The Madison Courier, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1973

202 N.L.R.B. 808 (N.L.R.B. 1973)

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Madison Courier , Inc. and Louisville Typographi-
cal Union No. 10, International Typographical
Union, AFL-CIO . Case 25-CA-2217
March 30, 1973
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On January 4, 1967, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding, finding that the Respondent,
The Madison Courier, Inc., had violated Section
8(a)(1) of the National Labor Relations Act, as
amended, by interfering with and coercing its
employees in the exercise of their protected right of
self-organization and, in addition, had violated
Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union, Louisville
Typographical Union No. 10, International Typo-
graphical Union, AFL-CIO, thereby causing its
employees to engage in an unfair labor practice
strike. As a remedy for the foregoing violations, the
Board, among other things, ordered the Respondent,
upon application, to reinstate a number of unfair
labor practice strikers to their former or substantially
equivalent positions and to make them whole for any
loss of earnings resulting from the Respondent's
failure to tender such reinstatement. Thereafter, on
December 22, 1967, the Board's Order was enforced
in full by the United States Court of Appeals-for the
District of Columbia Circurt.2 When the Respondent
and the Board's Regional Director were subsequent-
ly unable to agree upon the amount of backpay due
each striker, supplemental proceedings were institut-
ed pursuant to Section 102.52, et seq., of the Board's
Rules and Regulations, for the purpose of making
such a determination with respect to employees Allen
Arbuckle, David R. Ashby, Bernard A. Corbin,
Albert Lee Dowell, Walter Dowell, Paula B. Feltner,
Louis D. Giltner, Rudolph D. Juett, Virginia F. Kerr,
Henry Lorenz, Jr., August Mead, Judith A. Moore,
James H. Nichols, and Mickie D. Storie. On
November 12, 1968, the Acting Regional Director for
1 162 NLRB 550
2 Louisville Typographical Union No 10, International Typographical
Union, AFL-CIO v N L R B, 67 LRRM 2462 , 57 LC § 12, 647 (1967)
3 The backpay period runs from July 22, 1966 (the date the Respondent
received from the claimants an unconditional request for reinstatement), to
January 1968 ( the month during which the claimants were offered
reinstatement by the Respondent)
4 180 NLRB 781 Inasmuch as discriminatee Arbuckle' s interim earnings
were consistently higher than his gross backpay, the General Counsel
abandoned Arbuckle in the backpay hearing Accordingly , only 13
claimants are involved in the instant proceeding
5 N L R B v Madison Courier, Inc, 472 F 2d 1307 (1972), Judges
McKinnon and Robb , Judge Leventhal concurring
Region 25 issued and served on the parties a backpay
specification and notice of hearing which, as amend-
ed, showed the backpay period broken down by
calendar quarters, the precise amounts of gross
backpay due and interim earnings for each employ-
ee. Although the Respondent did not dispute the
method of computation used by the Acting Regional
Director or the general bounds of the backpay
period,3 it did assert an affirmative defense in
mitigation of the alleged backpay liability, to wit,
that the claimants were not entitled to backpay due
to their alleged failure to make reasonable efforts to
obtain appropriate interim employment. After a
hearing in February 1969, Trial Examiner Benjamin
Blackburn and later the full Board rejected the said
defense of the Respondent and found that 13
claimants were entitled to backpay in certain
specified amounts.4 Subsequently, upon the Respon-
dent's continued refusal to pay the backpay sums
ordered, the Board applied to the United States
Court of Appeals for the District of Columbia for
enforcement of its Order.
On August 9, 1972, the court of appeals issued its
decisions remanding the case to the Board because
of (1) the failure of the Board "to sufficiently explain
why the claimants' election to continue their labor
dispute with the Employer rather than actively seek
the 'suitable'jobs which might have been available in
the Madison area did not constitute a willful loss of
earnings, in light of seemingly contrary reasoning" in
other cases,6 (2) the failure of the Board "to explain
adequately, in terms of the policies of the N.L.R.A.,
the apparently arbitrary group-classification of all
jobs outside the printing trade as `unsuitable' interim
employment for all of the claimants, in light of
contrary holdings" in other cases,7 and (3) the failure
of the Board "to appropriately justify its findings
that the claimants who made no attempt to obtain
interim employment during the back pay period
other than registering with the Indiana Employment
Security 'Division and seeking job information
through the Union, did not incur willful losses of
earnings in light of apparently contrary holdings" in
other cases.8
The Board, having accepted the remand, will
reconsider the above-mentioned Supplemental Deci-
6 The court cited, eg, Ozark Hardwood Company, 119 NLRB 1130,
remanded 282 F 2d I (C A 8, 1960), and Southwestern Pipe, Inc, 179 NLRB
364, remanded 444 F 2d 340 (C A 5, 1971)
I The court cited, e g , Knickerbocker Plastic Co, 132 N LRB 1209 (1961),
N L R B v Southern Silk Mills, Inc, 242 F 2d 697 (C A 6), cert denied 355
U S 821 (1957), and N L R B v Moss Planing Mill Co, 224 F 2d 702 (C A
4, 1955)
8 The court cited N L R B v Arduim Manufacturing Corp, 394 F 2d 420
(C A 1, 1968), N L R B v Rice Lake Creamery Company, 365 F 2d 888
(C A D C, 1966), NLRB v Pugh and Barr, Inc, 207 F 2d 409 (C A 4,
1953), Missouri Transit Company, Inc, 125 NLRB 1316 (1959), Ozark
Hardwood Co, supra, and American Bottling Company, 116 NLRB 1303
(1956)
202 NLRB No. 115
THE MADISON COURIER, INC. 809
sion in conformity with the court's opinion, which we
respectfully recognize as binding upon us only for
the purpose of deciding this case.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has again considered the record made at
the supplemental hearing and the Trial Examiner's
Supplemental Decision dated May 26, 1969, in light
of the opinion of the United States Court of Appeals
for the District of Columbia Circuit dated August 9,
1972, and has decided to affirm the rulings, findings,
and conclusions of the Trial Examiner which are not
inconsistent herewith.
Before the Board, as noted above, the Respondent
raised an affirmative defense to negate or mitigate its
backpay liability, viz, that the strikers willfully
incurred a loss of earnings by refusing to seek and
accept suitable interim employment. For the reasons
hereinafter set forth we conclude that the Respon-
dent's defense is without merit as to all of the unfair
labor practice strikers except Ashby, Feltner, and
Moore. With respect to employees Corbin, Albert
and Walter Dowell, Giltner, Juett, Kerr, Lorenz,
Mead, Moore, Nichols, and Storie, we conclude that
the backpay order which we set forth in our prior
proceeding9 is necessary and proper to protect fully
the employees' rights herein involved. In so conclud-
ing, we have, in the following analysis, considered
the sufficiency of the strikers' efforts to obtain
suitable interim employment in terms of applicable
legal precedent and in light of the skill, background,
and experience of each individual claimant.
The Supreme Court recently set forth the Board's
authority over the backpay remedy in N L.R.B. v. J
H. Rutter-Rex Manufacturing Co., 10 stating as follows:
We start with the broad command of § 10(c) of
the National Labor Relations Act . . . 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. N.L.R.B., 379 U.S.
203, 216 (1964).
9180NLRB781
10 396 U S 258,262-263(1969)
11 N L R B v Mastro Plastics Corporation, 354 F 2d 170, 178 (C A 2),
cert denied 384 U S 972 (1966)
12 Virginia Electric and Power Company v N L R B, 319 U S 533, 544
(1943)
The legitimacy of back pay as a remedy for
unlawful discharge or unlawful failure to reinstate
is beyond dispute, Mastro Plastics Corp. v.
N. L. R. B., 350 U.S. 270, 278 (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
an unfair labor practice." Nathanson v. N.L.R B.,
344 U.S. 25, 27 (1952). As with the Board's other
remedies, the power to order back pay "is for the
Board to wield, not for the courts." N.L.R.B. v.
Seven-Up Bottling Co., 344 U.S. 344, 346 (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.
The law is also clear that "the finding of an unfair
labor practice and discriminatory discharge is pre-
sumptive proof that some back pay is owed"" i and
the General Counsel's burden is limited to showing
"what would not have been taken from [the employ-
ees] if the Company had not contravened the Act." i2
This allocation of the burden is aptly expressed in
N. L.R.B v. Brown & Root, Inc.,13 as follows:
. , . in a back pay proceeding the burden is
upon the General Counsel to show the gross
amounts of back pay due. When that has been
done, however, the burden is upon the employer
to establish facts which would negative the
existence of liability of a given employee or which
would mitigate that liability.
The court in the instant proceeding stated that the
Board's decision appears to have viewed the primary
issue in the backpay proceeding as whether the
claimants had to choose between concerted activity
and backpay.14 The court found that the claimants'
right to picket after the Respondent improperly
refused to reinstate them was a protected right and
that the picketing did not per se negate their right to
backpay. "Nevertheless," the court said, "such
activity did not relieve the claimants from their well
established obligation to take reasonable steps to
13 311 F 2d 447, 454 (C A 8, 1963) Accord N L R B v Reynolds, 399
F 2d 668, 669, (C A 6, 1968), Florence Printing Co v N L R B, 376 F 2d
216, 222-223 (C A 4), cert denied 389 U S 840 (1967), N L R B v Mooney
Aircraft, Inc, 366 F 2d 809, 812-813 (C A 5. 1966) Cf Phelps-Dodge Corp
v NLRB , 313 U S 177, 198-200 (1941)
14 472 F 2d 1307
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secure work and thereby mitigate the Company's
back pay liability." 15 Ozark Harwood16 and South-
western Pipe, i7 cited by the court, stand for the
general proposition that employees who engage in
picketing at the expense of seeking alternate employ-
ment incur willful losses of earnings by their failure
to make the requisite search for work or by their
withdrawal from the labor market. But the court also
cited N. L. R. B. v. Rice Lake Creamery 18 which held
that the backpay eligibility of picketing discrimina-
tees is "to be determined with respect to each
employee considering the record as a whole, and not
merely from the fact of picketing." (Emphasis sup-
plied.)
In the instant case, there is no record evidence
indicating that the unfair labor practice strikers'
picketing activities prevented them from seeking or
accepting suitable employment. To the contrary, they
were told by the Union that they were obligated to
accept available employment to be eligible for strike
benefits, and as discussed infra, they, in fact, did so.
Likewise, there is no record evidence indicating that
the strikers' attendance at union-sponsored training
courses (held during the backpay period to familiar-
ize members with the cold-type offset press operation
with which the Respondent replaced its hot-type
letterpress system shortly after the unfair labor
practice strike began) prevented them from seeking
or accepting suitable employment. In addition, there
is no record evidence indicating that the receipt of
strike benefits by the unfair labor practice strikers in
any way interfered with their efforts to locate
suitable interim employment. In the absence of such
evidence we find that the claimants' right to receive
backpay should not be diminished by the fact that
the claimants picketed, attended union-sponsored
training sessions, or received strike benefits roughly
comparable to their take-home pay during the period
of the Respondent's liability.19
In so holding we do not ignore the fact that
claimant Corbin refused to accept an available full-
time job as a clerk in a grocery store due to the fact
that it would have conflicted with his picketing
duties. However, we note that at the time of the
strike, Corbin was a linotype operator who was
earning $2.38 an hour, and the available grocery
store job would have paid only $1.25 an hour.
Moreover, Corbin had gained 9 years of experience
in the printing trade prior to the backpay period by
15 Id
16 Ozark Hardwood Co, 119 NLRB 1130, remanded 282 F 2d I (C A 8.
1960)
17 Southwestern Pipe, Inc, 179 NLRB 364. remanded 444 F 2d 340 (C A
5, 1971)
I8 365 F 2d 888, 894 (1966)
19 See cases cited at in 12 herein and accompanying text
20 472 F 2d 1307
working for the Respondent since his graduation
from high school and was a linotype operator at the
time of the strike. In light of Corbin's skill,
experience, and background we find that the grocery
clerk job which he refused was not suitable employ-
ment within the meaning of the mitigation doctrine.
Accordingly, we conclude that Corbin's refusal to
accept unsuitable employment cannot serve as a
basis to negate or mitigate the Respondent's backpay
liability to him.
The court in the instant proceeding noted that the
Board dismissed the failure of the claimants to seek
available nonprinting positions as may have been
commensurate with a particular claimants' back-
ground and experience by deciding that the entire
group only had to seek printing industry positions.
This clear error, the court stated, "must be rectified
on remand, by the thorough consideration of
whether particular claimants should be denied back
pay due to their failure to seek such available non-
printing jobs." 20
In considering the sufficiency of each claimant's
search for employment in light of his particular work
experience, the court would have the Board use, as
guidelines, principles enunciated in cases such as
Knickerbocker Plastic,21 Southern Silk Mills,22 and
Moss Planing.23 In Knickerbocker Plastic the Board
held that "it is incumbent on a claimant to seek a job
for which he has extensive experience." (Emphasis
supplied.) In that case the Board found that the
claimant, who had been a moulder for an unspecified
period of time, was obligated to seek and accept a
job as a waiter, pointing out that the claimant had 12
years of experience as a waiter.24 In Moss Planing
and Southern Silk Mills,25 the Board rejected the
contention that after a period of time the claimants
were obligated to lower their sights and seek
employment of a lower caliber than they had
experienced with the respondents involved. In both
cases, the circuit courts refused enforcement, taking
a view contrary to that of the Board. The Southern
Silk court concluded that, during a backpay period
of approximately 3 years, knitters in a textile mill
should have accepted, as suitable interim employ-
ment, available, lower paying employment which
consisted of picking crops or working in a retail store
or food freezing plant. The Moss Planing court
concluded that a semiskilled worker in a lumber mill,
who had a long background of experience as a farm
21 Knickerbocker Plastic Co, Inc, 132 NLRB 1209 (1961)
22 N L R B v Southern Silk Mills, Idc, 242 F 2d 697 (C A 6), cert
denied 355 U S 821 (1957)
2.1 N L R B v Moss Planing Mill Co. 224 F 2d 702 (C A 4 1955)
24 132 NLRB 1209, 1219
25 Moss Planing Mill Co, 110 NLRB 933 (1954), Southern Silk Mills,
Inc, 116 NLRB 769(1956)
THE MADISON COURIER, INC. 811
laborer, should have accepted jobs harvesting or
processing tobacco as suitable interim employment
during a liability period of almost 3 years.26
However, as the court in the present proceeding
stated, the Southern Silk and Moss Planing decisions
are not really very broad. "Both decisions", the court
notes, "expressly emphasized the fact that no
discriminatee is required to ever accept anything but
`suitable' interim employment."27 Moreover, as the
court in the instant case stressed, "there is no
requirement that [a claimant] seek employment
which is not consonant with his particular skills,
background, and experience;" nor is a claimant
"obliged to seek work which involves conditions that
are substantially more onerous than his previous
position." 28 The court concluded that a permissible
means of effectuating statutory policy would be to
resolve doubts in this area in favor of the discrimina-
tee and against the party who violated the Act,
thereby depriving the Respondent of a method of
subverting the Act.29
In applying standards not unlike those set forth by
the court in the instant proceeding, we have held, in
other cases involving employees engaged in the
printing industry, that a striker will not be obligated
to accept interim employment which is unsuitable
simply to reduce the employer's liability for his
unlawful conduct. For example, in Florence Printing
Company30 we held thatjourneymen and apprentices
in the typographical trades were not required to
lower their sights during a liability period of
approximately 21 months by taking lower paying
jobs which were in occupations unrelated to the
typographical trades. And in Lozano Enterprises,31
where we duly noted the Southern Silk decision,
supra, we also noted that there was no indication in
that decision or any other court opinion that
janitorial work would be deemed suitable employ-
ment for a skilled linotype operator. We have,
therefore, recognized that the skill, background, and
experience of one employed in the printing trade
may set him apart from one who is engaged in some
other means of employment which will more readily
accommodate alternative employment opportunities.
With the foregoing in mind and in conformity with
the court's remand, we now reconsider the availabili-
ty of nonprintingjobs in the Madison area.
In the instant case, nonprinting work was available
at Ohn-Mathieson Chemical Corporation's shell
loading plant in Charlestown, Indiana, 32 miles from
Madison. The work consisted primarily of loading,
assembling, and packing ammunition charges for the
Federal Government. During the backpay period,
the record shows that Olin-Mathieson hired 13, 679
new employees in various job classifications, which
included warehousemen, guards, clerical workers,
and technical and production employees. Most jobs
paid $2.50 to $3 per hour. Reliance Electric, located
just outside Madison, manufactured fractional horse-
power motors. Of 301 employees hired during the
backpay period, most were hired at approximately
$1.70 per hour to perform jobs which included lathe
operator, punch press operator, assembler, and stock
handler. During the backpay period, 432 persons
were hired at the U.S. Army's Jefferson Proving
Ground, located 6 miles from Madison. The function
of this employer was to test and fire conventional
ammunition. Jobs included munitions operators,
civilian gunners, proof technicians, and observers,
and paid $2.57 and $2.65 per hour at the entry level.
Dow Corning Corporation hired 76 persons during
the backpay period at its chemical plant near
Carrollton, Kentucky, 17 miles from Madison.
Employees, involved in producing basic silicon
materials, included an engineering staff, clerical
workers, and production and maintenance personnel.
Hiring rates ranged from $2.50 to $3 per hour.
Indiana Kentucky Electric Corporation, which oper-
ated an electricity generating plant at Madison, hired
45 employees during the backpay period at wage
rates ranging from $2.25 to $2.44 an hour. Jobs
included such classifications as laborer, utility man,
helper, and clerical employee. American Can Com-
pany hired 155 employees during the backpay period
at its plant at Austin, Indiana, 25 miles from
Madison. Production people, who were hired to
perform tasks related to tin can manufacturing,
began at wage rates ranging from $2.65 to $2.72 an
hour. Grote Manufacturing Company had a plant in
Madison which fabricated metal and which, during
the backpay period, hired 63 employees at an
average starting rate of $1.45 to $1.88 an hour in job
classifications such as assembler, cabinet packer, and
material handler. Rex Chain Belt manufactured
construction machinery at its plant in Madison.
During the backpay period it hired about 130
employees at wage rates ranging from $1.73 to $1.80
an hour to work in job classifications such as helper,
press operator, punch operator, and assembler.
Williamson Company, which is engaged in metal
work at its manufacturing plant in Madison, hired 96
employees during the backpay period at wages
ranging from $1.70 to $1.82 an hour for job
26 N L R B v Moss Planing Mill Co, 256 F 2d 653, 654 (C A 4, 1958) 30 158 NLRB 775, 793, enfd 376 F 2d 216, 221 (C A 4), cert denied 389
27 472 F 2d 1307 U S 840 (1967)
28 Id 31 152 NLRB 258, 261, in 6 (1956)
29 Id
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
classifications such as shear operator, press operator,
welder, and grinder.
In addition to the foregoing nonpnntingjobs which
were available in the Madison area during the
backpay period, the record shows that other non-
printing employment existed which some of the
claimants were able to obtain. Thus, during all
quarters of the backpay period Giltner worked as a
grocery store clerk and Stone found part-time
employment as a motorcycle dealer. Corbin and
Giltner received referrals from the employment
office for a job at a distillery 50 miles from Madison.
Neither applied because of the unreasonable com-
muting distance the work would have involved.
Corbin unsuccessfully applied for part-time work at
a grocery store. Ashly applied for ajob as an aviation
ordinance man at the Jefferson Proving Ground, but
was unsuccessful because of a Government freeze on
hiring.
The fact that two claimants were able to obtain
nearby alternative employment opportunities which
were not in keeping with their trade in no way
detracts from the skill, background, and experience
in the printing industry which they and the other
unfair labor practice strikers possessed. In this
regard, we note that David Ashby worked as an
automobile body repairman, automobile salesman,
and farmer for 6 years, but during the next 11 years
he worked for the Respondent and was a compos-
itor-pressman at the time of the strike. Corbin, who
was a linotype operator at the time of the strike,
began working for the Respondent immediately
upon graduation from high school and continued to
work for the Respondent for the next 9 years. Albert
Dowell was employed by the Respondent immediate-
ly after graduation from high school. He had worked
for the Respondent for 11 years and was employed as
an advertising compositor at the time of the strike.
Walter Dowell worked for 15 years in the shipping
department of a nail factory, but during the
subsequent 19 years he worked for the Respondent
and was an advertising compositor at the time of the
strike. Giltner worked for the Respondent for 6 years
as a pressman after brief employment over a period
of 2 years as a farmer and as an employee in a
poultry processing plant. Juett, who was 66 years of
age at the time of the backpay hearing, had been
with the Respondent for 41 years and was a linotype
operator at the time of the strike. Kerr had "grown
up in the printing industry," working as a linotype
operator for her family, for a printing establishment
in Louisville for 7 months, and then for the
Respondent for 4 years. Lorenz, who was 62 years
old at the time of the backpay hearing, worked for
the Respondent for more than 40 years and was a
linotype operator at the time of the strike. Mead,
who was 63 years old at the time of the backpay
hearing, had worked for the Respondent on a part-
time basis for 2 years as an ad compositor. Nichols
had been employed for 18 months as a civilian
gunner at the Jefferson Proving Grounds, following a
2-year tour of military duty, but he was subsequently
employed by the Respondent for 11 years and was a
linotype operator at the time of the strike. Storie had
worked for brief periods of time as an auto
mechanic, but he was subsequently employed by the
Respondent during the next 7 years. He worked as
an assistant pressman at the time of the strike.
After considering the skill, background, and
experience of each of the claimants we conclude that
the above-described alternative employment which
existed outside, and wholly unrelated to the printing
industry during the backpay period was not suitable
for claimants Ashby, Corbin, Albert and Walter
Dowell, Feltner, Giltner, Juett, Kerr, Lorenz, Mead,
Moore, and Storie, so that these unfair labor practice
strikers were not required to lower their sights to seek
such employment. To hold otherwise would be to
force an experienced member of a specialized trade
to abandon his chosen craft in order to diminish the
Respondent's liability for its established wrongdoing.
Moreover, to force such abandonment would ham-
per production and employment by causing a
discriminatee to prejudice his skills in a highly
complex and constantly changing industry. The
resulting loss of proficiency and experience would be
an inhibiting factor in obtaining new employment in
the printing trade as well as in progressing with any
job a striker was already performing before the
Respondent's unlawful act.
In considering claimants Feltner and Moore we
note that their skills in the printing trade were limited
to reading proofs and operating the typewrite-like
keyboard of a teletypesetter, for which Feltner
earned $1.35 and Moore earned $1.40 an hour. With
respect to their background and experience, both
were recent high school graduates, Feltner having
worked for the Respondent slightly less than a year
and Moore slightly more than a year prior to the
strike. Moore had completed a year of business
school and had prior employment as a clerical
employee in a business office. Both employees had
done some general office work for the Respondent.
Unlike the situation with respect to printing jobs,
available clerical jobs existed during the backpay
period at several nonprinting sources of employment.
THE MADISON COURIER, INC.
Upon review, we find that such jobs were suitable
interim employment for claimants Feltner and
Moore. In light of the fact that such employment
existed and because neither claimant Feltner nor
Moore made any inquiry or application for any such
job, other than through the state employment agency
by inquiries on their behalf made by the Umon,32 we
conclude that claimants Feltner and Moore each
failed to make a reasonable effort to obtain suitable
interim employment during the backpay period.
Accordingly, we strike from the backpay specifica-
tion the sums which we heretofore determined were
due to employees Feltner and Moore.
In its decision in the instant case, the court
characterized the claimants' registration with the
state employment agency and their utilization of the
Union "grape vine" as seemingly inadequate efforts
to obtain employment.33 The court noted that while
the Board described registration by the unfair labor
practice strikers as "the only meaningful way" of
seeking employment, it excused the failure of
claimant Ashby to register with the agency by
characterizing such registration as a "futile act."34 In
addition, the court stated that the Board had not
adequately explained the failure of the claimants to
seek positions with the five weekly newspapers in the
Madison area.35 As for the possibility that no
printing work existed in the Madison area even if the
claimants had diligently sought such work, the court
stated that "with such diligence lacking, the circum-
stance of a scarcity of work and the possibility that
none would have been found even with the use of
such diligence is irrelevant.1136
We agree with the court that the claimants'
registration with the employment office is not
conclusive evidence of a reasonable search for
employment. It is, nevertheless, evidence that the
claimants did, in fact, seek work.37 As one of the
claimants, Lorenz, stated, "if there was any work
available, why certainly it should have shown up
there." The record shows that all of the claimants
with the exception of Ashby filed a continuing
registration with the employment office during the
first quarter of the backpay period.38 Subsequently
the claimants again visited the employment office on
the following dates: Corbin-9/8/66, 10/27/66,
12/29/66, 2/16/67, 4/13/67; Albert Do-
well-9/8/66, 10/13/66; Walter Dowell-9/8/66,
10/6/66; Juett-9/8/66, 10/6/66, 11/17/66,
32 The record shows that claimants Feltner and Moore registered for
work with the state employment agency during the first quarter of the
backpay period Thereafter, Feltner again visited the employment office on
9/1/66, 10/13/66, and 1/12/67 Moore revisited the office on 9/29/66,
11/10/66, 1/15/67, and 5/25/67 Both claimants testified that they knew
that the Union was looking for employment for them
33 472 F 2d 1307
34 Id
35 Id
813
12/8/66, 1/5/67, 2/9/67, 3/2/67, 4/13/67, 5/25/67;
Kerr-10/13/66, 1/12/67, 2/23/67, 5/25/67; Lor-
enz-9/8/66, 10/20/66, 1 / 19/67, 3/16/67, 5/4/67,
6/29/67, 8/31/67, 10/5/67; Nichols-9/8/66,
11/17/66, 2/23/67, 4/13/67; and Storie-9/ 18/66,
11/3/66, 4/13/67. In addition, claimant Mead
visited the employment office twice within a month
after filing his application for employment.
The claimants' utilization of the Union to obtain
work by means of the labor "grape vine" and their
individual word of mouth inquiries are not without
significance. Indeed, because of the "country shop"
nature of the local printing establishments, the jobs
that did become available were frequently obtained
by "word of mouth" or by a secretary of one local
union contacting a secretary of another local union
to learn what jobs, if any, existed in a particular
location. In this regard, we note that a representative
of the International Union, Donald McFee, and a
local union officer, Nichol Bachert, contacted chapel
chairmen of other local unions, foremen, newspaper
owners, and other appropriate sources in an attempt
to obtain employment opportunities for the strikers.
The strikers were aware that the Union was seeking
work for them and so testified. Corbin testified that
the Union's secretary-treasurer would get in touch
with him if there was an opportunity for employ-
ment. The Dowells were advised by the Union's
secretary-treasurer of job openings in Louisville,
which they applied for and received. Juett testified
that he knew the Union was seeking work for him.
Kerr was aware that the Union sought work for her
as shown by a job which the Union obtained for her
at the Dunne Press in Louisville.39 Mead testified
that he was aware of the Union's effort to find
employment for him. Nichols testified that he had
knowledge that the Union was seeking work for him
within the industry. Moreover, as was the case with
Kerr, who shared work with Corbin, Nichols, and
Lorenz, other strikers would let each other know of
any available work within the printing trade.
With respect to printing work which may have
been available in the Madison area, the Madison
Courier was the only daily newspaper in the nearby
vicinity. The closest other daily papers were all 50 or
more miles from Madison. In addition, there were
five area weekly publications within the immediate
area: The Trimble Democrat and Banner, in Prat-
fored, Kentucky, 10 miles away; the Gallatin County
36 Id
37 See Fibreboard Paper Products Corporation, 180 NLRB 142. 148
38 Although Giltner, unlike other claimants, failed to revisit the
employment office after registering there for work, we note as did the court,
that the claimants' applications for employment remained on file during the
entire backpay period See 472 F 2d 1307
39 The court agreed with the Board that Kerr's rejection of thejob was
reasonable in light of her personal circumstances 472 F 2d 1307
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
News, in Warsaw, Kentucky, 35 miles away; the
North Vernon Plain Dealer and Sun in North
Vernon, Indiana, 20 miles away; the Carrollton
Mirror in Carrollton, Kentucky, 12 miles away; and
the Versailles Republican, in Versailles, Indiana, 25
miles away. There were also several small print shops
in the Madison area which are discussed, infra.
As to possible employment opportunities at the five
area weekly publications which were within a 25-mile
radius of Madison, the Respondent offered two
witnesses to meet its burden of establishing facts
which would negate or mitigate its liability as to a
given employee.40 The owner of the North Vernon
Plain Dealer testified that "he could have put a man
on," but he did not testify that he did, in fact, hire
anyone within the backpay period. The Versailles
Republican did actually hire four or five printers
during the backpay period, but these were untrained
employees who were paid the minimum wage. The
publisher testified that "It is practically impossible
for a weekly paper to go out and hire a trained
person" and if one were available it is doubtful that
"we could pay the wages that he would be willing to
accept." The significance of this testimony becomes
apparent in light of the fact that all claimants except
Feltner and Moore, the two typesetter tape punch
operators discussed supra, were earning between
$2.16 and $2.50 an hour when the strike began.
During the backpay period some of the claimants
were able to obtain employment at small print shops
in the Madison area. Claimants Kerr, Corbin,
Nichols, and Lorenz shared a temporary 3-day-a-
week job at the Trimble Democrat and Banner.
Corbin worked there during the first four quarters
of the backpay period, Kerr during the first
four and the sixth quarters, Lorenz during
the first two quarters, and Nichols during
the first four quarters. During the last two quarters
of the backpay period, Nichols worked for
2 days a week at the Gallatin County News.
After working for the Trimble Democrat
and Banner, Lorenz unsuccessfully applied for
work at the Democrat Publishing Company. Mead
obtained casual work at the Madison Press and at
Chapman Printing Company during the entire
backpay period. Walter Dowell worked part time at
the Madison Press during the first four quarters of
the backpay period. In addition, Albert and Walter
Dowell worked for the Courier-Journal in Louisville
for all but the first quarter of the backpay period.
Thus, because of the slight labor market, only six
claimants were able to obtain suitable nearby
employment within the printing industry, and such
employment was only at four printing establishments
and was casual or part time.
Although the court noted that the possibility that
no work could be found is irrelevant where due
diligence on the part of a claimant to find alternate
employment is lacking, the court appeared to
recognize that scarcity of work does, nevertheless,
reflect upon what the standard of diligence should
be.41 Thus, the court noted 42 (1) that although the
strikers' applications for work remained on file with
the state employment agency throughout the entire
18-month backpay period, none received a printing
job referral, (2) that the reason for this scarcity of
available printing work was simply the limited
number of printing employers located in and around
the rural Madison area, and (3) that the claimants
also sought printing work through the Union, but
were only able to locate jobs for employees Walter
and Albert Dowell and Virginia Kerr, and that such
employment was all in Louisville, Kentucky, an
unsuitable distance of over 50 miles away.
Mindful of the lack of opportunities for employ-
ment existing in the printing trade during the
backpay period and in the absence of a showing by
the Respondent that unfilled jobs comparable to
those held by the claimants at the time of the strike
actually existed during the backpay period, we
conclude that the Respondent has failed to establish
that any of the claimants incurred a willful loss of
earnings by not making an inquiry or application for
each and every possible job that might have existed
within the printing industry.43 We further conclude
that, in the circumstances of this case, the unfair
labor practice strikers' continuing registration with
the state's employment agency and their utilization
of the Union "grape vine" constituted adequate
efforts on their part to obtain work in the printing
industry.44
Because employee Ashby failed to take action to
obtain employment by registering with the Indiana
Employment Security Division, and in the absence of
evidence that he performed any work during the 18-
month backpay period, we find, upon reconsidera-
tion, that the Union's effort to find employment for
him and the single application which he made to
obtain the job of aviation ordinance man with the
U.S. Government do not constitute an adequate
effort by Ashby to find suitable interim employment
within the backpay period. Accordingly, we strike
from the backpay specification the sum which we
heretofore determined was due to employee Ashby.
40 See cases cited at In 12 herein and accompanying text 43 See, e g , Bonnar - Vawter, Inc, 135 NLRB 1270, 1278, fn 12, and see
41 See , e g , N L R B v Pugh and Barr, Inc, 207 F 2d 409 (C A 4 , 1953), cases cited at In 12 herein and accompanying text
cited by Judge Leventhal in his concurring opinion , 472 F 2d 1307 44 See Fibreboard Paper Products Corp, 180 NLRB 142, 148
42 472 F 2d 1307
THE MADISON COURIER, INC. 815
ORDER
On the basis of the opinion of the United States
Court of Appeals for the District of Columbia
Circuit dated August 9, 1972, the Administrative
Law Judge's Supplemental Decision dated May 26,
1969, as modified herein, and the entire record in
this case, the National Labor Relations Board hereby
orders that the Respondent, The Madison Courier,
Inc., its officers, agents, successors, and assigns,
shall pay the claimants involved in this proceeding
as net backpay the amounts determined to be due
by the Administrative Law Judge in the said Sup-
plemental Decision except that no backpay shall be
due to employees David R. Ashby, Paula B. Feltner,
and Judith A. Moore.