‘We believe that substantially equivalent employment refers to the hours worked ... as well as the nature of the work there.”
How later courts described this case
- ‘We believe that substantially equivalent employment refers to the hours worked ... as well as the nature of the work there.”
- substantially equivalent employment “refers to the hours worked ... as well as the nature of the work there”
- substantially equivalent employment “refers to the hours worked ... as well as the nature of the work”
- employee refused to work same number of hours he previously had worked
Written by the judges who cited it.
The opinion
EDWARDS, Circuit Judge,
dissenting.
This is a back pay case which began April 23,1971, when the National Labor Relations Board found that Hindsley, a draftsman for petitioner McCann, was unlawfully discharged. In 1972 this court enforced the Board’s order requiring petitioner McCann to put him back to work and McCann has done so. Ever since then, the parties have been litigating the Board’s Supplemental Decision awarding back pay. After two remands by this court, the Board has now ruled that the back pay award be reduced to $1,922, in accordance with this court’s instructions.
I think we ought now, without still another remand, to enforce the Board’s order and end this case.
The Board’s computation is supported by substantial evidence and its policy requiring “reasonable exertion” to mitigate damages and not the highest standard of diligence has support in the Courts of Appeals. See National Labor Relations Board v. Arduini Manufacturing Corp., 394 F.2d 420, 423 (1st Cir. 1968). See also National Labor Relations Board v. Reynolds, 399 F.2d 668, 669-70 (6th Cir. 1968).
The Supreme Court spelled out this court’s function in this area of administrative review:
We start with the broad command of § 10(c) of the National Labor Relations Act, as amended, 61 Stat. 147 , 29 U.S.C. § 160 (c), that upon finding that an unfair labor practice has been committed, the Board shall order the violator “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies” of the Act. This Court has stated that the remedial power of the Board is “a broad discretionary one, subject to limited judicial review.” Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 [, 85 S.Ct. 398, 406 , 13 L.Ed.2d 233 ] (1964).
The legitimacy of back pay as a remedy for unlawful discharge or unlawful failure to reinstate is beyond dispute, Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 [, 76 S.Ct. 349, 355 , 100 L.Ed. 309 ] (1956), and the purpose of the remedy is clear. “A back pay order is a reparation order designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of unfair labor practice.” Nathanson v. NLRB, 344 U.S. 25, 27 [, 73 S.Ct. 80, 82 , *657 97 L.Ed. 23 ] (1952). As with the Board’s other remedies, the power to order back pay “is for the Board to wield, not for the courts.” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 [, 73 S.Ct. 287, 289 , 97 L.Ed. 377 ] (1953). “When the Board, ‘in the exercise of its informed discretion,’ makes an order of restoration by way of back pay, the order ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” Id., at 346-347 , 73 S.Ct. [287] at 289.
National Labor Relations Board v. Rut-ter-Rex Mfg. Co., 396 U.S. 258, 262-63 , 90 S.Ct. 417, 419 , 24 L.Ed.2d 405 (1969).