NLRB v. AMERICAN STEEL BUILDING COMPANY, 18108.
| Decision Date | 01 July 1960 |
| Docket Number | No. 18108.,18108. |
| Citation | 278 F.2d 480 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AMERICAN STEEL BUILDING COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard J. Scupi, Atty., Thomas J. McDermott, Associate Gen. Counsel, N.L. R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Melvin Pollack, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.
Carlton Wilde, Fentress Bracewell, Houston, Tex., Bracewell, Reynolds & Patterson, Houston, Tex., of counsel, for respondent.
Before HUTCHESON, BROWN and WISDOM, Circuit Judges.
The Board seeks enforcement of its order, 123 NLRB 166, growing out of the discharge of fifteen night shift employees.
We find ample evidence in the record to support the findings that the night shift was fired because they engaged in concerted union activity. No purpose will be served in recounting the facts — which hinged on credibility — as to whether the employees were fired for union activity, as charged and found, or for inefficiency, as the Employer contends. N.L.R.B. v. Ferguson, 5 Cir., 1958, 257 F.2d 88. Neither need we explore whether the circumstances just vaguely disclosed in this record concerning the demand for an unsigned statement given to a field examiner technically violated the Jencks concept (Jencks v. United States, 1957, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103) as followed by the Board, Ra-Rich Mfg. Corp., 1958, 121 NLRB 700, because on this record we are convinced that nonproduction could not have been prejudicial.
The only real question involves the remedy which directs the Employer to offer discharged employees "reinstatement to their former or substantially equivalent positions" and reimburse them for any loss of earnings due to the discrimination against them.1 The Employer contends that the order fails to take into consideration the temporary nature of the night shift work and that it operates to grant advantages and preferences which the discharged night shift employees would not have otherwise had.
As we read it, the order does not — and under our construction cannot — have such a result. The purpose of the order is solely to place the employees in the identical position they would have been in but for the discrimination. At times, when required by the necessities of business the Employer hires employees for a night shift. The order requires reinstatement of the discharged employees to their former positions on the "night shift presently or next thereafter engaged" in accordance with the Employer's usual practices. Those employees for whom work is not immediately available are to be placed on a preferential hiring list for future opening for night shift work. This may require discharge of night shift workers hired subsequent to the unlawful discharge. Thus the order does not purport to do more than restore the dischargees to their former rights with regard to nighttime work. Nor does it do more than restore each of them to his former position with regard to...
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