National Labor Relations Board v. Bird Mach. Co.

• Decision Date: 12 May 1949
• Docket Number: No. 4219.,4219.
• Citation: 174 F.2d 404
• Parties: NATIONAL LABOR RELATIONS BOARD v. BIRD MACH. CO.
• Court: U.S. Court of Appeals — First Circuit

174 F.2d 404 (1949)

NATIONAL LABOR RELATIONS BOARD v. BIRD MACH. CO.

No. 4219.

United States Court of Appeals First Circuit.

May 12, 1949.

Leo J. Halloran, Atty., National Labor Relations Board, of Boston, Mass., for petitioner.

Allan Seserman, of Boston, Mass., for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY, Circuit Judge.

MAGRUDER, Chief Judge.

The motion now pending is an aftermath of National Labor Relations Board v. Bird Machine Co., 1 Cir., 1947, 161 F.2d 589. We there granted the petition of the Board for enforcement of its order against respondent issued January 9, 1946. Our decree of May 20, 1947, incorporating by reference the terms of the Board's order, directed, among other things, that respondent should take the following affirmative action:

"(a) Offer Gilbert I. Favor immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges;

"(b) Make whole Gilbert I. Favor for any loss of pay that he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount that he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period;

"(c) Post at its plant at Walpole, Massachusetts, copies of the notice attached hereto, marked `Exhibit A.' Copies of said notice, to be furnished by the Regional Director of the First Region, after being signed by the respondent's representative, shall be posted by the respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material. Also, publish a copy of said notice in the next issue of the plant paper, the `Bird's Eye-View,' and distribute such issue through the usual channels of circulation."

Now comes the Board and moves for the entry of an order authorizing the Board to hold a further hearing "for the purpose of making specific findings and orders implementing the general remedial provisions embodied in the decree of the Court heretofore rendered herein." It is recited in the motion: "Respondent has reemployed said Favor but has not made any payment of back pay. Although representatives of the Board and respondent have attempted to resolve informally their differences concerning the adequacy of Favor's reinstatement, the amount of back pay to which Favor is entitled, and the form and sufficiency of the posting of copies of the `Notice to All Employees' required by the said decree, no agreement has been reached." We are therefore requested to authorize the Board "to hold a hearing, make supplemental findings and render an appropriate supplemental decision and order respecting the remedial action to be taken by the respondent in the light of the circumstances now existing, including findings and order concerning the amount of back pay to be paid to Gilbert I. Favor, the specific action to be taken by the respondent with respect to reinstatement of said Gilbert I. Favor and the specific rights and privileges to which he is entitled, and the form and sufficiency of the posting of copies of the `Notice to All Employees' required by the decree of this Court."

In considering what disposition we should make of the pending motion, we express our agreement with the following remarks of the court in Wallace Corp. v. N.L.R.B., 4 Cir., 1947, 159 F.2d 952, 954:

"The order of the Board which we have heretofore ordered enforced does not specifically provide what amounts are to be paid to the employees named or what positions are to be tendered to them, but covers these matters in general terms. General orders of this sort entered by the Board with respect to back pay and reinstatement manifestly contemplate further administrative action on its part, i. e. determination of the exact amount of back pay to be tendered and determination as to what positions are available and substantially equivalent for the purposes of the reinstatement ordered. Such general orders are analogous to interlocutory judgments of courts fixing liability but leaving for future determination questions as to amount of liability; and our decrees affirming or enforcing them are analogous to our affirmance of interlocutory judgments on appeal. After the general order of the Board for back pay and reinstatement is affirmed or ordered enforced by us, the Board must work out the details of reinstatement and of the amounts to be paid as back pay under the general provisions of...