describing the “common law ‘loss of earnings’ rule, under which the measure of an employee’s recovery is the earnings which he has lost, less any other earnings which he has obtained or wilfully refused to obtain”
How later courts described this case
- describing the “common law ‘loss of earnings’ rule, under which the measure of an employee’s recovery is the earnings which he has lost, less any other earnings which he has obtained or wilfully refused to obtain”
- "To say that the opponent of one who has the burden of proof, nevertheless, has the burden of producing evidence for his adversary is in reality to shift the burden of proof. This we are unwilling to do in light of overwhelming authority that the burden of proof rests on the employer.”
- the location of the new job is a factor which may be reasonably taken into account
- “the defense of [willful] loss of earnings is an affirmative defense and the burden of proving it rests on the employer”
Written by the judges who cited it.
The opinion
*224 BOREMAN, Circuit Judge
(concurring in part and dissenting in part):
I join in the decision to reject the contention of the company that strike benefits provided by the Union’s trust fund should be set off against an award of back pay to the strikers. I concur also in the disposition of the issue discussed under the heading “CLAIMED FORFEITURE BY GLENN JOHNSON.” I agree that it would be unreasonable to hold that Johnson was required to travel a distance of 100 miles from Florence to Rock Hill to accept employment, even on a temporary basis, in mitigation of loss of earnings.
My principal concern is with respect to that portion of the majority opinion headed “WILFUL LOSS OF EARNINGS BY ALL EMPLOYEES” and the majority decision on the merits of the basic question there discussed. I conclude that detailed discussion of the evidence by me in noting disagreement would avail nothing.
The company’s primary contention, as I understand it, is that the Examiner and the Board ignored and failed to give any consideration to evidence tending to show a glaring display of disinterest on the part of the strikers in securing temporary employment, a disinterest sanctioned and encouraged, if not actually prompted and directed, by the Union; also evidence tending to show the intent of the strikers to disregard their legal obligation to minimize their losses of earnings. The majority opinion recognizes the generally accepted rule that a striking employee’s loss of wages should be reduced by earnings which he has obtained or wilfully refused to obtain.
By way of summarization, there was at least some evidence which would show the following:
1. Without any explanation the Union elected to base the amount of strike benefits on a percentage of the wage scale then prevailing in Columbia, South Carolina, which was higher than the wage scale to which the strikers were accustomed and which was in effect in the Florence area;
2. The Union invoked its rule that if a striker worked at interim employment more than one eight-hour shift in one work week his weekly strike benefits would be subject to drastic curtailment;
3. All or some of the strikers had registered with the South Carolina Unemployment Security Office and represented themselves as available only for the same type of work in which they had been regularly engaged, thus insuring a distinct limitation of job availability and opportunity;
4. There was work available in the Florence area as shown by newspaper advertisements of jobs such as store clerks, service station managers and attendants;
5. One or more of the strikers was or were under explicit orders from the Union to accept no steady employment;
6. Certain of the employees did actually work as much as one eight-hour shift out of each week in jobs quite comparable to their regular employment and their right to receive full strike benefits was not thereby affected;
7. All strikers, unless ill or otherwise unavailable, were required to report daily to the picket line.
The majority opinion quotes from the decision of the Examiner and, in footnote 8, from the Board’s supplemental decision, and directs attention to the fact that both decisions “proceeded from a lack of evidence to show that any employee either sought, or having sought, was refused any job opportunity in the Florence market.” The majority apparently would uphold the Board in imposing a burden on the employer which, in my opinion, would be impossible of performance except in rare instances and under extraordinary circumstances.
The majority would reject the decision of the Second Circuit in N. L. R. B. v. Mastro Plastics Corporation, 354 F.2d 170 (1965), to the effect that where the issue of wilful loss of earnings is raised by the employer General Counsel must, as part of the Board’s prima facie case, present testimony from the employees regarding their search for interim employment during the liability period. *225 Mastro was cited with approval by the District of Columbia Circuit in N. L. R. B. v. Rice Lake Creamery Co., 112 U.S.App.D.C. 323 , 365 F.2d 888 (1966). Instead, my brothers adopt as controlling here the Fifth Circuit decision in N. L. R. B. v. Mooney Aircraft, Inc., 366 F, 2d 809 (1966), with all its implications. I prefer to follow what I believe to be the rule as established by earlier decisions of this court and to apply it in the light of the facts and circumstances as here disclosed by the evidence.
In the case before us there was evidence of employment opportunities in the Florence area indicating a ready labor market. Prospective employers were resorting to newspaper advertising in their efforts to obtain help. The advertised jobs were neither dangerous nor degrading. True, they were not in the same line of work as that in which the strikers had been engaged but this court has long since rejected the idea that strikers or wrongfully discharged employees can sit idly by and ignore job opportunities which are not comparable in all respects with their regular employment and then claim that they had met their obligation to minimize their loss of earnings. Mooresville Cotton Mills v. National Labor R. Board, 5 Cir., 110 F.2d 179 (1940), was decided by this court in an entirely different context. There involved was the question whether certain striking employees were entitled to reinstatement which had been refused on the ground that they had obtained other “regular and substantially similar employment” and had thereby lost their former status of employees with right to reinstatement. Naturally, consideration was given to the question whether other kinds of work were equivalent to the work in which they had been regularly engaged. As the majority opinion in the instant case points out, this court held that a wrongfully discharged employee cannot recover damages for losses which, in the exercise of due diligence, he could have avoided. In context, it was logical to conclude that he should not be required to accept equivalent employment which would tend to destroy his employee status and, consequently, his right to be returned to his former position.
But consider and compare this court’s decision in N. L. R. B. v. Moss Planing Mill Co., 4 Cir., 224 F.2d 702 (1955), in which it was held that mill employees were required to accept available agricultural jobs, working in tobacco fields, in order to minimize their loss of earnings. In that ease the Examiner had found only that an employee did not have to accept an agricultural job because it was manifestly not equivalent to the position the employee had held. The court said, page 705, “And we are convinced, from a study of the record, that Wynne could readily have earned, had he made reasonable efforts to obtain suitable employment, much more than the utterly insignificant sum found by the Board.” (Emphasis added.) This court disagreed with the Board’s conclusion that an employee was not obligated to seek and accept agricultural employment which was not equivalent to his regular employment and held that the amount awarded by the Board must be reduced by a sum equal to what he would have earned had he made a reasonable effort to secure employment of a nature which he was obligated to seek and accept.
Consider and compare also the decision of this court in N. L. R. B. v. Pugh & Barr, Inc., 207 F.2d 409 (1953). At page 410 of 207 F.2d the court said:
“The Board seems to have reached the conclusion that it did on the basis that Bramer, having registered with the state unemployment agency, was not bound to make any further showing of diligence. We do not think that this is sufficient. The awarding of so large a sum as back pay without the finding of special circumstances justifying it cannot be sustained. We shall accordingly set aside the Board’s order and remand the ease to the Board with direction that it make specific findings of fact with respect to the matter and award to Bramer no more than the difference between what he could have earned by working for re *226 spondent if he had not been wrongfully discharged and what he could have earned elsewhere if he had used due diligence to secure other employment.” (Emphasis supplied.)
Implicit in that ease is the holding that it was up to the employee (or General Counsel) to make a showing of due diligence to obtain other employment.
In the instant case there was evidence as shown above that strikers had registered with the South Carolina Unemployment Security Office but represented themselves as available for work only of the same type in which they had been engaged. The Union had fixed the unemployment benefits based on a higher wage scale than that prevailing in the Florence area. Without some explanation, it is not illogical to conclude that the higher wage scale was selected so that the strikers’ benefits might be increased and thus provide a more nearly adequate allowance to meet living expenses during the strike. Some of the strikers permissibly worked one full eight-hour shift in certain work weeks to supplement their income but by so doing their strike benefits were not curtailed.
The Examiner and the Board would require the company to show that no jobs were ever personally offered to any of the strikers or that offers of such jobs were ever rejected by any of the strikers. It is my impression that this goes far beyond what this court has ever required or sanctioned. It is my conclusion that the company made out a prima facie case by showing the circumstances of registration with the unemployment agency, availability of acceptable jobs in the area and the other facts and circumstances which provide strong support for the inference that the Union was offering every inducement to these strikers to accept no jobs and to refrain from seeking interim employment the earnings from which would mitigate their loss of wages. The company satisfied the only reasonable burden which should be imposed upon it under the circumstances by making a prima facie showing of lack of due diligence on the part of the reinstated strikers to minimize their losses of earnings during the liability period. It should then be the duty and burden of the General Counsel to show what unsuccessful efforts had been made by the strikers to secure interim employment, whether comparable or otherwise. There was nothing offered to rebut the prima facie case. I would remand the case to the Board for further exploration and consideration of these matters and for this reason I respectfully offer-this note of dissent.