McCANN STEEL COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 76-1857.
United States Court of Appeals, Sixth Circuit.
Decided Feb. 21, 1978.
570 F.2d 652
Where a case is tried before a District Judge on jury waiver, our standard of appellate review is whether or not the District Judge‘s findings of fact are “clearly erroneous,” Maxwell v. United States, 277 F.2d 481, 510 (6th Cir. 1960), see also Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862, 864-65 (1965), and, of course, (as in jury trials) whether or not there were facts from which legal sanity, and guilt beyond reasonable doubt could be found. In re Winship, 397 U.S. 358, 362-63, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895).
While we are much impressed with the expertise and sincerity of the testimony of Dr. Winkler, we cannot overlook or disregard the qualifications and experience of Dr. Ottensmeyer. On the total record, including the testimony of all expert and lay witnesses, we cannot say that the District Judge‘s findings of fact are “clearly erroneous” or that there were no proofs from which the District Judge could have found appellant both legally sane and guilty beyond reasonable doubt.
The judgment of the District Court is affirmed.
Charles Hampton White, Cornelius, Collins, Higgins & White, Nashville, Tenn., for petitioner.
Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
CELEBREZZE, Circuit Judge.
This cause is before this Court for the fourth time. On April 21, 1971, Respondent, National Labor Relations Board (NLRB) found that Petitioner, McCann Steel Company (McCann), discriminatorily discharged J. C. Hindsley, in violation of
On remand, the NLRB considered no additional evidence and simply reaffirmed its $4,967 back pay finding. The NLRB then moved this Court for “entry of a supplemental judgment” to enforce its reaffirmance of the back pay determination. In an unpublished order dated May 16, 1975, this Court denied the NLRB motion. That order read, in its entirety, as follows.
We consider the motion of the National Labor Relations Board for entry of a supplemental judgment making definite the amount of backpay due J. C. Hindsley as determined by the Board in its supplemental Decision and Order of May 18, 1973 and reaffirmed in its Decision on Review of June 28, 1974. The Board, on May 18, 1973 issued a Supplemental Decision and Order (203 NLRB No. 115) finding the company to be indebted to J. C. Hindsley for backpay in the amount of $4,967, with interest, less tax withhold-
ings required by law. The company claimed that Hindsley willfully incurred a loss of earnings by failing to work the full number of hours he could have for an interim employer and by taking leave of absence from his interim employment. We denied enforcement and remanded the matter for clarification since it was unclear whether the Board considered the fact that Hindsley‘s fellow draftsmen in the interim employment worked overtime during several pay periods when Hindsley failed to work the basic 40 hours, and whether the Board allowed any credit against the gross backpay award for self-employment. McCann Steel Company, Inc. v. N. L. R. B., 489 F.2d 1328 (1974).
Upon remand, the Board considered no additional evidence, and the reason why Hindsley did not work the basic 40 hours when other draftsmen in his classification worked overtime remains unexplained. Nevertheless, the Board offers a surmise as an explanation and concludes that any uncertainty should be resolved against the respondent as the wrongdoer “whose conduct made certainty impossible.” The Board properly assigned to the employer the ultimate burden of proving the willful loss of earnings asserted as a defense but failed to assign to the employee the burden of going forward with the evidence to show why he did not work 40 hours once the evidence showed that his fellow draftsmen were working overtime. The allocation of the burden of producing evidence in such a case is upon the party having knowledge of the facts. See NLRB v. Mastro Plastics Corporation, 354 F.2d 170 (2d Cir. 1965).
Accordingly, the Board‘s order is not supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456] (1951).
Also, since Hindsley voluntarily left available interim employment to go into business for himself, respondent cannot be made to subsidize his enterprise if it fails to produce the income that the same expenditure of labor for his interim employer would yield.
For the foregoing reasons, the motion is hereby DENIED.
The NLRB treated the denial of its motion as a second remand and held another supplemental hearing and took additional evidence. For reasons largely not pertinent to this appeal, but mainly in conformity to the above-quoted language, the NLRB made a reduced back pay finding of $1,922, plus interest and less taxes. 224 N.L.R.B. No. 82. McCann petitions for review of this supplemental order, and the NLRB cross-petitions for enforcement, raising the following issues. First, did this Court‘s May 16, 1975, order denying the NLRB‘s motion for entry of supplemental judgment preclude the NLRB from conducting further hearings on the back pay issue? Second, if further hearings were not precluded, did the NLRB erroneously calculate the amount of the back pay award? We answer “no” and “yes,” respectively.
McCann argues that this Court‘s May 16, 1975, order ended this case “once and for all.” It claims that the NLRB failed in its chance to show that its decision was supported by substantial evidence and that principles of res judicata and fundamental fairness preclude further litigation of the issue. While conceding that the May 16, 1975, order is not a paradigm of clarity, we disagree with McCann‘s interpretation of it. We read that order as simply denying the NLRB‘s motion for entry of supplemental judgment and no more, thus leaving operative the prior remand to the NLRB. It is the law of this case that Hindsley was illegally discharged and that he is due some amount of back pay. NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968); NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. den. 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). Cf. Albemarle Paper Co. v. Moody, 422 U.S. 405, 420 n.12, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). It would be inequitable to punish Hindsley for the shortcomings of the NLRB. NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969).
Back pay awards are made by the NLRB pursuant to
We believe that “substantially equivalent employment” refers to the hours worked at the interim employer as well as the nature of the work there.3 Thus Hindsley refused to accept “substantially equivalent employment” when he refused to work the same number of hours at his interim employer as he had worked at McCann. This was a willful loss of earnings.4 The NLRB should calculate a constructive interim earnings figure based upon the amount of pay Hindsley would have received at his interim employer had he always worked the same number of hours, including overtime, he averaged at McCann to the extent those hours were available at the interim employer. The NLRB should then deduct the new constructive interim earnings figure from the amount Hindsley would have earned at McCann in calculating the back pay award.5
The NLRB argues that Hindsley‘s efforts at mitigation required only “reasonable exertions in this regard, not the highest standard of diligence.” NLRB v. Arduini Mfg. Co., 394 F.2d 420, 423 (1st Cir. 1968). See also NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1105 (8th Cir. 1977), and cases cited therein. We agree but feel that Hindsley‘s working the same number of hours for his interim employer as he did for McCann is necessarily a reasonable exertion.
The petition for review is granted and the cross-petition for enforcement is denied. The cause is remanded to the NLRB for proceedings consistent with this opinion.
Costs taxed to the NLRB.
EDWARDS, Circuit Judge, dissenting.
This is a back pay case which began April 23, 1971, when the National Labor Relations Board found that Hindsley, a draftsman for petitioner McCann, was unlawfully discharged. In 1972 this court enforced the Board‘s order requiring petitioner McCann to put him back to work and McCann has done so. Ever since then, the parties have been litigating the Board‘s Supplemental Decision awarding back pay. After two remands by this court, the Board has now ruled that the back pay award be reduced to $1,922, in accordance with this court‘s instructions.
I think we ought now, without still another remand, to enforce the Board‘s order and end this case.
The Board‘s computation is supported by substantial evidence and its policy requiring “reasonable exertion” to mitigate damages and not the highest standard of diligence has support in the Courts of Appeals. See National Labor Relations Board v. Arduini Manufacturing Corp., 394 F.2d 420, 423 (1st Cir. 1968). See also National Labor Relations Board v. Reynolds, 399 F.2d 668, 669-70 (6th Cir. 1968).
The Supreme Court spelled out this court‘s function in this area of administrative review:
We start with the broad command of
§ 10(c) of the National Labor Relations Act, as amended, 61 Stat. 147, 29 U.S.C. § 160(c) , that upon finding that an unfair labor practice has been committed, the Board shall order the violator “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies” of the Act. This Court has stated that the remedial power of the Board is “a broad discretionary one, subject to limited judicial review.” Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 [85 S.Ct. 398, 406, 13 L.Ed.2d 233] (1964).The legitimacy of back pay as a remedy for unlawful discharge or unlawful failure to reinstate is beyond dispute, Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 [76 S.Ct. 349, 355, 100 L.Ed. 309] (1956), and the purpose of the remedy is clear. “A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of unfair labor practice.” Nathanson v. NLRB, 344 U.S. 25, 27 [73 S.Ct. 80, 82, 97 L.Ed. 23] (1952). As with the Board‘s other remedies, the power to order back pay “is for the Board to wield, not for the courts.” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 [73 S.Ct. 287, 289, 97 L.Ed. 377] (1953). “When the Board, ‘in the exercise of its informed discretion,’ makes an order of restoration by way of back pay, the order ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.‘” Id., at 346-347, 73 S.Ct. [287] at 289.