National Labor Relations Board v. Tama Meat Packing Corp.

634 F.2d 1071, 105 L.R.R.M. (BNA) 3145, 1980 U.S. App. LEXIS 12605
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 4, 1980
Docket80-1005
StatusPublished
Cited by7 cases

This text of 634 F.2d 1071 (National Labor Relations Board v. Tama Meat Packing Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Tama Meat Packing Corp., 634 F.2d 1071, 105 L.R.R.M. (BNA) 3145, 1980 U.S. App. LEXIS 12605 (8th Cir. 1980).

Opinions

FLOYD R. GIBSON, Senior Circuit Judge.

The National Labor Relations Board (Board) petitions this court for enforcement of its supplemental order issued against Tama Meat Packing Corp. The Board seeks to enforce its decision requiring back-pay to a former Tama employee who was improperly discharged because of his union activities. Tama contests the backpay award on the grounds that the employee did not mitigate his loss of earnings. Tama also objects to the Board’s finding with regard to the proper job position to be used to calculate the backpay award. We enforce, in part, the Board’s order, modifying it with respect to the proper job position to be used in the calculation of backpay.

On June 10, 1977, the Board issued a decision and order declaring that Tama had discriminatorily suspended and then dis[1072]*1072charged Richard Thomas in July 1976 because of his union activities. The Board directed Tama to take certain affirmative action to remedy the unfair labor practices contained therein, including the reinstatement of Thomas and payment to him of backpay. Tama Meat Packing Corp., 230 N.L.R.B. 116, 129 (1977). Thereafter, on July 28, 1978, this court issued its decision enforcing, with a minor modification, the backpay provision of the Board’s order. Tama Meat Packing Corp. v. NLRB, 575 F.2d 661 (8th Cir. 1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979).

Tama reinstated Thomas on August 8, 1978. Since the parties were unable to agree on the amount of backpay due to Thomas under the terms of the Board order as modified, the Regional Director issued a backpay specification and notice of hearing which was duly answered by Tama. Thereafter, a hearing was held before an administrative law judge (ALJ) to resolve the issues raised by Tama’s answer and to establish the amount of backpay due.

On June 15, 1979, the AU issued a supplemental decision finding that Thomas had made a “diligent and reasonable search for work comparable to that which he previously performed at Respondent’s plant,” and that Thomas had accepted “substantially equivalent interim employment, albeit at a lower rate of pay and at a workplace much further from his home.” However, the ALJ agreed with Tama’s argument that backpay should be computed on the basis of the flanker rate of pay, except for the first three weeks of the backpay period, rather than the higher hacksaw operator rate of pay. The judge recommended that Thomas be awarded backpay in the amount of $15,-691.Q0 with interest, less withholding taxes. Thereafter, both Tama and the Union filed exceptions to this supplemental decision.

On September 14, 1979, the Board issued its supplemental decision and order affirming the ALJ’s findings and conclusions without comment on the substantive issues raised in Tama’s exceptions. The Board, however, did not agree with the ALJ’s backpay computations and, instead, modified the recommended order by recomputing Thomas’s backpay at the hacksaw operator’s rate of pay for the entire backpay period. Accordingly, the Board ordered Tama to make Thomas whole by payment to him in the amount of $16,551.00 with interest, less withholding taxes. Tama Meat Packing Corp., 244 N.L.R.B. -, [1979-80] NLRB Dec. (CCH) 116,269 (1979).

Richard Thomas was placed on suspension by Tama on Monday, July 19, 1976, and began looking for interim employment the next day, Tuesday, July 20. He drove the fifty miles one way from his home in Toledo, Iowa, to Cedar Rapids, Iowa, where he visited the Iowa Job Service, a state employment agency. On the following day, Wednesday, July 21, he drove the fifty miles one way to Waterloo, Iowa, where he visited another office of the Iowa Job Service. That same day, upon his return from Waterloo, Thomas drove to Pella, Iowa, approximately sixty-two miles south of his Toledo home, to seek work at Pella Packing, Inc. and he was hired effective Thursday, July 22.

Thomas worked as a cattle butcher at Pella from July 22,1976, until his reinstatement by Tama in August 1978, except for a one-month period in March and April 1978 when he quit his job at Pella and moved his family to California to pursue a business opportunity with his mother-in-law. The venture failed and Thomas returned to work at Pella.

At the time of his suspension and discharge in July 1976, Thomas had approximately fifteen years’ experience as a cattle butcher and was earning $5.75 an hour butchering cattle at the company’s Tama plant. The job at Pella paid $4.00 an hour initially, but Thomas progressed to $4.75 an hour and was earning that amount when he left to return to Tama in August 1978. In addition, the job at Pella required Thomas to drive from his home in Toledo, Iowa, over 120 miles round trip every day. In April 1978, he moved to Belle Plaine, Iowa, which lengthened the trip to over 150 miles a day for the last four months of his employment at Pella. Thomas testified that [1073]*1073the daily trip to Pella and back was “tiresome” and he looked into the possibility of buying or renting a house closer to Pella, Iowa. However, he abandoned this idea because of the costs involved and because he believed that he would eventually be reinstated to his old job at Tama’s plant in Tama, Iowa. Thomas was reinstated on August 8, 1978.

Mitigation of Lost Earnings

Tama acknowledges that once the Board’s General Counsel has carried his burden of determining the gross amount of backpay due the victim of the discrimination, “the burden is upon the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability.” NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Tama argues, however, that Thomas failed to make a reasonable effort to find interim employment which was substantially equivalent to the position from which he was discharged and suitable to him, given his background and experience. See NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1105-06 (8th Cir.), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 90 (1977). See also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197-98, 61 S.Ct. 845, 853-54, 85 L.Ed. 1271 (1941); NLRB v. Arduini Manufacturing Corp., 394 F.2d 420, 423 (1st Cir. 1968); NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 575 (5th Cir. 1966).

Tama maintains that Thomas should have applied for employment in Marshalltown, Iowa, where a Swift hog packing plant was located. Marshalltown is nineteen miles from Thomas’s home. In addition, the Swift plant paid butchers more than Thomas received at Tama or Pella. Tama argues that Thomas, by not submitting an- application for employment at the Swift plant, did not make an “honest good faith effort” to mitigate his damages in this case. See Oil, Chemical and Atomic Workers International Union, AFL-CIO v. NLRB,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
634 F.2d 1071, 105 L.R.R.M. (BNA) 3145, 1980 U.S. App. LEXIS 12605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-tama-meat-packing-corp-ca8-1980.