NLRB v. Madison Courier, Inc.

• Decision Date: 09 August 1972
• Docket Number: No. 24808.,24808.
• Citation: 472 F.2d 1307
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The MADISON COURIER, INC., Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

472 F.2d 1307 (1972)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The MADISON COURIER, INC., Respondent.

No. 24808.

United States Court of Appeals, District of Columbia Circuit.

Argued October 29, 1971.

Decided August 9, 1972.

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Mr. Stanley J. Brown, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., were on the brief, for petitioner.

Mr. Herbert C. Snyder, Jr., Indianapolis, Ind., for respondent.

Before LEVENTHAL, MacKINNON and ROBB, Circuit Judges.

MacKINNON, Circuit Judge:

On January 4, 1967, the National Labor Relations Board (N.L.R.B. or the Labor Board) issued a Decision and Order finding that The Madison Courier, Inc. (the Company or the Employer) had violated sections 8(a) (5) and 8(a) (1) of the National Labor Relations Act, as amended (N.L.R.A.),¹ by improperly refusing to recognize and bargain with Local 10, International Typographical Union, AFL-CIO (the Union), as the exclusive bargaining representative of its employees; that the Company had further violated section 8(a) (1) of the Act by interfering with and coercing its employees in the exercise of their protected right of self-organization;² and that by reason of these unlawful acts, the Company had caused its employees to engage in an unfair labor practice strike.³ The Labor Board issued a cease and desist order against further violations by the Company, and it directed the Employer, upon application, to reinstate a number of unfair labor practice strikers to their former or substantially equivalent positions and to make them whole for any loss of earnings resulting from its failure to so reinstate.⁴ Thereafter, on December 26, 1967, we enforced the Labor Board's order in full.⁵

On November 12, 1968, the Acting Regional Director for Region 25 issued and served on the parties a back pay specification and notice of hearing, and the Company filed an answer thereto. The hearing was held before Trial Examiner Benjamin Blackburn for the purpose of determining the Employer's proper back pay obligation to the claimants.⁶ Although the Company did not dispute the method of computation utilized by the Acting Regional Director or the general bounds of the back pay period, it did assert several affirmative defenses in mitigation of its alleged back pay liability. It contended: (1) that the claimants were not entitled to back pay due to their claimed failure to make reasonable efforts to obtain appropriate interim employment; (2) that Claimant August Mead was not entitled to back pay on the ground that his part-time position had been eliminated during the back pay period; and (3) that the back pay specification erroneously included amounts for Christmas bonuses and insurance coverage during the back pay period.

On May 26, 1969, the Trial Examiner issued his Supplemental Decision in which he rejected all of the Company's affirmative defenses and found that the claimants were entitled to back pay in certain specified amounts.⁷ On January 16, 1970, the N.L.R.B. completely adopted the findings, conclusions, and recommendations of the Trial Examiner.⁸ The Company's continued refusal to pay the back pay sums ordered by the Labor Board in its Supplemental Decision and Order has precipitated the instant enforcement proceeding before this court.

Two major issues are presented to this court.⁹ The first one concerns the Company's contention that the N.L. R.B. incorrectly interpreted and applied the mitigation doctrine. The second involves the allegation that the Board failed to explain adequately the reasons for its Supplemental Decision. We find against the Board on both issues and remand the case to it for further proceedings.

I THE BASIC FACTS

On July 22, 1966, following the issuance of Trial Examiner Scharnikow's decision in the underlying unfair labor practice case ordering the Employer to reinstate the unfair labor practice strikers (i. e., the claimants here) upon application, the Company received a letter, signed by all thirteen claimants, in which they unconditionally applied for reinstatement.¹⁰ The Madison Courier did not respond to this request, and the strikers continued to picket the Employer's plant daily and to engage in other activities usually associated with a strike, such as soliciting the support of the public through the distribution of handbills and the support of the Company's advertisers through personal appeals.¹¹ These general activities continued until January of 1968, when, pursuant to our decree enforcing the N.L. R.B.'s prior order, the Employer offered reinstatement to the claimants.

Throughout the entire strike period, the claimants received strike benefits from the Union which were roughly comparable to the weekly take-home pay they received from the Employer prior to the strike. To be eligible for strike benefits, the claimants had to be available for picket line and other strike-related duties,¹² and, under the Union's bylaws, they were required to accept available work.

Following the Company's refusal to reinstate the unfair labor practice strikers, the Union advised them to register for employment with the Indiana Employment Security Division in Madison. Accordingly, in August of 1966, all of the claimants, with the exception of David Ashby,¹³ registered with the state employment service, and all of the registrants, except Louis Giltner, periodically renewed their applications as required. Each of the registering strikers indicated that he was seeking employment only in the printing trade. When the claimants originally registered, and on various other occasions when they appeared at the state employment agency office, the man in charge indicated that he was aware that the strikers were from the Madison Courier, and he told them that "you know there's no printing available within a hundred miles of here."¹⁴

Although the strikers' applications for work remained on file with the state employment agency throughout the entire 18-month back pay period, none received a printing job referral.¹⁵ The reason for this scarcity of available printing work was simply the limited number of printing employers located in and around the rural Madison area.¹⁶ The claimants also sought printing work through the Union, but it was only able to locate jobs for Walter and Albert Dowell,¹⁷ and Virginia Kerr, and these were all in Louisville, Kentucky, over fifty miles away.

Some time between the beginning of the unfair labor practice strike, in April of 1965, and the beginning of the back pay period, in July of 1966, the Union obtained a position for Mrs. Kerr with the Dunne Press in Louisville. The job lasted for two weeks, and during that time Mrs. Kerr remained in Louisville from Monday through Friday, returning home to Madison only on the weekend. At one point during the back pay period, the Union informed her that a job was again available at Dunne Press for her, but Mrs. Kerr declined acceptance of the position because she did not want to have to be away from her family again. In view of our limited reviewing function with respect to determinations of this type, we are unable to conclude that the Labor Board erred in deciding that Mrs. Kerr's rejection of this position was reasonable in light of her personal circumstances. We do not believe that the fact of her previous employment during the strike with Dunne Press necessitated a different conclusion by the Board, for her experience at that time indicated to her the personal hardship involved with a job so distant from her home. See Florence Printing Co. v. N.L.R.B., 376 F.2d 216, 221 (4th Cir), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed.2d 104 (1967). Similarly, it was entirely reasonable for the Board to find that the other strikers were not obligated to seek work in Louisville or other areas located over fifty miles from Madison, due to the excessive commute such jobs would have entailed. See Florence Printing Co. v. N.L.R.B., supra; Nickey Chevrolet Sales, Inc., 160 NLRB 1279 (1966). See also Oman Construction Co., Inc., 144 N.L.R.B. 1534 (1963), enfd., 338 F.2d 125 (6th Cir. 1964), cert. denied, 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (1965).¹⁸

Although the state employment agency and the Union were unable to locate jobs within a reasonable distance from Madison, several of the claimants were able to find work in the area. Walter Dowell applied for and obtained casual work at a Madison print shop, before he was hired by the Louisville paper. Virginia Kerr, Bernard Corbin, James Nichols, and Henry Lorenz each worked one day per week for the Trimble Democrat and Banner during part of the back pay period.¹⁹ Following the termination of the Trimble Democrat arrangement, James Nichols accepted part-time work at the Gallatin County News, after he was sought out by the editor of the paper.²⁰ August Mead obtained occasional work during the back pay period at two Madison print shops. Finally, Louis Giltner located part-time work as a grocery clerk, and Micky Storie found part-time employment as a mechanic for a motorcycle dealer.²¹

Very few individual efforts to locate interim employment were undertaken by the strikers during the back pay period. Although Walter Dowell applied for, and obtained, work at a Madison print shop, he made no other applications for employment. Henry Lorenz unsuccessfully sought work with a small job shop, but he too made no other applications for work. August Mead only applied to two Madison print shops. Louis Giltner successfully applied for work as a part-time grocery clerk, and Micky Storie was able to locate part-time work as a mechanic, but they made no other applications for employment. David Ashby's only application for work was with the Jefferson Proving Grounds, where he unsuccessfully sought work as a civilian ordinance man. Finally, ...