Phelps Dodge Corp.

National Labor Relations Board - Board Decisions

Sep 13, 1941

35 N.L.R.B. 418 (N.L.R.B. 1941)

In the Matter of PmiLPs DODGE CORPORATION, A CORPORATION ands
INTERNATIONAL UNION OF Mn,EMILL AND SMELTER WORKERS,
LOCAL No. 30
Case No. C-500
SUPPLEMENTAL FINDINGS OF FACT AND
RECOMMENDATION
:September 13, 1941
On January 16, 1940 , the National Labor Relations Board, herein
called the Board, issued a Decision and Order in this case ,' wherein
it found that Phelps Dodge Corporation , New York City , herein
called the respondent , had engaged in and was engaging in certain
unfair labor practices affecting commerce and ordered the respondent
to cease and desist therefrom and to take certain affirmative remedial
action. Inter alia the Board found that the respondent had discrimi-
nated in regard to the hire and tenure of employment of certain
named persons in violation of Section 8 (3) and ( 1) of the National
Labor Relations Act, 49 Stat . 449, herein called the Act, and directed
in addition to certain other relief that the respondent and its officers,
agents, successors , and assigns should offer to these persons :
... immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority
or other rights and privileges , dismissing if necessary all em-
ployees hired since the dates indicated , in the manner set forth
in the section entitled "Remedy," above , and place those for whom
employment is not immediately available upon a preferential list,
and offer employment as it becomes available , in the manner set
forth in said section ...2
Thereafter, on July 26, 1940 , upon petition of• the respondent to
review and set aside the Board 's order, the United States Circuit
Court of Appeals for the Second Circuit modified the order of the
Board in certain respects and'enforced the order as so modified. On
April 28, 1941 , the Supreme Court of the United States, on writs of
certiorari obtained by the respondent and the Board, handed down
its opinion directing that the decree of the United States Circuit
119 N. L. R. B. 547.
2 Paragraph 2 (a) of the order , 19 N. L. R. B. 547 , at 603.
35 N. L. R. B., No. 88.
418
PHELPS DODGE CORPORATION 419
Court of Appeals for the Second Circuit be modified in accordance
with said opinion and that the cause be remanded to said Court with
directions to remand to the Board the two matters discussed under
Fourth and Fifth of said opinion for the Board's determination of
these issues . On May 31, 1941, the Supreme Court of the United
States entered its judgment in conformity with its opinion and issued
its mandate to the United States Circuit Court of Appeals for the
Second Circuit embodying said judgment. Thereupon on June 18,-
1941, the United States Circuit Court of Appeals for the Second Cir-
cuit entered a decree containing inter alia the following provision :
AND IT IS FURTHER ORDERED , ADJUDGED AND DECREED that with
respect to the two matters discussed under Fourth and Fifth of
the aforesaid opinion of the Supreme Court of the United States
handed down April 28, 1941, the cause be remanded to the
Board for the Board's determination of these issues in accord-
ance with the directions in said opinion which are incorporated
herein.
The present Supplemental Findings of Fact and Recommenda-
tion deal only with the matter discussed under Fourth of the opin-
ion of the Supreme Court of the United States. Pursuant to the
remand by the United States-Circuit Court of Appeals for the Sec-
ond Circuit and upon consideration of the entire record in the case,
the Board hereby exercises its judgment on said remanded issue
discussed under Fourth of the opinion of the Supreme Court of the
United States and hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT
The question for us to determine is whether in our judgment the
reinstatement of 22 persons 3 will "effectuate the policies" of the
Act, notwithstanding the fact that they may possibly, as the re-
spondent contends, have obtained substantially equivalent employ-
ment elsewhere. In our judgment the reinstatement of these persons
is essential to "effectuate the policies" of the Act regardless of any
subsequent occupation or employment in which they may have en-
gaged. The decisive considerations which lead us to this view are
those which we have recently set forth in answer to a similar
contention of possible loss of "employee" status through obtainment
of substantially equivalent employment in Matter of Ford Motor
Company and International Union United Automobile Workers of
3 Edgar Lewis Hargus, John Henry Key, George Edward Frazee , Edward Bowden, Paul
Amaro, Wilfred Davis Mortenson , Anson Perry Windsor, Grover D. Windsor, Martin Vaclav,
Montague Reed, Alexander Kalastro , William Henry Bigelow, William Windsor, Ellis Meran
Scales, Frank Erkkila, Luke Sertich, Merrell Ernest Johnson , William Graham, Jesse
Edge, Grover Cornett, Ben H. Stringer , and Vernon Dell Curtis.
451270-42-vol. 35-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, Local Union No. 249, 31 N. L. R. B., No. 170, decided by
us on May 21, 1941. We there said :
The respondent contends that the Board may not order any
employee reinstated without first finding that he has not ob-
tained substantially equivalent employment elsewhere. ^ Assum-
ing, however, that some or all of the employees who were
discriminatorily discharged thereafter obtained regular and sub-
stantially equivalent employment within the meaning of Section
2 (3) of the Act, the question arises whether we should order
that they be offered reinstatement, the normal remedy appropri-
ate to neutralize the effects of unlawful discrimination. The
precise question we are called upon to determine, in the exercise
of our discretion, is whether it will effectuate the policies of
the Act to direct that offers of reinstatement be made to such
employees.
The 'policies of the Act, expressly declared in the public in-
terest, are to encourage the practice and procedure of collective
bargaining and to protect the exercise by employees of full free-
dom of self-organization. To withhold the normally appropriate
remedy of reinstatement merely because the object of discrimina-
tion has obtained compensatory employment would not effectuate
these public policies; indeed, it would reducs them, contrary to
the intent of Congress, to mere vindication of private rights and
restitution for private wrongs. Our power to order affirmative
relief was conferred, and it is our duty to exercise it, to the end
that conditions permitting free exercise of the publicly significant
rights of self-organization and collective bargaining shall, when
destroyed or disrupted, be restored. The Act postulates, and
the fact is readily verified by common experience, that anti-union
discrimination exercises a coercive effect not only upon the imme-
diate victim, but upon all present or future employees of the
particular employer;' it impresses upon them the danger to their
welfare and security associated with membership in,or activity
on behalf of a labor organization. Accordingly, the purpose of
the order to offer reinstatement is not only to restore the victim
of discrimination to the position from which he was unlawfully
excluded, but also, and more significantly, to dissipate the deeply
coercive effects upon other employees who may desire self-or-
ganization, but have been discouraged therefrom by the threat
to them implicit in the discrimination. This essential reassur-
ance can be afforded-freedom can be reestablished-only by a
demonstration that the Act carries sufficient force to restore to
work anyone who has been penalized for exercising rights which
the Act guarantees and protects; the acquisition of equivalent
PHELPS DODGE CORPORATION 421
employment is no more relevant to this purpose than the acquisi-
tion of non-equivalent employment, or of no employment at all.
Further, it is a demonstrated fact of which we take notice that
necessity almost inevitably compels a discharged employee to
seek the best available other employment. If reinstatement were
rendered inappropriate by reason of success in that search, the
employer would be able, through elimination of union adherents,
at once to impede or terminate exercise of the right of self-or-
ganization in his plant and at the same time to perpetuate his
advantage by relying upon the victims' necessity of earning a
livelihood elsewhere to assure their permanent riddance. This
would afford a ready means for complete and final ouster of those
prominent in the employees' efforts at self-organization.
For the foregoing reasons, we conclude that the mere obtain-
ment of substantially equivalent employment, and evidence per-
taining thereto, is irrelevant to considerations decisive of the
question whether reinstatement effectuates the policies of the Act.
These decisive considerations do not vary from case to case. Ac-
cordingly, we find that it will effectuate the policies of the Act
to require the respondent to offer reinstatement to all individuals
who we have found were victims of discrimination, whether or
not they, or any of them, may have obtained other regular and
substantially equivalent employment.
We here reiterate the views expressed in that case, and for the same
reasons find that the reinstatement of these 22 persons will "effectuate
the policies" of the Act.
RECOMMENDATION
Upon the basis of the above supplemental findings of fact and of
the entire record in the case, the National Labor Relations Board
hereby respectfully recommends to the United States Circuit Court of
Appeals for the Second Circuit that paragraph 2 (a) of the Order of
the Board, issued by the Board on January 16, 1940, be enforced as
issued.