Waterman SS Corporation v. NATIONAL LABOR R. BD., 8841.

Citation119 F.2d 760
Decision Date02 June 1941
Docket NumberNo. 8841.,8841.
PartiesWATERMAN S. S. CORPORATION v. NATIONAL LABOR RELATIONS BOARD et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Gessner T. McCorvey and C. A. L. Johnstone, Jr., both of Mobile, Ala., for Waterman S. S. Corp.

Reeves R. Hilton, Atty., National Labor Relations Board of Washington, D. C., for National Labor Relations Board.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

Pursuant to the mandate of the Supreme Court, National Labor Relations Board v. Waterman S. S. Corp., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704, this court on May 6, 1940, entered a decree enforcing an order of the National Labor Relations Board dated May 18, 1938, which, among other things, required the Company to "Take the following action, which the Board finds will effectuate the policies of the Act * * *; (b) Offer to the persons listed in appendices A and B and to C. J. O'Connor immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (c) Make whole the persons listed in appendices A and B and C. J. O'Connor for any loss of pay they have suffered by the respondent's discriminatory acts, by payment to each of them of a sum of money equal to that which each would normally have earned as wages — including therein the reasonable value of his maintenance on shipboard from the time that the ship he was employed on sailed again after his discharge or lay-off — during the period from the date of such discrimination against each of them to the date of the offer of reinstatement, less any amount each has earned during that period." The persons listed in Appendix A were seamen discharged in mass from the Steamship Bienville in July, 1937, because of union activities; and in Appendix B seamen similarly discharged from the Steamship Fairland; and O'Connor was at the same time and for like reason discharged as Assistant Engineer from the Steamship Azalea City.

The Board has petitioned for a contempt order, but concedes that the enforcement decree has been complied with in all respects except that some of the seamen and O'Connor have not been made whole in their losses. The Company has made a sworn answer which admits portions of the petition, denies other portions, and sets forth in detail the facts concerning the disputed matters. No evidence has been offered, and the case has been argued as if submitted on bill and answer. Punition is not sought so much as clarification as to the principles on which the wage losses should be computed.

We take as true the admitted portions of the petition. As to those denied we must take as true the allegations of the answer. Such is the rule in equity proceedings. On the facts thus appearing, five questions are argued for the Board, which we discuss in order.

1. After offering reinstatement and before settling with the men the Company asked advice of the Board as to the calculations, but was told to make tenders directly to the men and advise the Board what was done. The Company made a full statement and calculation for each man and sent it to him with a release to sign which stated the calculation was understood and satisfactory, and that the sum sent was accepted in full satisfaction, and that reinstatement had been offered in accordance with the Board's order. Most of the men accepted the settlement and signed the releases. The Board thought the basis of settlement erroneous in particulars discussed below. The Company pleads the settlements as full compliance. The releases have evidentiary value to prove that an offer of reinstatement was made, and that the sum stated was paid, and that the item allowed for maintenance on ship was prima facie correct, and the like. As contracts of settlement they are without effect to bind the Board. The requirement in the Board's order to make whole the men who were illegally discharged was not made to vindicate the private rights of the men, but the policies of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Agwilines, Inc. v. National Labor Relations Board, 5 Cir., 87 F.2d 146, 147. The Board alone may enforce its order. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265, 60 S.Ct. 561, 84 L.Ed. 738. A contract with the discharged employee to surrender his right to back-pay does not constitute compliance. National Labor Relations Board v. American P. & C. Corp., 9 Cir., 113 F.2d 232, 233, 129 A.L.R. 874. But since the Board is entitled to demand performance and is not bound by any settlement with the employee, we think it ought on request to co-operate with the employer in framing a proper tender, and we should be slow to punish as contemptuous unassisted tenders which are not in all respects correct but made in good faith. The Board in this case, though at first refusing to assist, did finally discuss all details with the Company, reaching an agreement on some, and developing pointed differences as to others.

2. One such difference is whether the Company, having ascertained the time a discharged man worked elsewhere, should deduct that time from the time he would normally have worked, and should then be paid wages for the time difference; or whether his normal wages should first be fixed for the period he stood discharged, and his actual earnings elsewhere deducted. The latter is the...

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8 cases
  • Brooklyn Sav Bank v. Neil Dize v. Maddrix Arsenal Bldg Corporation v. Greenberg 8212 1945
    • United States
    • U.S. Supreme Court
    • 9 avril 1945
    ...F.2d 232, 129 A.L.R. 874; Id., 9 Cir., 118 F.2d 630; N.L.R.B. v. Stackpole Carbon Co., 3 Cir., 128 F.2d 188, 190; Waterman S.S. Corporation v. N.L.R.B., 5 Cir., 119 F.2d 760; Perry v. W. L. Huffman Automobile Co., 104 Neb. 211, 175 N.W. 1021, reversed on rehearing, 104 Neb. 214, 179 N.W. 50......
  • Nabors v. NLRB
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 3 octobre 1963
    ...1960, 361 U.S. 398, 411-412, 80 S.Ct. 441, 4 L.Ed.2d 400 (concurring opinion). As this Court stated in Waterman S. S. Corp. v. N. L. R. B., 5 Cir., 1941, 119 F.2d 760, 761, 762: "The requirement in the Board\'s order to make whole the men who were illegally discharged was not made to vindic......
  • NLRB v. Mooney Aircraft, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 30 septembre 1966
    ...609. Thus employees may not waive backpay claims, nor may they settle them with the employer. Nabors v. NLRB, supra; Waterman S.S. Corp. v. NLRB, 5 Cir. 1941, 119 F.2d 760. Creditors may not attach, NLRB v. Sunshine Mining Co., 9 Cir. 1942, 125 F.2d 757, nor garnish, NLRB v. Schertzer, 2 Ci......
  • Southern Tours, Inc. v. NLRB
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 21 novembre 1968
    ...of the Act assumes a peculiar status. The Board has very broad discretion in vindicating the Act through him. Waterman S.S. Corporation v. NLRB, 5th Cir. 1941, 119 F.2d 760. Thus, an offending company cannot escape its duty to reinstate illegally discharged employees when their former posit......
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