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

505 F.2d 391, 32 A.L.R. Fed. 489, 164 U.S. App. D.C. 284, 87 L.R.R.M. (BNA) 2440, 1974 U.S. App. LEXIS 6535
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 11, 1974
Docket24808
StatusPublished
Cited by12 cases

This text of 505 F.2d 391 (National Labor Relations Board v. The Madison Courier, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. 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. The Madison Courier, Inc., 505 F.2d 391, 32 A.L.R. Fed. 489, 164 U.S. App. D.C. 284, 87 L.R.R.M. (BNA) 2440, 1974 U.S. App. LEXIS 6535 (D.C. Cir. 1974).

Opinions

MacKINNON, Circuit Judge:

The National Labor Relations Board (the Board) petitions under the National Labor Relations Act, as amended,1 (the Act) for enforcement of its Second Supplemental Decision and Order issued March 30, 1973, against The Madison Courier, Inc. (the Company or the Employer). 202 N.L.R.B. No. 115 (1973). The order directs the Employer to pay back pay in certain specified sums to [394]*394members of Local 10, International Typographical Union, AFL-CIO (the Union) who engaged in an unfair labor practice strike against the Employer.

The labor dispute in this case has generated two previous proceedings in this court. On January 4, 1967, the Board issued an order finding that the Employer had committed unfair labor practices in violation of sections 8(a)(1) and (5) of the Act and that these violations had caused the unfair labor practice strike. 162 N.L.R.B. 550 (1967). The order directed the Employer to reinstate the strikers and to make them whole for any loss of earnings resulting from its failure to so reinstate. On December 26, 1967, we enforced the Board’s order in full. Louisville Typographical Union No. 10, International Typographical Union, AFL-CIO v. NLRB, 57 L.C. ¶12,647, 67 L.R.R.M. 2462 (D.C.Cir. 1967).

Early in 1969, Trial Examiner Benjamin Blackburn conducted a hearing to determine the Employer’s proper back pay obligation to the claimants. As a principal defense in that proceeding, the Employer contended that the claimants were not entitled to back pay due to their alleged failure to make reasonable efforts to obtain appropriate interim employment. The Trial Examiner’s decision rejected this defense and found that 13 claimants were entitled to back pay. On January 16, 1970, the Board issued a Supplemental Decision and Order which completely adopted the findings, conclusions and recommendations of the Trial Examiner. 180 N.L.R.B. 781 (1970). When the Employer refused to pay the back pay sums, the Board sought enforcement in this court. Finding that the Board had incorrectly interpreted and applied the mitigation doctrine and that the Board had failed to explain adequately the reasons for its Supplemental Decision, we refused enforcement and remanded the case to the Board. NLRB v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307 (1972).

On April 5, 1973, the Board issued its Second Supplemental Decision and Order which affirmed the back pay award as to ten of the original 13 claimants but denied back pay to three claimants on the ground that they had failed to make reasonable efforts to locate suitable interim employment. 202 N.L.R.B. No. 115 (1973). The instant enforcement proceeding results from the Employer’s refusal to comply with this back pay award. The only issue before the court is whether the ten claimants who were awarded back pay made reasonably diligent efforts to locate suitable interim employment. Finding no substantial evidence on the record considered as a whole to support the Board’s Second Supplemental Decision and Order, we refuse enforcement and remand the case to the Board for further proceedings consistent with this opinion.

I

On April 2, 1965, the printers at The Madison Courier, a newspaper in Madison, Indiana, instituted a strike in protest of alleged unfair labor practices by the Employer. On July 7, 1966, Trial Examiner William Scharnikow issued his decision, ultimately adopted by the Board, finding that the Employer had committed certain unfair labor practices and directing the Employer to reinstate the strikers and to make them whole for any loss of earnings resulting from failure to so reinstate. Two weeks later, on July 22, 1966, the Employer received a letter signed by the strikers in which they unconditionally applied for reinstatement. The Employer did not respond to this letter and the employees continued to picket the Company’s plant daily and to engage in other activities usually associated with a strike. These activities continued until January 1968 when, pursuant to our decree enforcing the Board’s order of reinstatement, the Employer offered reinstatement to the claimants.

The 18-month back pay period began on July 22, 1966, when the Employer [395]*395refused to reinstate the claimants, and ended in January 1968 when reinstatement was offered. The Board computed the back pay liability by calendar quarter, deducting each claimant’s interim earnings (less transportation expenses, if any) from the gross back pay due. The Board awarded back pay to 13 claimants in the following amounts:

David R. Ashby $7,726.18
Bernard A. Corbin $7,035.61
Albert Lee Dowell $1,313.70
Walter W. Dowell $932.50
Paula B. Feltner $4,617.10
Louis D. Giltner $5,468.41
Rudolph D. Juett $8,365.35
Virginia F. Kerr $7,815.64
Henry Lorenz, Jr. $8,418.66
August Mead $4,355.50
Judith A. Moore $4,735.06
James H. Nichols $6,112.36
Micky D. Storie $6,923.76

180 N.L.R.B. at 795.

Reviewing this back pay award in NLRB v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307 (1972), we explained at length the mitigation doctrine applicable to this case. Included in the Board’s remedial arsenal where an unfair labor practice has been committed is the power to order reinstatement with back pay. 29 U.S.C. § 160(c) (1970). However, a striker is not necessarily entitled to remain idle during the strike and await reimbursement by the employer for lost earnings. To advance “the healthy policy of promoting production and employment,” a striker must make a reasonably diligent search for suitable interim employment and must accept such employment if offered. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); J. H. Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 241 (5th Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973); NLRB v. Madison Courier, Inc., supra, 153 U.S.App.D.C. at 242-244, 472 F.2d at 1317-1319; NLRB v. Mastro Plastics Corp., 354 F.2d 170, 174 n. 3 (2d Cir. 1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682 (1966). In addition to promoting production and employment, interim employment provides independent support for striking workers and thus enables them to conduct their labor dispute with less financial hardship. To the extent the employer proves that the employee breached his duty to mitigate losses, the back pay liability may be reduced.

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505 F.2d 391, 32 A.L.R. Fed. 489, 164 U.S. App. D.C. 284, 87 L.R.R.M. (BNA) 2440, 1974 U.S. App. LEXIS 6535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-the-madison-courier-inc-cadc-1974.