National Labor Relations Board v. The Madison Courier, Inc.

J3Q7 LABOR RELATIONS NATIONAL Petitioner, BOARD, COURIER, INC.,

The MADISON Respondent.

No. 24808. Appeals, Court of

United States of Columbia Circuit. District

Argued Oct. Aug.

Decided

1309 Board)

bor a Decision Or issued finding Courier, The der Madison Employer) (the Company Inc. 8(a) 8(a)(5) had violated sections (1) of Relations National Labor (N.L.R.A.),1 Act, by im as amended refusing recognize properly and bar gain Typo with Local International Union), (the graphical Union, AFL-CIO bargaining representa exclusive Company employees; tive of its 8(a)(1) further section violated interfering and coerc the Act employees exercise its self-organiza right protected ;2 un of these tion and that reason Stanley Brown, Atty., Mr. N. L. J. Company acts, had caused lawful with whom Messrs. Arnold Ord- engage employees unfair in an Counsel, Manoli, man, Gen. Dominick L. Board is Labor strike.3 Counsel, Associate and Marcel Mal- Gen. against order sued a cease and desist let-Prevost, Counsel, Asst. N. L. Gen. by Company, and the further violations petitioner. brief, the for were on upon applica Employer, it directed the Snyder, Jr., Indianap- Mr. Herbert C. tion, a number of unfair to reinstate Ind., respondent. olis, for practice former strikers to labor positions substantially equivalent and or LEVENTHAL, Before MacKINNON any Judges. earn ROBB, make them for loss and to whole Circuit ings resulting rei its from failure so Judge: MacKINNON, Thereafter, Circuit on December nstate.4 or Board’s we enforced Labor January 4, La the National On (N.L.R.B. or the La Board bor Relations in full.5 der ultimately 158(a) practice case, 158(a)(5) which was 1. 29 and labor §§ U.S.C. January by (D (1970). adopted the N.L.R.B. on July 7, 1966. had been issued on N.L.R.A., 29 § of the U.S.C. 2. See section 7 July 22, 1966, On NLRB 550. See 162 provides (1970), which : July Company dated received letter organ- Right employees as to § 21, 1966, all un- wherein the claimants ization, bargaining, collective etc. conditionally applied reinstatement. for right Employees shall have the to self- Company respond to failed to Since form, join, organization, or assist practice letter, strike labor this the unfair bargain organizations, labor collec- this and court continued until Board tively representatives through of their Company’s unfair denied the choosing, engage in other and to own It was not terminated claim. purpose for concerted activities January 1968, when, pursuant until bargaining aid collective or mutual (see infra), note our enforcement order protection, and also have the or right shall appropriate offers were reinstatement any or all of to refrain on the made. this recalcitrance was except activities to the extent that such accept part Employer the claim- of the right may agreement be affected application reemployment which ants’ for organ- requiring membership in a labor portion gave rise to the make-whole ization as condition of N.L.R.B.’s order. remedial 158(a)(3) authorized section of this Typographical No. title. Union Louisville Typographical Union, AFL- International Courier, The Madison 12,647, N.L.R.B., L.C. ¶ CIO (D.C.Cir.1967). LRRM 2462 4. Trial William Scharnikow’s Examiner underlying regarding the unfair decision Acting (3) pay period; that the back and November On erroneously pay specification Region Regional 25 issued the back Director pay parties Christmas bonus- a back included amounts served on coverage during hearing, es and specification insurance notice pay period. thereto. back an answer Company filed Ex- hearing Trial held before was May Examin- Trial On pur- Benjamin for the Blackburn aminer Supplemental Decision er issued his determining Employer’s pose Company’s rejected all of the which he obligation to the claim- proper pay back found that affirmative defenses Company did ants.6 pay were entitled back the claimants computation util- dispute the method specified amounts.7 On Jan- in certain Acting Regional Director ized completely uary 1970, the N.L.R.B. pe- pay general the back bounds of conclusions, adopted findings, riod, affirmative several it did assert Examin- the Trial recommendations alleged its defenses Company’s refusal continued er.8 The (1) liability. pay It contended: back pay pay ordered sums back not entitled the claimants were Supplemental Labor failure pay their claimed due to precipitated the has Decision and Order ap- obtain efforts to to make reasonable proceeding enforcement before instant (2) employment; propriate interim court. this August entitled was not Mead Claimant ground part- present major his issues are to back on the Two dur- position eliminated one concerns had been The first time ed to court.9 this employ any part-time employee David include 6. The thirteen claimants it during did Corbin, Dowell, period, Ashby, Albert fact Bernard Feltner, Dowell, Louis Gilt- record indicates not conclusive. The Walter Paula Henry Virginia Juett, Kerr, performed during period ner, Rudolph was work Moore, substantially equivalent Lorenz, Jr., August Mead, to Judith which was Micky Nichols, job. pre-strike See Storie. deter- The Board James Mead’s carry opinion, infra, Company discus- I for Part the failed to mined that concerning part- showing sion facts the claimants. of the that Mead’s its burden of during position the time was terminated NLRB ff. See 180 period rea- for valid economic conclude that this sons. We are unable to Courier, Inc., NLRB The Madison supported substan- determination is not (1970). evidence on the record considered as a tial correctly N.L.R.A., 10(e) the N.L.R.B. See of the We believe whole. section August Mead, 160(e) (1970) ; determined that claimant Universal § 29 U.S.C. 474, regularly performed part-time N.L.R.B., Corp. work 340 U.S. who Camera Employer 456, labor for the before the unfair 95 L.Ed. 456 71 S.Ct. practice strike, pay, to back It is that the Board’s inclusion of clear entitled Company part despite em the fact the lost pay as of the back Christmas bonuses ployed part-time entirely proper. See N.L. no individual order was Conditioning pay period. is well settled Air R.B. v. United States (6th ; 1964) experienced Corp., 275, Cir. that by “the loss of work 336 F.2d where gene Planing 933, illegal Moss Mill the discriminatees had [Employer] (1954), sis, on other on the to enfd. as modified the burden was 1958) ; any, grounds, (4th prove part, if the continued 256 F.2d 653 Cir. what exigen N.L.R.B., 686, to 323 F.2d of work was due economic Nabors loss 1963), denied, 911, & Prod N.L.R.B. v. Ellis Watts Cir. cert. 376 U.S. cies.” 1965). (1964) ; ucts, Inc., 84 S.Ct. 11 L.Ed.2d 609 344 F.2d Corp., Supply Co., N.L.R.B. v. Mastro Plastics Wittock No. op. 1965), slip 7-8, (2nd LRRM 1043 at 176-177 enfd., U.S.App.D.C. 106, 419 F.2d 688 similarly ; appropriate (1966) N.L.R.B. v. It was 16 L.Ed.2d 682 Biscayne Corp., compensating Television include amounts the strikers Izzi, money they expend for on interim N.L.R.B. v. Cir. 241, coverage (1st Company’s 242-243 insurance improper due to the making Company rein demonstrated that recalcitrance the

X313 Company’s prior order, Employer the contention that the N.L. the R.B.’s offered interpreted applied incorrectly R.B. reinstatement to the claimants. in- the The second doctrine. Throughout period, the entire strike allegation volves the the the claimants received strike benefits adequately explain the reasons failed to roughly from the Union which were Supplemental find for Decision. We comparable weekly take-home against on both the Board issues they Employer prior received from the pro- for further remand case to it the eligible the To strike. for strike ceedings. benefits, the claimants had to be availa picket ble for line and other strike-related

I ties,12 and, by du under the Union’s laws, they required accept were avail THE FACTS BASIC able work. following the July issu- On de- Following Company’s Examiner ance Trial Scharnikow’s refusal underlying unfair labor practice cision reinstate the unfair labor strik- Employer ordering register ers, case them Union advised practice strik- reinstate unfair Em- with Indiana upon ap- here) (i. e., ployment Security claimants ers Division in Madison. letter, Company plication, Accordingly, August received all claimants, signed claimants, exception all thirteen Da- with the unconditionally they applied registered Ashby,13 vid with the state employment service, regis- Madison Courier reinstatement.10 all request, respond except Giltner, periodically to this trants, did not Louis Employ- picket applications required. continued strikers renewed engage in plant daily registering and to er’s Each of the indicat- strikers usually seeking employment associated activities ed that he was soliciting support of strike, printing such as When claim- trade. through public originally the distribution registered, ants and on vari- Compa- support appeared handbills and the ous other occasions when through ny’s personal office, employment agency advertisers the state general appeals.11 charge activities con- These inman indicated that was when, pur- January until the strikers from the tinued aware that were enforcing Courier, N.L. suant to our decree and he them that Madison told statement offers. See N.L.R.B. v. Rice 12. claimant was denied strike benefits No Creamery U.S.App.D.C. Co., satisfy require- Lake 124 this due to a failure to 888, 355, 359-360, picket 365 F.2d 892-893 line stint on the ment. The usual (1966) ; Dayton Corp., Monday through day, Coal and Iron was two hours a 672, (1952), enfd., Saturday. 101 672-673 F.2d Deena 208 394 Cir. August Company Artware, 371, that 13. The contended 375 register (1955), enfd., the state Mead also failed to with F.2d 228 871 employment agency, Corp., Exam the Trial but also See Mastro Plastics testimony 1342, (1962), enfd., indicated iner credited 1360 354 136 registered, 1965), denied, (2nd in that Mead had fact and cert. 384 F.2d 170 finding. 972, 1862, From the this Board affirmed 86 16 L.Ed.2d 682 U.S. S.Ct. whole, (1966). a we are record considered as de conclude that the Board’s unable to complete a For statement of the facts respect in erroneous. termination this was case, of this see Trial Examiner Black- Mills, N.L.R.B., Joy 87 See Inc. v. Silk Courier, decision. The Madison burn’s 732, 360, 369, U.S.App.D.C. 741 Inc., 180 NLRB ff. 781 denied, cert. 341 U.S. 71 engaged (1951) ; 1 1. The in United activities the claim 95 L.Ed. S.Ct. July U.S.App. precisely XIL.R.B., ants after were Steelworkers they (1970). prior the same as had undertaken D.C. that time. See 180 NLRB at 782. printing ceptance “[y]ou position availa- did no of she know there’s because away of here.”14 a hundred miles not want from her ble within have family again. re In view of limited our applications for the strikers’ viewing respect function with to deter state remained on file with work type, are minations this unable we agency throughout employment en- in conclude that erred Labor pay period, re- none 18-month back tire deciding rejection of that Mrs. Kerr’s printing job The referral.15 ceived position light this in was reasonable scarcity available reason for personal her We do circumstances. printing simply the limited work was previous believe that the fact her em printing employers in number of located ployment during the Dunne strike with area.16 and around the rural Madison Press necessitated a different conclusion sought printing work The claimants also Board, experience for her that only through Union, it was able but personal time indicated her the hard jobs and to locate for Walter Albert ship job from involved so distant with Virginia Dowell,17 Kerr, these and and Printing her home. Co. v. See Florence Louisville, Kentucky, over were all in N.L.R.B., (4th Cir), 216, 221 fifty away. miles denied, cert. S.Ct. Similarly, L.Ed.2d begin time Some between entirely was reasonable for the Board ning strike, of the unfair find the other strikers were ob beginning April in and the ligated seek in Louisville oth work July period, in fifty er miles located over areas position Kerr Union obtained a for Mrs. Madison, due to commute the excessive in Dunne Press Louisville. jobs would entailed. have job weeks, dur lasted two and Printing N.L.R.B., su Florence Co. v. in remained time Mrs. Kerr Nickey Sales, Inc., pra; Chevrolet Friday, Monday through Louisville from NLRB 1279 See also Oman returning to Madison home Inc., 144 Construction N.L.R.B. point At one weekend. (1963), enfd., F.2d 125 pay period, her informed Union 1964), job again was at Dunne available (1965).18 her, ac- 14 L.Ed.2d 684 Press declined but Mrs. Kerr away; Dealer North Vernon Plain Labor Examiner and the The Trial Indiana, Ashby Vernon, Sun, had failed in North Board determined Mirror, away; register the Carrolton miles because he was informed away; Carrolton, Kentucky, pessimism agent’s 12 miles Versailles, Republican, registering be a Versailles would concluded away. Indiana, were also miles There futile act. print-shops in the Madison several small Only Giltner and Louis Bernard Corbin area. any kind, in their received referrals of jobs case, were hired October at a dis- 17. The two Dowells available were Indiana, tillery Lawrenceburg, in Louis- the Courier-Journal about ap- ville, time fifty worked there full Neither miles from Madison. by commuting they great plied the were reinstated Com- until the because They daily pany. a distance commuted involved. would have the work distance They engage in about 100 miles. did daily only was the Courier The Madison during period picketing their Louis- the vicinity. nearby newspaper The they employment, nor did receive ville daily papers in Louis- were other closest any strike benefits. Cincinnati, Ohio; Kentucky; and ville, willing fifty were 18. The fact that the Dowells Indianapois, more or Indiana —all commuting bur- excessive there to undertake the In addition from Madison. miles position weekly publications a den associated with Louisville within five area were negate propriety the the does not Demo- Trimble the immediaté area: the respect Kentucky, Bradford, Banner, Board’s conclusion crat and County other strikers. away; Gallatin miles Kentucky, News, Warsaw, miles employment for with the Jefferson the state cation work was Proving Grounds, agency were unable lo he unsuccess- Union where sought fully jobs distance work as a civilian ordinance within reasonable cate Finally, Madison, man. cessfully unsuc- from claimants Bernard Corbin several grocery applied part-time in the area. for were able to find work applied obtained work. None of the six claimants Dowell for and other Walter any print shop, applied kind their be work casual work at Madison for during by pa own, pay period. fore was hired the Louisville the back he Virginia Corbin, per. Kerr, Bernard The the Board Trial Examiner and Henry Nichols, and Lorenz each James concluded that all thirteen claimants day per Trim worked one week for the made “suit- reasonable efforts to secure during part of ble Democrat and Banner employment, thereby satis- able” interim Following pay period.19 the back mitigation obligations. fying their Democrat ar the Trimble termination of rangement, They determined therefore accepted Nichols James eligible all reim- were for claimants County part-time Gallatin work Employer for bursement sought News, out after he was 18 month back losses over entire 20 August paper Mead ob editor of herein, period. For the reasons out set during work the back tained occasional pay period misap- has we hold that the N.L.R.B. print shops. Madison at two plied doctrine established Finally, part-time located Louis Giltner explain principles ade- and has failed to Micky clerk, grocery Sto work as a peculiar quately any circumstances part-time employment a me rie found might justified have this case which motorcycle dealer.21 chanic for a recognized prece- such deviation from dents. Very to locate efforts few individual undertaken interim were II period. the strikers Although applied for, and Dowell Walter A. THE REMEDIAL AUTHORITY shop, print obtained, a Madison work at OF LABOR BOARD THE applications for em- no other made unsuccessfully The National Labor Relations Henry ployment. Lorenz authority on Act remedial job shop, confers broad sought but work with small 10(c) the N.L.R.B. Section applications other made he too no Board, has it Act22 authorizes the where only applied August to two Mead work. determined an unfair shops. print suc- Louis Giltner Madison committed, require the viola has been part-time applied cessfully as a for work in “to action tor cluding take such affirmative Micky clerk, was able grocery Storie employees with reinstatement of mechanic, part-time work as a to locate pay, without as will effectuate applications for other made no but policies only The courts Ashby’s appli- of this [Act].” employment. David daily. However, report quired initially tliis Trim- 19. Mrs. Kerr learned right negate his to back proprietor opening fact did tie Democrat when prevent pay, long him so as it did not him. ashed her Since to work making requisite non-union, secure efforts paper her first asked was she employment. job. Flor accept interim suitable she could Union whether Printing Co., 791- sug- ence her she should informed enfd., gested with Cor- share the work she Cir.), Lorenz, bin, Nichols, which she did. apparent 19 L.Ed.2d 104 was there After became occupy really enough three work to Rudolph four claimants — voluntarily dropped days per week, Lorenz Feltner, Juett, Moore, Paula Judith arrangement. Ashby performed out of no work David — pay period. (local) chapel the Union Nichols was (1970). 160(c) chairman, re 22. 29 § whom the strikers were U.S.C. 1316 interpreta- Seven-Up generally given Bottling Co., Board v. [344 have a liberal 344, grant authority. 287, L.Ed. 377 73 S.Ct. 97 tion to U.S. Dodge Corp. (1953)]; Phelps Na v. recognized that is well Board, tional U. [313 Labor Relations power provided in remedial sec

broad 177, 845, 1271 S. 61 S.Ct. 85 L.Ed. 10(c) ex tion is the Labor Board to for (1941)].25 subject judicial ercise, limited finding by Corp. Phelps Dodge N. Labor Board v. The review. See 845, L.R.B., 177, 194, a dis of an unfair labor 61 S.Ct. 313 U.S. criminatory discharge improper (1941); v. or an L.Ed. 85 1271 N.L.R.B. 258, prac Mfg. Co., U.S. refusal to reinstate an unfair H. Rutter-Rex 396 J. 417, upon applica 262-263, 405 L.Ed.2d tice striker 90 24 unconditional S.Ct. Brown, (1969); reemployment presumptive 380 U.S. tion for N.L.R.B. v. is 980, proof pay 278, 5, 13 L.Ed.2d some back owed 291 n. 85 S.Ct. violating (1965). employer. v. 839 See N.L.R.B. Corp., 170, 178 Mastro Plastics 354 F.2d should This not mean courts does (2nd 1965), denied, U.S. cert. 384 Cir. judicial rub functions abdicate 972, 1862, 682 86 16 L.Ed.2d S.Ct. stamping decisions23 ber N.L.R.B. (1966); Rutter-Rex N.L.R.B. v. J. H. since Mfg. 258, Co., 263, 396 90 S.Ct. U.S. “ 417, (1969). pur 24 L.Ed.2d 405 expert deference an owed to ‘[t]he pose requiring employer slip tribunal cannot into be allowed to the discriminatee whole in make such judicial inertia which results objective. First, case has a two-fold assumption by agency unauthorized remedy pay inno reimburses major properly policy decisions employee cent actual losses by Congress.’ Ship made American which he direct has suffered as a result Building Co. v. Labor [Re [National] conduct; employer’s improper Board, 300], at 318 lations] U.S. [380 second, public in the order furthers [, 955, 957, 85 L.Ed.2d S.Ct. 13 24 terest advanced deterrence 855].” illegal acts.26 the need While general This deference the N.L.R. private achievement of the reimburse recognized expertise B.’s remedial objective obvious, ment courts have particularly acknowledged in in- cases generally placed greater volving stress of back or- formulation goal furthering public apparent ders. less Dodge See, g., Corp. policy. Phelps v. e. solving problems In which arise 177, 197, N.L.R.B., S.Ct. 61 313 U.S. in back cases the Board is vested (1941); 845, N.L.R.B. 85 L.Ed. 1271 devising pro- with a discretion in wide Mfg. Co., 396 U.S. J. H. Rutter-Rex v. cedures and methods effec- which will (1969). 258, v. also N.L.R.B. See purposes the Act. tuate * * * 809, Aircraft, Mooney 366 F.2d National Labor Relations 278, Brown, Corp. 24. N. L. R. v. U.S. Universal Camera v. N. B. L. R. (1965). 980, 474, 490, 292, 13 L.Ed.2d 839 U.S. L. S.Ct. (1951) (emphasis supplied). Ed. 456 Root, Inc., 311 25. N. L. R. B. Brown & v. Root, Inc., See N. L. R. B. v. Brown & 1963). See N. L. Cir. 1963). 311 F.2d Co., Seven-Up Bottling 344 U.S. R. B. v. questions are, course, Pure of law L.Ed. 377 73 S.Ct. ultimately subject to the traditional re- ; (1953) Haws L. B. v. Robert N. judiciary. See view of the L. R. B. Steamship Corp., Waterman B. Mastro Plastics N. L. R. L.Ed. (2nd Corp., 1965), 86 S. 16 L.Ed.2d Ct.

1317 great (5th 1966).27 private rights objective em It vindication was Cir. public major phasis upon remedy,28 fo vindication of make-whole analysis Court, upon Supreme in policy cus of its the need to led the was which 1941, public policy. further become Court had to establish what has mitigation (or “in idle mind not so much minimization as the willful known damages healthy ness) policy pro as the doctrine. moting production employment.” 200, at 855. It not U.S. S.Ct. at THE MITIGATION DOCTRINE B. formulating pay orders, ed that in compel us The facts of this case importance “the the N.L.R.B. must heed to discuss of this doc several features taking account, fair in a civilized le In involved here. trine are gal system, every socially desirable N.L.R.B., Phelps Dodge Corp. v. 313 U. judgment.” in the factor final 313 U.S. 177, 855, 199-200, 845, 85 L. 61 S.Ct. S. 198, at S.Ct. 854.29 With the con (1941), Supreme .the Court Ed. 1271 Dodge Phelps cerns Court in fashioning proper back noted that mind, subsequent de N.L.R.B. court give order, “may ap pay the N.L.R.B. expanded explicated cisions have weight unjustifia propriate clearly to a mitigation doctrine. [by the discriminatee] ble refusal accepted by “It [has employment.” been] This take desirable new reviewing seeking the Board and courts that a employee meant if pay discriminatee is not entitled to back sustained as a reimbursement for losses to the extent that fails he to remain employer’s unfair direct of his la result market, accept the labor refuses to sub accepted practices not available bor stantially equivalent employment, fails employment during the back suitable work, diligently to search for alternative period, pay could re the Labor Board voluntarily employ quits alternative liability employer duce the of the good (emphasis ment without reason.” amount discriminatee would have supplied), accepted posi N.L.R.B. v. Mastro Plastics interim earned had Corp., 170, (2d Phelps Dodge 174 n.3 Cir. tion. Court 972, 1965), denied, recognized appropriateness cert. 86 S. U.S. 1862, light (1966).30 Ct. newly 16 L.Ed.2d 682 enunciated doctrine period] Virginia but also for Power losses which he will- In Electric & Co. fully Phelps 533, 543, Dodge Corp. B., incurred.” R. 63 S.Ct. N. L. 319 U.S. B., 177, 198, (1943), 1214, 1220, L. R. 313 U.S. 87 L.Ed. 845, (emphasis 854, (1941) Supreme 85 L.Ed. 1271 stated: Court supplied). order The instant reimbursement wrong. private Like a redress for Seven-Up Bottling 29. See N. L. R. B. v. order does restore a back 344 U.S. 73 S.Ct. employees what was measure some (1953) ; Mills, L.Ed. 377 Southern Silk because of the Com- taken from them Inc., (1956), re this, practices. pany’s In unfair grounds, manded on other 242 F.2d 697 monetary types awards both of these (6th 1957), denied, cert. compensation resemble somewhat 78 S.Ct. L.Ed.2d 37 injury, private it must be con- but stantly both are rem- remembered that Steamship Co., 30. See Alaska 114 NLRB ex- one edies created statute —the aff’d., (1955), 245 F.2d 282 implicitly plicitly and the other (9th Mills, Southern Silk policies concept of effectuation of Inc., re designed to aid in are the Act —which manded, Cir.), 242 F.2d 697 cert. achieving of industrial the elimination denied, 28, 2 355 U.S. L. public, They conflict. vindicate ; (1957) Printing Ed.2d Florence Co. rights. private v. N. L. R. only Cir.), actual losses should be 88 S. “Since (1967) ; good, 68, 19 it seems fair that deductions L.Ed.2d 104 N. L. made Ct. Root, earn- made not for actual B. v. Brown & should be ings [during worker 1318 recognized separate be consid- generally each individual must has also been States establishing miti ered United Board. See facts of burden Conditioning 1278, liability upon Corp., Air 141 gation is pay back (6th (1963), enfd., violator, F.2d 275 1280 336' practice unfair labor 1964).33 individualized, rather of the Cir. This upon Counsel the General group, approach than is dictated represents interests Board who mitigation is nature of the rule which the discriminatee. recognized today. generally The merit has Counsel Once the General judi- approach in a an individualized gross of back amount established cial matter is self-evident. question, pay the discriminatees due employer upon to es “the burden “In entitled to order negative the tablish facts which would employee backpay, an must least make given employee liability to a existence employ ‘reasonable new efforts find liability.” mitigate that would equivalent substantially ment which is Inc., Root, F. 311 v. Brown & N.L.R.B. position was discriminato [which he 1963). 447, (8th N.L. See 2d 454 Cir. rily deprived is suitable to a o/] Inc., Products, 344 & Watts R.B. v. Ellis experi person background his ” 1965); 67, (6th N.L.R.B. v. F.2d 69 Cir. ence.’ Miami Coca-Cola N.L.R.B. v. Bottling Co., F.2d 360 Miami Coca-Cola Bottling 569, Co., (5th 360 F.2d 575 Cir. 1966); (5th

569, N.L.R.B. 575-576 Cir. 1966) (emphasis supplied). See South Mooney Aircraft, Inc., 809, F.2d v. 366 Mills, Inc., 769, ern Silk 116 773 (5th 1966); v. N.L.R.B. 812-813 Cir. remanded, (6th 697 242 F.2d (6th 76, Co., F.2d 77 Interurban Gas 354 Cir.), denied, 821, 78 cert. finding 1965).31 of an unfair Cir. “The 28, (1957). However, 2 L.Ed.2d 37 proof presumptive may attempt employer while the liable 32 pay is some back owed.” employee particular demonstrate requisite failed to make “reasonable employer with a back Where mitigate efforts to * loss income [his] pay liability discrimi contends * * employee [the held is] question make the natees did not all * * * only to exertions in reasonable required mitigate their dam effort regard, highest not the standard of ages, the must “be willful idleness issue diligence.” Mfg. Arduini N.L.R.B. v. respect em to each determined with Co., (1st 420, F.2d 394 Cir. 422-423 ployee considering record 1968).34 principle of “[T]he Lake Cream whole.” N.L.R.B. v. Rice damages success; require does not ery 361, Co., 355, U.S.App.D.C. 365 124 good requires an honest faith effort sup (1966) 888, (emphasis F.2d 894 ” ** * N.L.R.B. v. Auto plied). concerning Cashman particular facts usually further, 1963), goes (8th Cir. 31. See also N. L. R. B. Rice Lake v. pursuant Creamery Co., 355, to the N. R. B.’s Rules U.S.App.D.C. L. 124 (29 C.F.R.), Regulations, 888, (1966) ; 8 359, Series 365 F.2d Florence 102.53, Printing in the back B., and includes Section Co. v. R. F.2d N. L. gross specification- pay (4th 216, Cir.), deductions mitiga all amounts 68, back those 19 L.Ed.2d 104 through, ; for ex (1967) which he discovered tion N. L. Haws R. B. Robert ample, personal (6th 1968). and social Co., interviews 403 F.2d Cir. security records. Reynolds, L. R. B. v. F.2d N. Co., Inc., Transit also Missouri 1968). See L. R. B. Cir. See N. 1328, 1331 Mfg. 125 NLRB Corp., Arduini F.2d (1st 1968). Cir. Coca-Cola L. R. B. v. Miami N. is re- General Counsel Bottling Co., 360 F.2d “gross quired present only amounts Motors, ; L. 1966) Inc. v. Heinrich due,” (2nd R. B. v. see N. L. 148-149 Root, Inc., Brown 311 F.2d & Sales, Inc., 1955).35 ey 160 NLRB Chevrolet Co., (1st Cir. (1966); Construction employer hand, Oman the other On establishing 1537-1538 under burden severe (1963), enfd., would particular diseriminatee 925, denied, 85 1964), S. employ 381 U.S. cert. interim have located suitable 1561, (1965). See Ct. 14 L.Ed.2d 684 required ef ment made had he Cigar Co., AMB-A-Tip NLRB 64 may also fort, liability pay the back before 1009, (1945).37 1020 dil n.17 properly such “[W]ith be reduced. igence lacking, a circumstance one N.L.R.B. scarcity possibility that of work and the registration regarded time with found even none would have been Service,38 Employment or United States diligence is irrelevant.” use appropriate employment with the state 1303, Bottling Co., NLRB American 116 agency,39 being evidence conclusive (1956).36 1307 em search for interim a reasonable made, ployment since has has been need not seek A diseriminatee rigid approach. In abandoned “danger accept employment or which is Silk, enunci Southern Labor essentially ous, different” or distasteful presently ated fol the doctrine which is job. regular Florence from his See lowed : Printing 216, N.L.R.B., 376 F.2d Co. v. denied, (4th Cir.), 221 cert. 389 U.S. view fact Government [I]n (1967); 840, 68, employment L.Ed.2d 104 88 19 services but one of S.Ct. are N.L.R.B., normally 110 Mooresville Cotton Mills v. are several means which 179, 1940). (4th by unemployed persons F.2d in seek- 181 Cir. Similar used obligated ly, necessarily ing employment ac not their he is new effec- registrants cept employment an un placing located which is varies tiveness widely type supply his home. of la- reasonable distance from with the 1303, being sought, longer Bottling Co., NLRB American 116 bor we shall no give registration (1956); weight Plas 1306 Mastro N.L.R.B. v. conclusive determining Corp., (2nd 170, agencies tics F.2d 179 Cir. with such 354 972, search, 1965), denied, 86 cert. S. issue reasonable but shall (1966); registration Ct. 16 Nick treat such as a L.Ed.2d 682 factor seeking Pugh Barr, jeeting, particular employ a 35. See N. L. B. v. & or R. (4th ment, question 281 559 a fact.” Florence [is] F.2d Cir. Corp., Printing Co. F.2d Mastro Plastics 136 NLRB L. 376 enfd., (2nd Cir.), denied, (1962), 221 389 1359 354 cert. 170 1965), denied, cert. U.S. L.Ed.2d U.S. S.Ct. (1966). (1967). 16 L.Ed.2d 682 S.Ct. obliged, is While claimant not ** * 36. do [believe] “We instance, to seek work first outside appear it must [the diseriminatee] general geographical pre-dis- area of his job e., procured could have [i. may employment, crimination he be found employment] he suitable interim before willfully if to have incurred loss can have incurred a willful be found to relinquishes voluntarily job an interim apply the failure to for it. loss area, outside the he obtained dur- which job is incumbent on a claimant to seek a period. See Ozark experience.” for which he has extensive Co., Hardwood Co., Plastic Knickerbocker 1209,1219 (1961). (1957), grounds, remanded F.2d 1 “necessarily diseriminatee The Co., See Ohio Public Service obliged accept at a dis enfd., F.2d 252 * * * t tance from his home [I] 1944), whether, determine the Board to un 89 L.Ed. evidence, der the a factor location may reasonably Elevator Queen taken ac See Harvest Mill be into * * * employee 90 NLRB 320 [W]hether count. reasonably accepting, re acted or not weight indicated “that de- its belief greater Sixth Circuit given less reasonably wage earner, con- in the usual pending upon the circumstances all obligation support him- supplied.] of the [Emphasis scious case. each employment, family self and suitable rigid rules application of period inability reasonable over a after picketing or re regarding effect of employ- the kind of time obtain ceiving benefits union strike accustomed, would ment to which he is pay period on the determination employ- available, suitable consider other questions has simi mitigation doctrine at a somewhat lower rate ment un larly The fact been eschewed. employment’within ‘desirable new received strikers fair meaning general doc- not diminish does strike benefits trine.44 providing right pay, to receive back to efforts reasonable made otherwise A second decision often cited for the employment.41 interim locate suitable Likewise, proposition must that discriminatees persons en that such the fact sights” mitigating losses their “lower gaged picketing Planing Moss is the Fourth Circuit’s negate automatically period does However, despite fact opinion.45 right their their reimbursement to opinions frequently that are these two receipt However, employer. like upon by employers seek- relied ing are who activity benefits, picket does strike line mitigate liabilities, care- ob not relieve the discriminatees that ful consideration demonstrates making ligation efforts reasonable very implications really their are employm appropriate interim obtain empha- expressly Both decisions broad. ent.42 is sized the fact that no discriminatee worthy point required accept anything One final is but which to ever general concerns a employment. here consideration “suitable” interim There- corollary possible fore, doc- obvious that there is no re- quirement person courts trine which circuit that seek em- two such a attempted ployment In N.L.R. have to establish. is not consonant with which Inc.,43 Mills, particular skills, background, B. v. Southern Silk ex- his Mills, Inc., Creamery Co., 355, U.S.App.D.C. 116 NLRB Southern Silk 124 769, (1956), 360-361, 888, (1966). 770 remanded on other F.2d 365 893-894 (6th grounds, Cir.), 242 F.2d 697 cert. (6th Cir.), denied, 43. 242 F.2d cert. 697 821, 28, denied, 2 L. 355 U.S. 78 S.Ct. 821, 28, 2 L.Ed.2d 355 78 S.Ct. U.S. (1957). Ed.2d See Missouri Transit 37 (1957). 37 Co., Inc., 1316, (1959) ; 125 NLRB 1325 (emphasis supplied). 1130, Co., 44. 242 at F.2d 700 119 Ozark Hardwood (1957), grounds, that The Southern Silk court concluded 1134 remanded on other discriminatees], (8th 1960) ; failure “[t]he [two F.2d 282 1 Cir. American existing pres- Co., 1303, Bottling conditions under the 116 NLRB 1307 suitable, case, (1956). Pugh or take other ent seek N. L. R. B. See also v. employment, although Inc., (4th 409, Barr, available at a low- & 207 F.2d period pay, approxi- 1953). over a er rate Cir. mately years, three constitute^] to some Printing R. Florence v. N. See Co. L. ‘willfully earnings extent at least loss of 216, (4th Cir.), F.2d 218-220 ” (emphasis incurred.’ F.2d supplied). (1967) ; N. L. R. v. 19 L.Ed.2d B. Planing Creamery Co., U.S.App. B. Mill 45. See N. L. R. v. Moss Rice Lake (4th Co., 355, 360, (1966) ; Cir. 705-706 F.2d D.C. important 1955). Freight Lines, It to note N. L. B. Brashear R. was to indicate Fourth Circuit careful 199-200 1942). discriminatees have to seek any “sxdtable” interim Co., 42. See Ozark Hardwood See also 224 F.2d at 706. event. n. 1136-1138 re- Planing Mill N. L. R. B. v. Moss grounds, manded on other 282 F.2d 1 L. B. Rice Lake similarly apparent perience. 87 L.Ed. It is Seven-up obliged in- work See also N.L.R.B. v. seek he is not substantially Bottling Co., 347-348, that are volves conditions previous position. S.Ct. 97 L.Ed. 377 onerous than his more may Although a discriminatee REQUIREMENT THE C. THAT THE “low required Board Labor be N.L.R.B. REASONS ARTICULATE seeking sights” by less remunera er his FOR DECISION unsuccessfully work after he tive was attempted period of for a reasonable readily apparent if employment com to locate interim time reviewirtg per able to courts are be posi parable improperly denied with his properly statutory form function tion, considerations indicate several N.L.R.A., under deci Labor must careful the N.L.R.B. and courts be required specifically must ar sions If applying requirement. such a when ticulate the for the administra reasons significantly accepts the discriminatee tive determinations made therein. lower-paying soon after work too Phelps Dodge general is stated in rule may be question, discrimination N.L.R.B., supra: Corp. v. subject pay on the to a reduction in back process The will best administrative willfully ground loss incurred a that he by clarity be in its vindicated exer- “unsuitably” low-paying accepting an Congress the cise. Since authority has defined hand, the position. under the other On proce- and the Board formulation, to if fails he Southern Silk dure it and which must be asserted sights” passage of a after the “lower his charged has the courts federal period” em of unsuccessful “reasonable duty reviewing the or- of the Board’s may to searching, held ployment he be (§ 10(e) (f)), ders will avoid it right to reimburse forfeited his have litigation needless make effec- ground to he failed ment on the expeditious tive and enforcement of mitigate requisite his to the effort make require to the the Board’s order Board circumstances, we these losses. Under to disclose the basis of its order. We be unreasonable that it would not believe province do intend to enter the in resolve doubts for the N.L.R.B. to * * belongs .* to the Board dis innocent in favor the this area give All we ask the Board hardly be can Board criminatee. “[T]he clear indication it has exercised beyond effectuating policies said be Congress the discretion with which resolving purposes of Act empowered has it.47 party against violated the who doubt presumption There Northrup is a that favors v. N.L.R. & Co. Act.” Leeds 1968).46 (3rd expertise, Board, B., with its in 391 F.2d * * * resolution, deprives an selection of That a “which remedies. Such accruing given advantages presumption employer full effect when Act, subverting makes a conscious selection particular method of effectuating pro- permissible Act, remedies to effectuate the is a method of vided Virginia statutory policy.” Electric reasons its conclusion are discerned,48 may N.L.R.B., fairly stated or v. U.S. be & Power Co. Phelps Dodge Corp. B., B. 46. See L. R. H. Rutter-Rex L. R. J. v. N. N. Mfg. 263-265, 177, 197, 85 L. (1969); Ed. 1271 See N. L. R. 24 L.Ed.2d Booster B. Stencils, Lodge General F.2d No. International Association (2nd Aerospace Workers, N. L. R. B. v. Rice Machinists Creamery Co., U.S.App.D.C. U.S.App. Lake v. N. L. R. AFL-CIO 355, 364, n. D.C. (1972) ; L. B. v. R. Miami Bottling Co., Electrical, International Radio Union Coca-Cola Workers, & Machine AFL-CIO v. N. L. 572-573 egre- activity their concerted caused it to III mitiga- giously misapply established THE N.L.R.B. THE OF principles. BASIS tion insisted doctrine upon considering DECISION a sin- the claimants as gle examining group, their rather than ap N.L.R.B. decision The respective efforts to interim em- locate pears the issue as wheth viewed to have ployment on individualized basis. between had to choose er the claimants Supplemental De- The Trial Examiner’s activity and back concerted continued cision, adopted Labor Board however, believe, such pay.49 We order, as the “basis” for its back question. the real distorted formulation stated: There no doubt that the claimants find, therefore, that all of engage [We] right protected to continue together judged must claimants against action their concerted determining jobs availa- whether Employer improperly after refused ble suitable Madison area were them, mere fact reinstate and the background experience per se did not continued to do so printers to- all negate pay.50 and must stand right to receive back fall gether deciding activity the willful loss Nevertheless, re did not earnings issued es [sic].52 their well lieve the claimants from obligation reasonable to take tablished clearly disposition Such violated thereby steps mit to secure work and recognized treating principle each liability.51 igate Company’s back particular separately claimant in deter- strong mining right pay,53 N.L.R.B.’s desire his right protect may the strikers’ to continue well to erro- have led the Board U.S.App.D.C. 249, 256, job grocery in a full-time store due B. 1243, 1250, denied, F.2d cert. 400 U.S. the fact it would have conflicted 950, (1970) 239, picketing 91 S.Ct. 27 L.Ed.2d 256 with his duties would neces Melody (emphasis supplied). sarily contrary cause, also See to the Labor Music, C., U.S.App. finding, appropriate Inc. v. F. C. 120 Board’s reduc 730, (1965). D.C. 733 tion in the amount of him, owed to properly de unless the L. R. B. N. 49. at Elsewhere in See 180 NLRB 788. upon employ termines remand such opinion, its the N. L. R. B. stated what recog within the ment was not “suitable” as it believed to be the relevant issue meaning mitigation nized doctrine. had to abandon “whether the claimants The fact the claimants received applying for activities after strike during strike benefits lucrative being ignored by [the reinstatement and relieving pay period, thus them of being Company] price as the entitled hardships frequently in so economic backpay.” at thereafter to 180 nega activity, digenous did not to strike pay, providing right tive their to back they satisfied the otherwise Creamery v. Rice Lake 50. See N. L. R. B. requirements. Florence See doctrine 360-361, U.S.App.D.C. 355, B„ Printing F.2d L. R. Co. (1966). also See 893-894 (4th Cir.), denied, 389 U.S. Printing N. L. R. Florence Co. v. (1967). 68, 19 L.Ed.2d 104 88 S.Ct. (4th Cir.), cert. 376 F.2d 216 41, supra. also cited note See cases L.Ed. (emphasis supplied). at at See 180 NLRB 788-789. Co., 119 NLRB Hardwood See Ozark preceding supra, text. and (1957), note 53. See 1135 n. 1136-1138 ap- that such an individualized grounds, fact The proach F.2d 1 on other remanded may administrative some ; cause 1960) note cited eases view, difficulty not, relieve in our Pipe, Inc., supra. does Southwestern Cf. apply obligation to Board of on other NLRB 364 remanded Dodge Phelps principle. (5tli grounds, established B„ Corp. apparent N. L. R. that Bernard is therefore accept 85 L.Ed. an available refusal Corbin’s only Corning Corpora- neously area at Madison Dow the claimants conclude tion, Corpora- seeking compara- duty Olin Mathieson Chemical other had tion, industry Company, printing employment. Reliance Electric Jeffer- ble Proving Indiana-Kentucky Grounds, son im- has been a discriminatee When Corporation, Electric American Can po- deprived properly of his Company, Manufacturing Compa- Grote recognized duty sition, is under the ny, Company, Chain Rex Belt and Wil- in- to locate efforts to make reasonable Company.55 liamson Examin- Trial po- comparable his denied work terim wholly er the Board concluded —and par- his with sition and commensurate adopted findings jobs his these —that experience.54 background ticular comparable to, “were but identical enjoyed claimants all jobs with, held at claimants skills, industry of them printing some prior Madison Courier to the strike experience which had other relevant also wages, respect hours, properly consider. the N.L.R.B. failed employment, conditions of as well as spent previously fif- Dowell had Walter physical required amount of effort years department shipping teen in the perform degree personal them and the factory. had Nichols ear- a nail James community satisfaction and status employed months as lier been they afforded to He their holders.”56 Proving gunner the Jefferson civilian further concluded that “[e]ach following two-year Grounds, tour might claimants fill have been hired to military had held Louis Giltner service. jobs one or more had these if farming poultry jobs prior in a actively elected seek work outside Micky plant, processing had while Storie printing trade rather than to continue experience me- past as an automobile picketing engaging in other strike- Ashby expe- had also chanic. David backpay pe- related activities field, both as a rience the automobile * * * ”57 despite riod However, salesman, body repairman and as a finding, this last the N.L.R.B. dismissed prior as a farmer. addition work the failure of the claimants to seek Moore, had attended Judith who Both may non-printing positions available year and had school for one business particular have been commensurate with previously weeks for for several worked background experience, claimants’ employee, as a clerical a business office by deciding group the entire gone Feltner, who had and Paula industry printing had positions. to seek directly Employer work for the This error clear be on re- must rectified high school, initially performed of- had by mand, thorough the consideration Courier, work for Madison fice the particular whether claimants be should teletypesetter tape punch operators, denied back their due to failure working typewrit- they were used to non-printing jobs. seek such available keyboards. Despite the varied er-like backgrounds experiences these additionally We that believe particular claimants, N.L.R.B. failed the by further of this the consideration case they adequate to consider made whether required Labor Board of the because non-print- comparable efforts locate inadequate partially ex inconsistent re- work commensurate with planation of the N.L.R.B.’s reasons spective employment histories. concluding that had sufficient efforts by been clearly made the strikers locate even record established The printing industry non-printing jobs the work the Madison were available 55. See NLRB at 785-786. B. v. Coca-Cola 54. See N. L. R. Miami Bottling Mills, 56. at Southern Silk remanded, (6th Cir.), Id. See 180 NLRB at U. F.2d 697 28, 2 L.Ed.2d 37 S. positions to seek to ure of the claimants efforts Most the claimants’ area. weekly papers. It employment the five area were with printing find interim “immaterial that this fact was concluded registration the state with limited papers] making them [the none of because employment the service and during sought experienced printer through ma- inquiries the Union. they though backpay period even applications jority individual made no out of claimants were The knew that printing establishments.

with area diligence However, seemingly such work.” “with inade- Board excused these scarcity lacking, of a concluding the circumstance quate by efforts possibility none printing and the “sought work in the strikers work the use have found even with would been area trade the Madison diligence regis- Ameri by of such is irrelevant.” meaningful way open them Bottling Co., can tering Em- Indiana for work with Board, upon Security If remand the ployment On Division.” standards, applying proper Ashby’s while hand, it excused David registration registration by with concludes con- failure make agency employment cluding state and utilization futile that it “would have been a “grapevine” suf act,” printing of the were not Union that no due to the fact by rea through employ- ficient to constitute jobs themselves were available appropriate in sonable efforts to locate for the former ment Thus bureau.59 appear employment, terim then it would justified group, decision Board that it have to conclude that inad ground proved would to be a on the that what equate were made least efforts act,” therefore “futile and which was employees those who made no individual required Ashby, rea- constituted a do efforts to locate other We mitigation work. cannot sonable effort. We may properly believe that the ex logic. subscribe to this cuse failure of the claimants to seek registration ap- addition, In with employment ground interim on the agency propriate state such efforts would have with interfered longer considered to be conclusive no retraining undertook, efforts effort to locate evidence of reasonable supervision, under the Union’s employment.60 “suitable” interim Employer the strike. merely which factors one of several operations converted its from a “hot- light par- must considered in type press” system “cold-type letter to a case. ticular each circumstances operation shortly press” offset after Therefore, this reconsideration began, unfair labor all of strike question undertaken must be adequately protected the claimants were giving appro- remand, L.R.B. on prior case, Board order in this priate respect princi- enforced, required which we ples opinion. set out Company provide those not reinstated prior positions to their exact with ade similarly do not believe that We retraining. quate on-the-job adequately explained the fail the Board Burnup Sims, Inc., istration, see 58. NLRB at 789. (1966), enfd., NLRB 373-374 59. A similar incon- 180 NLRB at 787. F.2d 987 sistency respect appears to the with 61. 180 NLRB at 789. of Louis L. R. B.’s excusal Giltner’s regularly employ- renew his failure to Inc., Courier, 62. The Madison registration. agency ment Supple- In its NLRB Decision, Bottling Co., the N. L. R. B. acknowl- mental NLRB 60. See American Employer pro- edged (1956) ; 1303,1306-1307 the fact that Trans- Missouri required retraining. See 180 vided the it 125 NLRB 28, supra. at 793. Re- See also cases cited note reg- garding his failure to renew Giltner’s point should, the N.L. One final which Board The Labor deserving of mention. fully R.B. has raised is course, on remand more consider recognized Supreme arguments Employer The Court has concern of the endeavoring corollary propriety to sights” ing Board’s the so-called “lower objective remedial than one mitigation dis achieve more which we to the doctrine formulating particular order: opinion, a 1(B) su when in of this cussed Part below, pra. disposition the N.L. In its denied that It will be disposed in most cu of this issue R.B. practical may inter- mindful of the be rious fashion: play remedies, re- two back instatement, scope of both within presents no Silk This ease Southern authority. Surely may fash- its it so lowering Planing Moss issue remedy complements, ion it one that sights being for a after out of work with, rather than conflicts another. coming long money in. time no with give of the Board to is business benefits, Thanks to Union’s strike policies of coordinated effect- enough money com- the claimants had the Act.65 ing elect afford to could Nothing say opinion we in this should following fight [the to continue to depriving interpreted as the Board be Company’s] continue the decision to merely authority. discretionary this We simply This case war unabated. request provide adequate it to reasons presents the issue of who should bear for its choice of remedies and sufficient of the claimants’ decision cost explanation past departures rights fol- continue to exercise their practices.66 lowing Employer’s] decision [the rights un- continue to resist in this As we discussed earlier practice strikers.63 opinion,67 fair labor the N.L.R.B.’s remedial broad authority ju subject strike are considered Since benefits “limited equatable degree high earn- be def dicial review.” This ings, Moss pervasive which the Silk and Southern ex erence is due to the with, Planing it Congress pertise anticipated courts were concerned when apparent the Board’s rationale in 1935. established Labor Board only way sequitur. However, the N.L. prevent non total ab order to reasoning interpreted function, judicial R.B.’s could be dication of the review manner, to conclude require a rational would be courts must careful be benefits, interim earn- agency’s strike like decisions sufficient employer’s ings, analy ly specific are deductible from an permit the rational pay liability, the Board has reasoning. underlying sis of their We correctly, clearly, refused require and we believe do not believe basic render a decision.64 We ever ment has been satisfied here. analysis therefore further believe that The Labor Board’s decision below sights” un- of the “lower issue should be why sufficiently explain failed to upon re- dertaken the Labor Board claimants’ election to continue their la dispute Employer bor with the rather mand. Stencils, See N. L. R. B. v. 66. General Inc., (2nd 1971) : See, g., Mills, e. Silk Southern wide While the Board has discretion remanded oth framing remedies, agency has a grounds, (6th Cir.), er F.2d 697 duty imposi- explain correlative 2 L. remedy tion of a in one case and its (1957). Ed.2d 37 seemingly in failure to do so similar Co., Seven-Up Bottling 65. N. L. R. B. v. stronger re- —or even on basis —one 344, 348, 344 U.S. L. 73 S.Ct. 97 viewing can understand. courts (1953). Phelps Dodge Corp. See Ed. 377 11(A), supra. 67. See Part v. N. L. R. 313 U.S. 61 (1941). 845, 85 L.Ed. 1271 S.Ct. 1326 ” wrong.’ Secretary Agriculture jobs of actively seek the “suitable” than [, States, might 347 U.S. in the United available have been (1954). We 98 L.Ed. 1015] willful did not constitute Madison area seemingly light for further remand this case earnings, therefore in loss of * * * proceedings. ac- reasoning contrary as Whatever such cases in remand, it the takes on tion [Board] and Southwestern Ozark Hardwood68 explain explain its reasons and do more Pipe.69 must failed also differences, if policies enumerate adequately, than factual the in terms of arbitrary the any, other N.L.R.A., apparently [this case] between cases; explain the relevance jobs it must group-classification outside of all purposes of of those differences printing inter trade “unsuitable” as claimants, Act].72 Labor Relations employment [National im for all holdings light contrary in cas in such to the National The case is remanded Plastic, Southern es Knickerbocker as pro- for further Labor Relations Board Finally, Planing.70

Silk, we and Moss ceedings conformity opin- with this in failed believe that the Labor Board ion. findings justify appropriately Judgment accordingly. attempt no claimants who made obtain interim LEVENTHAL, Judge (concur- Circuit registering pay period other than ring) : Security Employment with the Indiana judgment I concur court job seeking information Division judgment as it insofar affirms through Union, not incur willful did judg- I Board. also concur in earnings light apparently in losses decidendi, ment remand and the ratio contrary holdings in Arduini Manufac particulars in certain there is an Pugh Creamery, turing, Rice Lake & objectionable clarity lack of Transit, Barr, Hard Missouri Ozark reasoning, Board's or the Board's rec- Bottling.71 par wood, To and American present opinion onciliation of Music, aphrase Melody our decision jurisprudence. other Board While the Inc. v. F.C.C.: reshape previous Board is doc- free Moreover, “the has Board] [Labor expressions, rule trinal of law best explained its decision ‘with preserved expressly if that done rath- is. through simplicity clearness by implication. er than halting ripens impression which a into agree Judge certitude. In the end we reasonable I While with much argue, out, spell left opinion written, are as MacKinnon’s conflicting underlying choose between # x inferences. commend the research x reflection, opinion a deci- separate we must know what I write this duty expressions sion means before the becomes because certain right say though ours to opinion, presented whether court’s Co., Creamery Co., U.S.App. 68. Ozark Hardwood 119 NLRB 1130 Rice Lake (1957), (8th ; (1966) remanded 282 F.2d Cir. D.C. 365 F.2d 888 N. L. 1960). Pugh Barr, Inc., R. B. v. & 207 F.2d (4th ; 1953) Cir. Transit Missouri Pipe, Southwestern Co., ; (1959) Ozark (1969), grounds, remanded Co., Hardwood 119 NLRB 1130 1971). 444 F.2d 340 Cir. 1960) ; remanded, 282 F.2d Co., 70. Knickerbocker Plastic Bottling Co., 116 American NLRB 1303 (1961) ; L. B. R. v. Southern N. (1956). Mills, (6th Cir.), Inc., 242 Silk F.2d 697 Melody Music, C., Inc. v. F. C. ; (1957) L.Ed.2d 37 N. L. R. B. U.S.App.D.C. 241, 244, v. Moss Planing Mill 224 F.2d 702 R. N. L. B. v. Rice Creamery U.S.App.D.C. Co., 124 Lake Mfg. Corp., 71. N. L. B. v. Arduini (1st L. R. B. F.2d 420 may certainly dir ment take into account compel action or Board mandates that continuity, may misappre- discretion, version from skills and craft limit Board determining compa- in or not a limiting whether available hended the latitude as opportunity else- rable was available to the on remand. where. important Perhaps relates the most employer at can- Even common law an implementation of earn- of the loss discharged argue wrongfully not that a employee’s ing rule an rule. Under that employee required special with skills is “any recovery other must be reduced damages seeking earnings to reduce earnings or will- which he has obtained line available in another of work —even fully refused obtain.”1 though income could have and hours notes, opinion least As the court substantially preserved dif- been a—of employees back- were some who awarded any nature, especially if there ferent is jobs that are could have taken maintaining possibility prejudice of in comparable prior held those calling; question of skilled and the hours, wages, con and in terms of strike suitability question is a of fact for employment. The Board ditions jury.3 broadly jobs found available that liability Apart employ- of an employees terminated were who committing only private er a breach of a through practices, while unfair contract, wrong company public a whose wages comparable in items and as fundamental, has interfered with a stat- calling, hours, change required in a utory right employee of a skilled does significantly greater sacri this calls effect, right demand, not have the in part printer, a fice in on the employee line move to another factory craft, ordinary skilled an than work, and his for some abandon skill employee required change line of his period. This a inconsiderable is difficulty Board’s work.2 The with the determine, matter Board to tak- opinion together per lumped is that ing into account of the skill nature really acquired skilled sons a who and the difference in the other work craft, young recently out women available. The Board enti- to read school skills were limited whose weight, tled to the same the trier of typewriter- proofs operating fact, jury acting as a under the instruc- tape keyboard teletypesetter like of a court, but to some latitude tions of puncher. find In the of clearer absence determining doctrine, proper ings support a us those than before is, determining extent trans- to what grouping opinion cases, the court’s fer of the common law doctrine of miti- rightly treat points the failure to out gation damages consonance may separate separately lead to matters purposes furtherance confusion and error. objectives 10(c) Act. Section engaged command,” employee provides in a Where an NLRB v. “broad Board, craft, Mfg. Co., skilled concerned with J. H. Rutter-Rex against employer remedy appropriate an 24 L.Ed.2d employ- illegally who terminates in its “to direction to the Board See, g., Printing Damages, 30, 71; Annot., e. Florence v. §§ Co. Am.Jur.2d NLRB, Discharge-Minimizing Damages-Employ ment, (1923) ; updated 28 A.L.R. 736 Annot., 141 A.L.R. In Trial Examiner’s words: present large annotations These num printer, hand, the other like supporting g., See, ber cases. e. Amer recog- any worker one skilled Trading Steele, v. ican Co. 274 F. 774 crafts, nized of no makes sacrifice Taylor Pope, proportion up gives mean when his (Mo.App.1924) ; Russellville S.W. 527 goes entirely differ- trade into Tinsley, Special School District ent line of work. (p. 811). 283, 245 Ark. S.W. technology, change in ef- ascribable to will action” as take such affirmative service, goods in shifts demand for policies Act. Fibre- of the fectuate the conditions, NLRB, changes Corp. Paper broader in economic Products v. board changes conceivably L.Ed.2d even in the wake U.S. (without Seven-Up Bot- (1964); loss an economic strike v. NLRB practices). a tling Co., unfair labor To avoid may drastic curtailment of income he the Board While L.Ed. 377 up to pull rem- even have to stakes move the must take into account whether region country, present em- another of the where on edies an undue burden impermis- there is a for These ployers, market his skills. rest on an and cannot however, legal cannot, general be drastic actions be com- premise, it in sible must by employer given designation pelled of him an found wide latitude illegally. against acted violat- have remedies those enforced ing provisions. the Act's registration the As to the state with office, employment not con while this is by This is not undercut latitude certainly it clusive is some evidence Dodge NLRB, Phelps Corp. v. good diligence employee faith and 85 L.Ed. 1271 S.Ct.. looking is, in other work. for This Supreme there and the Court’s reference forth, opinion the area court’s sets an avoiding policy waste to the economic employer where the on the burden is requiring as an in the doctrine element present the defense of fail affirmative reasonably employee available an to seek in ure to make a reasonable search is alternative That consideration work. terim the work.4 Even in a case where Conceptually is not an there absolute. generating such, ques facts are cause to highly economic a skilled waste when diligence, finding tion that a of dili job employee porter’s for fails to take a gence cannot be sustained it is when openings the which But are available. solely registration evidence, based society is arithmetical economic loss to registration may evidence of be taken hu- more than counter-balanced account, although completely into it was damage .wrought employer man if en- yielding op employment ineffective in gaged illegal compel action can portunities, accompanied a when person wronged well- shatter his showing general labor conditions being. opinion makes As Court’s the area.5 clear, sights” a vivid “lower one’s is difficulty findings metaphor, concept con- with not a be- but may reference fore us Examiner’s trols all That choice cases. drastic registration by caught employees person to the as a up confront a tide of unemployment statutory oral “charade.” Board counsel at after While benefits argument sought unemployment run the situa- retrieve out —whether provided Bottling Board had 4. NLRB as to v. Miami Coca-Cola years earnings Company, two credit of $294 ordinary 1966) practical, “an : skilled laborer.” “It is not and would significantly hamper backpay remedy, felt amount an incredible indi- small required with if cation what could have been earned each discriminatee were diligence prove during propriety of his reasonable concluded efforts wrongfully given backpay period. the Board had con- . . .We the entire registration prefer allocation, with the clusive effect consist- the traditional following ently assign- approved courts, office. But state general enforced the Board’s remand court counsel the burden of re-entry brought employer proving damages, when it order was Virginia “generally mitigate proving that West out the burden of facts to surplus unemploy- damages.” area” with his the extent of those [Citations period involved, ment so omitted.] slight earnings was to lack due general Pugh Barr, of effort but basic conditions. 5. Thus & Barr, Pugh 1953), & the court 207 F.2d 409 large $7,000, reversed a award of some by saying the charade comment tion original registration referred not to the time, period

but to a later findings,

clear and court should guess compelled

not be on matters

like these. general

Finally, while the area of the requires

law under discussion con- some

sideration of the individual situations involved, inject appropriate to

it is

caution the Board is not disabled making group judgments as some persons class, in a where the class calls for discretion overbroad. This judgment part on the the Board Judge, Wright, Skelly dis- Circuit J. part as it does on the of courts consider- opinion. sented filed an join class actions. I the court’s call Leventhal, Circuit McGowan and greater individualization consider- Judges, separate as to statement filed accorded, ation than the Board but this deny rehearing why en voted to rigid require- should not be taken aas banc. employees ment that individual con- be Judge, J., Skelly Wright, Circuit time, sidered one without re- separate statement, in which Baze- filed lon, gard to This each would con- other.6 Spottswood Judge, and W. Chief trary flexibility expedition III, Robinson, Judge, joined, as Circuit that is the hallmark of the administra- grant rehearing why he en voted to process. tive banc. separate Bazelon, Judge, filed Chief grant why

statement he voted to re- as hearing en banc. Judge, separate filed

Wilkey, Circuit Tamm, statement, in which Circuit why Judge, voted concurred, America, UNITED STATES rehearing deny en banc. Appellant, Jerome T. BLAND.

No. 71-1761. Appeals,

United States Court District Columbia Circuit.

Argued April 1972. Sept.

Decided 1972.

Rehearing Denied Dec.

As Amended June od, arguing escape liability employer then failure of all Can employees seek, of, say, wrongful find and obtain termination em- positions by showing' merely of dili- ployees, these reflects a lack there was gence disqualifies comparable for, say, all 50? five or persons peri- six in the area

Case Details

Case Name: National Labor Relations Board v. The Madison Courier, Inc.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 9, 1972

Citation: 472 F.2d 1307

Docket Number: 24808

Court Abbreviation: D.C. Cir.