1 - National Labor Relations Board

158 Thirty-fourth Annual Report of the National Labor Relations Board
court's decree enforcing the Board's order in the unfair labor
practice case constituted inordinate delay which had "lulled"
the company into the belief that the Board was satisfied and
and that no further action was to be expected, and had made it
difficult for the company, which had the burden of proving any
facts which would mitigate backpay, to produce affirmative evidence
in support of its defenses. The court recognized that the
doctrine of laches was not applicable, since a backpay proceeding
is designed to enforce public rights, by deterring unfair labor
practices, rather than to enforce the private rights of the employees.
However, the court was of the view that it should strike
a balance between the interests of the Board, the union, and the
employer in light of the provision in the Administrative Procedure
Act requiring agencies to proceed with reasonable dispatch
to conclude any matters presented to them. Accordingly, the
court held that backpay awards should be limited to a period
ending 2 years after the enforcement decree in the unfair labor
practice case.86
4. Other Issues
In the Kroger case, 87 the Sixth Circuit, while sustaining the
Board's finding that the company violated section 8 (a) (1), (3),
and (5) of the Act by excluding from participation in its pension
and profit-sharing plans all employees covered under plans established
as a result of collective bargaining through labor organizations,
and refusing to discuss such exclusion with the
unions, declined to enforce the Board's order requiring that employees
forced to withdraw from the company's plan because of
the illegal provision be restored to the status in the plan which
they would have enjoyed absent their withdrawal. The court
noted that the unlawful provision in the plan, while it might
have had the effect of discouraging union membership, had not
been deliberately designed for that purpose. The proposed remedy
presented very complex problems with multiple ramifications ;
since the plan was voluntary as to the employees' participation,
the amount of money invested by each employee, and the time
of withdrawal, any attempt to determine the status in which the
employees would have been had they not been forced to withdraw
from the plan would be pure speculation. Accordingly, in
86 The Board's petition to the Supreme Court for a writ of certiorari was granted 393 U.S.
1116.
ST Kroger Co. v. N.L.R.B., 401 F.2d 682.