*1 tiаl”, marked document so was 4(B) stamped in accordance with § NATIONAL LABOR RELATIONS 11652,2 con- Executive Order that the of Petitioner, BOARD, fidential classification was based on a v. fact, law or and that the mistake of clas- COURIER, INC., The MADISON in to avoid sification was made order Respondent. appellant re- disclosure and after No. 24808. quested reports. Appeals, United States Court District Columbia Circuit. may judicial There no be ex Argued concerning June
amination 1974. reasons security motives for an executive classi Decided Oct. 1974. supra. However, Mink, fication. agency burden is on the to demonstrate
to the court that withheld the documents 552(b)(1) under the claim of the ex § were,
emption properly pursu classified regard,
ant to executive In that order. responsibility
it was the of the court be
low to determine Red whether reports
Cross were fact classified
“confidential” and whether that classifi including timing
cation, thereof,
in accordance with Executive Order appellee.
11652as claimed respecting
Facts the classifica reports question solely
tion of the are Department.
in the control of the State
Appellant should be allowed to undertake
discovery purpose uncovering for the might right prove facts which ac
cess to the documents he seeks. Fed.R.Civ.P.; Washington Rule 56(f), Cameron, U.S.App.D.C. 391, F.2d 710-711 granting summary judg-
The order vacated,
ment the case is remand-
ed to the district court with instructions appellant permitted be to undertake
discovery relevant to whether the re-
ports question were classified “confi- so, and,
dential” if whether the classifi- procedures
cation accordance
with Executive 11652. Order
It is so ordered. case, Classifying Authority. (K) materiаl classification each thorized Identification Department indicate on classified under this order involved shall Unless shall authority identity highest provided identifying its face the method of some other * * ® authorizing highest au- the classification. level the individual *3 Feldman, Atty., B., N. L. R.
Allen H.
Deputy
Irving,
John
Gen.
whom
S.
Hardin,
Counsel,
Associate Gen.
Patrick
Moore, Deputy
Counsel, Elliott
Associate
Giannasi,
Counsel, and
A.
Robert
Gen.
B.,
Counsel,
on
N. L. R. were
Asst. Gen.
petitioner.
Mallet-
Marcel
the brief for
Counsel,
B.,
N. L. R.
Prevost,
Gen.
Asst.
filed, also en-
time the record
petitioner.
appearance
tered
an
Indianapolis,
Snyder, Jr.,
Herbert C.
respondent.
Ind., for
LEVENTHAL, MacKINNON
Before
Judges.
ROBB,
Circuit
Judge:
MacKINNON, Circuit
Relations
Labor
The National
petitions
Nation-
(the Board)
under the
amended,1
Act, as
Relations
al Labor
(the Act)
of its Second
for enforcement
Order issued
Supplemental
Decision
against The Madison
30, 1973,
March
(the Company
Em-
or Courier, Inc.
(1973).
No. 115
ployer).
N.L.R.B.
pay
Employer to
directs
order
specified sums
рay in certain
10(e)
(f)
jurisdiction
(49
seq.
(1970)
under Section
1. 29
151 et
Stat.
U.S.O. §
(1970).
(f)
160(e),
519).
136,
§
29 U.S.C.
the Act.
We have
73 Stat.
Stat.
Ty-
April
members
Local
International
5, 1973,
On
the Board issued its
Union,
pographical
(the
Supplemental
AFL-CIO
Un- Second
Decision and Order
ion)
engaged in an
who
unfair
labor which affirmed the back
award as
practice
against
Employer.
original
to ten of the
13 claimants but
denied back
to three
on
dispute
gen
The labor
case
has
ground
had failed to make
previous proceedings
erated two
in this
reasonable efforts to locate
in-
January
court. On
employment.
terim
202 N.L.R.B. No.
finding
issued
order
the Em
The instant enforcement
ployer
prac
had committed unfair labor
proceeding
Employer’s
results from the
8(a)(1)
tices
violation of sections
comply
refusal
with this back
(5) of the Act and that these violations
award. The
issue before the court
practice
had caused the unfair
labor
is whether the ten claimants who were
*4
(1967).
strike. 162
The
N.L.R.B.
pay
awarded back
rеasonably
made
dili-
Employer
order directed
to
the
reinstate
gent efforts to locate suitable interim
the
any
and
strikers
to make them whole for
employment. Finding no substantial ev-
earnings resulting
loss
from its
on
idence
the record considered
aas
failure to
reinstate.
so
On December
support
to
whole
the Board’s Second
26, 1967, we enforced the Board’s order
Supplemental
Order,
Decision and
Typographical
in full. Louisville
Union
refuse enforcement and remand the case
10,
Typographical
No.
ion,
International
Un
proceedings
to the Board for further
NLRB,
AFL-CIO v.
L.C.
opinion.
consistent with this
¶12,647,
(D.C.Cir.
portunities at same or regular jobs. The than the claimants’ question initial whether inter- is any of central jobs issue whether these is im in- outside particular were “suitable” dustry per was se unsuitable for these sights” “lower doctrine claimants. The claimants as a class. Since we conclude it is analo- here insofar as relevant nonprinting employment gous approach to the we take Section per unsuitable, necessary se it is to dem- IV, infra, where we hold that for a rea- particular jobs onstrate that would have entitled sonable were time appropriate been for individual claim- jobs in confine search ants, a task we undertake Section III. printing industry in which identify In Section IV we the time at pre- primarily skilled and would which the claimants should have consid- ferred to work. ered outside the Finally, in trade. we conclude Section V Board’s to enforce the We refused registration employ- with the state award because first ment service and reliance on the union mitigation misapplied doctrine “grapevine” adequate did not constitute pro- and had record this case to the efforts printing to locate partially inadequate incon- vided an industry. reasoning. explanation of sistent pointed Particularly, out the error previous opinion Our noted that non- printers as Board’s treatment printing work was available the Madi *6 individuals, class, in de- a rather than as comparable son area which was in both termining any jobs the outside whether working wages and conditions to the printing industry been suit- would have regular jobs. U.S.App. claimants’ 153 employment. were also interim We able 248, Indeed, D.C. at F.2d at 1323. 472 that troubled registration the conclusion Board’s following the Trial Examiner made the employment with the state finding wholly adopted by which was the union on the service and .reliance Board: diligent “grapevine” efforts constituted jobs [Tjhere were outside numerous majority employment to obtain when the printing in available the the trade independent appli- made no of claimants during pe- backpay area the Madison printing cation for work. comparable to, riod which were but Supplemental with, jobs Decision identical held the In its Second fun- the Board adhered to its claimants the Madison Courier and Order striking respect position prior damental to the strike class, wages, hours, printers, not re- and other conditions of a were as skilled employment, of quired out- well the amount to seek interim as as industry. required perform physical side the Claimants effort degree dropped personal satis- Feltner and them and"the of Moore were community they in the were faction and status award because they inexperienced Each be considered afforded to their too holders. might printers. also reiter- have been skilled The Board jobs registration position or more these ated hired to fill one of its earlier actively and to seek service if had elected with the state “grapevine” consti- rather on the union outside the trade reliance work engag- diligent efforts, picketing and even to continue tuted than ing activities inde- in other strike-related claimants who made no for those
397
regardless
period,
backpay
policy questions
that such
be re-
should
“healthy policy
of
individual
in
whether
claimant
solved
favor of the
woman,
per-
promoting production
employment.”
a man or a
an older
younger person.
Phelps Dodge Corp.
NLRB,
son or a
313
v.
U.S.
200,
845,
177,
61 S.Ct.
855
Despite
find-
reinstate the strikers and to
ad-
The record in this case demon
equate
retraining
on-the-job
for those
non-printing
work
strates
existed
prior posi-
not reinstated
exact
the Madison area
which was
protected
tions.
were thus
Strikers
background
many
experience
of
loss of craft skills.
Ordinarily
of the
we
claimants.
leave to the Board
ing
the task
correlat
attempts
Counsel
support
backgrounds
of individual claim
position
to find
Board’s
particular
requirements
ants
regarding
in common law decisions
miti
jobs.
non-printing
However, the Board
gation
damages
employer
where an
insisting
this,
has twice refused to do
discharging
breaches a contract
treating
group
instead on
the entire
as a
employee.
generally Annot.,
See
44 A.
single
opinion
previous
In our
class.
we
course,
L.R.3d 629
Of
common
emphasized:
directly
law contract decisions are not
counsel for
App.
suitable for
view,
mon
example,
outside an
windfalls.
S.Ct.
Inc., supra,
promoting production
NLRB, supra,
al economic loss and
F.2d at
policy.
are
marily
is imbued with a
eral
applicable
presently
only secondarily
mitigation
labor
law
the court held that
845;
to further
Unlike the common
in Tenzer
decisions hold
399 obliged publisher However, to undertake this task ourselves. trade. a of Contrary by Banner, position the the taken the Trimble Democrat and dissent, Madison, does the authori- miles from Kerr court called Mrs. this ty necessary days per job make and offered her the determinаtions a for three given op- the week. Mrs. Kerr thereafter Board been the worked one where has day portunity per approximately to correct order but its week for five sharing quarters, part-time job to do so.3 refused the with Nichols, Corbin Lorenz. years Corbin, Claimant old at the was 42 at the time strike, time of the was married and had Claimant Nichols During During of the the 18-month one the 18-month back strike. child. $2,140.75 only pay period, pay he earned as period, back Mr. Corbin earned $77.- gross $8,253.11 pay. gross pay compared compared back 23 as figure to his back high graduate, Nichols, $7,856.95. He for a school of had worked Mr. years Company Company years the for for nine since his been graduation high linotype operator a at the time of from school and was a was earning per linotype operator strike, hour. Pre- time of the the the $2.50 years earning per viously, in the mili- strike, hour. Cor- served two Mr. he $2.38 employ- tary a offer for for 18 ci- bin turned down an and workеd months gunner Proving grocery at the Jefferson a clerk “due to vilian ment as full-time During period the back the it would have conflicted Ground. fact Nichols, Supp.App. picketing who was married and had with duties.” Mr. young personal Although job children, no grocery made clerk the three anywhere. only per hour, application for paid Mr. How- would have $1.25 job sharing job apply ever, Mrs. Kerr’s had chosen this Corbin Banner, Nich- part-time basis, Democrat and Mr. on which was refused. Trimble a day per 18- one week for four His ols worked period temporary pay period, quarters. in the back month one-day-per-week Later was line, picket job the Trimble while Mr. Nichols was on Banner, approached editor of the from he Democrat 10 miles was looking Madison, County quar- held News who was which he for four Gallatin Thereafter, operator. linotype ters. for a worked two quarters, Nichols Mr. two Kerr at the of was 37 time Claimant County days per week at Gallatin During the the strikе. pay period, 18-month News, from Madison. miles located 35 com- she earned $677.21 Corbin, pay. pared gross Kerr and Nichols $8,587.89 Claimants high graduate linotype operators time at the Kerr Mrs. was school per earning printing industry to $2.50 had worked in the $2.38 who the strike operator’s oper- linotype linotype all life her and had been a hour. Company years Kerr as sometimes Mrs. ator for for four described occasionally per involved prior earning dirty job strike, to the which $2.50 lifting, some During heavy involved hour. Mrs. some lead, being squirted independent molten application with Kerr no risk made required operator was in which the either in or out of the ease, previous Employees Union, present our 3. N.L.R.B. v. Food at 2079. Store ample gave 347, etc., notice it to the Board U.S. 94 S.Ct. remand Local position prevent modify (1974) opportunity and make L.Ed.2d 612 does necessary pursuing to correlate action determinations court course of Supreme adopt backgrounds with the re- the strikers which we this case. The non-printing quirements but ‘incompatible available “it was Court held judicial orderly process it is un- do Thus refused to so. function necessary review,’ Appeals an additional afford . . . Court of *9 opportunity enlarge cases. consider the individual to without [Board] to order first at affording opportunity n. id. S.Ct. clari See at Board an to fy at the inconsistencies.” Id. S.Ct. perform minor years maintenance some Claimant Giltner was 26 old at only work on the If had machine. time the strike and in fine was applied, Corbin, physical throughout and any Kerr condition the back might pay period. for Giltner, Nichols have been hired who Mr. was mar- non-printing Madi- children, one of the ried and had three earned during paid $1,750.11 son as much or more area which as the 18-month back During earning. period compared $7,218.44 gross than been Corning pay. grew Corpora- up back tion, Dow He on a farm and at Madison, the time of miles from lived
located 17 on a farm emрloyees engineering, about 20 graduating hired for miles 76 new outside Madison. After high clerical, production school, and maintenance he worked years per for implement two work at hour. Ameri- a farm $2.50 $3.00 delivering Company, machinery miles from dealer can Can located 25 and for a poultry processing Madison, employees plant oper- 155 new at hired where he years production prior ated a per hour for machine. For six $2.65 $2.72 manufacturing Company he Olin- strike worked work in tin cans. for the pressman stereotyper, a Corporation, located and as a Mathieson Chemical earn- ing per 13,679 Madison, new hour. $2.16 32 miles from employees hired His included duties carrying per foundry, melting hour for metal into the at to $3.00 $2.50 pouring it, clerical, it, casting plates warehouse, guard, and technical lead and af- fixing plates press. production and work in the manufacture charges. to the There grease pressroom was ink and ammunition and job Mr. Giltner dеscribed his dirty. as hot and during pay pe- In one month only independent Mr. Giltner’s Corning riod, employees Dow hired 12 during application pay period Operator A at a Class classification part-time job stockboy was for a as a wage just starting median under $3.- grocery a He store. worked ca- per Operator job Class A hour. The pacity per for 21 hours week monitoring controlling involved period. Although back testimony Mr. Giltner’s large process at a chemical instrument wages does not reveal his as a required only qualifications board. The appears stockboy, earnings it from his Operator job for the A Class hourly wages that he statement received high equivalent school education or the of about $1.25. physical employees All that fitness. given reason Mr. No Giltner’s taught by needed to ployer was the em- know apply failure to for the more attractive job. high paying, on the This Corning, available Dow Ameri- involving plant in a new clean-hands Olin-Mathieson, can or Can described comparably high the use of a level of production jobs above. American certainly technical skill would have been wages paid starting Can, which of $2.65 interim the lin- suitable per feeding hour, involved $2.73 otype Corbin, operators, Kerr Nich- pieces of into sheet metal machines ols. formed and the tin sealed cans Additionally, Mr. had worked Nichols operating a device which tested the gunner for 18 months as civilian integrity job, paying of the seal. This Proving During the Jefferson Ground. higher wage stockboy substantially than pay period Prov- the Jefferson pressman wages, or been ing Ground, located Mad- six miles from press- interim for a gunners ison, dirty job hired nine civilian involved man whose hot carrying, melting pouring metal. hourly wages view $2.91 $3.21. apply did even Yet Mr. Giltner prior experience, of Mr. Nichols’ this job. higher paying job would have suit- been employment, years able if he had Storie, old about 25 Claimant applied. strike, married and the time of the *10 Eleсtric, and Rex Williamson During Reliance 18-month child. had one years Belt, he earlier Chain several earned period, Storie pay Mr. back employment those applied at gross for had companies, back compared his to $1,764.83 as capable of he graduated and that was $8,688.59. pay Mr. Storie of During performing kind of work. for some high worked and school period, nev- Mr. strike Storie a entire at mechanic an automobile time as applied at of er for dealership a sta- at service and new car companies. Company these for the worked tion. He years the time of at and for seven indi- in this case There no evidence is earning makeup man, $2.50 cating apply was did the claimants not job per described Mr. hour. Storie jobs non-printing the non- because for dirty involving heavy, job, the han- aas employers hire not strik- would slugs galleys and type, dling lead of of temporary employees. In- or other ers equipment. heavy composing room some deed, specifically found: began, prior to the but After the strike might have of Each pay period, made two Mr. Storie back hired fill one or more of these been to part-time a me- applications work as for actively jobs if had elected job part-time accepted a as He chanic. printing trade seek work outside the motorcycle where dealer a mechanic at picketing and rather than to continue pe- pay throughout the back he worked engaging in other strike-related activ- earning riod, per week. $20 $30 during backpay period, re- ities gardless the individual of whether why explained did never he Mr. Storie woman, a man or a claimant was higher paying jobs apply at younger person. person or a older Corning, Can or Olin- Dow Mathieson, American Corbin, qualified. Claimants which he was N.L.R.B. at 786. Giltner, Kerr, Any been never have suit- Nichols Storie of these employment. Moreover, applied for outside able though experience non-printing additional as trade even Mr. Storie’s qualified comparable may him for work existed which mechanic was working wages area. other in the Madison both conditions to several During regular jobs. Thus, pay period the Jeffer- can Proving son hired automotive conclude that failed to make a rea- Ground sonably diligent other at in- maintenance mechanics search hourly wages Reli- terim outside $2.57 $3.12. just Company, located out- ance Electric trade. Madison, mo- side manufactures electric Juett, Lorenz and Mead Claimants During period pay Reli- tors. the back years old were all about 60 at time employees ance Electric hired 301 new Mr. made no inde- the strike. Juett punch press operators, as lathe and as- pendent application dur- hourly and stock handlers at semblers ing pay period no the back and earned wages Company, Williamson $1.70. gross money period. during that His engaged in metal work its $8,365.35. Mr. Lorenz manufacturing plant Madison, hired days Trimble worked for three at the employees press op- new as 96 erators, shear and Banner which claim- Democrat grinders hourly welders and shared, Kerr, Nichols and ants Corbin wages of Rex Chain $1.82. $1.70 earned $67.50 Belt, machinery which manufactures gross compared $8,486.16 as plant Madison, hired about 130 pay. Mr. Mead earned as back compared $417.58 employees press punch oper- new gross $4,880.00. helpers hourly ators, and assemblers and Lorenz had worked Messrs. Juett wages spe- Mr. Storie $1.73 $1.80. Company years for the for about 40 cifically earning testified that he was familiar per linotype operators, $2.50 production performed hour For at the time of the strike. two *11 402 years .prior strike, sought to the jobs printing Mr. Mead have outside the part (apparently worked average duty mitigate an time trade. The claimants’ days per week) July of three for the arose in 1966. For a reasonable advertising compositor period Company thereafter, an as en claimants were
earning advertising per An $2.50 hour. titled to confine their search to the compositor components printing industry assembles the in which were advertisement, primarily an adds the border lines pre skilled and would have prints proof. an initial Mead Mr. ferred to However, work. when it be performed printing apparent printing also similar work came were companies other in the Madison for not available area, in the Madison ages In area. view of these claimants’ claimants should have broadened the long experience printing scope sought of their search and suitable say trade, non-printing cannot employment. See NLRB v. non-printing jobs Courier, Inc., described the record Madison supra, at 245- would suitable interim em- 1320-1321; have been 472 F.2d at NLRB v. ployment for them. Inc., Southern Mills, supra; Silk NLRB Planing Co., supra. v. Moss Mill At years Dowell, Albert Claimants old right pay that time the to back termi strike, the time of at Dowell, Walter nated for those claimants who failed to years old, obtained full time scope broaden the of their search. October at the Courier Kentucky, approxi Louisville, beginning Journal in mately At of the back pay period 50 miles from Madison. July 1966, Walter the claimants part worked year. Dowell also time for a By had been on strike for over a printer in Madison the first four apparent October 1966 it must have been quarters period. pay As a printing jobs strikers that were result, earnings Walter Dowell’s not available in Madison. The state em pay transpor period, ployment entire back less his agency informed them from expenses, $8,152.79. tation were He re agency outset that the never had re ceived a back award of Al printing $932.50. ferrals work. The Union earnings, expenses, bert Dowell’s less any printing had been unable to locate $6,930.32 and he received a back work in Moreover, the Madison area. $1,313.70. award of Dowell Albert October 1966 was thе time at which the Company had worked for the accepted jobs ad Dowells at the Louisville vertising compositor gradua Journal, since his Courier approximately 50 miles high years tion from school before. acceptance Madison. The Dowells’ years Walter Dowell had worked for 15 of a so far from Madison indicates shipping department regular of nail fac printing realization that tory, years preceding but for 19 the work was not available in Madison. advertising he had Likewise, by been an com October 1966 other positor Company. for the futility Since Albert claimants must have realized the and Walter obtaining Dowell obtained full-time work in Madison in the employment printing within the indus trade and at least should have try, unnecessary it attempted consider wheth employment to locate suitable any nonprinting jobs er have been other fields. Those claimants who suitable interim did them. not seek such suitable are not entitled to back for the IV after Octobеr 1966. Having concluded that V
Corbin, Giltner, Kerr,
Nichols
Storie
diligently
failed
nonprint
to search for
inadequate
addition to their
search
ing jobs which would have been
outside the
employment,
trade,
we must determine
most of the claimants failed to
the time at which
adequate
these claimants should make
efforts to locate work
registration
phasis
evidence
on state
area
even within the Madison
depends diligent
industry. Although
in this case
efforts
issue
candid as-
particular,
own
each claim-
is inconsistent
on the
efforts of
registration procedure:
common
all
sessment of
ant,
factors are
several
claimants.
aware
The claimants were
*12
given
backpay
weight
that can be
to find
claimants’ efforts
of the
Most
registering
proceedings
for work
reg-
employment
limited to
were
interim
employment
service.
with
State
employment
with the state
istration
sought
they
this,
carefully
Mindful of
the union
on
and reliance
service
going
by
protect
to
through
themselvеs
majority
in-
no
“grapevine.”
made
The
formality.
all their
As
printing
applications to area
es-
dividual
the State official said
stories what
prior opinion we
In our
tablishments.
they
to him on those
said
them
“seeming-
efforts
characterized these
they
clearly
were
occasions
establish
U.S.App.D.C.
249,
ly inadequate,”
at
153
complying with form rather than sub-
1324,
remanded
472 F.2d at
The official told them that
stance.
of the
consideration
Board for further
they
were
serious because
lo-
adequacy
claimants’ efforts
of the
printers.
that he had no
knew
They
printing employment.
cate
replied,
required,
form
that
reg-
doing
pointed out that if the
we
so
any
printing job
accept
with the state
istration
within a reasonable
Madi-
radius
on the union
and reliance
service
son.
mitigation
“grapevine”
inadequate
were
the when were fired in violation of a passed law for the benefit of em- both prior In its in- mandate court ployees public, and did because not structed the Board to consider the claim- scrap specialized their skill in a trade individually possibility ants and the thеy put when themselves out for hire. “lowering sights.” Following remand say there was The printers consideration Board did not that Board, lengthy opinion go and a could which re- refuse to for work outside approach flected a industry. that, different from that It concluded considering background we held invalid. after There were also the skill, Apart experience differences in result. and from the of each of the claimants Ashby, case of employments denied relief various because of a alternative register failure to were not state em- suitable for the claimants.* I ployment service, the Board held that think this was a matter within the Feltner and Moore had to lower their Board’s discretion. sights go teletypesetter and to from a surveyed The Board identified and
job to nonprinting clerical work at possibilities both the various alterna- sources. non-printing employment, tive available * The Board found: “To hold highly complex constantly otherwise changing and in- experienced would be to force an dustry. resulting member of proficiency loss of specialized trade experience abandon his chosen inhibiting and would be factor Respondent’s craft order to diminish obtaining new liability wrongdoing. its established progressing trade as well as in with Moreover, to force such already abandonment performing a striker was before the hamper production employment by Respondent’s caus- unlawful act.” ing prejudice a discriminatee his skills in skill, backpay period, background each experience of not re- employees. The Board was detailed cross-check
quired to make a job by analysis, by man, and man inappropriate an ad-
job. is not It agency matters to consider
ministrative gener- like with latitude these some
alizing. saying wrong
But if I am findings order, supported I
Board’s right saying this court
am still authority to make
does not have the em- for itself determination employ-
ployees rejected suitable try function ment. It not our different
match skills factory jobs, production or to kinds of printer claims, respondent
say, that a subject of discrimination
who was activity lost all nevertheless
for union apply right he did to relief because Proving Army’s Jefferson
Grounds, tested where ammunition fired, was out- work that take on dangerous— side, unpleasant, even persons at work. killed
with records grant petition for
I would the Board’s of its order.
enforcement
UNITED STATES of America
v.
Clayborne JAMISON, Jr., Appellant.
UNITED STATES America
Clayborne JAMISON, Appellant. Sr.,
Nos. 73-1277 and 74-1042. Appeals,
United States Court of
District of Columbia Circuit.
Argued May 28, 1974.
Decided Oct.