# Opposition Brief — Clear Pine Mouldings, Inc. v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1105

## Text

No. 85-720

IN THE L ae

nnseaneainsnentecnesiinptitiemssicnnsiens j

Suprena Court of the United States

OCTOBER TERM, 1985

BEST AVAILABLE COPY |

CLEAR PINE MOULDINGS, INC.,
" Petitioner
NATIONAL LABOR RELATIONS BOARD

and

INTERNATIONAL WOODWORKERS OF AMERICA,
LOCAL No. 3-200, AFL-CIO,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF IN OPPOSITION OF
INTERNATIONAL WOODWORKERS OF AMERICA,
LOCAL NO. 3-200, AFL-CIO

LYNN-MARIE CRIDER
25 Cornell Avenue
Gladstone, OR 97027
(503) 656-1475

Counsel of Record
for Respondent
International Woodworkers
of America, Local 3-200

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® oes > 60

QUESTIONS PRESENTED

1. Must a court, on cross-applications for review and
for enforcement of an order -f the National Labor Rela-
tions Board, deny enforcement of a Board order insofar
as it is repudiated by the Board while the enforcement
proceeding is pending?

2. Did the Board exceed its remedial discretion when
it awarded back pay to unlawfully unreinstated unfair
labor practice strikers who registered with the state em-
ployment service but made no other effort to find interim
employment for periods varying from one to two months?

3. Did the Board err in awarding back pay to individ-
uals who did not testify at a back pay proceeding al-
though the employer did not plead the affirmative defense
of willful loss of earnings?

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

INDEX OF AUTHORITIES

OPINIONS BELOW

I. The Court of Appeals applied well established
principles in enforcing the award as to regis-
trants for work

II. No court of appeals has required the Board’s
General Counsel to produce all claimants as a
condition to award of back pay

CONCLUSION

ee ee ee ee ee ee ee

(iii)

iv

TABLE OF AUTHORITIES

Cases Page
Clear Pine Mouldings, Inc., 632 F.2d 721 (9th Cir.
1980), cert. denied, 451 U.S. 984 (1981) 000000... 3
Clear Pine Mouldings, Inc., 238 N.L.R.B. 69
IIIT sisechsitceetlnk-nbsbcrctaldbeienaditad ecnanonciadeiaecemiicacnibaadiaeadiiictes 2

N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170
(2d Cir. 1965), cert. denied, 384 U.S. 972

EON <icdudiccabpaccndahiee ictal sichassiaiansciemiieeicadies “sAaaniadadaaaignirtens 10, 11
N.L.R.B. v. Mercy Peninsula Ambulance Service,
Inc., 589 F.2d 1014 (9th Cir. 1979) ..........20022... 8

N.L.R.B. v. Nickey Chevrolet Sales, Inc., 493 F.2d
103 (7th Cir.), cert. denied, 419 U.S. 834 (1974).. 8
N.L.R.B. v. Rice Lake Creamery Co., 365 F.2d 888

GE ERIE AN 0 ee Ber Anes 10
Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. 177

AR ETS Le Sane ROR De LEY AS ene 7,8
Saginaw Aggregates, Inc. v. N.L.R.B., 482 F.2d

Se IT IK: IED on diliccesielin uanieccanipthncdiabaibaabadiamsinin 8

Southland Manufacturing Corp. v. N.L.R.B., 475
F.2d 414 (D.C. Cir.), cert. denied, 414 U.S. 858
a AES ANF. FOALED Sena a eee ee 11

Statutes

National Labor Relations Act § 10(¢) -........00000000.....
29 U.S.C. § 160(d) ................: ESR Ie aN EA
I ese eainimnieomennd
I, rR ne ea

ooo

IN THE
Supreme Court of the United States

OCTOBER TERM, 1985
No. 85-720

CLEAR PINE MOULDINGS, INC.,
Petitioner

V.

NATIONAL LABOR RELATIONS BOARD
and

INTERNATIONAL WOODWORKERS OF AMERICA,
LocAL No. 3-200, AFL-CIO,
Respondents.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF IN OPPOSITION OF
INTERNATIONAL WOOQDWORKERS OF AMERICA,
LOCAL NO. 3-200, AFL-CIO

International Woodworkers of America, Local No. 3-
200, AFL-CIO ' respectfully requests that the Court deny
the Petition for Writ of Certiorari. I.W.A., Local No. 3-

1 International Woodworkers of America, Local No. 3-200 is
referred to herein as I.W.A., Local No. 3-200 or as the Union.

2

200 was the charging party before the National Labor
Relations Board and intervened in the review proceeding
before the Court of Appeals. The Union is therefore a
party by virtue of Rule 10.4 of this Court.

OPINIONS BELOW

The decision and order of the National Labor Relations
Board is repovted at Clear Pine Mouldings, Inc., 268
N.L.R.B. 1044 (1984). The memorandum opinion of the
Court of Appeals for the Ninth Circuit has not been re-
ported by order of the court. It is reproduced in Ap-
pendix A to the Petition.

STATEMENT OF THE CASE

The agency order challenged by Petitioner issued, after
hearing, when the N.L.R.B. and Clear Pine were unable
to agree on the amount of back pay due unfair labor
practice strikers who had been unlawfully denied immedi-
ate reinstatement when they offered to return to work.

ever, had been reinstated be
March 31, 1978.’

On September 12, 1978, the Board issued a decision and
order finding that the Company had committed various
_—nfair labor practices which had caused the employees to
engage in the 1977 strike and that the employees were un-
fair labor practice strikers. Clear Pine Mouldings, Inc.,
238 N.L.R.B. 69, 77-80 (1978). The Board’s order re-
quired the Company to offer immediate and full reinstate-
ment to the strikers and to make them whole for losses
caused by the Company’s failure to reinstate them. /d.,
238 N.L.R.B. at 81. The Court of Appeals enforced the

n December 31, 1977 and

* Appendix A to the Petition at 2a.

3

Board’s order and this Court denied certiorari. Clear
Pine Mouldings, Inc. v. N.L.R.B., 6382 F.2d 721 (9th Cir.
1980), cert. denied, 451 U.S. 984 (1981).

Clear Pine and the Regional Director of the N.L.R.B.
were unable to agree on the amount of back pay due.
Accordingly, on August 31, 1981, the Regional Director
issued a back pay specification detailing his computation
of back pay and interim earnings for each striker for
each calendar quarter until he was reinstated to his
former job. GCX 1(c), appendix A-PPP.* The Company
filed an answer generally denying that any back pay
was due. GCX 1(e). On December 4, 1981 the Company

an amended answer again generally denying any
liability but also stating facis and articulating defenses

with respect to certain strikers. The Company did not
allege that any employee failed to seek interim employ-
ment or otherwise suffered a willful loss of earnings.
GCX 1(i). On January 14, 1982, the Regional Director
issued an amended back pay specification. GCX 1(j).
The Company’s answer to the amended specification again
failed to raise a defense of willful loss of earnings.
GCX 1(1).

With the pleadings in that condition, the back pay hear-
ing opened July 13, 1982 before an administrative law
judge. At no time during the hearing did counsel for
Clear Pine ask leave to amend his pleadings to allege
willful loss of earnings, request the assistance of counsel
for the General Counsel of the N.L.R.B. in locating back
pay claimants or claim that counsel had failed to cooper-
ate with him in that regard. On the second day of the

3 References, except to the orders of the N.L.R.B. and the court
below which are reproduced in the Appendixes to the Petition, are
to the Record before the Court of Appeals. “Tr.” refers to the
stenographic transcript of the supplemental hearing before the
administrative law judge. “GCX”, “RX” and “UX” refer to ex-
hibits introduced at the hearing by the General Counsel, the Com-
pany and the Union respectively.

4

hearing, however, he indicated he “would like” to amend
to allege that claimants were willfully idle but that, “I
would have to say that as to certain of the claimants th t
would not be true.” Tr. 347-348. He never, prior vw
briefing, identified the claimants he contended had been
willfully idle.

Notwithstanding his failure to plead, counsel for the
Company asked certain of the General Counsel’s witnesses
questions concerning their efforts to seek interim employ-
ment and called a number of claimants, himself, to an-
swer questions on that subject. Fourteen of the claimants
who testified stated that they sought interim work by
registering at the state employment agency but made no
further effort to find work. Each of those employees re-
turned to work at Clear Pine within two months of the
end of the strike (November 28, 1977), mest during the
week following New Year’s Day.’

Twenty-seven claimants did not testify at the hearing.
Counsel for the General Counsel informed the administra-
tive law judge that five of those were unavailable to tes-
tify. The remaining claimants, while available, were
called by none of the parties.

* Alonzo Hare returned Jan. 3 or 4, 1978 (GCX 1(e) at 3-4, GCX
1(c), V-2); Thomas Tugman returned Jan. 4, 1978 (GCX 1(e) at
3-4, GCX 1(C), GGG-2) ; Faye Jordan returned Jan. 4, 1978 (GCX
1(e) at 3-4, GCX 1(c), CC-2, Tr. 364) ; Daniel York returned Jan. 4
or 6, 1978 (GCX l(e) at 3-4, GCX 1(c), MMM-2 Tr. 356);
Winnie Koutsouris returned Jan. 5 or 6, 1978 (GCX l(e) at 3-4,
GCX 1(c), HH-2, Tr. 497); Colleen Maw returned Jan. 5 or 6,
1978 (GCX l1(e) at 3-4, GCX l(c), JJ-2, Tr. 497); Art Morton
returned Jan. 5, 1978 (GCX 1(e) at 3-4); Darlene Forseth returned
Jan. 5, 1978 (GCX l(e) at 3-4, Tr. 804); William R. Carter re-
turned Jan. 5, 1978 (GCX l(e) at 3-4, GCX l(c), E-1); Peter
Koutsouris returned Jan. 6, 1978 (GCX 1(e) at 3-4); Allen Dendy
returned Jan. 10, 1978 (GCX 1(e) at 3-4); Tom Ferguson returned
Jan. 17 or 22, 1978 (GCX l1(e) at 3-4, Tr. 913); David Dunn
returned Jan. 17, 1978 (GCX 1(e) at 3-4); Debbie Miller returned
Jan. 26, 1978 (GCX l1(e) at 3-4, GCX 2(c), 00-2).

5

The Company presented general evidence that substan-
tial hiring was done by area wood products employers
during the back pay period. There was no evidence that
any of the 27 non-testifying claimants was offered em-
ployment but refused it. The Company contended, based
on this general testimony and the lack of substantial
interim earnings, that the Board should conclude that
those who failed to testify willfully lost earnings and
should be denied back pay.°

The Board, adopting the recommendation of its admin-
istrative law judge, held that the Company had failed to
establish that any claimant had incurred a willful loss of
earnings. Nevertheless, the Board ordered that the gross
back pay due the five claimants who were unavailable to
testify should be held in escrow until such time as they
could be located and the Company given an opportunity
to question them.® The order issued February 22, 1984.

The Employer petitioned for review of the order to the
Court of Appeals for the Ninth Circuit. The Board
cross-petitioned for enforcement and filed the Record.

Three months thereafter the Board moved the Court to
remand to “reconsider certain issues raised regarding the
amounts of backpay due under the Board’s order.’”’ When
the Union opposed the remand request, the Roard clari-
fied that it “wishes to reconsider only that portion of its
decision’ which addresses the adequacy of certain dis-
criminatees’ efforts to mitigate backpay by seeking in-
terim employment.” The Board at no time indicated that
it intended to reopen the hearing. Rather, it simply
wished to reassess the evidence on the existing record.
The motion was denied.

The Board in its brief and at oral argument persevered
in its remand request but, alternatively, sought enforce-
ment of its order except insofar as back pay was awarded

5 Appendix C to Petition at 126a.
8 Appendix C to Petition at 144a.

6

the fourteen who testified that their efforts to mitigate
back pay consisted solely of registration for work.

The Court of Appeals denied the remand request say-
ing, “The record as developed is sufficient for a back pay
determination and the Board’s decision adequately re-
solved the issues presented to it.”* It enforced the
N.L.R.B. order, finding that Clear Pine had not carried
its burden to prove failure to mitigate. The Court held,
with respect to the 14 whose efforts to mitigate were lim-
ited to registering for work,

“The Board found that the employees were return-
ing to work rapidly and each of them could kave
reasonably expected to be back at Clear Pine on
short notice. The Board in the past has also per-
mitted victims of unfair labor practices an adjust-
ment period roughly equal in duration to the period
here. * * * The employees did not need to make,
under the circumstances, a more diligent search for
work.” ®

The court also rejected Clear Pine’s contention that a
claimant cannot be awarded back pay if he has not testi-
fied, holding that the employer carries the burden not
only of proof but also of production of witnesses unless
the emplcyer makes a “specific demand before the A.L.J.
hearing.” ®

The Court of Appeals denied a Petition for Rehearing
and Suggestion for Rehearing en banc.
REASONS FOR DENYING THE WRIT

The Employer petitions this Court to absolve it of back
pay liability to 41 employees to whom it discriminatorily
denied reinstatement. The Employer wishes to be freed

7 Appendix A to the Petition at 5a.
8 Apnendix A to the Petition at 6a-7a.
® Appendix A to the Petition at 7a.

7

of this liability to 27 of the employees because counsel for
the General Counsel of the National Labor Relations
Board did not call the employees for questioning concern-
ing their efforts to find interim work. Yet the General
Counsel did not call them because the Employer failed to
put the parties on notice of its intent to raise the defense
of failure to mitigate by pleading it. The Employer seeks
to paper over this defect in his case by proposing a novel
legal rule—that the N.L.R.B. may not award back pay
to claimants unless they testify notwithstanding the
Employer’s failure to plead any defense to the claim set
forth in the back pay specification. The Board has estab-
lished adequate procedures for ascertainment of back pay
entitlement. There is no need to impose new procedures
which, in effect, place the burden of proof as to unpled
defensive matters on the General Counsel.

The Employer also wishes to eliminate its liability to
14 other employees who the Board concluded had made
adequate efforts to find interim work during very brief
periods of unemployment. In this respect the case is but
a routine application of the general back pay principles
articulated in Phelps-Dodge Corn. v. N.L.R.B., 313 U.S.
177 (1941). The application of those rules by the Court
of Appeals should not be disturbed.

I. The Court of Appeals applied well established princi-
ples in enforcing the award as to registrants for work.

More than forty years ago, in Phelps-Dodge Corp. v.
N.L.R.B., 313 U.S. 177 (1941), this Court held that the
remedial provisions of the National Labor Relations Act,
29 U.S.C. § 160(c), must be exercised to effectuate the
policies of the Act. To that end the Court held that the
Board could not exclude employer evidence of willful
losses or other matters in mitigatior of back pay liability.
Id., $13 U.S. at 197-198. The Court did not announce
any formula by which back pay entitlement should be
calculated in a particular case. It simply ruled that the

8

Board “may give appropriate weight to a clearly un-
justifiable refusal to take desirable new employment.”
Id., 313 U.S. at 199-200.

The Board and the courts of appeal have developed
standards for assessing employee efforts to mitigate.
There is no conflict among the courts of appeal with re-
gard to these standards. All have recognized that efforts
to mitigate should be assessed over the entire back pay
period and that victims of discrimination are entitled to
a “grace period” following the discriminatory act before
they are expected to take any steps to find interim work.
See e.g., N.L.R.B. v. Nickey Chevrolet Sales, Inc., 493
F.2d 103 (7th Cir.), cert. denied, 419 U.S. 834 (1974) ;
Saginaw Aggregates, Inc. v. N.L.R.B., 482 F.2d 946 (6th
Cir. 1973).

Contrary to the Petitioner’s claim, no court of appeals
has ruled that an employee who makes no effort to find
work except by registering with a state agency has failed
to mitigate damages without regard to other facts in-
cluding the duration of his unemployment. Rather, the
courts of appeal have considered a host of facts and cir-
cumstances in assessing employee diligence in seeking
work. Some of these are length of unemployment, rea-
sonableness of belief that reinstatement is imminent,
availability of work in the area for which the employee is
qualified, number of applications for work and registra-
tion for work with the state.

The cases cited in the Petition for the proposition that
registration for work is not alone sufficient to mitigate
say no more than that a particular employee, under a
particular constellation of facts, did not diligently seek
work. Indeed one of the cases cited, N.L.R.B. v. Mercy
Peninsula Ambulance Service, Inc., 589 F.2d 1014 (9th
Cir. 1979), was decided by the same circuit that rejected
the suggestion for rehearing en banc in this case. There
is no conflict in doctrine.

9

The Court of Appeals applied the accepted principles in
light of the Record as a whole and concluded that the
Board’s finding that the Employer had not proved failure
to mitigate was supported by substantial evidence. There
is no uncertainty in the law which warrants disturbing
the ruling.

The Court of Appeals was not required to deny en-
forcement of the award because the Nationa] Labor Re-
lations Board, after petitioning for its enforcement, repu-
diated it. The National Labor Relations Act provides
that the agency loses its power to modify its findings and
order when the Record is filed upon petition for review
or for enforcement with a court of appeals. 29 U.S.C.
$ 160(d) and (e). While the Court of Appeals had the
authority to remand this case for reconsideration by the
Board, it was not required to do so.

This Court has recognized the responsibility of the
Board to make findings of fact, conclusions of law and
an appropriate remedial order in the first instance. It
does not follow that a reviewing court must ignore those
findings, conclusions and order when an attorney for the
Board announces to a reviewing court that the Board
has had second thoughts. Subsections 10(d), (e) and
(f) authorize the court to disregard those second
' thoughts; maintain jurisdiction; and, in the interest of
finality, enforce the order if it is supported by substan-
tial evidence in the Record. The Company has adverted
to no case holding that a reviewing court may not exer-
cise this discretion.

II. No court of appeals has required the Board’s General
Counsel to produce all claimants as a condition to
award of back pay.

The Petition urges the Court to grant certiorari to
resolve a conflict among the circuits concerning the bur-
den to produce testimony from back pay claimants. There
is no conflict in the circuits; and, if there were, the

10

Court should not resolve it in this case because the case
can be disposed of on other grounds.

The Court of Appeals rejected Clear Pine’s argument
that claimants not called to testify should not have been
awarded back pay. The Court reasoned that it is the
employer’s burden to produce testimony to support a
defense of failure to search for interim employment and
held that any duty the General Counsel may have to pro-
duce claimants to testify must be triggered by “the em-
ployer’s specific demand” prior to the back pay hear-
ing.”° Having failed to make such demand, said the
Court, the employer cannot complain of the absence of
claimant testimony.

Two courts of appeal have refused to enforce back pay
awards to employees who the General Counsel has not
called to testify. In each case the respondent employer
had pled the defense of willful loss of earnings and the
General Counsel had nevertheless failed to produce claim-
ants to testify. N.L.R.B. v. Rice Lake Creamery Co.,
365 F.2d 888 (D.C. Cir. 1966); N.L.R.B. v. Mastro
Plastics Corp., 354 F.2d 170 (2d Cir. 1965), cert. denied,
384 U.S. 972 (1966). Both courts, like the Ninth Circuit,
adhered to the view that the burden to plead and prove
failure to mitigate rests squarely with the respondent,
not the General Counsel. They simply concluded that
when the respondent raises specific mitigation issues in
its pleadings the General Counsel, to whom evidence on
such issues is more available, is required to cooperate
to the extent of making witnesses available to testify at
the hearing. Neither court has required that claimants
testify in the absence of prior notice that respondent
will argue that claimants willfully lost earnings. The

10 The Court, speaking of a “demand”, apparently referred to the
N.L.R.B.’s internal guidelines which require the General Counsel to
cooperate with a respondent who seeks assistance in procuring
attendance of witnesses at a backpay hearing. N.L.R.B. Case-
handling Manual (Part Three—Compliance Proceedings), Section
10733.

11

Second Circuit warned that its holding should not be
misinterpreted :

“We wish to make clear what we are not deciding
when we conclude that the Board should produce the
discriminatees to testify. We do not mean that the
employer need no longer raise this defense in his
answer...”

N.L.R.B. v. Mastro Plastics Corp., supra, 354 F.2d at
178 (emphasis added).

The D.C. Circuit concurred. N.L.R.B. v. Rice Lake
Creamery Co., supra, 365 F.2d at 892. Consequently,
when an employer who had failed to plead willful loss
of earnings challenged a back pay award because the
General Counsel had not produced claimants to testify
the D.C. Circuit enforced the award. Southland Manu-
facturing Corp. v. N.L.R.B., 475 F.2d 414 (D.C. Cir.),
cert. denied, 414 U.S. 858 (1973). The court observed
that the answer to the back pay specification had gen-
erally denied the accuracy of the interim earnings por-
tion of the specification but had not even mentioned will-
ful loss of earnings. Thus, the court held that the Board
had no burden to produce witnesses.

The rule articulated by these courts would not produce
a result different from that reached by the Ninth Circuit
in this case. Under the Mastro Plastics/Rice Creamery
rule the General Counsel has no duty to produce claim-
ants unless the employer has first, put the General Coun-
sel on notice that it contends the claimants have incurred
a willful loss of earnings by so pleading in its answer.
Clear Pine concededly did ne’ plead willful loss of earn-
ings in its answer. And, contrary to the assertion in the
Petition at 35, footnote 10, the Company did not move
to amend its answer during the hearing to allege that
defense and the administrative law judge did not grant
such a motion. Rather, the administrative law judge
overruled a motion tv exclude evidence offered by the

12

employer on the willful idleness issue because the defense
had not been pled. Tr. 348, 1. 17-22. In any event, the
Court of Appeals correctly refused to fault the General
Counsel for not producing witnesses it had no way of
knowing, prior to the hearing, could offer evidence mate-
rial to any disputed issue of fact.

The Court’s disposition of this case is not in conflict
with the law of the District of Columbia or of the Sec-
ond Circuit.

CONCLUSION

For the foregoing reasons, the Court should deny the
Petition.

Respectfully submitted,

LYNN-MARIE CRIDER
25 Cornell Avenue
Gladstone, OR 97027
(503) 656-1475

Counsel of Record
for Respondent
International Woodworkers
of America, Local 3-200

---

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