B.v.D. Co., Inc.

National Labor Relations Board - Board Decisions

May 2, 1957

117 N.L.R.B. 1455 (N.L.R.B. 1957)

B. V. D. COMPANY, INC. 1455
"A," cost clerks "B," payroll clerk senior, payroll machine operator,
receptionist, steno clerk, timekeeper, typist-clerks, and works account-
ing assistant in the accounting department; the purchasing, clerk and
purchasing assistant in the purchasing department; producti o con-
trol clerks, order clerks "A," order clerks "B," order and record clerks,
production clerk "B," steno-clerk, typist-clerks, and the pricing clerks
in the production control department, but excluding all other em-
ployees and all supervisors as defined in the Act .13
We shall also grant the plant-clerical employees an opportunity to
express their desires as to whether or not they wish to be added to the
existing production and maintenance unit. We shall, therefore, direct
an election in the-following voting group which we find may appropri-
ately be added, to the, existing production and maintenance unit at
the Employer's St. Johnsbury, Vermont, plant : All expediters, the
chief expediter, chief schedulers, schedulers, storekeepers, and the dis-
patcher. If a majority of the employees in this voting group vote for
the Petitioner, they will be taken to have indicated their desire to be
included in the production and maintenance unit currently represented
by the Petitioner, and the Regional Director shall issue a certification
of results of election to that effect.
[Text of Direction of Election omitted from publication.]
13 The unit appears as stipulated to by the parties , with the exception of the determina-
tions herein made. The classifica'tio'ns as set forth are in accord with the Employer's
Exhibits Nos. 2, 3, and 4.
The parties agreed to exclude the following employees : As confidential employees-:
The, manager 's secretary, manager 's deliartment ; :, typist-clerks, personnel department ;
steno-clerk ( Elsie Padham ), production control department ; steno-clerk ( Constance
Marden), foundry department ; steno-clerk ( Priscilla LaPlante ), manufacturing services
department ; steno-clerk (Lorna Quimby), engineering department . As a supervisor, the
clerk-chief , foundry factory.
B. V. D. Company, Inc. and International Ladies' Garment Work-
ers' Union, AFL. Case No. I5-CA-479. May 2,1957
SUPPLEMENTAL DECISION, DETERMINATION,
AND ORDER
On December 14, 1954, the Board issued a Decision and Order in
this case in which it found that the Respondent had engaged in certain
unfair labor practices in violation of the National Labor Relations Act
and ordered it to take remedial action designed to effectuate the policies
of, the Act.' It found, inter alia, that the Respondent had discrimi-
nated against a large group of employees, but denied reinstatement
and back pay to those who, it found, had "invited and accepted the
benefit" of "widespread physical violence, destruction of property,
1 110 NLRB 1412
117 NLRB No. 182.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimidation and threats which accompanied the strike" and "took no
steps to discourage or repudiate it."
Thereafter, the case was considered by the United States Court of
Appeals for the District of Columbia upon the Board's petition for
enforcement of its Order and upon the Union's petition to review and
set aside part of the Order. On May 3, 1956, the court handed down
its opinion and judgment,' and, on June 27, 1956, it issued its decree
affirming the Board's Order in part, setting it aside in part, and re-
manding it to the Board for reconsideration "insofar as it denies re-
instatement and back pay remedy to certain unfair labor practice
strikers. ..."
After issuance of the court's decree, the Respondent, in a letter dated
July 6, 1956, asked the Board to deny reinstatement and back pay to
the discriminatees in dispute upon the basis of the principles laid down
in the court's decision and, if necessary, to reopen the record to take
additional evidence bearing on alleged violence in connection with the
picket line. The Union opposes the Respondent's motion.
The court disagreed with that part of the Board's decision with-
holding reinstatement and back pay to those strikers who, the Board
found, had approved and ratified the strike violence by their failure
to abandon the picketing or to disassociate themselves from it in any
other way. The court observed that the record did not support a find-
ing that the picketing employees directly or indirectly had partici-
pated in or authorized the misconduct. It held that neither the
strikers' failure to abandon the picketing nor their failure to dis-
associate themselves from it in other ways suggested by the Board ("by
admonishment, denunciation or public pronouncement") constituted
ratification by the strikers. Their silence, said the court, cannot be
taken as a basis for inferring that the strikers "acquiesced in the
wrongs of others with whom no agency relationship is shown." 237
F. 2d at 552. Addressing itself particularly to the doctrine of ratifi-
cation, the court said:
A conclusion of ratification drawn from mere failure to abandon
picketing would curtail an important statutory and constitutional
right. Curtailment of this right is justified only when violence
has "given to the picketing a coercive effect whereby it would op-
erate destructively as force and intimidation." Milk Wagon
Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc.,
1951, 312 U. S. 287, 298 . . . As the Union points out, the Board
made no finding that the picket line itself had "a coercive effect,"
or that the picketers themselves contributed to the violence.
[237 F. 2d at 551.]
2 Internattonal Ladies' Garment Wo, kei s union v . N L R. B, 237 F. 2d 545
(C. A., D. C.).
B. V. D. COMPANY, INC. 1457
Holding that there was no connection- between the picketing strikers
and 'the violence, the court found no basis for the Board's decision.
denying relief to some of the discriminatees and it ordered'the Board to
reconsider its decision in this respect.
The court of appeals has thus set aside the Board's, conclusion than
the 37 strikers whose rights were in issue had ratified the strike vio-
lence and so forfeited their right to relief under the At. Its, opinion
suggests that, in other circumstances, ratification might be found.from
failure to abandon picketing where that picketing exerted "a coercive
effect." But whatever the intendment of this suggestion in other cir,
cumstances,3 the court has indicated there was no such coercion in this,
case. In this connection the court said:
The plant continued in operation throughout the strike, and there
is no evidence that-any employee who wished to work was pre
vented from crossing the picket line. Indeed, on May 14, 1952,•
three months before the strike ended, the State court granted the
strikers permission to resume picketing, suggesting that, even'if;
the picket line had been enmeshed in violence for the first three
days, its coerci\,,e character had been dissipated and .did not re-!-
appear for the remainder of the strike. [237 F.' 2d at 551-552.] '
The Respondent would have the Board reopen the record to con
sider a part of the union organizer's testimony that was stricken. by ,
the Trial Examiner. The printed transcript shows the following tes- "
timony: Plant Superintendent Nicholas testified that the parties ar-,
ranged a meeting in July 1952 to discuss ways of ending the disorder
which had marked the strike; that at the meeting the union organizer
reached into her briefcase and said, "Well, I have a contract right here,
and we can get peace right away"; and that the Respondent's attorney
replied that the parties were not there "to discuss a union contract with'
anybody." On motion, the Trial Examiner struck this testimony as
to what was said at the meeting as irrelevant.
.
The Trial Examiner's ruling did not prejudice the Respondent.
The testimony does not warrant a finding that any of the unfair labor
practice strikers participated in, authorized, or ratified the violence.
The union representative's statement, even if made , does not establish
the strikers' responsibility for the misconduct within the principles
enunciated in the court 's opinion . In the light of the court's opinion,
requiring proof of individual wrongdoing , we cannot find that this
one bit of testimony in a lengthy record constitutes sufficient proof,
on this basic issue.
3 Cf. Milk Wagon Drivers v . Meadowmoor Dairies, Inc ., 312 U. S. 287.
4 The Respondent 's argument with respect to the excluded testimony is but a reiteration
of the same argument made both to the Board and to the court.
At the healing and in its briefs to the Board the Respondent argued that the July 1952
meeting proved direct participation and responsibility of outside . union leaders for the
423781-57-vol 117-93 .
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent would also have the Board reopen the record to
• receive "additional substantial evidence of the coercive effect exercised
by the picket line violence." The Respondent does not say what evi-
dence it proposes to introduce at a reopened hearing. It does not say
that the additional evidence was newly discovered or unavailable at
the time of the hearing. As the Respondent has not shown adequate
reason to reopen the record, we deny the motion.'
Pursuant to the terms of the court's decree, we shall order the
Respondent to offer reinstatement and back pay to those discriminatees
named in the appendix attached to this Supplemental Decision, Deter-
mination, and Order.
SUPPLEMENTAL REMEDY
We shall order the Respondent to offer to the employees named in
the appendix attached to this Supplemental Decision, Determination,
and Order, who have not already been offered reinstatement, immedi-
ate and full reinstatement to their former or substantially equivalent
positions,' without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered by reason
of the discrimination against them. Said loss of pay for each em-
ployee, based upon earnings which he normally would have earned
from the date of the discrimination against him to the date of the Re-
spondent's unconditional offer of reinstatement, less net earnings,'
shall be computed on a quarterly calendar basis in accordance with
the formula adopted by the Board in F. W. Woolworth Co."
ORDER
Pursuant to a decree of the United States Court of Appeals, the
entire record in the case, and Section 10 (c) of the National Labor
Relations Act, as amended, the National Labor Relations Board here-
by orders that the Respondent, B. V. D. Company, Inc., Pascagoula,
Mississippi, its officers, agents, successors, and assigns, shall:
1. Take the following affirmative action, which the. Board finds will
effectuate the policies of the Act :
(a) Offer those employees named in the notice attached hereto
marked "Appendix," who have not already been offered reinstatement,
immediate and full reinstatement to their former or substantially
violence and was important evidence in establishing a conspiracy . The Board considered
the rulings of the Trial Examiner , including the exclusion of the testimony the Respondent
would now have reconsidered , and held that there was no prejudice in any of the rulings.
In its brief to the court the Respondent argued similarly that the union organizer's
statement at the July 1952 meeting with company representatives should have impelled
the Board to find a conspiracy . The court did not disturb the Board 's ruling.
5 Tyrrell County Lumber Company, 101 NLRB 155, enfd 203 F. 2d 951, 952 (C. A. 4) ;
Santa Clara Lemon Association, 112 NLRB 92 , 94, enfd 240 F. 2d 554 ( C. A. 9).
a See The Chase National Bank of the City of New York, 65 NLRB 827.
7 See Crossett Lumber Co ., 8 NLRB 440.
8 90 NLRB 289.
B. V. D. COMPANY, INC. 1459
equivalent positions, without prejudice to any seniority or other rights
and privileges previously enjoyed by them, and make whole all em-
ployees named in the attached appendix in the manner set forth in
the section of this Supplemental Decision, Determination, and Order
entitled "Supplemental Remedy."
(b) Post at its plant in Pascagoula, Mississippi, copies of the notice
attached hereto marked "Appendix." I Copies of such notice, to be
furnished by the Regional Director for the Fifteenth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for the Fifteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
MEMBER MURDOCK, concurring:
I dissented from the original decision which denied reinstatement
and back pay to the employees here involved. I am therefore pleased
to be joined with two of my colleagues in correcting the Board's
original error and ordering reinstatement and back pay for these
employees pursuant to the opinion and remand of the court of appeals.
I concur separately because, although otherwise in agreement with
the main opinion, I differ in one respect with their interpretation of
the opinion of the court of appeals. Although the difference is aca-
demic insofar as the result in this case is concerned, nevertheless, as it
involves a principle of law which may be important in the future,
I wish to make clear that I do not read the court's opinion in that
respect as I believe my two colleagues who have signed the main
opinion do. Chairman Leedom and Member Bean state that the
opinion of the court of appeals "suggests that, in other circumstances
ratification [of strike violence] might be found from failure to aban-
don picketing where that picketing exerted a `coercive effect."' [Em-
phasis supplied.] If by this statement they intend to suggest that
the court meant that the mere failure of pickets to abandon a picket
line itself wholly peaceful, might in some circumstances be deemed a
ratification of violence committed elsewhere so as to disqualify the
pickets from reinstatement and back pay, I cannot agree. The whole
tenor of the court opinion is a reaffirmation of the established law
9 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Supplemental Decision,
Determination, and Order" the words "Pursuant to a Decree of the United States Court of
Appeals, Enforcing an Order."
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "absent an agency relationship an employee may hot be charged,
with misconduct committed by others...." As the court reiterates.
at the conclusion of its opinion, "such a relationship is an essential-
prerequisite to the inference" of ratification of violence by strikers-
"their silence provides no rational basis for inferring that they ac-
quiesced in the wrongs of others with whom no agency relationship
is shown." -
Consequently, I cannot agree with our dissenting colleague that the
court's opinion introduces "a new principle" of law on imputation-
of responsibility for violence.
MEMBER RODGERS, dissenting :
As I interpret the decision of the court of appeals, the court, relying
on the Meadowmoor case, held that if the picketing herein, albeit
peaceful in itself, acquired from the background of violence in which
it was set "a coercive effect whereby it would operate destructively as
force and intimidation," then the failure of the pickets to abandon
the picketing would constitute ratification of the misconduct and the
pickets would therefore forfeit their right to reinstatement. Alter-
natively, the court held that the pickets would also forfeit their right
to reinstatement if, apart from the picketing, they participated in,
authorized, or ratified the violence. But in this connection the court
found that the pickets did not participate in, authorize, or ratify the
violence. Hence, it follows that the only issue left for the Board's
consideration upon remand was whether the picketing acquired "a
coercive effect" from its background of violence.
The majority disposes of that issue by stating that "the court has
indicated that there was no such coercion in this case." This suggests
that the court acted idly in remanding the case to the Board. But it
is clear from the court's decision that the court did not decide whether
the picketing acquired a coercive effect. The majority relies upon the
court's statement that the action of the State court in permitting the
strikers to resume picketing suggests that "even if the picket line had
been enmeshed in violence for the first three days, its coercive effect
had been dissipated, and did not reappear for the remainder of the
strike." Obviously, this comment by the court is at best dicta, and
cannot be properly considered a finding of fact.
I am not prepared on the basis of the present record to decide
whether the picketing acquired a coercive effect from its background
of violence or whether and when that effect was dissipated. The issue
was not litigated or considered in the original proceedings. It was
raised for the first time by the court. Moreover, the Respondent was
prevented by the Trial Examiner from fully developing the back-
'B. V. D.' COMPANY, INC. 1461
ground of violence in this case and the possible coercive effect of the
picketing on the ground that under the then governing principles the
-violence must be directly attributed to the pickets. Under these cir-
cumstances, and especially since the court has introduced a new prin-
ciple into this case, I believe that the Board is obliged to grant the
Respondent's request to reopen the record.
MEMBER JENKINS took no part in the consideration of the above
'Supplemental Decision, Determination, and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision, Determination, 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 :
WE WILL offer to any of the employees named below who have
not already been so offered, immediate and full reinstatement to
their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously
enjoyed by them, and we will make them whole for any loss of
pay suffered as a result of the discrimination against them :
Duthie Faggard Alda Renfroe Helen Pierce
Ona Lee Lynn Gladys Scovel Annie Miller
Gracie Clark Claire Beasley Hazel Williams
Inez Reeves Lona Pace Dolores `Nilson
Fannie Smith Jaunice Hill Abny Smith
Elizabeth Mills Lucy Heflin Leonard Swearinger
Annie L. Bryant Ruby Lee Goff Aileen Swearinger
Lela Pope Lena May V. P. Vernon
Vadis Peden Ina Goff Frances Vernon
Annie Louise Peden Ethel Baker Seth Ettredge
Mary Cranford Delmar Ashley Sallie Shumaker
Clara Davidson Mary Goff Fronia Nellums
Bessie Bush
B. V. D. COMPANY, INC.,
Employer.
Dated----------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced; or,covered by any other material.