California Footwear Co.

National Labor Relations Board - Board Decisions

Nov 7, 1958

122 N.L.R.B. 37 (N.L.R.B. 1958)

CALIFORNIA FOOTWEAR COMPANY 37
Jack Lewis and Joe Levitan d/b/a California Footwear Com-
pany and United Shoe Workers of America , Local 122
Trina Shoe Company and United Shoe Workers of America,
Local 122
Jack Lewis and Joe Levitan d /b/a California Footwear Com-
pany and Trina Shoe Company and United Shoe Workers of
America, Local 122. Cases Nos. 921-CA-1659, 12-CA-1658, and
21-CA-1863. November 7, 1958
SUPPLEMENTAL DECISION AND RECOMMENDATION
On October 31, 1955, the Board issued its Decision and Order in
the above-entitled proceeding,' finding inter alia that the Respondents
had unlawfully discriminated against Eugene Piasek because he had
testified against them at the hearing therein, and ordering that he
be reinstated and made whole for any loss of pay suffered as a result
of such discrimination. Thereafter, upon petition of the Board, the
United States Court of Appeals for the Ninth Circuit decreed en-
forcement of the Board's Order in part, but remanded to the Board
for reconsideration that portion of the Board's Order concerning
Piasek.2 The court did not, however, disagree with the Board's find-
ing that the Respondents had unlawfully discriminated against
Piasek. Accordingly, pursuant to the remand, the Board has recon-
sidered its Order with respect to Piasek and has concluded that said
Order, as originally issued on October 31, 1955, was, and is, necessary
in the circumstances of the case to effectuate the policies of the Act.'
Piasek and one Jack Rosenthal, both cutters, worked for the
Respondents for a period until April 28, 1953, when Rosenthal was
laid off and Piasek was retained. After a charge was filed alleging
that the Respondents' layoff of Rosenthal was discriminatory in vio-
lation of the Act, the Respondents, shortly after May 21, 1953, offered
Rosenthal employment which he did not accept. Subsequently the
General Counsel issued a complaint alleging that the Respondents
had violated the Act in various respects; included in the complaint
was an allegation with respect to the layoff of Rosenthal. On Novem-
ber 16, 1953, during the course of the hearing on the complaint, Piasek
testified adversely to the Respondents; on the following day he was
discharged by the Respondents and was told at the time only that he
was not then needed. On November 21 Rosenthal was offered employ-
ment by the Respondents and on November 23 he returned to work.
1114 NLRB 765.
2N.L.R.B. v. Jack Lewis, et at., 246 F. 2d 886 (C.A. 9). The court there noted that
Piasek had been offered reinstatement, which he declined.
3 Excluding however, in view of the Respondents ' offer which Piasek did not accept,
that portion ordering the Respondents to offer Piasek reinstatement.
122 NLRB No. 8.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the hearing on November 23, the Respondents' counsel
announced that Piasek had been replaced by Rosenthal, and moved
to dismiss the complaint as to Rosenthal on the grounds that his lay-
off was not discriminatory and that in May he had refused a valid
offer of reinstatement. The Respondents' counsel also pressed the
General Counsel to declare whether he intended to file a complaint as
to Piasek, although no charge in that respect had as yet been filed; in
connection therewith the Respondents' counsel contended that,
although the Respondents, in replacing Piasek with Rosenthal, were
trying to accommodate what appeared to be the General Counsel's
wishes, the General Counsel was apparently holding Piasek's case in
reserve in the event he lost on Rosenthal, and apparently wanted to
study the situation to see if he could not also "work the other side of
the street." The General Counsel refused to commit himself as to
Piasek and opposed the motion to dismiss as to Rosenthal, which
motion the Trial Examiner denied.
Subsequently, following the filing of a charge, the General Counsel
issued a complaint alleging inter alia that the Respondents had dis-
criminated against Piasek because of his testimony; as a defense to the
complaint the Respondents claimed they had replaced Piasek with
Rosenthal to minimize any possible back-pay liability to Rosenthal.
In his Intermediate Report issued on April 28, 1954, the Trial Ex-
aminer, and thereafter the Board, rejected the Respondents' defense
as to Piasek and found discrimination as to him because of his testi-
mony 4 The court did not indicate any disagreement with these
findings. Following the issuance of the Intermediate Report, Piasek
was offered reinstatement which he declined to accept.
In its opinion in this proceeding, the court characterized the Gen-
eral Counsel's position, after he was informed of Piasek's discharge,
as being "we will punish you one way or the other," stating that such
a position hardly comported with fair play. The court further ex-
pressed the belief that peace in industrial relations would not be
advanced by ordering back pay for Piasek, and. stated that, although
it had some doubt whether it had discretion to deny enforcement of
the Board's Order as to Piasek as it found the record, the Board should
nevertheless reconsider the matter.
In reconsidering the Order with respect to Piasek, it is apparent
that above and beyond any questions of fairness, there is one inescap-
able fact which is relevant to the issues posed by the remand-Piasek
was discharged by the Respondents because he gave testimony in a
Board proceeding. The Congress, obviously concerned with the possi-
bility that the broad public purposes of the Act might be frustrated
4In the same Decision the Board dismissed the complaint as to the alleged discrimina-
tion against Rosenthal upon the finding that "Rosenthal was in fact laid off because
[Respondents] believed Piasek to be more experienced in cutting leather." 114 NLRB
at 802.
CALIFORNIA FOOTWEAR COMPANY 39
if employees feared to file charges or give testimony because they were
not protected from employer discrimination on account of such charges
or testimony, sought to afford such protection by including Section
8(4) in the original Act in 1935,5 which section was reenacted without
change in 1947 as Section 8 (a) (4) of the Amended Act.6 However,
a bare finding of employer discrimination, without an accompanying
remedial order, clearly would not afford the protection intended by
the Congress, but would instead be an exercise in futility, since it
would not protect employees who testified in vindication of the public
rights entrusted to the Board for enforcement, and would seriously
limit the Board's role in effectuating the purposes and policies of
the Act.
As has been succinctly pointed out, "the object of the back-pay order
is to discourage discharges of employees contrary to the Act ...."'
And, as the Supreme Court has stated, "making the workers whole
for losses suffered on account of an unfair labor practice is part of the
vindication of the public policy which the Board enforces."' Accord-
ingly, in full recognition of the principle that "The remedy of back
pay . . . is entrusted to the Board's discretion" and "is not mechan-
ically compelled by the Act," 9 and having considered "whether an
order for back pay will do more toward effectuating the purposes of
the Act than to omit it," 10 we conclude that, without regard to any
other considerations, the remedy of back pay, as well as the entry of
an appropriate cease and desist order, is necessary here to effectuate
the purposes of the Act, in order to assure employees who file charges
and give testimony in Board proceedings that they will receive the
protection from discrimination which the Congress intended, and in
order to discourage employer discrimination against employees who
file such charges and give such testimony.
We are, moreover, unable to perceive any unfairness to the Respond-
ents in the prosecution of the complaint as to Piasek at the same time
the General Counsel was contending that he had proved discrimina-
tion as to Rosenthal. It is of course unquestioned that, at the time
Piasek was discharged and Rosenthal rehired, the Respondents could
not be sure they would not ultimately be ordered to offer Rosenthal
reinstatement and to pay him back pay until the time of such an offer.
In these circumstances if the Respondents, in discharging Piasek and
recalling Rosenthal, had in fact, as they claimed, been motivated by
5 See p . 29 of Comparison of S. 2926 ( 73d Cong .) and S . 1958 ( 74th Cong .) Senate
Committee Print, March 11, 1935, reprinted at p. 1355 of Legislative History of the
National Labor Relations Act 1935 (NLRB) ; statements of Senator Wagner, May 16,
1935, 79 Cong. Rec. 7676, reprinted at op. cit. pp. 2401-2402.
8 Page 30, House Report No. 245 on H.R. 3020, 80th Cong., 1st sess., reprinted at p. 321,
Legislative History of the Labor Management Relations Act, 1947 (NLRB).
7Waterman Steamship Corporation v. N.L.R.B., 119 F. 2d 760, 763 (C.A. 5).
8 Phelps Dodge Corporation v. N.L.R .B., 313 U.S. 177, 197.
8Id. at 198.
10N.L . R.B. v. Tovrea Packing Company, 111 F. 2d 626 , 630 (C.A. 9).
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a desire to minimize any possible back-pay liability to Rosenthal, they
would not have engaged in any unfair labor practice in this respect
and would not have been faced with the problem of reinstating Piasek
and giving him back pay, whether or not a complaint was issued.
But that is not this case . For, as the Trial Examiner and the Board
found, and the court did not disagree , the Respondents in fact dis-
charged Piasek because of a desire to punish him for his testimony,
thereby engaging in an unfair labor practice within the meaning of
Section 8 ( a) (4) of the Act , and, in recalling Rosenthal to fill the
resulting vacancy, utilized the circumstance to their possible back-pay
liability to him as a pretext in an effort to disguise their true moti-
vation for the discharge of Piasek . Further, the Respondents im-
mediately took the offensive at the hearing and in an effort to becloud
the issues sought to make it appear that the General Counsel was
trying to persecute them when he very properly refused to commit
himself in advance of the filing of a charge and an appropriate
investigation.
Thereafter, following the filing of a charge , the General Counsel,
in performance of his statutory function , issued a complaint based
upon Piasek's discharge; at that time Rosenthal had been fully re-
instated , the back-pay period, if any, for Rosenthal was at an end, and
the Respondents ' position with respect to the Piasek complaint could
therefore neither affect, nor be affected by, the Rosenthal complaint.
Further, as there was no agreement as to the facts of, or motivation
for, Piasek 's discharge , those issues could be determined only by prose-
cution of that complaint through a hearing and to a decision. If the
prosecution of that complaint in conformity with the General Coun-
sel's statutory function created problems for the Respondents, those
problems were of their own making and are no different from the
problems confronting any employer who must face the possibility of
remedying its unfair labor practices by reinstating and making whole
discriminatorily discharged employees whose places have been filled."
In view of all the circumstances , therefore , we must respectfully
disagree with the belief of the court that the General Counsel's prose-
cution of the complaint as to Piasek was unfair to the Respondents
and that a remedial order with respect to Piasek would not effectuate
the purposes of the Act.
RECOMMENDATION
Upon the basis of the foregoing and the entire record in this pro-
ceeding, the National Labor Relations Board respectfully recommends
to the United States Court of Appeals for the Ninth Circuit that the
said court enter its decree enforcing paragraphs 1(b), 2(b ), 2(c),
11 See Mastro Plastics Corp. v. N .L.R.B., 350 U.S. 270, 278.
CONVAIR (POMONA) 41
2(d), and 2(e) of the Board's Order of October 31, 1955, insofar as
they relate to Eugene Piasek, excepting only those portions of para-
graphs 2(b) and 2(d) of the said Order pertaining to an offer of
reinstatement.
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Recommendation.
Convair (Pomona), a Division of Convair, a Division of General
Dynamics 1 and Associated Tool and Die Makers of America,
Petitioner. Case No. f 1-RC-5174. November 7, 1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Ben Grodsky, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain
employees of the Employer 2
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to sever from the existing production and
maintenance unit at the Employer's missile plant at Pomona, Cali-
fornia, a unit of employees in the tool manufacturing department
(department 42) together with the tooling inspectors in the inspection
department (department 27). In the alternative, the Petitioner
requests a craft unit of all tool- and die-makers, toolroom machinists
and grinders, and tooling inspectors. In the event the Board finds
inappropriate both the units requested, the Petitioner expressed its
willingness to represent any combination of these units deemed appro-
The name of the Employer appears as described at the hearing.
o The Petitioner was recently organized by a group of employees to deal with employers
concerning wages and working conditions of tool - and die-makers and toolroom machinists,
grinders, and inspectors, exclusively . We therefore find, contrary to the Intervenor,
International Association of Machinists , District 120 , Guided Missile Lodge No. 1254,
AFL-CIO, that the Petitioner is a labor organization which meets the traditional union
test for the purpose of severing the employees involved herein . Cessna Aircraft Company,
114 NLRB 1191.
122 NLRB No. 4.