1943 - National Labor Relations Board

The N. L. R. A. in Practice: Unfair Labor Practice Cases 41The Board does not, however, always grant back pay in full.Where the filing of charges on behalf of discriminatorily dischargedemployees was unreasonably delayed, the Board in several casesdecided during the last fiscal year followed earlier rulings and abatedthe amount of back pay." In ordering payment of back pay to adiscriminatorily discharged employee who subsequent to her dischargebecame the mother of a child, the Board excluded from theperiod for which reimbursement was to be made a 3-month periodstarting 2 months prior and ending 1 month subsequent to the dateof the child's birth." And in determining the amount of back paydue to a discriminatorily discharged employee who had obtainedemployment elsewhere but had then taken voluntary leave withoutpay, the amount he would have earned if he had not taken this voluntaryleave from his other employment was deducted by the Board."Several cases decided during the last fiscal year raised the questionof when a discriminatorily discharged employee has willfully incurredlosses for which, the Supreme Court has indicated, 47 he should notbe reimbursed by the employer.° Because of present wartime conditions,and for the period of their duration, the following generalpolicy was adopted by the Board in a case decided shortly after theclose of the last fiscal year: 49 -In determining whether an employee discriminatorily discharged has willfullyincurred a loss of earnings subsequent to his discharge, for which he should notbe reimbursed, we have heretofore generally followed a policy of restricting thescope of our inquiry to the question of whether the dischargee has been guilty ofan "unjustifiable refusal to take," or has given up, desirable new employment.In view of the exigencies of war, the current manpower shortage, and presentemployment opportunities, we shall, for the duration of this war, permit employersto adduce evidence not only on whether a dischargee has unjustifiably refusedto accept, or has given up, desirable new employment, but also on whether he hasmade a reasonable effort to obtain such employment. In view of the availabilityof United States Employment Service offices as a medium for seeking and obtainingemployment, we shall regard registration with such an office as conclusiveevidence that a reasonable search for employment has been made, and, wheresuch registration is shown, the employer will then be restricted to proof that thedischargee, without good cause, rejected an offer of, or gave up, desirable newemployment. If the employer adduces evidence showing a failure to registerwith the United States Employment Service, he may then proceed to prove thatno other reasonable effort to obtain desirable new employment has been made.In determining whether there has been such a reasonable effort, we shall considerall the evidence, including circumstances which would explain the failure to makesuch effort.44 Matter of American Creosoting Company, Inc., 46 N. L. R. B. 240; Matter of Holston ManufacturingCompany, 48 N. L. R. B. 55; Matter of Chas. E. Austin, Inc., 49 N. L. R. B. 1048. But el.Matter of JohnsonSteel and Wire Company, 42 N. L. R. B. 1051; Matter of The Cleveland Worsted Mills Company, 43 N. L. R. B.545."Matter of Weiss & Geller, New York Inc., 51 N. L. R. B. 796.'S Matter of Ford Motor Company, 50 N. L. R. B. 534. .47 Phelps-Dodge Corp. v. N. L. R. B., 313 U. S. 177.' A majority of the Board has distinguished the case in which an employee leaves his Job as the alternativeto accepting a discriminatory transfer or other discriminatory terms or conditions of employment, and hasordered full reimbursement of such employees for any loss of earnings thereby caused them. Matter ofWaples -Platter Co., 49 N. L. R. B. 1156; Matter of Budd Wheel Company, 49 N. L. R. B. 1350; Matter of FordMotor Company, 50 N. L. R. B. 534."Matter of The Ohio Public Service Company, 52 N. L. R. B. 725.