Acme Mattress Co., Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1950

91 N.L.R.B. 1010 (N.L.R.B. 1950)

In the Matter of ACME MATTRESS COMPANY, INC. and FLOYD A. LrrrLE-
TON, AN INDIVIDUAL
In the Matter of TEXTILE WORKERS UNION OF AMERICA, CIO and LOCAL
169, TEXTILE WORKERS UNION OF AMERICA, CIO and FLOYD A. Lrr-
TLETON, AN INDIVIDUAL
Cases Nos. 35-CA-66 and 35-CB-12.-Decided October 18, 1950
DECISION AND ORDER
On April 13, 1950, Trial Examiner Henry J. Kent issued his Inter-
-mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent Com-
pany, the Respondent Unions, and the General Counsel filed excep-
-tio.ns to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner and finds
-that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
.exceptions and briefs, and the entire record in the case,'- and hereby
Adopts the findings, conclusions, and recommendations of the Trial
Examiner, except to the extent that they are inconsistent with this
Decision and Order.
1. We agree with the Trial Examiner that, in discharging Little-
ton at the insistence of Cline and the negotiating committee of the
Respondent Local, the Respondent Employer violated Section 8 (a)
(1) and (3) of the Act. We also agree that the Respondent Unions
.caused the Respondent Employer to discharge Littleton, in violation
of Section 8 (b) (2) and (1) (A). It is clear that the Respondent
Unions made agreement by the Respondent Employer to discharge
.Littleton a. condition precedent to the execution of a contract and
the termination of the strike. Accordingly, we find without merit
.the Respondent Unions' contention that, as Littleton's employment
' As the record and the exceptions and briefs , in our opinion , adequately present the
issues and the positions of the parties , the Respondent Unions' request for oral argument
is hereby denied.
91 NLRB No. 169.
1010
ACME MATTRESS COMZPANY, INC. 1011
was not actually terminated until after the end of the strike and the
execution of a contract containing a no-strike clause, such termination
must be regarded either as voluntary or at the instance of the Res-
pondent Employer.
We also reject the contention of the Respondent Unions that they
are not responsible for the actions of Cline and the negotiating com-
mittee, in procuring Littleton's discharge. As more fully set forth by
the Trial Examiner, when Cline procured Littleton's discharge, he
was acting, at least in part, as spokesman for the negotiating commit-
tee of the Respondent Local; moreover, at no time did the negotiating
committee, which was present throughout the negotiations, disassoci-
ate itself from Cline's actions. We find, accordingly, that the negoti-
ating committee is responsible for Cline's actions in procuring Lit-
tleton's discharge. Although the negotiating committee was not
specifically authorized by the Respondent Local to procure Littleton's
discharge, we find that, in procuring his' discharge, the negotiating
committee was acting within the scope of its apparent authority to set
the terms and conditions upon which the Respondent Local would
execute the contract and terminate the strike. We find, therefore, that
the Respondent Local is responsible for the acts which caused Little-
ton's discharge.2
With respect to the responsibility of the Respondent International,
Cline had for a number of years participated in negotiations with the
Respondent Employer and had executed the contracts resulting there-
from, on behalf of the Respondent International, as its "national rep-
resentative," and as the only representative of the Respondent Inter-
national to execute such contracts. Although Cline's actual authority
to act on behalf of the Respondent International was limited, such
limitations were not communicated to the Respondent Employer. We
find, accordingly, that in procuring Littleton's discharge, Cline was
acting within the scope of his apparent authority to set the terms and
conditions upon which the Respondent International would.execute
the contract and terminate the strike. We find, therefore, that the
Respondent International is also responsible for the acts which caused
Littleton's discharge .3
2. , The Trial Examiner found that the Respondent Employer vio-
lated Section 8 (a) (3) of the Act by executing the unlawful union-
security contract. Because no exception has been taken to this finding,
we adopt it without further comment.
'Local #1150, United Electrical , Radio t Machine Workers of America, at al. (Cory
Corporation ), 84 NLRB 972, 973.
' Ibid.
917572-51-vol. 91-5
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Trial Examiner found that, by causing the Respondent Em-
ployer to enter into an unlawful4 union-security contract, the Re-
spondent Unions violated Section 8 (b) (2) of the Act. This finding
presupposes some acts by the Respondent Unions which caused the
execution of the unlawful contract. The record, however, indicates
that the Respondent Employer voluntarily accepted the unlawful
union-security provisions. It is devoid of any evidence that the Re-
spondent Unions exerted on the Respondent Employer any pressure
designed to secure acceptance of these provisions.5 In these circum-
stances we cannot conclude that the Respondent Unions caused the Re-
spondent Employer to accept such provisions, unless we are to hold
that by merely requesting the illegal provisions the Respondent Unions
"caused" or "attempted to cause" their acceptance. Such requests,
however, are at the most acts of persuasion which are not proscribed
by Section 8 (b) (2) .e Accordingly, although we agree that the Re-
spondent Unions violated Section 8 (b) (2) in connection with the
execution of the contract, we do not base our finding on the rationale
adopted by the Trial Examiner.
We find, rather, that when the Respondent Unions executed the con-
tract of September 14, 1948, they intended that the entire contract,
including the unlawful union-security provisions, would be enforced
to the end that employees failing to acquire or retain union member-
ship would be discharged pursuant to its terms.' It is, furthermore,
beyond question that such enforcement of the unlawful union-security
provisions would- constitute discrimination in violation of Section
8 (a) (3).11 We find, accordingly, that by the act of executing the con-
' The union -security provisions required that , as a condition of employment , all present
employees immediately become members of the Respondent Local , and all new employees
become members 28 days after their employment . Such provisions are unlawful, wholly
apart from any question of whether their execution was authorized in an election under
section 9 ( e), in that they do not give all employees 30 days to join the Union as required
by Section 8 (a) (3).
5 Pressure , in the form of a strike , was exerted on the Respondent Employer before the
contract was executed . The Respondent Employer had, however, agreed to the union-
security provisions of the contract before the strike , which was called to enforce the
Respondent Unions ' economic demands . We find , therefore , that securing acceptance of
the union-security provisions was not a clear objective of the strike . See Lumber and
Sawmill Workers Union , et al . ( Santa Ana Lumber Company ), 87 NLRB 937. Cf. National
Maritime Union of America, 78 NLRB 971.
6 See Denver Building and Construction Trades Council , et al. ( Henry Shore ), 90 NLRB
1768 , and International Longshoremen's and Warehousemen's Union, et at. (Juneau
Spruce Corporation), 90 NLRB 1753 , in which the Board held that requests to dis-
criminate , and protests against refusals to discriminate , were mere attempts to persuade,
which were not proscribed by Section 8 (b) (2).
7 Although there is no evidence in the record that the union -security provisions have
been enforced ( Littleton 's discharge did not result from an appplication of the contract),
to find otherwise would be to find that the parties have entered into an agreement which
they never intended would have any meaning. Such • a finding would be contrary to the
realities of the collective bargaining relationship.
8 See, for example, Clara-Val Packing Company, 87 NLRB 703.
ACME MATTRESS COMPANY, INC. 1013
tract containing unlawful union-security provisions, with the intention
that such provisions be enforced, the Respondent Unions joined with
the Respondent Employer in creating the conditions which would result
in future discrimination, and that they thereby have attempted to
cause the Respondent Employer to discriminate against employees, in
violation of Section 8 (a) (3) of the Act, thereby violating Section
8 (b) (2) . 9
4. As no exception has been taken to the Trial Examiner's failure
to find that the execution of the contract by the Respondent Unions
also violated Section 8 (b) (1) (A) of the Act, we deem it unnecessary
to pass"on that issue'in this proceeding.
The Remedy
In view of the findings of the Trial Examiner, which we have
adopted, that the Respondent Employer violated the Act, not only by
its discharge of Littleton, but also by its execution of the unlawful
union-security contract, we shall order it to cease and desist, not only
from the unfair labor practices found, but also from in any other
manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed by Section 7 of the Act.10 We shall
also order it to cease giving effect to the unlawful union-security pro-
visions of the contract.," We shall likewise order the Respondent Un-
ions to cease giving effect to such provisions.12
As noted by the Trial Examiner, counsel for the Respondent Unions
stated on the record, at the close of the hearing, that the Respondent
Unions had no objection to the reemployment of Littleton by the Re-
spondent Employer. The Trial Examiner concluded, however, that
such a statement was insufficient to warrant deviation from the usual
back-pay order. We do not agree.
The Board has recently held 13 that a union may relieve itself from
further back-pay liability by notifying the employer in writing that
it has no objection to the reinstatement of discriminatorily discharged
employees. We believe that the same principle is applicable to a case
'The negotiating committee of the Respondent Local was authorized by the Local to
negotiate for, and execute, a collective bargaining agreement with the Respondent Employer.
Cline was specifically authorized by the Respondent International to execute a contract
containing the unlawful union -security provisions . Accordingly , both the Respondent
Local and the Respondent International are responsible for the violation arising out of
the execution of the contract.
10 H. M. Newman, 85 NLRB 725.
11 As no violation of Section 8 (a) (2) of the Act has been charged or found, we shall
not order that the entire contract be set aside or that the Respondent Employer cease giving
recognition to theRespondent Unions. Cf . Julius Resnick , Inc., 86 NLRB 38.
12 National Union of Marine Cooks and Stewards ( Pacific American Shipowners Asso-
ciation ), 90 NLRB 1099.
11 Pinkerton 's National Detective Agency, Inc., 90 NLRB 205.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARL
such as this, in which such notice is given orally on the record. Ac=
cordingly, our order will provide that the Respondent Unions shall not
be liable for any back pay due to Littleton for any period after August
9, 1949, which was 5 days after the date of the Respondent Unions'
statement on the record, that the Respondent Employer shall be liable
for any back pay which may accrue thereafter.
As regards the period prior to August 9, 1949, we shall adopt the
Trial Examiner's recommendation that the Respondent Employer and
the Respondent Unions be held jointly and severally liable for the back
pay due Littleton. The Respondent Employer contends, however,
that the Respondent Unions were solely responsible for Littleton's
discharge and, accordingly, that it would be inequitable, and would
not effectuate the policies of the Act, to hold it liable for back pay.
We find no merit in this contention.14
We have found, and our dissenting colleagues agree, that the Re-
spondent Employer, as well as the Respondent Unions, committed
unfair labor practices in connection with Littleton's discharge. They
also agree that the Respondent Unions effectively terminated their
liability for back pay as of August 9, 1949, and that the Respondent
Employer should be held liable for back pay accruing thereafter.
They would hold, nevertheless, that despite its unlawful conduct the
Respondent Employer, because it yielded to the Unions' demands as
a matter of economic expediency, should be relieved of back-pay lia-
bility during the period when we would assesss such liability against
both the Employer and the Unions. We regard this approach as un-
realistic, as more likely to increase, rather than reduce, the possibili-
ties of industrial strife and thereby to defeat, rather than promote, the
purposes and policies of the Act.
In the Newman case 15 this Board reviewed at length the language
and legislative history of Section 10 (c) as amended in 1947, and
concluded that the amendment to Section 10 (c) which permits assess-
ing back pay against ". . . the employer or labor organization, as the
case may be, responsible for the discrimination . . .," was intended
merely to extend the power of the Board to enable it to remedy the
unfair labor practices newly created by the Labor Management Rela-
tions Act. We held unanimously in that case that neither Section
10 (c) as amended, nor any other provision of the Act, distinguishes
degrees of responsibility for discriminatory treatment of an employee,
and that the policies of the Act can best be effectuated by directing a
back-pay order against both the employer and the union whenever
14 For the reasons stated in their separate opinion, Chairman Herzog and Member
Reynolds dissent from this holding.
15 Supra, footnote 10.
ACME' 'MATTRESS COMPANY,' IN'C.. ' 1015
,both are found to have violated the Act in effecting a discrimination
proscribed by Section 8 (a) (3) and 8 (b) (2).
Our dissenting colleagues now urge that we modify this approach,
and exercise what they term a "record-conscious discretion" to deter-
mine, in each case, whether the back pay should be assessed against
the employer, the labor union, or both. They argue that in the instant
case we should assess all of the back pay against the Unions because
they were "solely responsible" for Littleton's discharge. But in con-
cluding that the Unions were "solely responsible" for the discharge
they can only mean-as their analysis of the facts clearly implies-
that the Employer would not have discharged Littleton but for the
Unions' request, and the strike threats with which that request was
fortified. Nothing about the instant case distinguishes it from the
general type of situation presented in the Newman case. Nothing
in the Unions' conduct here is any more or less culpable than that
which was before us in any of the cases since the Newman decision
in which we have found discrimination against employees, effected
by employers under the pressure of economic action, or the threat
thereof, by the union involved 16 Thus, in substance, the result urged
by Chairman Herzog and Member Reynolds goes beyond any special
facts in this case. It calls for a basic shift in the approach we adopted
in the Newman decision, giving controlling weight to the fact we there
considered immaterial, i. e., the fact that the employer acquiesced in .
the Unions' illegal request, and violated the law, only under economic
pressure brought by the Unions.
Our policy of assessing liability for back pay jointly against both
the employer and the union, even where the discrimination would not
have been effected but for pressures brought by the' union, is founded
upon a basic principle well established in the decisions of this Board
and accepted by the courts. Whatever the situation may be, the fact
remains that, in the ultimate analysis, it is the employer, and only the
employer, who controls the hiring and discharge of his employees.
Recognizing this, this Board and the courts have frequently held that
it is the duty of an employer to resist the usurpation of his control over
employment by any group that seeks to utilize such control for or
against any labor organization, and that the Act affords no immunity
because the employer believes that the exigencies of the moment require
15If anything the instant case is a weaker case for concluding that the Unions were
"solely responsible " for the discrimination . The record establishes that, although the'
Employer objected to the Unions ' demand that Littleton be discharged , its representatives
chose to discuss the matter with Littleton instead of attempting to dissuade the Unions
from pressing the demand . Moreover, it does not appear that the Employer offered to
reinstate Littleton after the Unions withdrew their objection to his reemployment, and
this casts serious doubt on the Employer ' s assertion that ' it was not responsible for the
discharge.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he capitulate to the pressures and violate the statute ." We see
nothing in the amendments to. Section 10 (c) which requires a depar-
ture from this salutary principle , and we believe that this principle
cannot be given content unless the order fashioned to remedy, the vio-
lation involved in this type of case fully reflects our recognition of the
:rule that the employer's conduct may not be condoned because it was
prompted by economic necessity.
Our policy of holding both the employer and the union responsible
for the back pay due where both have been found to have violated the
law also finds support in analogous situations presented to the courts in
other fields of law. Thus the rule commonly applied in the field of
torts is that when the acts of two or more persons result in a legal
wrong all of the joint-tortfeasers are jointly and severally responsible
for the entire damages, without regard to which of them initiated the
wrong, and even though one of them may have acted under duress.'8
Moreover , it may be,noted that it is the employer who has the "last
clear chance" of preventing an illegal act in situations such as are in-
volved in this case . It is true , of course , that tort law rules of
damages-designed as they are to adjust private rights-are not con-
trolling in the enforcement of a remedial statute aimed at the protec-
tion of public rights. ^ Therefore if we were persuaded that the pur-
poses - and policies of this Act could best be served by departing from
the rule of joint and several liability in cases such as this, we would
feel free to .do so. But we are not persuaded that such is the case; on
the contrary we believe that a departure from the rule of joint and
several liability would defeat the purposes and policies of the Act.
In the view of the dissent the Act's purpose to discourage and pre-
vent unfair labor practices would be fostered by holding the union
responsible for all of the back pay in a case such as this because such
,an order would act, as .a deterrent against a union's resort to economic
action in support of a demand for unlawful discrimination . We fail
to see why that is so . Even under joint and several liability a union
always faces the possibility that it may ultimately have to pay the total
liability . It is most unlikely that a union which is not deterred by
such a risk will be deterred to a very much greater extent by the risks
11 See , for example , N. L. R. B . Y. Star Publishing Company, 97 F. 2d 465 ( C. A. 9) ;
N. L. R. B. v . Fred P. Weissman Company, 170 F . 2d 952 ( C. A. 6), cert . denied May 9,
1,949; N . L. R. B. v. American Car and Foundry Co., 161 F . 2d 501 ( C. A. 7) ; Wilson &
Co., Inc. v. N. L. R. B., 123 F. 2d 411 (C. A. 8).
18 Restatement of the Law-Torts Vol. IV, Sec . 879, states.
"A person whose tortious conduct is otherwise one of the legal causes of an injurious
result is not relieved from liability for the entire harm by the fact that the tortious act of
another responsible person contributes to the result . Nor are the damages against him
thereby diminished. - This is true where both are simultaneously negligent and also where
the act of one either occurs or takes harmful effect after that of the other. It is im-
material that as between the two, one of them was primarily at fault for causing the harm,
or that the other, upon payment of damages , would have indemnity against hini."
. ACME MATTRESS COMPANY, 'INC. 1017
inherent in an order holding it solely responsible. Moreover, the
kind of order urged in the dissent would remove one important incen-
tive for an employer to resist a union's discriminatory demands. Real-
izing that the Board will permit them to escape liability employers
will be encouraged, as the Employer did in the instant case, to buy
peace by acceeding to the union's demands. This may possibly lessen
the incidence of strikes predicated upon such demands, but it will
certainly not lessen the incidence of unlawful acts of discrimination.
Other undesirable consequences, wholly at Adds with the purposes
and policies of the Act, are also foreseeable. Thus minority groups,
knowing they could no longer rely on the employer's financial self-
interest to protect their rights, would be more inclined to resort to
self-help, thereby increasing industrial strife and unrest. And, by the
same token, cases of discrimination against dissident employees would
tend to increase, with the removal of the brake of the employer's self-
interest. Although such employees would ultimately be reinstated and
made whole for lost wages, such remedial action never fully compen-
sates for the personal and industrial dislocations which result from
the discrimination.-
On the basis of all the considerations involved, we therefore believe
that the fairest, most practical, and soundest approach to the problem,
and the one that will best effectuate the policies of the Act, is to re-
affirm our established doctrine. Accordingly, we shall order that all
Respondents be jointly and severally liable for back pay from Septem-
ber 14, 1948, the date of the discrimination, to and including August
9, 1949, which is 5 days after the Unions' statement on the record,
and that the Respondent Employer be solely liable for back pay from
August 10, 1949, to the date of its offer of reinstatement.
Consistent with the Board's recently adopted method of computing
back pay,20 we shall order that the loss of pay be computed on the basis
of each separate calendar quarter or portion thereof during the period
from the Rspondents' discriminatory action to, in the case of the Re-
spondent Unions, August 9, 1949, and in the case of the Respondent
Employer, the date of a proper offer of reinstatement. The quarterly
periods, hereinafter called "quarters," shall begin with the first day of
January, April, July, and October. Loss of pay shall be determined by
deducting from a sum equal to that which Littleton would normally
" In this connection we cannot fail to note that an obvious consequence of an order
assessing all of the back pay against the union is the removal of one source of recovery by
the employee discriminated against. Although it is true that we are not concerned with
the private interests of the discriminates as such, we are concerned with the over-all
effectiveness of our remedial orders. To the extent that we reduce the likelihood that the
back pay ordered can be collected , we obviously reduce the likelihood that such order will
serve to protect the employees involved in their rights under the Act or deter the comr
mission of unfair labor practices.
'° F. W. Woolworth Company, 90 NLRB 289.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have earned for each quarter or portion thereof, his net earnings,21 if
any, in other employment during that period. Earnings in one par-
ticular quarter shall have no effect upon the back-pay liability for any
other quarter. -
We shall also order the Respondent Employer to make available
to the Board upon request payroll. and other records to facilitate the
checking of the amount of back pay due - .
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
I. The Respondent, Acme Mattress Company, Inc., Indianapolis,
Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Encouraging membership in Textile Workers Union of Amer-
ica, CIO, or in Local 169, Textile Workers Union of America, CIO, or
in any other labor organization of its employees, or discouraging
membership in any labor organization of its employees, by discriminat-
ing in regard to their hire or tenure of employment or any term- or
condition of their employment, except to the extent permitted by the
proviso to Section 8 (a) (3) of the amended Act;
. (b) Giving effect to those provisions of the collective bargaining
agreement, or to any extension, renewal, modification, or supplements
thereto, or to any provisions in superseding contracts, between the
said Company and the said Unions, or either of them, which require
membership in the said Unions, or either of them, as a condition
of employment, except in accordance with the proviso to Section 8 (a)
(3) of the Act;
(c) In any other manner. interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any labor organization, to bar-
gain collectively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of such ac-
tivities, except to the extent that such right may be affected by an
21 By net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where, which would not have been incurred but for this unlawful discrimination , and the
consequent necessity of seeking employment elsewhere . Crossett Lumber Company, 8
NLRB 440. Monies received for work performed upon Federal , State , county, municipal, or
other work-relief projects shall be considered as earnings. Republic Steel Corporation
v. N. L. R. B., 311 U. S. 7.
22 F. W. Woolworth Company, supra.
ACME MATTRESS COMPANY, INC. 1019
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Floyd A. Littleton immediate and full reinstatement
to. his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of the discrimina-
tion against him, during the period from August 10, 1949, to the date
of its offer of reinstatement, in the manner set forth above in the sec-
tion entitled "The Remedy";
(b) Post at its plant at Indianapolis, Indiana, copies of the notice
attached hereto and marked Appendix A 23 Copies of said notice,
to be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by the Respondent Employer's representative,
be posted by it immediately upon receipt thereof and be maintained
by it for a period of at least sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Res-
pondent Employer to insure that such notices are not altered, defaced,
or covered by any other material;
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due and the
right of reinstatement under the terms of this Order;
(d) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
II.-The Respondents, Textile Workers Union of America, CIO,
and Local 169, Textile Workers Union of America, CIO, and each.
of them, and their officers, agents, representatives, successors, and
assigns, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Acme Mattress Company, Inc.,
its officers, agents, successors, or assigns, to discriminate against its
employees in violation of Section 8 (a) (3) of the Act;
(b) Giving effect to, those provisions of the collective bargaining
agreement, or to any extension, renewal, modification, or supplements
thereto, or to any provisions in superseding contracts, between the
23 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "Decision and Order ," the words "Decree of the
united-States Court of Appeals Enforcing."
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said Unions, or either of them and the said Company, which require
membership in the said Unions, or either of them, as a condition of
employment, except in accordance with the proviso to Section 8 (a)
(3) of the Act;
(c) In any other manner restraining or coercing employees of
Acme Mattress Company, Inc., its successors or assigns, in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at their business offices and meeting halls in Indianapolis,
Indiana, and in other conspicuous places, including all places where
notices to members are customarily posted, copies of the notice attached
hereto and marked Appendix B?¢ Copies of said notice, to be fur-
nished by the Regional Director for the Ninth Region, shall, after be-
ing duly signed by the Respondent Unions' representatives, be posted
by them immediately upon receipt thereof and maintained by them for
a period of at least sixty (60) consecutive days thereafter. Reasonable
steps shall be taken by the Respondent Unions to insure that. said
notices are not altered, defaced, or covered by any other material ;
(b) Mail to the Regional Director for the Ninth Region signed
copies of the notice attached hereto and marked Appendix B, for post-
ing, the Respondent Employer willing, at the offices and place. of bus-
iness of the Respondent Employer at Indianapolis, Indiana, in places
where notices to employees are customarily posted. Copies of said
notice, to be furnished by the Regional Director for the Ninth Region,
shall, after being signed as provided in paragraph II, subparagraph
2 (a) of this Order, be forthwith returned to the Regional Director for
such posting;
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps.they
have taken to comply herewith.
III. The Respondents, Acme Mattress Company, Inc., Indianapolis,
Indiana, its officers, agents, successors, and assigns, and Textile Work-
ers Union of America, CIO, and Local 169, Textile Workers Union of
America, CIO, their officers, agents, representatives, successors,:. and
assigns, shall jointly and severally make whole Floyd A. Littleton for
any loss of pay he may have suffered because of the discrimination
against him, during the period. from September 14,1948, to and includ-
ing August 9, 1949, in the manner set forth above in the section en-
titled "The Remedy."
24 Ibid.
ACM1 MATTRESS, COMPANY, INC. . 1021
CHAIRMAN HERZOG and MEMBER, REYNOLDS, dissenting in part only :
We are unable to agree with our colleagues that this is a proper
case for holding the Employer jointly .and severally liable with the
Unions for Littleton's loss of earnings from the date of his discharge.
On these facts we would depart from the practice initiated in the New-
man case,25 and would divide the back-pay liability, assessing against
each Respondent back pay only for the period when it was responsi-
ble for Littleton's loss of earnings. Thus we would hold the Unions
solely liable for back pay from the date of Littleton's discharge to
August 9, 1i)49, and, like the majority, hold the Employer solely liable
for back pay after that date.
Under the present Act, both the Employer and the Unions committed
an unfair labor practice in connection with Littleton's discharge, as
the majority opinion finds. The Employer is rightly directed to rein-
state him. But should it also be made potentially liable for all the back
pay? Precedent under the Wagner Act does not provide the entire
answer. For Section 10 (c) of the 1947 amendments expressly en-
larged upon the otherwise broad remedial power of the Board to
effectuate the policies of the Act, by adding the pinpointed proviso
"that where an order directs reinstatement of an employee, back ,pay
may be required of the employer or labor organization, as the case may
be, responsible for the discrimination suffered by him." [Emphasis
supplied.]
We are satisfied from the very language of the proviso, and from
its legislative history, that Congress intended this Board to effectu-
ate the policies of the Act by actually exercising a record-conscious dis-
cretion in fixing the appropriate remedy in that special class of cases
arising jointly under Section 8 (a) (3) and 8 (b) (2). This can only
be done'by weighing the degrees of responsibility of each Respondent
before determining, in each case, whether back-pay liability should be
assessed against the Employer, or the labor organization, or both.
Nevertheless, since the Newman case the Board has never chosen to ex-
ercise the discretion so deliberately vested in it, but has invariably
declared that liability to be a joint and several one. What disturbs us
most about the broad terms of today's majority opinion is that it ap-
pears to declare that that which has been invariable should become
immutable. We suggest that no such automatic formula can be ap-
plied to all these situations, except in disregard of the intent of Con-
gress. Distinctions must occasionally be drawn. We believe, further,
that this is an appropriate case in which to draw one.
The Board is here concerned with back-pay liability, not as an end
in itself, but only as a means of discouraging and preventing unfair
25 H. M. Newman , 85 NLRB 725 , 130 (1949).
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices which give rise to industrial strife. Realistically, it
is clear that the Unions were solely responsible for the unlawful dis-
charge of Littleton. Thus, as set forth in the principal opinion, the
Unions made Littleton's unlawful discharge a condition precedent to
the termination of an existing strike. The Employer immediately
objected to the Unions' unlawful demand and temporarily withdrew
from the conference to explain his predicament to Littleton, who
indicated that he did not wish to be the indirect cause of prolonging
the strike. The Employer, faced with a continuation of a strike-bound
condition at the plant, finally capitulated. There is absolutely no
showing that it desired Littleton's discharge, or helped to set the stage
for the Respondent Unions' action.
While we do not condone and would not encourage an Employer's
surrender in such circumstances, we prefer not to blind ourselves to
the fact that it was the Unions alone that set the unlawful forces in
motion, and that the Employer surrendered as a matter of . economic
necessity. We agree with our colleagues that the Employer's own
action in discharging Littleton was necessary to effectuate the dis-
crimination, but surely Congress must have been aware, in writing the
new 10 (c) proviso, that this would always be so. Yet, by its very
choice of language in that proviso, Congress instructed the Board not
always to hold employers "responsible" and thus liable for back pay.
The facts must govern. Here it was the Unions' unlawful demand,
and its choice of method to enforce it, which was the basic offense that
our remedial order should seek to cure and to discourage in the most
effective manner.
The unique provisions of the amendment to Section 10 (c), and
particularly the language underscored above, seem to us a congres-
sional mandate which warrants, and may indeed require, a departure
in these special situations from the sound and otherwise applicable Star
Publishing doctrine.26 The most potent deterrent against a union's
resort to strike action for the purpose of causing an employer to
discriminate involuntarily is, we believe, a holding by this Board that
the Unions be held solely liable for remedial back pay during the
period when their unlawful demand is the actual cause of the dis-
crimination.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
16 See N. L. R. B. v. Star Publishing Co., 97 F. 2d 465.
ACME MATTRESS COMPANY, INC. 1023
WE WILL NOT encourage membership in TEXTILE WORKERS
UNION OF AMERICA, CIO, or in LOCAL 169, TEXTILE WORKERS
UN10N OF AMERICA, CIO, or in any other labor organization of our
employees, or discourage membership in any labor organization
of our employees, by discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT give effect to those provisions of the collective
bargaining agreement, or to any extension, renewal, modification,
or supplements thereto, or to any superseding contracts, with the
above-named unions, or either of them, which require membership
in;the above-named unions, or either of them, as a condition of
employment, except in accordance with the proviso to Section
8 (a) (3) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed them
by Section 7 of the Act, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer Floyd A. Littleton immediate and full
reinstatement to his former or substantially equivalent position,
and will make him whole for any loss of pay suffered as a result of
the discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of the above-named
unions, or any other labor organization, except to the extent that this
right may be affected by an agreement in conformity with Section
8 (a) (3) of the Act.
A M C I
Dated--------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
APPENDIX B
NOTICE TO ALL MEMBERS OF TEXTILE WORKERS UNION OF AMERICA,
CIO, AND LOCAL 169, TEXTILE WORKERS UNION OF AMERICA, CIO,
AND TO ALL EMPLOYEES OF ACME MATTRESS COMPANY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
CML ATTRESS OMPANY, NC.,
Employer.
By ------------------------------------
(Representative) (Title)
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT cause or, attempt to cause ACME MATTRESS COM-
PANY, INC., its officers, agents, successors, or assigns, to discrim-
inate against its employees to encourage membership in any labor
organization in violation of Section 8 (a) (3) of the Act.
WE WILL NOT give effect to those provisions of the collective bar-
gaining agreement, or to any extension, renewal, modification, or
supplements thereto, or to any superseding contracts, with the
above named company, which require membership in the above-
named unions, or either of them, as a condition of employment,
except in accordance with the proviso to Section 8 (a) (3) of the
Act.
WE WILL NOT in any other manner restrain or coerce employees
of ACME MATTRESS COMPANY, INC., its successors or assigns, in
the exercise of the rights guaranteed them by Section 7 of the
Act.
WE WILL make Floyd A. Littleton whole for loss of pay suf-
fered as a result of the discrimination against him.
TEXTILE WORKERS UNION OF AMERICA, CIO,
Labor Organization.
By ---------------------------------------------------
(Representative ) (Title)
LOCAL 169, TEXTILE WORKERS UNION OF AMERICA, CIO1
Labor Organization.
By ---------------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Harold V. Carey , for the General Counsel.
Messrs. White , Wright, Raub, and Forey, by John M. Miller , Esq., of In-
dianapolis , Ind., for the Company.
Benjamin Wyle, Esq., of New York, N. Y., for the Unions.
STATEMENT OF THE CASE
Upon charges duly filed by Floyd A. Littleton, an individual, the General Coun-
sel, for the National Labor Relations Board,' by the Regional Director for the
Ninth Region (Cincinnati, Ohio) issued a consolidated complaint dated June 27,
1949, against Acme Mattress Company,' herein called the Company, the Textile
1 The General Counsel and the attorney representing him at the hearing are referred to
herein as the General Counsel . The National Labor Relations Board is referred to as the
Board.'
2 A'ecording to the stipulation of the parties concerning the business operations of the
Company, the proper name of the Company is Acme Mattress Company, Inc ., rather than
Acme Mattress Company as named in the complaint.
ACME MATTREiSS COMPANY, INC. 1025
Workers Union of America, CIO, herein called the International, and Local 169,
Textile Workers Union of America, CIO, herein called the Local, all jointly
referred to herein as the Respondents , alleging that the Company is engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and ( 3) and Section 2 (6) and (7) of the Labor Management Relations Act
of 1947, 61 Stat. 136, herein called the Act, and that the International and Local
169 had engaged in unfair labor practices affecting commerce within the mean-
ing of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the Act.
Copies of the consolidated complaint, accompanied by a notice of hearing were
duly served upon Littleton, copies of these documents, together with copies of
the charges were also duly served upon the Respondents.
With respect to the unfair labor practices, the consolidated complaint alleged
in substance that: ( a) By entering into a collective bargaining agreement with
the two union Respondents requiring as a condition of employment membership in
Local 169, and by thereafter discharging Littleton for reasons other than Little-
ton's failure to pay the required dues and initiation fees uniformly required of
members by Local 169 , the Company is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act; and (b) by entering into
the above-mentioned union-shop agreement with the Company and thereafter
causing the Company to discharge Littleton because he engaged in self-organiza-
tional activities and for reasons other than his failure to pay the uniformly
required dues and initiation fees to Local 169, the union Respondents engaged
in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (b)
(2) of the Act.
On July 7, 1949, the International and Local 169 filed their joint answer admit-
ting the allegations of the complaint regarding their status as labor organiza-
tions, and also admitting that they entered into a collective bargaining con-
tract with the Company requiring as a condition of employment membership in
Local 169, but denying the commission of the alleged unfair labor practices.
Thereafter, on July 11, 1949, the Company filed its answer generally denying
each and every allegation of the complaint.
Pursuant to notice , a hearing was held on August 2, 3 , and 4, 1949 , at Indian-
apolis, Indiana, before the undersigned Trial Examiner duly designated by the
Acting Chief Examiner. The General Counsel, the Company, and the Union
Respondents were represented by counsel and all participated in the hearing.
All parties were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the
close of the General Counsel's case, counsel for the Union Respondents moved
that the allegations of the complaint in respect to each of the Unions be dis-
missed for failure of proof. The motion was denied without prejudice pending
consideration of the entire record developed at the hearing. It is hereby denied.
Although oral argument was waived , all parties have submitted briefs.
Upon the entire record in the case, the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Acme Mattress Company, Inc., the Company , and one of the Respondents
herein, is engaged in the manufacture of mattresses and sofa beds at its plant
in Indianapolis , Indiana. The chief materials used in this production are
steel, textile, wood, and cotton products. During the past 12-month period,
the Company 's 'purchases of such materials and supplies were in excess of
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$175,000, of which approximately 60 percent was received directly from sources
outside the State of Indiana. Its total sales of finished products during this
same period were in excess of $300,000, of which in excess of 20 percent was
sold and shipped to customers outside the State of Indiana.
The above findings are based upon a stipulation entered into between the
General Counsel and counsel for the Company without objection from the other
parties. In addition, the Company concedes and the undersigned finds that it
is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Union of America, CIO, and Local 169, Textile Workers,Union
of America, CIO, each affiliated with the Congress of Industrial Organizations,
are labor organizations admitting to membership employees of the Respondent
Company.
III. THE UNFAIR LABOR PRACTICES
.A. Background of labor relations
The International and Local 169 had jointly entered into a succession of col-
lective bargaining agreements with the Company since 1941. The last one of
this series of contracts ran for a term commencing July 31, 1946, and expired on
July 31, 1948. It contained, among other provisions, the following union-shop
proviso:
As a condition of employment, all eligible employees shall immediately
take out and maintain membership in Local 169; however, new employees
hired after the signing of this agreement shall be given a period of four
weeks before being required to take out and maintain membership accord-
ing to the Constitution of the Local Union as a condition of employment.
According to the credible and undenied testimony of Stanley Smith, the Com-
pany's vice president and general manager, Ralph Cline who negotiated and
signed the above agreement as "National Representative" of the International
terminated this agreement by the service of a 60-day notice as provided in the
agreement 3
Cline credibly testified in substance without substantial denial : He is secretary-
treasurer' of the Indianapolis Joint Board of the said International ; that the
said'Joint'Board consists of representatives from the Indianapolis Locals 116
and 169 of the International ; that he, Cline, serves as business representative for
the Joint Board and its member Locals, .and as such handles contract negotia-
tions and processes grievances on behalf of members; that he is paid for his
services by the said Joint Board for all duties performed. Cline further credibly
testified without denial that the International and Local 169 each receive one
half of the dues paid by the union members, and that customarily Cline negotiates
and signs all contracts jointly entered by the International and either one of its
locals with respective Employers in Indianapolis area as "National Representa-
tive" of the International, after first obtaining authorization from William Teller,
(also described as William Tullar in the record) a vice president and regional
director of the International, whose office is in Chicago, Illinois.
B. Sequence of material factual events
'Following the expiration of the July 31, 1948, agreement, negotiations for a
new contract were spasmodically carried on between the company representatives
A copy of the agreement was admitted in evidence.
ACME, MATTRESS COMPANY, INC. 1027
and representatives for the two unions, which eventually culminated in the
signing of another collective bargaining agreement on September 14, 1948.4
By September 10, 1948, the parties had reached a tentative agreement regard
ing most of the terms of the proposed agreement except for wage increases.
Insofar as the record shows, the Company had raised no objections to the inclu-
sion of the union-shop clause contained in the former contract , despite the fact
that neither union had ever been certified by the Board as a result of a Board-
conducted election held pursuant to Section 9 (e) (1) of the Act , in order to
determine whether a majority of the employees in an appropriate unit desire to
authorize such labor organization to make an agreement with the Employer of
such employees requiring membership in such organizations as a condition of
employment in such unit.
At a bargaining meeting held on the morning of September 10, 1948, Cline,
as a spokesman for the Unions ' representatives , demanded a general hourly
wage increase of 71/2 cents . Smith, on behalf of the Company , stated he lacked
authority to grant the increase demanded by Cline . Smith then said he would
discuss the question of wage increases with Wisenberger , the Company 's presi-
dent, and then asked Cline to call Smith on the telephone that afternoon at
which time Smith would give Cline an answer regarding the wage increase.
Pursuant to this arrangement Cline called Smith after lunch on this same day.
Smith asserts that during the ensuing conversation he told Cline that Wisen-
berger had voiced objections to granting an increase exceeding 3 cents an hour
but that he , Smith, was ready to sign an agreement providing for a 5-cent
increase, whereupon Cline demurred and asserted that he, Cline, would order
the employees to strike the plant on Monday September 13 .5
Following the above conversation with Smith, Cline called Lloyd Schenck, an
employee of the Company and the president of Local 169, on the telephone at
the plant. Cline told Schenck that Smith had only offered a 3-cent wage increase
and then instructed Schenck to notify the employees to strike the plant on
Monday, September 13. After receiving these instructions from Cline, Schenck
transmitted the information regarding the purported offer made by Smith to
Littleton and the other employees and notified them to go on strike on the
following Monday morning.'
After receiving instructions from Schenck regarding the strike Littleton met
Smith in the plant , before leaving work for the day. He criticized Smith and
accused the latter of making a "measly " 3-cent wage increase offer to the em-
ployees. Smith insisted that Cline had misrepresented the matter to the em-
ployees and asserted he had offered a 5-cent wage increase to Cline.
Littleton thereupon related this conversation with Smith to Richard Cook, a
fellow member of Local 169 's negotiating committee.'
On the following morning, Cook met Smith outside of the plant . Cook inter-
rogated Smith regarding the amount of the wage increase the latter had pur-
portedly made to Cline and Smith insisted that he told Cline the Company had
offered Cline a 5-cent raise.
' Cline, at all bargaining meetings herein , served as the representative of the Interna-
tional and also as spokesman for the negotiating committee of Local 169.
6 Cline testified without denial that he had previously been authorized by the Interna-
tional to strike the plant if the Company refused to sign a satisfactory contract.
U These findings are based upon the credible testimony of Littleton which stands uncon-
tradicted and corroborated in part by the testimony of Cline and Schenck.
7 Currently , Schenck , Bruce Gauldon , the vice president of Local 169 , Cook, and Littleton
comprised the negotiating committee of the Local . All of them were employed at the plant.
917572-51-vol. 91-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday morning, September 13, 1948, Cline was 'at the plant before the
usual opening hour and set up a picket line.' Meanwhile, on this same morning
Littleton and Cook informed the employees, in the.•hearing of Cline, regarding
the conversations each of them had held with Smith concerning the amount of
the raise offered by Smith to Cline. Cline again insisted that Smith had only
offered an increase of 3 cents an hour.
Shortly thereafter, Smith drove up to the plant in his automobile. Smith and
Cline engaged in a heated argument, during which each accused the other of lying
regarding the wage increase offer. Smith then left the group to go into the plant
after stating to the employees within hearing that he had offered Cline a 5-cent
increase.
Shortly before noon on this same day, Smith and the Company's sales manager,
Landman, accidently met several of the striking employees in a restaurant located
near the plant, where all had gone for lunch.° Among the employee group present
were Littleton, Cook, Troutman, and Wilson. Two of the employees sat at the
same table with Smith and Landman and the other two at an adjoining table. A
general conversation ensued regarding the dispute between Smith and Cline con-
cerning the amount of the wage increase offer. Some of the employees, not spe-
cifically identified, expressed dissatisfaction concerning Cline's handling of the
negotiations and indicated a desire to effect a change of representatives. Before
leaving the restaurant, Smith requested Littleton to invite all the strikers to
meet with him at the plant on that same afternoon in order that he, Smith, might
have an opportunity-to attempt, to convince them that Smith had in fact offered
Cline a 5-cent raise. Substantially all the strikers including Schenck, Gaulden,
and David Coop, the latter being the Local's shop steward at the plant, went
into the plant and there met with Smith, Landsman, and an attorney named
Wilson, who was currently representing the Company. After a general conversa-
tion during which Smith again asserted that he had offered Cline a 5-cent per
hour wage increase, Littleton and some of the other employees evinced an interest
in disaffiliating with the union. Littleton then asked the Company's representa-
tives present what steps should be taken to accomplish this purpose. According
to the credible and uncontradicted testimony of Smith and Littleton, the Com-
pany's representatives pleaded ignorance and suggested that the Board's office
at Indianapolis was the,proper place to obtain the 'information.
According to further credible and undenied testimony by Littleton, he and
employees Rita Gathard, Marie Simpson, Elmer Schulz, Victor Troutman, John
Wilson, Richard and Harold Cook then left the plant and paid a visit to the
Board's office.'°
When they arrived at the Board's office they were informed that decertification
proceedings would necessarily require an appreciable amount of time to process
and could not be disposed of forthwith. In view of the then pending strike at
the plant, the dissident group of employees decided not to press the matter before
the Board and then left the Board's office.
On the early morning of September 14, the next day, when Littleton joined
the group of strikers outside the plant, Cline and Schenck walked up to him.
According to Littleton's credible and undenied testimony, he was informed by
8 As previously noted, Cline testified he had received prior authorization to call a strike
from the International.
° Smith credibly testified without denial that the meeting had not been prearranged and
that the employees paid for their own lunches.
10 Evidently the Board' s office was some distance away for the employees were driven to
it in two automobiles, one of which belonged to Littleton and the other to Landman, the
Company's sales manager , who transported some of the group there in his automobile.
ACME MATTRESS COMPANY, INC. 1029
Cline or Schenck, that Schenck, as president of Local 169, had removed Littleton
.as a member of the Local's negotiating committee and that Schenck had filled the
vacancy by appointing David Coop. Shortly thereafter, in the hearing of some
of the other strikers, Cline admittedly stated to Littleton that he, Cline, would
not settle the strike or sign a contract until the Company discharged Littleton.
About 2 hours later, on this same morning, Cline, accompanied by the ne-
gotiating committee of the Local, now comprised of Schenck, Gauldon, Cook,
and Coop (who had replaced Littleton on this committee) met with Smith and
Landman, the Company's bargaining representatives 11
When the Unions' representatives arrived in the sample room of the plant
where the meeting was held, Cline, who served as chairman and spokesman
for the group, remarked to Smith :
I suppose you notice we are minus old buddy [Littleton], he has been
replaced by David Coop and is no longer on the committee and, when the
negotiations are settled he will not longer be an [employee] of the Company.
Before this contract is signed you will have to get rid of Floyd Littleton''
Smith credibly asserts without denial that he objected to Cline's peremptory
,demand that Littleton be discharged and withdrew temporarily from the meet-
ing to call Littleton into the plant for a private discussion concerning the
matter." In the ensuing conversation between Smith and Littleton, Littleton
asserted that he, Littleton, did not, want to be the indirect cause of prolonging
the strike, that he then proposed, in substance, that if Smith would permit
Littleton to return to work for 1 hour after the contract was signed, and the
:strikers returned to work he, Littleton, would personally endeavor to work out
.a satisfactory solution of the matter. Smith agreed to Littleton's proposal and
returned to the bargaining meeting.
After he returned, he told Cline he would sign the contract Cline had pre-
sented if the latter would agree to let Littleton work for 1 hour after the
strikers returned for work, and that he, Smith, would then terminate Littleton.
Cline intimated that he feared Smith might not live up to such an agreement,
whereupon Landman, the other company representative present, asked Cline
if the latter would accept his, Landman's, promise that Littleton would be
discharged within an hour after the employees returned to work and Cline
thereupon agreed to do so.
The contract including a union-shop agreement was then signed. As in the
former contract which expired on July 31, 194S, Cline signed it as "National
Representative" of the International and also according to Cline's testimony as
a representative of Local 169.1§
The strike was abandoned about noon on this day, and the strikers promptly
returned to work. At 1 o'clock, Littleton was discharged by Smith pursuant
to the agreement with Cline. The "Report of Unemployment," pertaining to
"The record shows that the Unions' representatives and the strikers were willing to
accept a 5-cent per hour wage increase at this time.
12 These findings are based upon Smith ' s credible testimony which stands without sub-
stantial contradiction.
11 Smith asserts that Littleton had been a satisfactory employee for a considerable period
and the Company had no valid reason for discharging him.
14 Cline further testified without denial that he had also been previously authorized to
enter into the contract for the International by Vice-President Teller. The record fails to
show, however , that the Company had knowledge of any limitations on Cline's general
authority to bind the Union.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Littleton, prepared by the Company for the Indiana Employment Security Di-
vision, dated September 15, 1948, states amop.g. other things :
Reason for Unemployment
Business agent of Textile Workers Union, Local 169, CIO, refused to
sign labor contract unless Company discharged this man.
The record shows that Littleton's membership dues were currently paid.
At the close of the hearing counsel for the Union Respondents made the fol-
lowing statement on the record :
As counsel for the Respondent Unions, Textile Workers Union of America,
and Local 169, I wish to state for the record that the respective unions
have no objection, and will not interpose any objection to the employment
of Floyd Littleton by the Acme Mattress Company and this offer is made in
good faith, and among other reasons, to toll any possible back pay award
that may be rendered in this case.
C. Conclusions
1. Respecting unfair labor practices by the Company
Although the proviso to Section 8 (a) (3) of the Act permits the consum-
mation of a union-shop agreement requiring membership in a labor organiza-
tion as a condition of employment, "if following the most recent election held
as provided in Section 9 (e), the Board shall have certified that at least a ma-
jority of the employees eligible to vote in such election have voted to authorize
such labor organization to make such agreement," it neither provides nor allows
the rendering of assistance or support to that labor organization beyond that
existent in conditioning employment on union membership.
Since the record herein shows that the provisions of Section 9 (e) were
disregarded by the parties; the union-shop provision in the current contract,
executed on September 14, 1948, does not satisfy the conditions laid down in
the proviso of Section 8 (a) (3). Consequently, it is illegal because neither of
the Union Respondents herein have ever been certified by the Board under
Section 9 (e) (1) of the Act as a labor organization authorized to execute a
union-shop agreement"
The execution of an illegal union-shop contract, by itself, is a form of discrim-
ination as a condition which "tends to encourage or discourage membership in a
labor organization" in violation of Section 8 (a) (3) of the Act.16
The Company concedes in its brief that it has technically violated' Section
8 (a) (1) and (3) of the Act. It further contends, however, that because it was
forced to enter into an illegal agreement with the two unions in order to end a
strike and permit it to operate its plant, the usual remedy of assessing back pay
for the 8 (3) violation should not be imposed against the Company, but only
against the two Union Respondents. Although recognizing the inequities sur-
rounding the situation, the undersigned does not agree that the Company should
be absolved from the liability for back pay.
As urged by the General Counsel, economic necessity is no defense to a vio-
lation of the Act.17
is See Jones & Laughlin Steel Corporation, 83 NLRB 916.
16 See Great Atlantic and Pacific Tea Company, 81 NLRB 1052.
11 See N. L. R. B. v. Star Publishing Co., 97 F. 2d 4.65 (C. A. 9) ; H. Milton Newman, 85
NLRB 725.
ACME MATTRESS COMPANY, INC. 1031
On the basis of the foregoing findings of fact and the entire record, the un-
dersigned finds that by entering into an invalid closed-shop contract with the
Unions, and by acceding to the wrongful demands by the Unions that Littleton be
discharged on Septemeber 14., 1948, the Company has violated Section 8 (a) (3)
of-the Act, thereby also interfering with restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, in violation of Sec-
tion 8 (a) (1) thereof.
2. Respecting the unfair labor practices by the Unions
Counsel for the Unions, in effect, contends in his brief that neither the Inter-
national nor Local 169 are responsible for the conduct and actions of Cline, be-
cause he was merely an agent of the Joint Board, which is not a party to the
cause, and not an agent of either of the Respondent Unions named in the com-
plaint. The undersigned does not agree.
The record clearly shows that for several years Cline has negotiated and
signed other collective bargaining agreements with the Company herein on be-
half of both unions. During such negotiations, Cline had always acted as spokes-
man for each of the unions at the various bargaining meetings. It was Cline who
notified the Company that the plant would be struck on September 13, unless wage
increases satisfactory to Cline, as agent for the Respondent Unions; were granted,
and who also in the presence of Littleton's fellow employees threatened to con-
tinue the strike unless Littleton was discharged by the Company.
Insofar as this record shows the Company and the employees had ample
grounds for believing that Cline had authority to call and settle strikes at Cline's
discretion and to negotiate and agree upon the provisions that would be contained
in a final agreement.
The Board states in International Longshoremen's and Warehousemen's Union
and Sunset Line and Twine Co., 79 NLRB 1487, 1508:
2. Agency is a contractual relationship, deriving from the mutual con-
sent of principal and agent that the agent shall net for the principal. But
the principal's consent, technically called authorization or ratification, may be
manifested by conduct, sometimes even passive acquiescence as well as by
words. Authority to act as agent in a given manner will be implied whenever
.the conduct of the principal is such as to show that he actually intended to
confer that authority.
3. A principal may be responsible for the act of his agent within the scope
of the agent's general authority . . . It is enough if the principal actually
empowered the agent to represent him in the general area within which
the agent acted.
Significantly, this record shows that copies of charges and amended charges
were filed by Littleton, and thereafter duly served upon each of the two Union Re-
spondents during the month of November 1948, averring in substance that the
Unions by reason of Cline's wrongful conduct, had caused Littleton to be illegally
discharged. It further shows that neither of the Unions took any steps there-
after to repudiate Cline's conduct until the hearing was held. Consequently, a
fair inference arises that each of the Unions ratified Cline's conduct.
By permitting Cline to hold himself out as a responsible agent with plenary
authority`to call and settle-strikes and-to negotiate collective bargaining agree-
ments with.the Company, the International and Local 169 can hardly be per-
mitted now to assert that he lacked such authority to bind them regarding past
action taken by Cline.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consequently, when Cline told Littleton in the hearing of other striking members
of Local 169 on September 14, 1948, that he, Cline, would not call off the strike
or consummate an agreement with the Company, unless and until Littleton was
discharged, Cline's conduct clearly constituted restraint and coercion with the
rights of employees to engage in or refrain from engaging in union or other
concerted activities within the meaning of Section'7 of the Act. Under the cir-
cumstances herein, there can be no doubt that Littleton and the employees who
heard Cline utter this threat understood that Cline was threatening Littleton with
reprisal for seeking to bring another union into the plant. Such conduct by
Cline must be attributed to his principals. It clearly constituted restraint and
coercion of employees in the exercise of the rights guaranteed by Section 7 of the
Act, thus also in violation of Section 8 (b) (1) (A) thereof."
Likewise it must be found that the International and Local 169 each violated
Section 8 (b) (2) of the Act.
Section 8 (b) (2), among other things, provides that it shall be an unfair la-
bor practice for a labor organization or its agents to cause or attempt to cause
an employer to discriminate against employees in violation of Section 8 (a) (3)
of the said Act. Section 8 (a) (3), among other things provides :
That nothing in the Act ... shall preclude an employer from making
an agreement with a labor organization to require as a condition of em-
ployment membership therein. . . . if following the most recent election
held as provided in section 9 (e) the Board shall have certified that at least
a majority of the employees eligible to votq in such election have voted to
authorize such labor organization to make such an agreement.
Since no proceedings were ever taken by either of the Unions to obtain certi-
fication by the Board as provided in Section 9 (e), it follows that the Respondent
Unions had no right to cause. or attempt to cause the Company herein to enter
into a union-shop agreement as was here done.
Consequently, by causing the Company to enter into an invalid union-shop
agreement, the International and Local 169, and each of them, have violated
Section 8 (b) (2) of the Act"
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in. Section III, above, occurring.in
connection with the operations of the Company, described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and have led to a labor dispute burdening commerce
and the free flow of commerce.
V. THE REMEDY
It has been found that Respondent Acme Mattress Company, Inc., has engaged
in unfair labor practices violative of Section S (a) (1) and (a) (3) of the
Act, and that Respondents International and Local 169 have engaged in unfair
labor practices in violation of Section 8 (b) (1) (A) and 8 (b) (2) of the
said Act. Accordingly, the undersigned will recommend that the said Respond-
ents cease and desist from their respective unfair labor practices and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent Acme Mattress Company, Inc., has discrim-
inatorily discharged Floyd A. Littleton, I will recommend that said Acme Mat-
18 See Smith Cabinet Company, Inc., 81 NLRB 138; Seamprufe, Inc., 82 NLRB 106.
19 See United Mine Workers of America, et al., 83 NLRB 916; Amalgamated Meat Cutters
& Butcher Workmen of North America, AFL, et al., 81 NLRB 1052.
ACME MATTRESS COMPANY, INC. 1033
tress Company, Inc., offer said Littleton immediate and full reinstatement to his
former or a substantially equivalent position 20 without prejudice to his seniority
and other rights and privileges.
Although counsel for the Company urges in his brief that the Company should
not be held responsible for Littleton's reimbursement because it was forced to
grant the Union's demand that Littleton be discharged in order to keep its plant
in operation, the undersigned deems it would not effectuate the purposes of
the Act to thus absolve the Company for its wrongful conduct. It would con-
stitute condonation of what was, in effect, an abdication of the Company of its
obligation to resist the Unions ' demands.
Accordingly it will be further recommended that Acme Mattress Company, Inc.,
the International and Local 169 jointly and severally make Floyd A. Littleton
whole for any loss of pay he may have suffered because of the discrimination
against him, by payment to him of a suin of money equal to the amount he would
have earned as wages from September 14, 1948, to the date of the offer of
reinstatement, less his net earnings during such period 21
Upon the basis of the foregoing findings of fact and the entire record, the
undersigned makes the following :
CONCLUSIONS or LAW
1. Textile Workers Union of America, CIO, and Local 169, Textile Workers
Union of America, CIO, are labor organizations within the meaning of Section
2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Floyd
A. Littleton, Respondent Acme Mattress Company, Inc., has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Acme Mattress Company, Inc.,
has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
4. By causing Acme Mattress Company, Inc., to discriminate against Floyd A.
Littleton in violation of Section 8 (a) (3), the International and Local 169
have engaged in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
5. By restraining and coercing employees of Acme Mattress Company, Inc.,
in the exercise of rights guaranteed in Section 7 of the Act, the International
and Local 169, have engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
20 In accordance with the Board ' s consistent interpretation of the term the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See The Chase National Bank of the City of New York , San Juan, Puerto Rico,
Branch, 65 NLRB 827.
21 It is noted that counsel for the two Unions stated on the record at the close of the hear-
ing that , neither of the Unions would interpose objections to the future employment of
Littleton by the Company. The undersigned is of the opinion that this position taken by
the Unions is insufficient to warrant a deviation from the usual back-pay order.