Rapid Roller Co.

National Labor Relations Board - Board Decisions

Dec 21, 1942

46 N.L.R.B. 216 (N.L.R.B. 1942)

In the Matter of RAPID RoLLER Co., A CORPORATION and LOCAL 120,
UNITED RUBBER WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O.
Case No. C-1624
DECISION AND ORDER DENYING MOTION AND PETI
TION TO ADDUCE ADDITIONAL EVIDENCE AND, TO
MODIFY ORDER
STATEMENT OF THE CASE
December 21, 1942
On July 19, 1941, we issued our decision and order in which we
directed the respondent, Rapid Roller Co., among other things, to
reinstate 84 striking employees and 2 discriminatorily discharged
employees with back pay (33 N. L. R. B. 557). On February 2, 1942,
the United States Circuit Court of Appeals.for the Seventh Circuit,
in a proceeding under Section 10 (f) of the Act to review the order,
rendered its decision enforcing the order "as written," but remanding
the case to the Board for the purpose of permitting the respondent
to move for a modification of our order "upon the showing of the
existence of evidence as to unjustifiable refusal to take desirable new
employment upon the part of discharged and striking employees." 1
On May 8, 1942, the Court entered its decree upon said decision, pro-
viding for enforcement of the Board's order in full and further
providing that:
(1) So much of said order of the Board as refers to the matter
of back pay, paragraphs 2 (c) and 2 (e) above, shall be remitted
to the Board to permit Rapid Roller Co., within thirty (30) days
after entry of this decree,' upon the showing of the existence
of evidence as to unjustifiable refusal by the discharged and the
striking employees to take desirable new employment, to present
a motion to the Board for leave to adduce such additional evi-
dence, if any, and for such modification of the Board's order as
may be warranted by the evidence relating to this one issue, this
Court hereby reserving jurisdiction to make such other or fur-
1 Rapid Roller Co. v. N. L. R. B., 126 F. (2d), 452 (C. C. A. 7).
46 N. L . R. B., No. 29
216
RAPID ROLLER. CO. 217
ther'decree in the premises as may be appropriate after deter=
mination, if any, by the Board of said remanded issue;
(2) Upon failure of Rapid Roller Co., to present to the Board
evidence as to the unjustifiable refusal by the discharged em-
ployees to take desirable new employment and a petition for
leave to adduce such evidence within the above prescribed time,
those provisions of the order of the Board and this decree which
deal with,the matter of back pay shall forthwith be enforced
as' written.
A stay of the decree was in effect until October 12, 1942, when the
Supreme Court denied certiorari.
On November 9, 1942, the Company filed with the Board a docu-
ment styled a "Motion and Petition." The document set forth five
specifications : (1) That during the administrative hearing before
the Board's Trial Examiner in December 1939, an officer of respond-
ent had stated, on the record, that "our attitude is the same now that
it has been consistently since the strike was called," that "at the
present time, and since prior,to the commencement of these hearings
there have been no vacancies in the plant," but that in the future,
respondent "will be glad to have [the complainants] make written
application.for employment and will be willing to give preferred
treatment to all of the men who make application for employment
who formerly were in the company's employ"; that since the hear-
ings, "9 of the striking employees made application for reemployment
and all of them were reemployed by the Company"; that respondent
at various times had a total of 120 vacancies to fill and that it afforded
"reemployment to all former employees who have made application
to it"; therefore, the striking employees "cannot justly claim back
pay for the period when such employment was available to them";
(2) that records of various governmental employment agencies indi-
cate that there has been throughout the period of discrimination a
demand for unskilled and semi-skilled labor in Chicago and vicinity
and that "under these conditions there could be no justifiable reason
why all of the striking employees should not have been able to secure
employment"; (3) that records of the Department of Labor of the
State of Illinois indicate a steady increase in the demand for workers
in the rubber industry during the period of discrimination; (4) that
"it is not practicable within the scope of this petition to take up and
discuss the cases of each of the individual former employees here
involved, nor could a detailed analysis be effective without an indi-
vidual interrogation of each former employee"; nevertheless, "the
respondent charges, on information and belief, that many of its
former striking employees have unjustifiably failed or refused to
make any effort in any manner whatsoever to secure employment,"
218 . DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
and further; "that some of them have refused -or rejected employ-
ment which was offered them and that still others quit jobs which
they had secured during the period in question, all without justifi-
able cause"; and (5) that respondent cannot be required to pay any
back pay because the union contract, which is characterized as a "con-
tract of employment," expired prior to the period of discrimination.
On the basis of the showing thus made; we are asked' to "amend and
modify" our order, and "find, order; and direct that respondent is
under no obligation to make any payments to its former and striking
employees by way of back pay," and that we take further proceedings
in conformity with the respondent's motion and the Court's decree.
The first and fifth items are entirely outside the scope of the remand.
They are a reassertion of defenses which were raised by the respondent
in the prior proceeding before us and the Court and were passed upon
adversely to it. Under the first item, respondent again asserts the
right to treat the striking employees as "former employees" who must
defer to those employees who replaced them during the strike, and
who, even for such future vacancies as might occur, must again "make
application for employment." In our decision, we ruled, upon; that,
contention adversely to respondent 2 as did the Court in its decision.3
As was pointed out by ourselves and the Court, these men were not
former but "present" employees. When, through the union which'
represented them, they applied for reinstatement, the respondent was,
obligated to offer them immediate reinstatement to their old positions,
dismissing, if necessary to provide positions for them, all employees
who were hired since the beginning of the strike. Further, the employ-
ees having already applied for reinstatement through their union, re-
spondent was required to offer them immediate reinstatement without
waiting for them again to "make application for employment."
The defense suggested in the fifth item was expressly treated by the
Court, which stated : 4
The company contended that they (the striking employees)
could not be their employees in any event since the contract of
their employment expired by its own terms on April 23, 1939.
In this we think the company is mistaken for the reason we have
just pointed out, that the status of the employees on strike became
fixed under Sec. 2 (3) of the Act because of the unfair labor
practice of the company which caused the strike.
This leaves us with the second, third and fourth specifications which
alone-are germane to the remand. The opinion and the decree of the
2 33 N L. R. B 557,592-593,598-599.
Rapid Roller Co. v. N. L R. B., supra, p. 460.
* Idem, p 460
3
- RAPID ROLLER, CO. 219
Court specifically put the Company on notice that it is required to
make a "showing of the existence of evidence as to unjustifiable re-
fusal to take desirable new employment upon the part of the dis-
charged aiid striking employees ." Accordingly , we are entitled to
assume and do assume that the Company has pleaded all the facts and
evidence in its possession.
The petition is barren of a showing of the existence of evidence that
any employees here involved unjustifiably refused to take desirable new
employment-. The petition states that during the back-pay period,
there were employment opportunities in Chicago and vicinity. This
is not evidence that any employees here involved wilfully forewent any
opportunity to work. -
The petition states "that many of [respondent's] former striking
employees have unjustifiably failed or refused to make any effort-in
any manner whatsoever to secure employment " and "that some of them
have refused or rejected employment which was offered to them, and
that still others quit jobs which they secured during the period in
question , all without justifiable cause." That, however , is merely re-
stating the very charge as to which, under the express terms of the
remand, respondent is required to show the existence of evidence. The
petition sets forth no evidence in support of the charge.
Respondent names no individuals and states no facts or circum-
stances from which it can be inferred that any individual here involved
unjustifiably refused t6 take or had given up desirable new employ-
ment. Aware of the inadequacy of the showing made in the petition,
respondent asserts that "it is not practicable" for it to present any
supporting data and requests an opportunity to conduct "an indi-
vidual interrogation of each employee." In effect, then , the Company
admits its inability , through lack of evidence , to meet the conditions
of the remand and requests a license to conduct a prolonged fishing
expedition at government time and expense in the hope that thereby
"something [to support its charge] will turn up." 5 In our considered
judgment it will not effectuate the policies of the Act to protract this
already long protracted labor controversy in the manner proposed by
respondent ; pursuant to our power to keep the matter "within reason-
able bounds ," s we shall not permit the processes of the Act to be abused
-in the manner which respondent seeks. ,
Pursuant to the decree of the Circuit Court of Appeals for the Sev-
enth Circuit entered May 8, 1942, and to the provisions of the National
Labor Relations Act, and in order to effectuate the policies of the
Act, the Board makes the following finding of fact and order :
Federal Trade Commission v. American Tobacco Co., 264 U. S 298, 306.
0 Phelps Dodge Corp. v. N L R. B., 313 U. S. 177, 199.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDING OF FACT
1. Rapid Roller Co. has failed to show the existence of evidence as
to unjustifiable refusal on the part of the discharged and striking
employees to take desirable new employment.
ORDER
IT Is HEREBY ORDERED that the motion and petition filed herein on
November- 9, 1942, by Rapid Roller Co., be, and is hereby denied.
MR. GERARD D. REILLY took no) part in the consideration of the above
Decision and Order Denying Motion and Petition to Adduce Addi-
tional Evidence and to Modify Order.