Flambeau Plastics Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1968

172 N.L.R.B. 448 (N.L.R.B. 1968)

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flambeau Plastics Corporation and Local No. 380,
International Union, Allied Industrial Workers of
America , AFL-CIO. Case 30-CA-633
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
June 27, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS , AND ZAGORIA
Upon a charge filed on August 11, 1967, by
Local No. 380, International Union, Allied Industri-
al Workers of America , AFL-CIO, herein called
the Union , the General Counsel of the National
Labor Relations Board , by the Regional Director
for Region 30, issued a complaint dated October
26, 1967, alleging that Flambeau Plastics Corpora-
tion, herein called the Respondent , had engaged in
and was engaging in unfair labor practices within
the meaning of Section 8(a)(1) and ( 3) and Sec-
tion 2 ( 6) and ( 7) of the National Labor Relations
Act, as amended . Copies of the charge , complaint,
and notice of hearing were duly served on the
Respondent and the Union.
The complaint alleges that on or about July 20,
1967, certain employees of Respondent who en-
gaged in an unfair labor practice strike made appli-
cation for reinstatement to their former or substan-
tially equivalent positions , and that since on or
about July 24, 1967, Respondent has refused to
reinstate them in violation of Section 8(a)(1) and
(3) of the Act. On November 9, 1967, Respondent
filed its answer denying commission of the unfair
labor practices alleged.
On November 15, 1967 , all parties to this
proceeding entered into a stipulation by which they
waived a hearing before a Trial Examiner and
agreed to submit the case to the Board for findings
of fact , conclusions of law , and an order, based
upon a record consisting of the charge , the com-
plaint , the answer, the exhibits , and a stipulation of
facts . On November 17, 1967, the Board approved
the stipulation and ordered the proceedings trans-
ferred to the Board . Thereafter , the General Coun-
sel, the Respondent , and the Union filed briefs with
the Board.'
Upon the entire record in this case, the Board
makes the following:
The Respondent's request for oral argument is hereby denied as, in our
opinion, the record, including the stipulation and briefs, adequately
presents the issues and positions of the parties.
The Respondent , a Wisconsin corporation, main-
tains its principal office and plant in Baraboo,
Wisconsin , where it is engaged in the manufacture,
sale, and distribution of plastic products. During
the calendar year preceding execution of the stipu-
lation , a representative period, Respondent, in the
course and conduct of its business operations, sold
and shipped , in interstate commerce , products
valued in excess of $50,000 to points outside the
State of Wisconsin . We find, as stipulated by the
parties, that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act, and that it will effectuate the poli-
cies of the Act to assert jurisdiction herein.
11. THE ORGANIZATION INVOLVED
Local No. 380, International Union, Allied Indus-
trial Workers of America, AFL-CIO, is a labor or-
ganization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts , stipulated by the parties , show that on
March 5 , 1963, the Union was certified as the ex-
clusive bargaining agent of the Respondent's em-
ployees in a production and maintenance unit at
the Respondent 's Baraboo, Wisconsin , plant.
Thereafter, the Respondent committed several un-
fair labor practices.'
Approximately 2 years following the Union's cer-
tification , the parties entered into a 1-year collec-
tive-bargaining agreement . In the spring of 1966,
before and during negotiations for a successor
agreement , the Respondent again engaged in cer-
tain unfair labor practices ,' including, inter alia, a
refusal to bargain in good faith . On June 15, 1966,
approximately 61 employees struck in protest of
these unfair labor practices , and the Union filed
charges ." Three months after the strike began, on
September 15, 1966 , the Respondent withdrew
recognition from the Union on the ground that
Respondent doubted the Union's continued majori-
ty status , and the Union amended its earlier charges
to allege that this withdrawal of recognition was un-
' Flambeau Plastics Corporanpn , 151 N LRB 591
' Flambeau Plastics Corporation , 167 NLRB 735.
' /bid
172 NLRB No. 33
FLAMBEAU PLASTICS CORP. 449
lawful. On May 25, 1967, Trial Examiner Eugene
Dixon issued a decision finding that the Employer
had engaged in several unfair labor practices, in-
cluding unlawfully withdrawing recognition from
the Union during the strike which the Trial Ex-
aminer found to have been caused by the unfair
labor practices.5
The Union, on July 18, 1967, advised Respon-
dent that the strike would end on July 20, 1967,
and demanded a resumption of bargaining. On July
20, 1967, the day designated by the Union as the
last day of the strike, each of the strikers in-
dividually sent an identical "Application for Rein-
statement" to the Respondent, subject to "the un-
derstanding that Flambeau Plastics will continue to
recognize and commence bargaining with my duly
designated bargaining representative."
The Respondent answered separately to the
Union and to the strikers on July 24, 1967. To the
Union, Respondent wrote that he continued to
doubt its majority status . To the strikers, the
Respondent wrote that he would "consider an un-
conditional offer" that they be reinstated.
On July 26, 1967, the strikers wrote to the
Respondent again, reiterating their request for rein-
statement conditioned upon resumed recognition of
and bargaining with the Union. The Respondent
replied to them again on July 3 1, 1967, in effect re-
jecting their request for reinstatement because it
was conditioned upon resumed recognition of the
Union, but suggesting that the validity of the
withdrawal of recognition be resolved by litigation.
The single issue in this case is whether the
Respondent violated Section 8(a)(3) and (1) by re-
jecting the strikers' reinstatement applications
which were expressly made subject to the "un-
derstanding" set out above. The determination of
that issue turns on whether, in the particular cir-
cumstances of this case, the applications are to be
viewed as conditional or as unconditional. The
Board has long held that unfair labor practice
strikers are entitled to reinstatement to their former
or substantially equivalent jobs when they make un-
conditional applications therefor,' but, subject to
certain exceptions not here relevant, that it is not
unlawful for an employer to reject requests for rein-
statement which are conditioned upon the em-
ployer's agreement to remedy unfair labor practices
that caused the strike or prolonged it.7 On the facts
before us, we find that the unfair labor practice
strikers' requests for reinstatement were condi-
tional. The two sets of requests for reinstatement
explicitly conditioned the strikers' return to work
on the Respondent's agreement to resume bargain-
ing with the Union. The Respondent's rejection of
those requests was explicitly based on its un-
willingness to accept that condition, for it expressed
willingness to reinstate the strikers and to leave the
determination of the validity of its conduct to the
processes of the Act. Accordingly, we conclude
that the Respondent's refusal to grant reinstatement
was not violative of the Act.
Indeed, if Respondent had waited until a day
after the strikers had returned before unlawfully
withdrawing recognition, and if the employees had
then resumed their strike in protest against that un-
fair labor practice, the new strike would again have
been an unfair labor practice strike, and no "back-
pay" would have accrued to the strikers. We
can see no difference between employees' continu-
ing to strike in protest against a refusal to bargain
which occurred during an unfair labor practice
strike and a new strike to protest the new unfair
labor practice.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
' TXD-278-67
BSee, e.g., Fansteel Metallurgical Corporation, 5 NLRB 930, 945,
enforcement denied on other grounds 98 F.2d 375 (C A. 7), 306 U.S 240.
Jesus Foundries, /tic , 101 NLRB 1642
354-126 O-LT - 73 - pt. 1 - 30