Shell Chemical Corp.

National Labor Relations Board - Board Decisions

Apr 15, 1954

108 N.L.R.B. 284 (N.L.R.B. 1954)

2 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The majority concedes this when it states that "The machine
repairmen may properly be regarded as members of a craft
which the Petitioner has traditionally represented ." What we
have then is a determination that probes a petitioning union's
motivation, and, on the basis of a wholly subjective appraisal,
denies that union and the employees it seeks to represent an
election to which they clearly are entitled in accord with the
Board ' s own objective standards . It is my sincere conviction
that the administrative arm of Government , of which we are
part , can function best through a firm adherence to objective
principles and to the objective application of those principles.
Feeling as I do, I cannot join in that portion of the majority's
decision which denies an election among the machine repairmen.
Member Beeson took no part in the consideration of the
above Decision and Order.
SHELL CHEMICAL CORPORATION and OIL WORKERS
INTERNATIONAL UNION, CIO, LOCAL # 5. Case No. 20-
CA-151. April 15, 1954
DECISION AND ORDER
The above -entitled proceeding stems from charges filed
November 19, 1948, and March 21, 1949, by the Union named
in the caption of this case , attributing to the Respondent Com-
pany the commission of unfair labor practices during and
immediately following the September to December 1948 oil
strike on the west coast . A complaint charging the Respondent
with violations of Section 8 (a) (1) and ( 3) of the Act issued
October 13, 1949, and after being fully litigated before Trial
Examiner Howard Myers, first came before the Board for
decision on the merits in the latter part of 1950. While the
case was thus pending before the Board, and on May 14, 1951,
the United States Supreme Court issued its decision in
N. L. R. B . v. Highland Park Mfg. Co ., 341 U. S. 322 , holding
that the Board had erred, as a matter of law, in considering a
complaint based upon charges filed by a union affiliated with
the CIO, where such complaint had issued ( as was true in this
case at that time ) on a date preceding the CIO's compliance
with the filing requirements of Section 9 (h) of the Act. In
accord with the Supreme Court's ruling , the Board by order
dated July 19, 1951, dismissed the October 13, 1949, complaint
in this case without disposing of the merits.'
'The CIO did not comply with the Act 's filing requirements until December 22, 1949.
Pursuant to the I lighland Park decision the Board dismissed all cases pending before it in
which complaints had been issued before December 22, 1949, on the basis of charges filed
by CIO affiliates.
108 NLRB No. 53.
SHELL CHEMICAL CORPORATION 285
Following this dismissal , and in light of contemporaneous
Board ruling that otherwise validly issued complaints alleging
the violation of Section 8 (a) (3) and (1) of the Act were not
subject to summary dismissal because predicated upon charges
filed by unions which were not in compliance with the Act's
filing requirements on the date of the charges, ' the General
Counsel decided to relitigate the merits of like unfair labor
practice cases disposed of on Highland Park grounds. In the
instant case , he issued anew complaint dated February 7, 1952,
on the basis of the Union ' s 1948 and 1949 charges, containing
substantially the same unfair labor practice allegations as
had been incorporated in the October 13, 1949, complaint. The
case was set for hearing before Trial Examiner Wallace A.
Royster.
At the opening of the hearing , and before the presentation of
any evidence , the Respondent moved the Trial Examiner that the
complaint be summarily dismissed without regard to the sub-
stantive merits of the case, in view of: (1) The noncompliance
of the charging Union at the time the charges were filed; and
(2) the dismissal of the initial complaint issued on those
charges. The Trial Examiner denied the motion , and the Re-
spondent promptly filed an interlocutory appeal to the Board.
In presenting this appeal the Respondent also argued that,
even if the Board could validly entertain the complaint, it
should refuse to do so , as a matter of policy. The General
Counsel vigorously opposed the appeal . By order dated July
29, 1952, the Board affirmed the Trial Examiner ' s rulings on
the motion and denied the Respondent ' s appeal.
Following the above procedural steps, the hearing was re-
sumed and the parties presented the case on its merits.
On May 7 , 1953, Trial Examiner Wallace A . Royster issued
his Intermediate Report, disposing of the case onits merits. He
dismissed each and every allegation of the complaint , with one
exception : he found that the Respondent's 6-day delay, in
November 1948, in resuming full operation of its struck plant
constituted a discriminatory "lockout" of the striking em-
ployees violative of Section 8 (a) (3) and ( 1) of the Act, be-
cause the lockout action was directed towards obtaining from
the employees assurance that they would not resume strike
activity once the struck plant reopened . Thereafter the Re-
spondent filed exceptions to the Trial Examiner ' s findings
adverse to it, and the General Counsel filed exceptions to the
dismissal of complaint allegations challenging the validity of:
(1) The Respondent ' s November 1948 discharge of two strikers
for strike misconduct ; and (2) certain letters issuedbythe Re-
spondent during the 1948 strike telling the strikers , in effect,
that the strike did not serve their best interests and that the
2 E g., American Thread Co., 84 NLRB 573 ; Dant & Russell Ltd., 92 NLRB 307; Nina
Dye Works Co , Inc., 95 NLRB 824; in all of which cases the Board's action was subsequently
sustained by the Supreme Court's ruling in N L R B. v, Dant & Russell, Ltd., 344 U S. 375.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had work available for all. Bothparties filed briefs
in support of their respective exceptions .' These exceptions
and briefs disclose that complex delicate , and highly contro-
verted issues of law and fact were presented on the merits.
In addition , the Respondent' s exceptions and brief present,
in effect, a renewal of the motion to dismiss which was the sub-
ject of the Board's July 29, 1952 order, and a request for re-
consideration of the Board' s decision denying the same. That
order was predicated upon findings that "there was a valid
legal basis for issuance of a new complaint by the General
Counsel," and that summary dismissal of the complaint on
"policy grounds was not justified at that stage of the pro-
ceedings . This "policy" ruling must be read in light of the
fact that, at that juncture of the case, the parties had had no
opportunity to provide record support for their respective
"policy" contentions , and that in a situation such as this, the
scope of the considerations which may affect a "policy" de-
cision is necessarily a broad one . In these circumstances, the
Board deemed it imperative to preserve the "policy" question
for such further litigation of that issue as the parties might
regard as pertinent . The Board , therefore , has now re-
examined , on the basis of the record as a whole , the wisdom
of proceeding further in the circumstances here presented.
In opposing the motion to dismiss , the General Counsel
argues that , as the failure to dismiss the instant charges
administratively was due to the Board ' s misconception of the
law, the entertainment of the charges lulled the individuals
immediately affected by the unfair labor practices into a sense
of security which resulted in their failure to file valid charges
on their own behalf. He claims that for this and other reasons
these proceedings are justified . Thus, the General Counsel,
assuming the existence of unfair labor practices , urges policy
considerations which, to a large extent , are universally
applicable to all cases in which the Board's powers are validly
invoked, namely that the public interest in remedying and
preventing unfair labor practices must be deemed to over-
shadow and outweigh the private interests of party- litigants.
On the other hand, the Respondent contends that we are here
presented with the kind of unusual situation warranting the exer-
cise of administrative self-restraint . Although no one circum-
stance is alone persuasive , we are of the view that, in combina-
tion, the special circumstances in this case outweigh the
considerations urged upon us by the General Counsel.
Thus, as has been noted above, the charges were filed in
1948 and 1949 and involve conduct which occurred more than
5 years ago . It is clear that, but for the Board ' s misapprehen-
sion of the legal requirement of Section 9 (h) of the.Act, the
General Counsel would have refused to issue a complaint
3 The Respondent also requested oral argument . This request is hereby denied , as the briefs
and the record in the case adequately present the position of the parties on the aspect of the
case we deal with here. The Respondent 's additional request for permission to file a supple-
mental brief with respect to certain of the unfair labor practice issues is also hereby denied
MAGEE CARPET CO. 287
based on these charges and they would have been administra-
tively dismissed, and thus could not have formed the basis for
the instant complaint. It is entirely speculative as to whether,
on administrative dismissal of the instant charges, other indi-
vidual charges would have been timely filed. Substantial amounts
of time and funds, both private and public, were expended in the
initial litigation culminating in the dismissal order of July 19,
1951, which, so far as the parties were concerned, laid the case
to rest . The revival of the litigation under the instant complaint
not only reinstituted a course of action which, as the Respondent
points out, might well serve as a source of irritation in the
present conduct of labor- management relations by the parties
thereto, but also has necessitated (and unless now stopped, will
continue to necessitate) substantial expenditure of private and
public time and funds in coping with the prosecution and/or de-
fense of the complaint allegations. In light of all these circum-
stances, we would not serve the public interest as a whole to now
adjudicate the merits of this 1948 dispute. Accordingly, we find
that further proceedings in this case would not effectuate the
broad purpose and policies of the Act, and we shall therefore
dismiss the complaint without passing upon its merits.
[The Board dismissed the complaint.]
Member Beeson took no part inthe consideration of the above
Decision and Order.
MAGEE CARPET CO. and TEXTILE WORKERS UNION OF
AMERICA, CIO. Case No. 4-CA-178. April 15, 1954
DECISION AND ORDER
The above-entitled proceeding stems from changes filed
February 2 and 3, 1949, by the Union named in the caption of
this case, attributing to the Respondent Company the commis-
sion of unfair labor practices in January 1949. A complaint,
charging the Respondent with violations of Section 8 (a) (1)
and (3) of the Act, issued August 30, 1949. This complaint
initiated an extensive and time-consuming course of litigation
on the merits , which included a full hearing before Trial
Examiner W. Gerard Ryan, his issuance of an Intermediate
Report on May 11, 1950, the Board's decision of the case on
the basis of the parties' exceptions and briefs, the Board's
issuance of a Decision and Order, on August 31, 1950, and the
completion of the litigation cycle before the Third Circuit
Court of Appeals (hereinafter referred to as the Court), upon
the Board's petition for enforcement of the August 31, 1950,
order..' On May 14, 1951, while this case-was pending for
I In April 1951 the Respondent reinstated 1 of the 2 employees whose prior discharge formed
the basis of: (1) The 8 (a) (3) allegations of the complaint; (2) the Board's finding sustaining
such allegations; and (3) its order directing, amongother things, that reinstatement be offered
108 NLRB No. 54.