NLRB v. Robert Haws Company, 18195.
| Decision Date | 22 November 1968 |
| Docket Number | No. 18195.,18195. |
| Citation | 403 F.2d 979 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROBERT HAWS COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Burton L. Raimi, Atty., N. L. R. B., Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Marcel Mallet-Prevost, Assoc. Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., on brief.
Frank B. Vecchio, Detroit, Mich., for respondent, Milmet & Vecchio, Detroit, Mich., on brief.
Before PECK, McCREE and COMBS, Circuit Judges.
The National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, seeks summary enforcement of its (unreported) remedial order of July 6, 1965, and enforcement of its October 21, 1966 order fixing backpay, reported in 161 NLRB No. 22. The respondent did not file objections to the remedial order, which was founded upon certain activities of the respondent in violation of 8(a) (1) and (3) of the Act. Since there were no exceptions presented to the Board, there are no contestable issues before this Court and the July 6, 1965 remedial order of the Board is enforced. N. L. R. B. v. Tennessee Packers, Inc., 344 F.2d 948 (6th Cir.1965); N. L. R. B. v. Globe-Wernicke Systems Co., 336 F.2d 589 (6th Cir.1964).
The respondent filed objections relative to the backpay proceedings and its contention before this Court is that the amounts found due to the discriminatees by the Board in adopting the trial examiner's decision are contrary to and unsupported by the findings of fact. The respondent did not challenge the backpay award due to Richard Marshall, one of the four unlawfully discharged employees. Objections were raised concerning the awards due to Robert Giraud, Harry Reynolds and Jerry Bowen and a dispute arose as to the amounts of backpay due these three employees.
In computing backpay awards the Board endeavors to restore the employee to the status quo he would have enjoyed if he had not been discriminately discharged. N. L. R. B. v. United States Air Conditioning Corp., 336 F.2d 275, 277 (6th Cir.1964). The general rule that the Board's order must be enforced if supported by substantial evidence on the record as a whole is applicable to backpay awards, N. L. R. B. v. Interurban Gas Co., 354 F.2d 76, 78 (6th Cir.1965), since "The remedy of back pay * * * is entrusted to the Board's discretion; it is not mechanically compelled by the Act." Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 198, 61 S. Ct. 845, 854, 85 L.Ed. 1271 (1941). Turning our attention to the instant case, the Board found that Giraud's application prior to discharge for other employment which he subsequently accepted did not defeat his award for backpay. We find this determination of the Board to be supported by substantial evidence and Giraud's award should be enforced. As to the employee Reynolds, the Board also found that his right to backpay was not affected by his leaving the Detroit area and looking for employment in West Virginia and in Dayton and Columbus, Ohio. We agree with the Board and enforce its order pertaining to Reynolds since the award is supported by the record. See N. L. R. B. v. Reynolds, 399 F.2d 668 (6th Cir.1968).
The gross backpay due to Bowen is not in dispute, but since Bowen could not be found (his whereabouts are still unknown), the respondent contends that the general counsel failed to make a prima facie case and that the Board's use of the escrow procedure was unwarranted. The trial examiner made this award and directed that it be deposited in escrow, subject to the condition that when Bowen was located there would be a hearing, if the respondent requested, to consider relevant factors that might diminish the award, prior to final determination. A two-year escrow was proposed, but because more than a year had elapsed since the unfair labor practice hearing that recommended backpay to the discriminatees, the escrow was ordered for only one year. If Bowen was not found by the end of this period, the amount would be refunded with the understanding that the backpay liability of the respondent to Bowen would not be extinguished. However, both the two and the one year...
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