Hastie, Chief Judge, Biggs, Kalodner, Freedman, Seitz, Van Dusen, Aldisert and Stahl, Circuit Judges. Van Dusen, Circuit Judge dissenting.
This is the decision on the Company's petition to review and set aside a supplemental backpay order of the National Labor Relations Board and the Board's request for its enforcement.
The present dispute arises out of a finding, approved by this court, that the Company had dismissed certain of its employees in violation of the Act. N.L.R.B. v. Jack G. Buncher, d/b/a The Buncher Company, 316 F.2d 928 (3rd Cir. 1963). The Regional Director thereafter issued a backpay specification and Notice of Hearing formulated in accordance with § 102.52 of the Board's Rules and Regulations. It contained a statement of the dollar amounts allegedly due each discriminatee as well as the following statement of the method employed by him in determining whether the discriminatees would have been discharged in any event for purely economic reasons after May 12, 1960:
"2. The first reduction in force at the Respondent Company's Nine Mile Run facility subsequent to March 4, 1960, occurred on May 12, 1960.
"3. Each of the discriminatees was entitled to backpay in accordance with the weekly average hours worked by the employees of Respondent at the Nine Mile Run facility until May 12, 1960.
"4. When there was not sufficient work available at the Nine Mile Run facility after May 12, 1960 for all of the discriminatees and all of the other employees who were employed at the Nine Mile Run facility at the time of the discrimination, an appropriate method of determining each discriminatee's entitlement to backpay during the period after May 12, 1960 is:
"(a) By allocating the available jobs at the Nine Mile Run facility among the discriminatees and the aforesaid other employees in accordance with their seniority; and
"(b) Only when sufficient work was not available at the Nine Mile Run facility for a discriminatee, then by allocating the available jobs at all of Respondent's locations, namely, Nine Mile Run, Leetsdale and Yard, among the discriminatees and the other employees who were employed at all of said Respondent's locations at the time of the discrimination in accordance with their seniority.
"5. The seniority referred to in paragraph 4 above is based on an employee's most recent hiring date with Respondent.*fn1
The Company filed a response to the specifications in which it challenged the position that seniority was a permissible basis for calculating the backpay. It listed some ten criteria which it indicated were utilized by it to determine whether to retain or re-employ employees. It attached a chart purporting to apply the criteria to the discriminatees, retained employees, and employees first hired during the backpay period. It was admitted, however, that the chart was prepared after the fact on the basis of personal recollections by the Company's supervisors concerning 225 employees over a four and one- half year period.
Thereafter the matter came on for hearing. The Company sought to establish the validity of the chart attached to its response by the testimony of its supervisors. The trial examiner found that no employee was entitled to backpay for the period after May 12, 1960. He so concluded because the backpay claims were based on "seniority", whereas the Company did not use seniority in effectuating reductions in force. The Board reversed and remanded, holding that "an absence of the use of seniority by the Respondent does not render the General Counsel's utilization of seniority in this proceeding unreasonable, per se."
Upon remand the trial examiner first considered the Company's evidence in support of its claim that none of the discriminatees would have been rehired after May 12, 1960, because the employees retained or newly hired during that period met the Company's employment criteria, and the discriminatees did not. The examiner, after noting that the evaluations were not based on any written records, concluded from his analysis that the Company's testimony was "fraught with inconsistencies, internal contradictions, exaggerations and implausibilities". He noted that the Company's sole proprietor, Jack Buncher, had testified that there was nothing seriously wrong with the discriminatees' work, and that he would rehire them if needed. He also found that the Company trained employees to perform tasks which the discriminatees could have been trained to perform. In the light of these and other findings, the trial examiner decided that "the charted information was contrived for the purpose of denying backpay to the discriminatees". He therefore rejected the Company's evidence and recommended that the Board adopt the specifications of the General Counsel.
The Board affirmed the examiner's decision. It pointed out that since the Company's "system" had been discredited it was impossible to determine precisely the amount of backpay in any particular case. It held further that to prevent the General Counsel from estimating the pay each discriminatee would have earned because he was unable to establish with certainty that the employees would have been retained would permit the Company to profit from its own wrong. In consequence the Board found that the premises underlying the General Counsel's prima facie ...