NATIONAL LABOR RELATIONS BOARD

VII. PRINCIPLES ESTABLISHED 203
In an early decision 12 the Board enunciated the rule that where, in
his intermediate report, a trial examiner finds that the employer has
not violated section 8 (3) of the act and the Board later reverses that
finding:, back pay will not be ordered for the period from the • date
of the Litermediate report to the date of the Board's decision and order.
The reason for the rule is that the employer cannot have been expected
to reinstate the discharged men after receipt of the trial examiner's
report. The Board has adhered to this principle in cases decided during
the past year. 13 A different conclusion was reached, however, upon
the facts in Matter of American Potash & Chemical Corporation.14
There the Trial Examiner found discriminatory discharges and recommended
reinstatement. He further recommended the dismissal of the
complaint, however, upon a finding that the employer's acts were not
unfair labor practices affecting commerce within the meaning of section
2 (6) and (7) of the act. The Board, thereafter, reversed the
latter finding. It ordered back pay for the full period of discrimination,
stating:
It would * * * clearly appear that the respondent by its failure to reinstate
these discharged employees did not rely upon the Trial Examiner's recommendations.
On the contrary, it used the Trial Examiner's finding as a basis for discharging
union members and their sympathizers without even a pretense that
the discharges were for any reason but to destroy completely the desire of its
employees to self-organization without interference.
A further variation was introduced in Matter of Whiterock Quarries,
Inc.," where, too, the trial examiner had found violations of section
8 (3) but had recommended dismissal of the complaint for lack of
jurisdiction. For failure of the union to except, the case became
closed. More than 2 years later the Board reopened the case and
thereupon reversed the trial examiner's finding as to jurisdiction.
In its order directing back pay, the Board excluded the long period
during which no action in the case was being taken i. e. the period
from the date of the trial examiner's report to the dale of lhe Board's
order reopening the case.1°
Additional affirmative action required by the Board to be taken in
cases in which it has found that strikes have been caused by discrimdiminished
their earnings during the period of discrimination such earnings should not
be deducted in computing loss of pay for which the employees must be made whole In
Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L.
R. B., No. 33, the Board ordered that the sums payable to employees who had been discriminated
against be reduced by amounts earned by them during the period of discrimination
upon work relief projects, and that the employer repay such amounts to the
appropriate fiscal agents of the Federal, State, country, municipal, or other government
or governments which supplied the funds for the work relief projects.
12 Matter of B. R. Haffelfinger Company, Inc. and United Wall Paper Crafts of North
America, Local No. 6, 1 N. L. R. B. 760.
13 See, for example, Matter of Kentucky Firebrick Company and United Brick and Clay
Workers of America, Local Union No. 510, 3 N. L. R. B. 455, order enforced in National
Labor Relations Board v. Kentucky Firebrk Company, 99 F. (2d) 89 (C. C. A. 6th,
1938) rehearing denied Oct. 12, 1938; Matter of the Louisville Refining Company and
International Association, Oil Field, Gas Well and Refinery Workers of America, 4 N. L.
R. B. 844; Matter of Kuehn° Manufacturing Com pany and Local No. 7191, United Brotherhood
of Carpenters and Joiners of America, 7 N. L. R. B. 304.
14 Matter of American Potash. d Chemical Corporation and Borax d Potash Workers' Union
No. 20191, 3 N. L. R. B. 140, order enforced in National Labor Relations Board V. An:Priam
Potash and Chemical Corp., 98 F. (2a) 488 (C. C. A. 9th, 1938).
1, Matter of TVhiterock Quarries, Inc. and Limestone Workers Union No. 19450, 5 N. L.
R. B. 601.
10 See also Matter of M. and M. Wood Working Company and Plywood and Veneer
Workers Union Local No. 102, affiliated with International Woodworkers of America,
6 N. L. R. B. 372, where the Board, in view of the employer's honest reliance upon the
decision of a district court of the United States which sustained an interpretation of a
contract as requiring the employer to discharge certain employees, withheld its order for
back pay although requiring the reinstatement of the employees in question.
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