,543.37. Excluding from consideration the first quarter of 1953 when Fulcher's actual net earnings exceeded the wages Fulcher would have received in the employ of Moss during this period, the Board computed Fulcher's net loss to be $2,184.42. Moss offered no specific alternative computations but argued, primarily, that Fulcher, like Wynne, wilfully incurred losses and should not be awarded any back pay.

We first take up the case of Wynne. Moss argued that the Company should be credited the sum of $432 which was the amount Wynne was awarded in November, 1953, by the North Carolina Industrial Commission. In support of its position Moss asserted that Wynne had been awarded back pay during the period for which he was subsequently awarded compensation by the Industrial Commission, so that unless a deduction of $432 is made Wynne would be made more than whole. The Board, with former member Beeson dissenting, rejected this contention, explaining that the compensation which Wynne obtained under the laws of the State of North Carolina was merely a collateral benefit which, like other collateral benefits such as unemployment compensation, is not an item which should be deducted from back pay.

In reaching this conclusion, the Board relied heavily upon National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 339, 95 L.Ed. 337, which held: "* * * To decline to deduct state unemployment compensation benefits in computing back pay is not to make the employees more than whole * * *." (Italics ours.) In his opinion in this case, Mr. Justice Minton, 340 U.S. at page 364, 71 S.Ct. at page 340, said:

"Payments of unemployment conpensation were not made to the employees by respondent but by the state out of state funds derived from taxation. True, these taxes were paid by employers, and thus to some extent respondent helped to create the fund. However, the payments to the employees were not made to discharge any liability or obligation of respondent, but to carry out a policy of social betterment for the benefit of the entire state."

We think that workmen's compensation payments, judged by the very criteria set out by Judge Minton in the Gullett case, are clearly distinguishable from unemployment benefits and that the Board erred in failing to deduct the workmen's compensation payments from the amount found by the Board to be due to Wynne from Moss.

Unemployment compensation is paid by the State itself from taxes and is an obligation imposed upon the public. It is indeed a welfare statute within the usual meaning of the term. The employer participates only as a taxpayer. As such, his obligation is not to the recipient of unemployment benefits but to the State. There is no contractual relationship between him and the recipient. It is, of course, quite clear that any benefit that the recipient of unemployment compensation receives is collateral to the fact that he was working for a particular employer. Chapter 97 of the General Statutes of North Carolina is entitled, Workmen's Compensation Act. It provides, as do similar acts in other States, for mutual...