NLRB v. Interurban Gas Company, 14961.

• Decision Date: 22 December 1965
• Docket Number: No. 14961.,14961.
• Citation: 354 F.2d 76
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERURBAN GAS COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

354 F.2d 76 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERURBAN GAS COMPANY, Respondent.

No. 14961.

United States Court of Appeals Sixth Circuit.

December 22, 1965.

Thomas Canafax, Jr., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., N. L. R. B., Washington, D. C., on brief, for petitioner.

Charles Keller, Detroit, Mich., Leonard A. Keller, James E. Frazer, Frazer & Popkin, Detroit, Mich., on brief, for respondent.

Before PHILLIPS, Circuit Judge, CECIL, Senior Circuit Judge, and MACHROWICZ, District Judge.^*

PHILLIPS, Circuit Judge.

In a previous opinion of this court, 317 F.2d 724, we granted enforcement of the order of the Board reported at 135 N.L. R.B. 604. This order, among other things, directed the reinstatement with back pay of an employee named Donald Gillingham, who was found to have been discharged because of union activities.

Respondent and the General Counsel then disagreed as to respondent's obligations under the order. Following another hearing the Board entered a supplemental order which is reported at 149 N.L.R.B. No. 57, making a back pay award in the amount of $9,846.07. The Board has petitioned for enforcement of this supplemental order.

This proceeding involves the single question of the amount of back pay. The fact that Gillingham's discharge was discriminatory has been established in the prior proceeding, and evidence challenging the legality of this discharge now avails the respondent nothing.

Respondent interposes three defenses to the award of the Board: (1) that the running of the back pay award was tolled shortly after the discriminatory discharge of Gillingham since he would have been dismissed for cause on March 16, 1961, because of information reaching the respondent as to the quality of his work; (2) that the running of the back pay award was tolled on April 10, 1961, because on that date Gillingham would have been discharged when a qualified serviceman was hired, leaving sufficient work for only two men in his category, both of whom had seniority to Gillingham; and (3) that the back pay award was tolled on June 25, 1962, because at that time Gillingham was reinstated to a substantially equivalent position under the circumstances, in compliance with the Board's order, and that he worked until August 4, 1962, at which time he was released for cause, i. e. for unsatisfactory performance and lack of work.

The Board found against respondent with respect to each of these dates and contends that its award of $9,846.07, plus a further undetermined amount which continues to run until respondent offers reinstatement, should be enforced. Respondent does not question the accuracy of this computation in event we determine that its defenses are not well taken.

The Board having established the amount of the award and the respondent having agreed that this amount is correct unless a cutoff date is applicable, the burden is placed on the respondent to establish that its liability should be reduced and, if so, to what extent. In a similar case this court stated:

"It is the Board\'s position here that since the loss of work experienced by the discriminatees had an illegal genesis, the burden was on the respondent to prove what part, if any, of the continued loss of work was due to economic exigencies. Such has been the view of this and other courts." N. L. R. B. v. Ellis and Watts Products, Inc., 344 F.2d 67, 69 (C.A.6) and cases therein cited.

The Board has power under the Act to "take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of the Act," 29 U.S.C. § 160(c).

The Supreme Court on numerous occasions has passed upon the powers and duties of the Board under Section 10(c) of the Act. In Fibreboard Paper Products Corp. v. N. L. R. B., 379 U.S. 203, 217, 85 S.Ct. 398, 406, 13 L.Ed.2d 233, the Court stated:

"There is no indication * * *, that it § 10(c) of the Act, 29 U.S.C. § 160(c) was designed to curtail the Board\'s power in fashioning remedies when the loss of employment stems directly from an unfair labor practice * * *."

In N. L. R. B. v. Seven-Up Bottling Co., 344 U.S. 344, 346, 73 S.Ct. 287, 289, 97 L.Ed. 377, the Court recognized that this section "charges the Board with the task of devising remedies to effectuate the policies of the Act," and that, "Of course the remedies must be...