J. - National Labor Relations Board

VII. PRINCIPLES ESTABLISHED 99The Board, upon finding that an employer has a valid objectionto the reinstatement to his former position of an employee discriminatedagainst, has ordered reinstatement to a substantially equivalentposition with respect to which the objection does not hold."The Board has refused to reinstate an employee who, subsequentto a discriminatory discharge, offered his services to the employeras an industrial spy, on the ground that reinstatement of such anemployee would not effectuate the policies of the act.18In several cases the Board found that the employment secured bythe discharged employee elsewhere was not substantially equivalentto the position held prior to the discrimination, and therefore foundit unnecessary to pass upon the issue as to whether or not reinstatementwould have been ordered if a discharged employee had, infact, secured substantially equivalent employment."In addition to requiring the reinstatement of an employee discriminatedagainst, the Board usually orders an employer to makesuch employee whole for loss of pay which he normally would haveearned had the unfair labor practices not occurred. 2° Under appropriatecircumstances the Board will enter a back-pay order eventhough it does not order reinstatement.21Since the Board seeks to make whole employees who have beendiscriminated against by payment to them of a sum of money equalto that which the employees would normally have earned had theunfair labor practices not occurred, the a-mounts earned elsewhereduring the period of discrimination are excluded from the sumto be paid. 22 If, however, these amounts are earnings which the employeewould have made while in the employ of the respondent, nodeduction will be made. 23 Upon the same principle, the Board hasheld that the net earnings to be deducted from back pay should becomputed on the basis of total earnings less the expenses incidentto the seeking of new employment, such as transportation costs.2411 Matter of Douglas Aircraft Company, Inc. and United Automobile Workers of America,International Union, Douglas Local No. 214, 10 N. L. R. B. 242, enforced as modifiedSeptember 22, 1939 (C. C. A. 9) (statute against employment of alien upon Governmentwork precluded reinstatement to former position ; Board ordered reinstatement to substantiallyequivalent position with proviso that after alien had acquired citizenship he.should be restored to former position upon application) ; Matter of Harnischfeger Corporationand Amalgamated Association of Iron, Steel and Tin Workers of North America,Lodge 1114, 9 N. L. It. B. 676, enforced, N. L. R. B. v. Harnischfeger Corp., June 6, 1939(C. C. A. 7) (negligent act of employee which damaged valuable machine discovered byemployer subsequent to discriminatory discharge)." Matter of Thompson Cabinet Company and Committee for industrial Organization,Local Industrial Union No. 115, 11 N. L. R. B. 1106.19 of L. C. Smith d Corona Typewriters. Inc. and International Metal Polishers,Buffers and Platers Union of North America, 11 N. L. R. B. 1382; Matter of Automotive.Afaintenance Machinery Company and Steel Workers Organizing Committee et al., 13N. L. R. B.. No. 40.25 See Third Annual Report, p. 201.21 Matter of Crossett Lumber Company and United Brotherhood of Carpenters andJoiners of America, Lumber and Sawmill Workers Union. Local 2590, 8 N. L. R. B. 440,enforced N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8).(Employees did not desire reinstatement) ; Matter of El Paso Electric Company. a corporationand Local Union 585, International Brotherhood of Electrical -Workers, et al., 13 N. L. R. B..No. 28 (employee died prior to Board order ; back pay ordered to be paid to employee'sestate).See Third Annual Report, pp. 201-2.24 Matter of Link Belt Company and Lodge 1604 of Amalgamated Association of Iron..Steel and Tin Workers of North America, at at., 12 N. L. R. B. 854, petition to reviewfiled May 25, 1939 (C. C. A. 7).24 Matter of Crossett Lumber Company and United Brotherhood of Carpenters andJoiners of Americc, lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440,enforced N. L. R. B. v. Crossett Lumber Company, 102 F. (2d) 1003 (C. C. A. 8). TheBoard said :"Some of the employees maintained homes in Crossett, or its immediate vicinity, wherethey lived with their families, and in going to other places to work, they incurredexpenses such as for transportation, room, and board, which they would not have incurred