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

LEVENTHAL, Circuit Judge

(concurring) :

I concur in the judgment of the court insofar as it affirms the judgment of the Board. I also concur in the judgment of remand and the ratio decidendi, that in certain particulars there is an objectionable lack of clarity in the Board's reasoning, or in the Board's reconciliation of the present opinion with other Board jurisprudence. While the Board is free to reshape previous doctrinal expressions, the rule of law is best preserved if that is. done expressly rather than by implication.

While I agree with much of Judge MacKinnon’s opinion as written, and commend the underlying research and reflection, I write this separate opinion because certain expressions in the court’s opinion, though not presented as *1327 mandates that compel Board action or limit Board discretion, may be misapprehended as limiting the latitude available to the Board on remand.

Perhaps the most important relates to the implementation of the loss of earning rule. Under that rule an employee’s recovery must be reduced by “any other earnings which he has obtained or willfully refused to obtain.” 1

As the court opinion notes, at least some employees who were awarded back-pay could have taken other jobs that are comparable to those held prior to the strike in terms of wages, hours, and conditions of employment. The Board found that the jobs broadly available to the employees who were terminated through unfair labor practices, while comparable in such items as wages and hours, required a change in calling, that this calls for significantly greater sacrifice on the part of the printer, in a skilled craft, than an ordinary factory employee required to change his line of work. 2 The difficulty with the Board’s opinion is that it lumped together persons who really had acquired a skilled craft, and young women recently out of school whose skills were limited to reading proofs and operating the typewriter-like keyboard of a teletypesetter tape puncher. In the absence of clearer findings than those before us to support a grouping of cases, the court’s opinion rightly points out that the failure to treat separate matters separately may lead to confusion and error.

Where an employee is engaged in a skilled craft, the Board, concerned with appropriate remedy against an employer who illegally terminates that employment may certainly take into account dir version from craft skills and continuity, in determining whether or not a comparable opportunity was available elsewhere.

Even at common law an employer cannot argue that a wrongfully discharged employee with special skills is required to reduce damages by seeking earnings available in another line of work — even though income and hours could have been preserved — of a substantially different nature, especially if there is any possibility of prejudice in maintaining the skilled calling; and the question of suitability is a question of fact for the jury. 3

Apart from the liability of an employer committing only a breach of a private contract, a company whose public wrong has interfered with a fundamental, statutory right of a skilled employee does not have the right to demand, in effect, that the employee move to another line of work, and abandon his skill for some not inconsiderable period. This is a matter for the Board to determine, taking into account the nature of the skill and the difference in the other work available. The Board is not only entitled to the same weight, as the trier of fact, as a jury acting under the instructions of the court, but to some latitude in determining the proper doctrine, that is, in determining to what extent transfer of the common law doctrine of mitigation of damages is in consonance with and furtherance of the purposes and objectives of the Act. Section 10(c) provides a “broad command,” NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262 , 90 S.Ct. 417 , 24 L.Ed.2d 405 (1969), in its direction to the Board “to *1328 take such affirmative action” as will effectuate the policies of the Act. Fibre-board Paper Products Corp. v. NLRB, 379 U.S. 203 , 85 S.Ct. 398 , 13 L.Ed.2d 233 (1964); NLRB v. Seven-Up Bottling Co., 344 U.S. 344 , 73 S.Ct. 287 , 97 L.Ed. 377 (1953). While the Board must take into account whether the remedies present an undue burden on employers, and cannot rest on an impermissible legal premise, it must in general be given wide latitude in the designation of remedies enforced against those violating the Act's provisions.

This latitude is not undercut by Phelps Dodge Corp. v. NLRB, 313 U.S. 177 , 61 S.Ct.. 845, 85 L.Ed. 1271 (1941), and the Supreme Court’s reference there to the policy of avoiding economic waste as an element in the doctrine requiring an employee to seek reasonably available alternative work. That consideration is not an absolute. Conceptually there is economic waste when a highly skilled employee fails to take a porter’s job for which openings are available. But the arithmetical economic loss to society is more than counter-balanced by the human damage .wrought if an employer engaged in illegal action can compel the person wronged to shatter his well-being. As the Court’s opinion makes clear, “lower one’s sights” is a vivid metaphor, but not a concept that controls all cases. That drastic choice may confront a person caught up in a tide of unemployment after statutory benefits run out — whether the unemployment is ascribable to change in technology, shifts in demand for goods and service, broader changes in economic conditions, or conceivably even changes in the wake of loss of an economic strike (without unfair labor practices). To avoid a drastic curtailment of income he may even have to pull up stakes and move to another region of the country, where there is a market for his skills. These drastic actions cannot, however, be compelled of him by an employer found to have acted illegally.

As to the registration with the state employment office, while this is not conclusive it is certainly some evidence of good faith and diligence of the employee in looking for other work. This is, as the court’s opinion sets forth, an area where the burden is on the employer to present the affirmative defense of failure to make a reasonable search of interim work. 4 Even in a case where the facts are such, generating cause to question diligence, that a finding of diligence cannot be sustained when it is based solely on registration evidence, the evidence of registration may be taken into account, although it was completely ineffective in yielding employment opportunities, when accompanied by a showing of general labor conditions in the area. 5

The difficulty with the findings before us is the Examiner’s reference to the registration by the employees as a “charade.” While Board counsel at oral argument sought to retrieve the situa *1329 tion by saying that the charade comment referred not to the original registration but to a later period in time, that is not clear in the findings, and a court should not be compelled to guess on matters like these.

Finally, while the general area of the law under discussion requires some consideration of the individual situations involved, it is appropriate to inject the caution that the Board is not disabled from making some group judgments as to persons in a class, where the class is not overbroad. This calls for discretion and judgment on the part of the Board as it does on the part of courts considering class actions. I join the court’s call for greater individualization of consideration than the Board accorded, but this should not be taken as a rigid requirement that individual employees be considered one at a time, and without regard to each other. 6 This would be contrary to the expedition and flexibility that is the hallmark of the administrative process.

. See, e. g., Florence Printing Co. v. NLRB, 376 F.2d 216, 219 (4th Cir. 1967).

. In the Trial Examiner’s words:

The printer, on the other hand, like any skilled worker in one of the recognized crafts, makes a sacrifice of no mean proportion when he gives up his trade and goes into an entirely different line of work.

(p. 811).

. Am.Jur.2d Damages, §§ 30, 71; Annot., Discharge-Minimizing Damages-Employment, 28 A.L.R. 736 (1923) ; updated by Annot., 141 A.L.R. 662 , 664 (1942). These annotations present a large number of supporting cases. See, e. g., American Trading Co. v. Steele, 274 F. 774 (9th Cir. 1921) ; Taylor v. Pope, 259 S.W. 527 (Mo.App.1924) ; Russellville Special School District v. Tinsley, 156 Ark. 283 , 245 S.W. 831 (1922).

. NLRB v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (5th Cir. 1966) : “It is not practical, and it would significantly hamper the backpay remedy, if each discriminatee were required to prove the propriety of his efforts during the entire backpay period. . . .We prefer the traditional allocation, consistently approved by the courts, of assigning to the general counsel the burden of proving damages, and to the employer the burden of proving facts to mitigate the extent of those damages.” [Citations omitted.]

. Thus in NLRB v. Pugh & Barr, Inc., 207 F.2d 409 (4th Cir. 1953), the court reversed a large award of some $7,000, as to which the Board had provided a credit of only $294 for two years earnings for “an ordinary skilled laborer.” It felt this small amount an incredible indication with what could have been earned with reasonable diligence and concluded that the Board had wrongfully given conclusive effect to the registration with the state employment office. But following remand the court enforced the Board’s re-entry of its order when it was brought out that West Virginia is “generally a labor surplus area” with his unemployment during the period involved, so that the slight earnings was not due to lack of effort but to basic general conditions. NLRB v. Pugh & Barr, 231 F.2d 558 (4th Cir. 1956).

. Can an employer escape all liability for a wrongful termination of, say, 50 employees, merely by showing' there was comparable employment for, say, five or six persons in the area during the period, and then arguing that the failure of the employees to seek, find and obtain these positions reflects a lack of diligence that disqualifies all 50?