Crosby Chemicals, Inc.

National Labor Relations Board - Board Decisions

May 29, 1953

105 N.L.R.B. 152 (N.L.R.B. 1953)

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's offer of reinstatement, less the net earnings of each during said period; 10
(3) the Respondent shall, upon request, make available to the Board payroll and other records
to facilitate the checking of the amount of back pay, which shall be computed in accordance
with the Board's customary formula,ii and (4) that the Respondent be ordered to cease and
desist from in any manner interfering with, restraining, or coercing its employees in the
exercise of the rights guaranteed by the Act
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Reliance Clay Products Company, is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. United Stone & Allied Products Workers of America, CIO, is a labor organization as
defined in Section 2 (5) of the Act.
3. By discharging Roy Alvey, Travis Ii. Morris, and James G. Sitton, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
6. The Respondent has not engaged in the unfair labor practices alleged in the complaint of
discharging Foreman C. E. McClenny because he refused to discourage union activities
among the employees, or of engaging in acts of surveillance.
[Recommendations omitted from publication,)
ioCrossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
iiF. W. Woolworth Company, 90 NLRB 289.
CROSBY CHEMICALS, INC. and LODGE 1225, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS. Case No. 15-CA-
378. May 29, 1953
DECISION AND ORDER
On February 13, 1953, Trial Examiner David London issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions to the Inter-
mediate Report.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errror was committed. The rulings
are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions of the Respondent, and the
entire record in the case, and hereby adopts the Trial Ex-
aminer's findings, conclusions, and recommendations to-he
limited extent consistent with the findings , conclusions, and
order hereinafter provided.
105 NLRB No 15.
CROSBY CHEMICALS, INC. 153
The Trial Examiner found that by denying the request for
reinstatement made on June 4, 1951, the Respondent violated
Section 8 (a) (3) and (1) of the Act. With this conclusion we do
not agree.
On April 1, 1947, the members of the Union honored the
picket line of the International Union of Operating Engineers,
and on April 10, 1947, the Union itself decided to go out on
strike for recognition . The record does not establish that the
Union set up a picket line in addition to the one maintained by
the Operating Engineers . At that time the Respondent engaged
in activity, including conduct on behalf of the Beaureguard
Chemicals Association (BCA), found by the Board (Crosby
Chemicals, Inc., 85 NLRB 791, August 24, 1949) to be violative
of Section 8 (a) (1) and (2) of the Act. The Respondent resumed
plant operations on April23, 1947; and on April 28 and 29, 1947,
it hired 13 replacements and on May 9, 1947, employed 1 more,
thereby replacing the 14 strikers . The Union on May 2, 1947,
made a request for reinstatement . After July 1947 there was no
picket line at the Respondent's plant.
The Board in its decision of August 24, 1949, found, among
other things, that the economic strike had been converted into
an unfair labor practice strike by the Respondent's activities
in connection with the BCA; the BCA should be disestablished;
the request for reinstatement made on May 2, 1947, was un-
conditional; and the strikers were entitled to reinstatement.
At the hearing in that proceeding the Respondent acknowl-
edged that its supervisors had interfered with the formation of
the BCA. After the hearing, in November 1948, the Respondent
announced to its supervisors that the BCA was no longer in
existence as far as the Respondent was concerned, and the BCA
held no meetings or elections, collected no membership dues
or assessments , and had no meetings with management. No
BCA dues were checked off by the Respondent after November
5, 1948.
On April 3, 1951, the Court of Appeals for the Fifth Circuit,
upon petition for enforcement of the Board's Order, held that the
May 2, 1947, request for reinstatement which the Board had
found was unconditional was in fact conditioned upon the Re-
spondent' s agreeing to a consent election. The court entered
its decree on May 12, 1951, enforcing the Board's Order
except for that portion requiring the reinstatement of the
strikers.
The Respondent on May 31, 1951, posted the notice as ordered
by the court. On June 4, 1951, the Union unconditionally re-
quested reinstatement of its members, and on June 21, 1951,
the Respondent denied the request on the ground that it did not
need the services of these men.
In the prior decision the Board held that the Respondent's
illegal conduct about April 10, 1947, and following, in connec-
tion with the BCA prolonged the strike and consequently trans-
formed the economic strike into an unfair labor practice strike.
Since then a considerable period of time has elapsed and con-
ditions have changed. It is now 6 years since the men struck
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on April 10, 1947, and all 14 were replaced within 1 month of
the walkout. In 1947 the 14 machine shop employees were em-
ployed on construction work being done at that time. When this
work was completed, the work of the machine shop was reduced,
and there are now only 6 employees working in the machine
shop. The Respondent resumed plant operations on April 23,
1947; the picket line was removed sometime in May, June, or
July of 1947, almost 6 years ago; and the Respondent has been
in normal operation for several years.
Other than the refusal to reinstate, it is not alleged that the
Respondent has engaged in any additional unfair labor practices.
Indeed, the record shows that in effect the Respondent-dominated
BCA ceased to exist and that, although the prior unfair labor
practices were not fully remedied until it did so, the Respond-
ent posted the notice as modified by the court, with reasonable
promptness after the decree was entered.
There exists no disagreement between us and our dissenting
colleague on the general principle that unfair labor practice
strikers who unconditionally request reinstatement are entitled
to their jobs back. This right is not one which continues without
time limit however, but must be exercised within a reasonable
time after a strike ceases to be current. Under the circum-
stances of this case recited above, we are unable to find that
the unconditional request for reinstatement of June 4, 1951, was
made within a reasonable time after the Union's strike ceased
to be current. We note the absence of any evidence in the record
of affirmative acts by members of the Union indicating that
they resumed their strike following the Respondent's rejection
of their May 2, 1947, request for reinstatement. Obviously
strikers decide to give up their strike when they make a request
for reinstatement. It was not until January 29, 1948, nearly 9
months after rejection of the request for reinstatement, that
the Union amended an earlier charge filed November 8, 1946,
(long prior to the strike) to allege the refusal to reinstate the
strikers to be an unfair labor practice. Plainly, under these
circumstances our dissenting colleague is not justified in
characterizing this belated submission to the Board of the
question of the denial of reinstatement as a substitute for af-
firmative acts indicating that the strike was resumed and
maintained after rejection of the May 2, 1947, request for
reinstatement.
Our dissenting colleague's suggestion that the making of the
June 4, 1951, request for reinstatement after the court's de-
cision is "decisive of the issue in favor of the strikers," is
without merit. The court's decision did not purport to pass and,
on a record of events ending in 1947, could not have passed on
the question whether the strike was still current in 1951 when
the court made its decision. As the Respondent was under no
obligation to grant the June 4, 1951, request because it was too
late and its refusal to grant it was not violative of the Act, we
shall dismiss the complaint.
[The Board dismissed the complaint.]
CROSBY CHEMICALS, INC. 155
Member Houston, dissenting:
I must disagree with the views of my colleagues in the
majority which nullify the rights of these unfair labor practice
strikers by the use of a standard in such a way as to be peculi-
arly unrealistic in the present case. My colleagues state that
these employees should have made an unconditional application
for reinstatement within "a reasonable time after [the] strike
ceases to be current" in order to preserve their rights to
reinstatement. One might agree in the abstract with this state-
ment of principle and yet doubt the validity of its application,
as I must, in the present circumstances. While it is undoubtedly
true that the picketing ceased in 1947--and emphasis is placed
on this, albeit inferentially--I do not find that my colleagues
are satisfied to accept this fact as dispositive of the currency
of the strike and the concomitant reinstatement rights of the
strikers, because they find it necessary to comment further
on "the absence of any evidence in the record of affirmative
acts by members of the Union indicating that they resumed
their strike." What kind of "affirmative acts" is required is
left undisclosed. Certainly the peaceful submission of their
cases to the Board and the Court of Appeals for the Fifth
Circuit is not an insignificant piece of evidence in behalf of
these employees. I would be willing to characterize it as an
adequate substitute for "affirmative acts ." But I cannot assume
that my colleagues would insist, as they appear to, that these
employees must engage in picketing rather than come to us
and the court for relief. And I should have thought that my
colleagues would have welcomed the unconditional application
for reinstatement of June 4, 1951, consonant as it was with the
court's views, as decisive of the issue in favor of the strikers.
In sum, the gist of the majority opinion seems to lie in the
regretably long period of time which has passed since this case
was submitted to the Board and the court. I can find nothing in
the majority's view of this case other than the passage of time
due to litigation which has been made the basis for a denial
to these employees of what my colleagues appear to agree
are rights under the Act they surely were entitled to earlier.
I am aware of the sad and real fact of delay in proceedings of
this character. It is a fact to be deplored. But I will not rely
on it to penalize employees who are in no way at fault for it.
Chairman Herzog took no part in the consideration of the
above Decision and Order.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed July 13, 1951, by Lodge 1225, International Association of Machinists,
herein called the Union, the General Counsel of the National Labor Relations Board issued a
complaint against Crosby Chemicals, Inc., herein called Respondent or the Company, alleg-
ing that Respondent had engaged in and was engaging in unfair labor practices within the meaning
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 61
Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were
duly served on the appropriate parties.
With respect to the unfair labor practices,thecomplaint, as amended at the hearing, alleged,
in substance, that on or about April 1, 1947, the employees of Respondent ceased work and
went on strike; that from April 1 until April 10, 1947, the employees of Respondent's machine
shop, including those with whom this proceeding is concerned, ceased work and observed the
picket line maintained by a labor organization representing other Respondent employees;
that on or about April 10, 1947, the machine-shop employees, including those involved in this
proceeding, ceased work and went on strike; that on August 24, 1949, the Board issued
a Decision and Order finding that Respondent, from on or about August 26, 1946, and at all
times material thereafter , had engaged in and was engaging in unfair labor practices , including
violations of Section 8 (a) (1), (2), and (3) of the Act and that the strike above described was
prolonged by the unfair labor practices of Respondent. The complaint further alleged that on
or about June 4, 1951, and thereafter, the striking employees named in footnote 1, supra,
made collective and individual unconditional offers to return to work and that Respondent,
on or about June 4, 1951, and thereafter, refused to reinstate said employees for the reason
that they had assisted and had become members of the Union and had participated in the strike
above described and had refused to work duringsaid strike, and that by said refusal Respond-
ent violated Section 8 (a) (1) and (3) of the Act. By its answer, Respondent denied it had com-
mitted any unfair labor practices.
Pursuant to notice, a hearing was held December 15-16, 1952, at De Ridder, Louisiana,
before the undersigned Trial Examiner. All parties appeared and were represented by counsel
or other representative, were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to argue orally at the conclusion of the evidence, and to file briefs. Since
the close of the hearing, briefs have been received from the General Counsel and Respondent,
both of which have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Mississippi corporation licensed to do business in the State of Louisiana
and maintains an office and plant at De Ridder, Louisiana, where it is engaged in the manu-
facture, sale, and distribution of pine oil and related products. In the course and conduct of
its business operations during the year preceding the filing of the complaint herein, Re-
spondent manufactured and sold finished products consisting principally of pine oil, turpen-
tine, and related products, valued in excess of $1,000,000, over 80 percent of which was sold
and shipped to customers in States other than the State of Louisiana. By its answer, Respond-
ent admitted, and I find, that at all times material herein Respondent has been engaged in
commerce within the meaning of Section 2 (6) of the Act.
II, THE LABOR ORGANIZATION INVOLVED
Lodge 1225, International Association of Machinists, during all times material herein, was
a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
In a prior proceeding against this Respondent , the Board , by its Decision and Order of
August 24, 1949, reported in 85 NLRB 791, found the following facts:
In March 1947, after Respondent had threatened its employees with reprisals if they joined
certain labor organizations of their choice , International Union of Operating Engineers, AFL.
demanded and was refused recognition as a bargaining agent for all employees in the plant.
At about the same time, the charging Union herein demanded and was refused recognition as
the bargaining agent for employees in the machine shop, the department in which the 14
employees named in footnote 1, supra, were employed, and the only department with which
i George G. Buchanan , T. E. Downs, T. L. Dans, C. F. Fleming, Roy Grantham, Fred
Henderson, J. E. Langston, R. J. Lester, Calvin Miers, J. M. Offutt, R. O. Sells, Carl
Shirley, J. H. Swearengen, W. D. Woodley
CROSBY CHEMICALS, INC, 157
the instant proceeding is concerned . On April 1, 1947, the Operating Engineers began its
strike for recognition and established a picket line about Respondent 's plant . Employees of
Respondent , including the 14 with whom we are concerned , refused to cross the picket line.
On April 10, after Respondent had on April 8 refused to negotiate with the charging Union on
their behalf, the machine -shop employees met and decided to consider themselves as on strike
for recognition and agreed that they would return to work only if Respondent reemployed the
entire machine-shop crew and recognized the Union as their bargaining representative. Thus,
by April 10, 1947 , the machine - shop employees were on strike for economic reasons of their
own.
Respondent began to encourage the formation of an "inside " union . Organizational activity
on behalf of such a union , known as the Beauregard Chemicals Association , hereinafter
referred to as BCA, began on or about April 10, 1947, during the period when the plant was
closed down because of the strike aforementioned . Without detailing the evidence found by the
Board, it is sufficient for present purposes to note that in its Decision and Order afore-
mentioned, the Board found and concluded that from April 10 , 1947, Respondent 's activities
in behalf of BCA
clearly constituted not only interference and support of theBCA , but also domination. . as
well. . . . This conduct of the Respondent , favoring , as it did, the BCA over the Union
representing the striking employees , was manifestly designed to deplete the ranks of
the latter organization and thereby to frustrate the striking employees ' efforts for
representation by a labor organization of their own choosing . This unwarranted intru-
sion by the Respondent upon the desires for representation of its employees inevitably
served to prolong their strike. Consequently , that which theretofore had been an economic
strike was transformed into an unfair labor practice strike by the Respondent 's illegal
conduct.
On April 26 , 1947, Respondent 's president ordered the preparation of a "Do not reemploy"
list containing the names of all the employees then on strike , including the 14 involved herein,
and caused that list to be distributed to Respondent 's 'supervisors . During the same month,
Foreman Allston told the employees that they would have to join the BCA to keep their jobs
with Respondent . On April 28 and April 29, Respondent hired 13 replacements in the machine
shop and on May 9 hired 1 more . On May 2, 1947 , a union committee sent the following tele-
gram to the Respondent which telegram the Board construed to be an unconditional offer by
the 14 men to return to work:
In order to restore industrial peace to De Ridder, Louisiana , earnestly request that your
Company restore all employees who are on your payroll as of April 1, 1947, back on your
payroll. In return the Unions will rest the matter of representation before the NLRB and
will abide by their findings.
Respondent 's response , however, was an offer of jobs only to those who had not been re-
placed by that time, which the Board construed as a refusal to reinstate . Accordingly, by its
Decision and Order , the Board , on August 24, 1949 , ordered the immediate reinstatement of
the 14 men and that they be made whole for any loss of pay they may have suffered from May
2, 1947, by reason of Respondent 's discrimination against each of them . To further remedy
the unfair labor practices found by the Board , it ordered , inter alia , that Respondent with-
draw all recognition from , and completely disestablish , BCA and to post at its plant a notice
advising its employees that it would not discourage membership in the Union by discharg-
ing or refusing to reinstate any of them , would cease its domination of interference with,
and contributions to, the BCA, would no longer recognize it as the representative of its
employees for the purpose of collective bargaining , and would completely disestablish said
Association.
Respondent failed and refused to comply with substantial portions of the Decision and Order
aforementioned including a failure to reinstate and make whole the named 14 employees and
a failure to post the notice aforementioned . The Board sought enforcement of its Decision and
Order in the United States Court of Appeals for the Fifth Circuit , which application was
resisted by Respondent . That court, by an opinion reported in 188 F. 2d 91, concurred in and
affirmed all of the Board 's findings , conclusions , and remedial order, save and except only
in one respect . In the opinion of the court , the union committee 's telegram of May 2, 1947, was
not an unconditional request for reinstatement . For that reason alone it held that the con-
tested portion of the Board 's Order requiring reinstatement of, and payment of back pay to,
the 14 men and the posting of notices with respect thereto , could not be enforced . The re-
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mainder of the Board 's Order was ordered enforced by the court decree entered May 12.
1951 . On May 31 , 1951 , pursuant to the decree of the court of appeals , Respondent posted a
notice at its plant which notice was identical in substance and form to that which the Board
by its prior Decision and Order had ordered Respondent to post except that there was omitted
therefrom all reference to the reinstatement or making whole of the 14 employees under
consideration.
On or about June 2, 1951, the Union , at a meeting of its members , voted to abandon the
strike and return towork . OnJune 4, Respondent was notified by a union secretary , in writing,
that the Union had taken the action just mentioned and made , in behalf of the 14 men named
in footnote 1, supra , unconditional offers to return to work . Respondent acknowledged this
letter on June 21 and advised the Union that it had no present need for the 14 men , or any of
them, and that it considered itself under no legal obligation to reemploy or reinstate them.
None of the men has been reinstated or reemployed by Respondent.
Concluding Findings
An interesting threshold problem is presented by Respondent 's contention that the complaint
should be dismissed for the reason that , in violation of Section 10 (b) of the Act,.2 it is based
upon alleged unfair labor practices occurring more than 6 months prior to the filing and
service of the charge herein . Specifically , Respondent asserts that the present case is
analogous to, and controlled by, Greenville Cotton Oil Company , 92 NLRB 1033 , in which the
Board held that the findings of an unfair labor practice strike was precluded under Section
10 (b), where the only charge under consideration was filed more than 6 months after the un-
fair labor practice which caused the strike , although timely with respect to that company's
failure to reinstate the strikers upon application.
Here , however, the determination and finding that Respondent provoked an unfair labor
practice strike in April 1947 was made by the Trial Examiner in the prior proceeding which
was instituted , admittedly , pursuant to charges timely filed, and which determination was af-
firmed by both the Board and the court of appeals . It would be presumptuous , indeed legally
improper , for me to determine and find, anew, that by the interjection of BCA into the Com-
pany's relationship with its employees in 1947 , Respondent did, or did not, convert the strike
into an unfair labor practice strike. The only unfair labor practice concerning which I must
make the determination is the illegal refusal to reinstate the 14 men pursuant to their un-
conditional request for reinstatement made on or about June 4 , 1951 . Concerning this unfair
labor practice , and it is the only unfair labor practice on which the complaint herein is
"based ," a charge was filed on July 3 , 1951 , and served on Respondent on July 16, 1951.
The recitals in the instant complaint pertaining to the origin and conversion of the strike
are no more than a narrative of theevidence which establish that in a prior proceeding, based
on a proper and timely filed charge , the Board made the finding which the Respondent as-
serts , and properly so, I cannot for the first time make in the instant proceeding.
By its previous decision , the Board found that Respondent committed a number of unfair
labor practices since 1946 . Among them was its interjection of the company -dominated BCA
by which the strike pending in April 1947 was converted into an unfair labor practice strike.
That determination was made and put to rest in the first proceeding . Respondent committed
another unfair labor practice in June 1951 when it discriminated against the 14 men in ques-
tion by refusing their unconditional request for reinstatement , their replacements having
been hired after the strike had been converted into an unfair labor practice strike . That is
the only unfair labor practice on which the instant complaint is "based."
The construction of Section 10 (b) for which Respondent contends would compel the con-
clusion that in an industry having a 6-month season , an employer could provoke an unfair
labor practice strike near the end of one season , replace the strikers , and plead Section
10 (b) in defense when, at the opening of the next season 6 months or more later, he denies
unconditional requests for reinstatement to the strikers . This would be the result achieved in
the industry just described , and indeed in the case of every unfair labor practice strike
lasting 6 months or more occurring in any industry , notwithstanding that the strikers had, as
2Section 10 (b) of the Act , in pertinent part, read as follows:
... Provided , That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the Board and
the service of a copy thereof upon the person against whom such charge is made ....
CROSBY CHEMICALS, INC. 159
the Union did in the instant case, filed a timely charge sand received an adjudication that
the employer had been guilty of the unfair labor practice which caused or prolonged the
strike . Congress certainly intended no such result. The undoubted purpose of the Section
10 (b) proviso , as is apparent in its express terms , was merely to discourage dilatory filing
of charges .4 As such , the Board and the courts have construed the proviso to be a statute of
lumtations , and not a rule of evidence to bar testimony of all events occurring more than
6 months prior to the filing of the charge. 5
I conclude that the Greenville case is inapposite , and that there is no merit to Respondent's
contention that the complaint should be dismissed because issued in violation of Section 10 (b)
of the Act. Ozark Dam Constructors , et al., 99 NLRB 1031.
Respondent further contends
that the April 1947 strike was not . . . prolonged by any unfair labor practice of Re-
spondent and, in the alternative , if it is finally determined and held that such strike was
caused or prolonged by unfair labor practices of Respondent , and then and only in such
event [it is Respondent 's contention ], that said unlawful conduct of Respondent ceased
on or about December 1, 1948, and that Respondent was not guilty of any unlawful con-
duct in violation of the Act at any time during the year 1949 or thereafter or caused or
could have caused said strike to be prolonged or continued at any time during the years
1949 , 1950 , or 1951, or any of them.
With respect to the first above-quoted contention , viz, "that the April 1947 strike was
not . . . prolonged by any unfair labor practice of Respondent," as I ruled at the hearing and
indicated earlier in this report . I was and am foreclosed by the earlier reported decisions of
the Board and the court of appeals , 6 and of which I have taken official notice, from giving
renewed consideration to that contention . t Respondent , while vigorously in disagreement with
the Board 's finding , does not seriously , and in any event cannot successfully, challenge that
the issue was, in fact , determined by the Board in its earlier decision . That finding, not being
disturbed by the court of appeals, is now binding and conclusive on me. Indeed, it is my con-
sidered opinion , notwithstanding Respondent 's contention that the court "never reached that
point," that the court expressly approved the finding which Respondent now seeks to chal-
lenge.
In its opinion , the court summarized the contention of Respondent and the decision of the
Board as follows:
Respondent resists enforcement of the order only insofar as it relates to the alleged
discriminatory refusal to reinstate fourteen machinists . As to the other violations found
by the Board , which are either admitted or not contested by Respondent [which includes
the unlawful interjection of BCA by Respondent], it is sufficient to say that the findings
of the Board are fully supported by theevidence as a whole , and the Order based on these
violations should and will be enforced....
The Board found that Respondent discriminated in regard to hire and tenure of em-
ployment of the fourteen machinists. It concluded that the machine shop employees, as of
April 10, 1947 , were on strike for economic reasons of their own. But when [ BCA] made
its appearance on that date and Respondent immediately began to assist and support that
organization , it thereby intruded upon the employees ' right to freedom of choice of rep-
resentatives, with the consequent effect of prolonging the strike, and by so doing the
economic strike was transformed into an unfair labor practice strike . The Board then
3By filing this early charge, the employees have avoided the dilemma to which Board
Member Styles alluded in footnote 7 of the Greenville decision.
4Senate Report No. 105 on S. 1126, p 27; House Conference Report No 510 on H.R 3020,
p. 53.
5 The Board 's Sixteenth Annual Report, 1951, page 237. N L. R B. v Luzerne Hide &
Tallow Co., 188 F 2d 439 (C A. 3), cert. den 342 U. S. 868; Axelson Manufacturing Company,
88 NLRB 761, 766; N. L R B v. General Shoe Corporation, 192 F 2d 504 (C. A 6), cert.
den. 343 U. S 904.
6 Reported in 85 NLRB 791 and 188 F 2d 91 (C. A. 5), respectively.
7J. S. Abercrombie Company, 83 NLRB 524 ; International Longshoremen ' s and Ware-
housemen 's Union and True Knowledge , 102 NLRB 907.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred to the telegram of May 2, as an unconditional request for reinstatement and
concluded that in the absence of some valid reason for discharge Respondent was duty
bound to reinstate the machinists , even though in some instances other employees had
been assigned to their jobs.
There is no question but that where a strike is initially undertaken for economic
reasons but is prolonged by reason of the employer 's intervening unfair labor practices,
the employer is in the same position he would have been in had his unfair labor practice
caused the strike in the first place and is bound to reinstate all strikers and discharge
all those hired to replace them during the strike. N. L. R. B. v. Remington-Rand, Inc.,
2 Cir., 130 F. 2d 919. Indeed, Respondent does not question this general rule but con-
tends that the Board eL cad in concluding that the telegram of May 2, 1947, constitu
an unconditional request for reinstatement . Respondent insists that the material and
controlling fact as established by the undisputed testimony of the Board's witnesses,
is that an agreement to a consent election was made a condition of the proposal ... and
that, therefore, the record compels the conclusion that no unconditional request for
reinstatement was ever made on behalf of the machinists , either by the telegram of May
2nd or otherwise. We agree with the Respondent....
Concluding as we do, that there was no unconditional request for reinstatement by
the striking machinists , it follows that the contested portion of the Board 's Order re-
quiring reinstatement of and payment of back pay to the fourteen machinists and the
posting of notices with respect thereto cannot be enforced. (Emphasis supplied.)
It is unmistakably apparent from a reading ofthe court's opinion that if it had been in agree-
ment with the Board that the request for reinstatement was in fact unconditional, it would
have ordered reinstatement. And, having been replaced , they would have been entitled to such
reinstatement, only if they were unfair labor practice strikers, Accordingly , I adhere to my
ruling at the hearing that Respondent is foreclosed in this proceeding from relitigating the
issue of whether or not the 14 machinists became unfair labor practice strikers before their
replacements were hired.
We turn next to Respondent's alternative contention that "the said strike ceased to be an
unfair labor practice strike on or about December 1, 1948... and reverted to its original
economic character," and that thereafter there was no legal obligation on the part of Re-
spondent to reinstate the striking employees.
In connection with that contention, the record establishes that on or about November 19,
1948, at and during the course of the hearing in the prior case before Trial Examiner
Whittemore, Respondent 's attorneys admitted , in the presence of representatives of the
Union, that "in violation of the Act ... supervisors of the Company interfered with the
affairs off BCA]." The record herein also establishes that after the hearing before Examiner
Whittemore, BCA held no meetings or elections , collected no membership dues or assess-
ments, and had no meetings or conferences with management pertaining to grievances,
wages , hours, or other terms or conditions of employment. It was also established that
though Respondent's contract with BCA provided for a monthly checkoff of dues, no such dues
were deducted after November 5, 1948. However , insofar as the record discloses, the only
other notice pertaining to BCA given by Respondent, until May 31 , 1951, was an oral an-
nouncement to Respondent 's supervisors in late November 1948. by R. H. Crosby, Respond-
ent's president , "that the BCA was no longer in existence as far as the company is con-
cerned."
Though the Company admitted part of its illegal conduct with reference to BCA at the
hearing before Examiner Whittemore, it failed to comply with his requirement , or that of the
Board, that it post a notice advising its employees that it had completely renunciated and
disestablished BCA and would no longer interfere with, recognize , or contribute support to
it, or any successor thereto. No notice with reference to the disestablishment of BCA was
given to the employees until May 31, 1951, when the decree of the circuit court of appeals was
entered. ? Two days later, the charging Union voted to abandon the strike . Two days after
that meeting , on June 4. the unconditional request for reinstatement was made in behalf of
the 14 machinists.
I cannot agree with Respondent that the inactivity of BCA after the hearing before Trial
Examiner Whittemore, and the notice given by Respondent to its supervisors , reconverted
$ Though Respondent may plead in excuse for its failure to post the notice prescribed by
both the Trial Examiner and the Board the inclusion therein of an offer to reinstate and
make whole the 14 employees , that fact did not preclude Respondent from posting the required.
or a similar, notice restricted to its renunciation and disestablishment of BCA.
CROSBY CHEMICALS, INC. 161
the existing unfair labor practice strike into an economic strike. Prescription of the manner
and means necessary to adequately remedy an unfair labor practice are matters that are left
to the discretion and judgment of the Board, and not that of the Respondent. In the thousands
of decisions that have been rendered by the Board since the passage of the Act, every one, in
which a violation of Section 8 has been found, has required the posting of a notice to the
employees that the employer will no longer engage in the violative conduct and will remedy the
unfair labor practice found. Thus, in the Board's first reported case, Pennsylvania Greyhound
Lines, Inc., 1 NLRB 1, where the Board found that the employer had created and fostered
a labor organization in violation of what is now Section 8 (a) (2) of the Act, it concluded, in
order to "effectuate the policies of the Act... [that the company] post notices in all the places
of business wherein their employees ... are engaged, stating that said [company-dominated
union] is disestablished and that respondents will refrain from any such recognition thereof."
When the case reached the Supreme Court, 303 U. S. 261, that Court affirmed the Board's
conclusion that posting of the notice aforementioned "was an appropriate way to give effect
to the policy of the Act."
Shortly thereafter, the Supreme Court again had occasion to consider the importance of the
notice and its contents in a proceeding also involving acompany-dominated union. In that case,
N. L. R. B. v. Falk Corporation, 308 U. S. 453, the intervening court of appeals had modified
the Board's order (6 NLRB 654) by omitting the requirement that the notices to be posted
contain a statement that the company cease and desist from its unlawful activities. In revers-
ing the court of appeals, the Supreme Court stated:
The purpose of the Board in requiring the company to publish notice assuring its em-
ployees that it would "cease and desist" had been "to convey to the employees the knowl-
edge of a guarantee of an unhampered right in the future to determine their own labor
affiliations." Knowledge on the part of the men that the company would cease and desist
from hampering, interfering with and coercing them in selection of a bargaining agent,
which the Board found the company had done successfully in the past, was essential if
the employees were to feel free to exercise their rights without incurring the company's
disfavor. . . The modified notices neither renounced the company's unlawful practices
nor promised their abandonment, and left as a candidate the Independent, [the company-
dominated union], toward which the unrenounced unlawful activities of the company had
been directed. We think the plant notices as modified by the Court's order fell far short
of conveying "to the employees the knowledge of a guarantee of an unhampered right
in the future to determine their labor affiliations."
In evaluating the evidence upon which Respondent relies that notice of its alleged re-
nunciation of BCA was effectively and sufficiently brought home to the employees, the fact
that Crosby told Respondent's supervisors "that BCA was no longer in existence as far as the
Company was concerned" has no legal significance. Notice to Respondent's supervisors is
not notice to its rank-and-file employees. And, even if it be assumed, arguendo, that the ad-
missions of Respondent's attorneys at the hearing before ExaminerW i ttemore, in the
presence of union representatives, may be considered notice of these admissions to the 14
men under consideration, it would avail Respondent nothing. The statements were admis-
sions made expressly "for the record" in that proceeding, and did not even pretend to be a
statement of management policy to govern its future conduct. There is no evidence that they
were communicated to the employees, or that it was so intended.9 They were mere legal ad-
missions that supervisors had interfered in the affairs of BCA.
The Trial Examiner, the Board, and the court of appeals, all had before them the admis-
sions and statements made at the 1948 hearing, and yet all were in agreement, as late as May
1951, that Respondent's illegal domination of BCA had not yet been adequately remedied. All
were still of the opinion that in order to completely remedy that domination, not only that a
notice be posted but that the notice include more than Respondent admitted at the hearing.
All were in agreement in 1951 that Respondent was required "to convey to the employees the
knowledge of a guarantee of an unhampered right in the future to determine their own labor
affiliations ." N. L. R. B. v. Falk Corporation, 309 U. S. 453. A violator must completely
"dissipate the unwholesome effect of violations of the Act." N. L. R. B. v. Franks Co., Inc.,
321 U. S. 702. An admission of guilt for past violative conduct was, and is, not sufficient.
As the Board recently held, an employer's "offer to the strikers [which] did not include any
remedy for the unfair labor practices which caused and prolonged the strike--did not convert
9 Cf. M. Snower & Company, 83 NLRB 290.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unfair labor practice strike into a mere economic strike." Star Beef Company, 92 NLRB
1018; enfd. 193 F. 2d 8 (C. A. 1).
"Nor is it material that the [BCA] has in fact been inactive since[ November 1948]. Its
inactive status is not necessarily permanent. It has never been disestablished by the corporate
Respondent, and the possibility that it may be revived still exists." Russell Manufacturing
Company, 82 NLRB 1081, 1085; enfd. in pertinent part 187 F. 2d 296 (C. A. 5); Raybestos-
Manhattan, Inc., 80 NLRB 1208, 1209-1210.
By reason of all the foregoing, and by virtue of Section 2 (3) of the Act, 10 I find and con-
clude that the unfair labor practice strike continued until June 4, 1951, when Respondent was
notified of its termination by the Union and the 14 men made an unconditional request for rein-
statement. Wilson & Company, Inc., 77 NLRB 959; Massey Gin & Machine Works, 78 NLRB
189; Kallaher & Mee, Inc., 87 NLRB 410; Globe Wireless, Ltd., 88 NLRB 1262, enfd. 193 F.
2d 748 (C. A. 9). Accordingly, I find that by denying that request, Respondent discriminated
against these employees in violation of Section 8 (a) (3) of the Act. By that denial, Respondent
also restrained and coerced its employees in the exercise of rights guaranteed by Section
7 of the Act and thereby violated Section 8 (a) (1) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with its
operations described in section I, above , have a close, intimate , and substantial relation to
trade , traffic, and commerce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I will recommend that
it cease and desist therefrom and take certain affirmative action to effectuate the policies of
the Act.
It has been found that Respondent has discriminated in regard to the hire and tenure of em-
ployment of the 14 employees named in footnote 1, supra. I will therefore recommend that
Respondent offer them immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges,
and to make them whole for any loss of pay they may have suffered as a result of Respond-
ent's discrimination.
It having been established that the employees were engaged in a strike to protest Re-
spondent's unfair labor practices, and that thereafter Respondent discriminatorily refused
to reemploy said employees when they unconditionally applied for reinstatement on June 4,
1951, it will therefore be recommended that Respondent offer the employees listed in the
Appendix hereto attached immediate and full reinstatement to their former or substantially
equivalent positions, dismissing, if necessary, any employees hired since the strike was
converted into an unfair labor practice strike on April 10, 1947. If, after such dismissal,
there are insufficient positions remaining for all these employees, 11 the available positions
shall be distributed among them, without discrimination because of their union member-
ship, activity, or participation in the strike, following such system of seniority or other
nondiscriminatory practice as heretofore has been applied in the conduct of Respondent's
business. Those strikers for whom no employment is immediately available after such dis-
tribution, shall be placed upon a preferential hiring list with priority determined among them
by such system of seniority or other nondiscriminatory practice as has heretofore been
applied in the conduct of Respondent's business and thereafter, in accordance with such list,
shall be offered reinstatement as positions become available, and before other persons are
hired for such work. Reinstatement, as provided herein shall be without prejudice to the
employees' seniority or other rights and privileges.
It will also be recommended that Respondent make whole the employee aforementioned for
any loss of pay they may have suffered by reason of Respondent's discrimination against them.
As the discrimination occurred at the time of the denial of their unconditional application for
10 "The term 'employee' shall include . any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or because of any unfair
labor practice, and who has not obtained any other regular and substantially equivalent
employment. . "
"There is evidence that Respondent has been operating with a curtailed staff after the
unfair labor practice strike began.
CROSBY CHEMICALS, INC. 163
reinstatement , but after Respondent curtailed its operations , it will be recommended that
Respondent pay each of them a sum of money equal to the amount which he normally would have
earned as wages from the date following June 4 , 1951 , when he would be entitled to reinstate-
ment in accordance with the reinstatement formula described above , less his net earnings
during said period . The back pay shall be computed in the manner established by the Board,
and Respondent shall make available to the Board payroll and other records to facilitate the
checking of amounts due. F . W. Woolworth Company , 90 NLRB 289 ; N. L. R. B . v. Seven-Up
Bottling Company , 344 U . S. 344.
The character and scope of the unfair labor practices engaged in indicate an intent to defeat
self-organization of the employees . It will therefore be recommended that Respondent cease
and desist from in any manner interfering with, restraining , or coercing its employees in
the exercise of rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Lodge 1225 , International Association of Machinists , was, during all times material
herein , a labor organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the employees
named in the Appendix hereto attached , Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT discourage membership in any labor organization of our employees,
by discharging or refusing to reinstate any of our employees or in any other manner
discriminating in regard to their hire or tenure of employment , or any term or con-
dition of their employment.
WE WILL NOT in any other manner interfere with , restrain, or coerce our employees
in the exercise of their right to self- organization . to bargain collectively through rep-
resentatives of their own choosing , and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from any or all
of such activities except to the extent that such right may be affected by an agreement
requiring membership in labor organizations as a condition of employment , as authorized
by Section 8 (a) (3) of the Act.
WE WILL offer the employees named below immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination against them , in the manner set forth in the sec-
tion entitled "The Remedy" of the Intermediate Report of the Trial Examiner herein
George G. Buchanan Fred Henderson R. O. Sells
T. E. Downs J. E. Langston Carl Shirley
T. L. Dans R. J. Lester J. H. Swearengen
C. F. Fleming Calvin Miers W. D. Woodley
Roy Grantham J. M. Offutt
All our employees are free to become or remain members of any labor organization. We
will not discriminate in regard to hire or tenure of employment or any term or condition of
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment against any employee because of membership in or activity on behalf of any
labor organization
CROSBY CHEMICALS, 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
ACME BOOT MANUFACTURING COMPANY, INC. and UNITED
RUBBER, CORK, LINOLEUM & PLASTIC WORKERS OF
AMERICA, CIO. Case No. 10-CA-1394. May 29, 1953
DECISION AND ORDER
On February 26, 1953, Trial Examiner Thomas S. Wilson
issued his Intermediate Report in the above-entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report
attached hereto. He also found that the Respondent had not
engaged in other unfair labor practices alleged in the com-
plaint and recommended dismissal of those allegations. There-
after, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.'
The Board 2 has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed.' The Board
has considered the Intermediate Report,4 the Respondent's
I The Respondent's request for oral argument is hereby denied because the record, includ-
ing the Respondent's exceptions and brief, in our opinion, adequately present the issues and
the positions of the parties.
2Pursuant 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 [Members Houston, Styles, and
Peterson].
3 The Respondent excepted to the Trial Examiner granting the General Counsel's motion
that the official papers in connection with the original charge filed on October 23, 1951, be
amended to change the name of the Respondent from "Acme Boot Corporation" to "Acme
Boot Manufacturing Company, Inc." The Respondent conceded at the hearing that it had
received all papers in connection with this charge, and disclaimed any element of surprise.
Accordingly, we find no merit in this exception. See Lee E. Stine, d/b/a Fairchild Cafeteria,
92 NLRB 809.
4The Trial Examiner found that the General Counsel failed to prove by a preponderance
of the evidence the allegation of the complaint that the Respondent discriminatorily selected
Edith Hiett Clark for layoff because of her activities on behalf of the Union. As no exceptions
have been filed to this finding, we adopt it pro forma. Moreover, as the General Counsel did
not except to the Trial Examiner's failure to find that the Respondent interrogated its
employees concerning their union activities during the months of June and July 1951, we
shall dismiss this allegation.
105 NLRB No. 19.