NATIONAL LABOR RELATIONS BOARD

VI. LITIGATION 97
Court ruled that the Board was empowered not merely to require
the employer to cease and desist from such violation, but also to order
the employer to undo the wrong by offering the men discriminated
against the opportunity for employment which should not have been
denied them. 14 The Court also considered, in the Phelps Dodge case
and in Continental Oil Co. v. N. L. R. B.,19 whether the Board's power
to require reinstatement was defeated where the employee had obtained
regular and substantially equivalent employment elsewhere.
The Court held that the appropriateness of such an order was within
the Board's discretion, and directed that the case be remanded to the
Board to permit the Board to redetermine the appropriateness of
the order. 16 The Court rejected a modification of the back pay orders
requiring deduction of amounts the workers "failed without excuse
to earn" and directed that the necessity for such deductions be determined
in the first instance by the Board under appropriate procedures
to be devised by it.'7 In this connection, the Court noted with approval
many examples of the Board's flexible exercise of its authority
with respect to back pay orders "to attain just results in diverse,
complicated situations.' 19
An important problem relating to back pay orders concerned the
framing of appropriate relief in cases where employees discriminatorily
discharged had found employment on federal or other work
relief projects. The Board was of the view that the policies of the
Act would best be effectuated by requiring the employer to reimburse
the governmental agencies concerned in order to prevent him from
shifting the burden of his unfair labor practices to the shoulders of
the relief agencies. The question was authoritatively resolved in
the negative, however, in Republic Steel Corp. v. N. L. R. B.19
Written agreements.—The greatly mooted question of whether
agreements reached through collective bargaining may be required
to be embodied in written contracts signed by the employer, was
settled affirmatively by the Heinz case."
Other remedial action,.—Several important questions relating to
Board orders have arisen during the past year but have not yet been
definitely settled. These involve, among others, the validity of orders
requiring reimbursement of wages checked off by the employer in
favor of company-dominated organizations, 21 and the validity of
so-called "cautionary" orders, designed to restrain the commission
of unfair labor practices which have not been committed but which
Idem, at 187-188.
15 31 3 lg. S. 212.
"313 U. S. 177, 189-197; 313 U. S. 212. 214.
" Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 197-200.
18 Ideas., at 198-199.
" 311 U. S. 7.
20 311 U. S. 514. 523-526.
n Orders requiring employers to cease and desist giving effect to check-off agreements
have been enforced in Titan Metal Mfg. Co. V. N. L. R. B., 106 F. (2d) 254 (C. C. A. 3) ;
N. L. R. B. v. West Kentucky Coal Co., 116 F. (2d) 816 (C. C. A. 6) ; N. L. R. B. V.
1. Greenebaum Tanning Co., 110 F. (2d) 984 (C. C. A. 7) ; Kansas City Power d Light Co.
v. N. L. R. B., 111 F. (2d) 340 (C. C. A. 8) ; N. L. R. B. v. Continental Oil Co., 121 F. (2d)
120 (C. C. A. 10). Reimbursement orders, however, have been refused enforcement in the
Greenbaum, Kansas City, and West Kentucky_cases, supra, where the check-off was accompanied
by a closed-shop agreement, and in Western Union Telegraph Co. V. N. L. R. B.
113 F. (2d) 992 (C. C. A. 2) ; A. E. Staley Mfg. Co. v. N. L. R. B., 117 F. (2d) 868
(C. C. A. 7) ; and in the Continental Oil case, supra, where no closed-shop provision was
involved. The question has been submitted to the Supreme Court in Virginia Electric ik
Power Co. V. N. L. R. B., 115 F. (2d) 414 (C. C. A. 4), certiorari granted, 312 U. S. 677.