The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Apr 27, 1977

229 N.L.R.B. 302 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 14055, United Steelworkers of America, AFL-
CIO and The Dow Chemical Company and The
Chamber of Commerce of the United States. Cases
7-CC-743 and 7-CC-756
April 27, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 18, 1974, the National Labor Relations
Board issued a Decision and Order finding that the
Respondent Union had engaged in unfair labor
practices within the meaning of Section 8(b)(4)(ii)(B)
of the National Labor Relations Act, as amended,
and ordering it to cease and desist therefrom, to post
appropriate notices, to furnish additional signed
notices to the Regional Director, and to notify the
Regional Director what steps it had taken to comply.
Thereafter, the Respondent petitioned the United
States Court of Appeals for the District of Columbia
Circuit to review the Board's Order.
On December 15, 1975, the court issued its
decision, granting the petition for review and
denying the Board's application for enforcement of
its Order. 2 On February 4, 1976, the court denied a
motion for rehearing en banc. Thereafter, the Board,
the Dow Chemical Company, and the Chamber of
Commerce of the United States filed petitions for a
writ of certiorari in the Supreme Court of the United
States. On October 4, 1976, the Supreme Court
granted certiorari, vacated the judgment of the court
of appeals, and remanded the case to the court of
appeals with directions to remand the case to the
Board for reconsideration in light of intervening
circumstances. 3 Pursuant to the order of the Supreme
Court, on November 26, 1976, the court of appeals
remanded the case to the Board for reconsideration
in light of intervening circumstances. Thereafter, the
Board invited statements of position from the parties.
Such statements were received from all parties.
Pursuant to the provisions of the Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The statement of position on behalf of the
Respondent was filed by the attorneys representing it
when the Board and the court of appeals first
considered the case. They contend that the case has
been rendered moot by the dissolution of the
Respondent and should be dismissed. The General
' 211 NLRB 649. Member Murphy was not then a member of the Board
and did not participate in that decision.
2 524 F.2d 853.
229 NLRB No. 43
Counsel concurs in this contention. The Dow
Chemical Company and the Chamber of Commerce
of the United States argue that the legal issue raised
by the case continues to be a justiciable controversy.
It is undisputed that the Respondent has been
dissolved and that no other labor organization has
succeeded to its status as collective-bargaining
representative of the employees in the bargaining
unit formerly represented by Respondent. In fact, the
Board held in a separate proceeding that the Dow
Chemical Company lawfully withdrew recognition
from this union and its parent organization, United
Steelworkers of America, AFL-CIO.4 Dow and the
Chamber of Commerce argue, however, that United
Steelworkers stands in the shoes of the Respondent
for purposes of this proceeding, and that the Board's
Order may properly be enforced against it.
Dow asserts that the Respondent still exists, despite
its formal dissolution because some of its former
members are still on strike and because, even if all
concerted activity by such members should cease, it
could still be found that the Union was merely
dormant but capable of reactivation when an
opportunity presents itself. Dow argues also that the
picketing which the Board found to be unlawful is
capable of being repeated, and that the importance
of the legal issue signified by the opposite conclu-
sions of the Board and the court of appeals as to such
picketing is one of broad public concern which
demands resolution by the Supreme Court.
The Chamber of Commerce argues in addition that
United Steelworkers is the alter ego and successor of
the Respondent because, as the Chamber claims,
United Steelworkers, and not Repondent, was the
collective-bargaining representative of the employees
of Dow, and because United Steelworkers has
provided legal representation to the Respondent and
its members and, after its dissolution, its former
members, in connection with litigation affecting the
rights of the striking employees. The Chamber of
Commerce contends also that United Steelworkers,
by virtue of its internal legal structure, is inseparable
from the Respondent, and that its responsibility for
the conduct of the Respondent is further established
by its approval and funding of the strike, and by the
participation of its representatives in the negotiations
preceding the strike, the strike itself, the meeting
where the decision was made to engage in the subject
picketing, and in other unlawful strike-connected
activity which is not the subject of this proceeding. It
argues further that when United Steelworkers dis-
solved the Respondent it first created and then
arbitrarily terminated a trusteeship over the Respon-
3 97 S.Ct. 42, 43, 50 L.Ed.2d 68.
4 The Dow Chemical Company, 216 NLRB 82 (1975).
302
LOCAL 14055, STEELWORKERS
dent, which trusteeship, had it continued to exist,
would have been responsible for implementing the
Board's Order against the Respondent. The Chamber
would have us conclude that the imposition and
dissolution of the trusteeship, in the circumstances
presented here, constitute United Steelworkers as a
"disguised continuance" of the Respondent.
We find that these arguments are without merit.
They break down into three major contentions. The
first is that United Steelworkers is itself responsible,
by its internal legal structure and by the actions of its
agents, for the conduct of the Respondent com-
plained of here. Without going into every allegation
set forth in support of that contention, we note that it
is now approximately 4 years since the charges were
filed and the complaint was issued in this case. They
named only Local 14055 as Respondent. While we
do not expect the parties to have anticipated the
events leading to the present contention of mootness,
we do expect they were aware or could have been
aware of any facts that would have justified naming
the parent organization as an additional Respondent.
If we had the power to allow the complaint to be so
amended at this stage, we cannot imagine any
justification for exercising it. But in any event we do
not have that power, as the General Counsel has not
requested us to allow it.5 Consequently, we shall not
entertain any claim that United Steelworkers was
responsible for the Respondent's conduct at the time
it occurred.
The second major contention is best summarized
by the argument that the Respondent never really
ceased to exist; i.e., that United Steelworkers is
acting as a "disguised continuance" of the Local. The
evidence offered in support of this is that the
5 GTE Automatic Electric, Inc., 196 NLRB 902 (1972); International
Union of Electrical, Radio and Machine Workers. AFL-CIO [NECO
Electrical Products Corp.] v. N.LR.B., 289 F.2d 757, 760-762 (C.A.D.C.,
1960).
trusteeship was dissolved only after the court of
appeals held in favor of the Respondent and the
opposing parties had filed or were about to file
petitions for certiorari; some employees are still on
strike; and United Steelworkers has continued to
pursue litigation on pending claims on behalf of all
the strikers. This evidence is simply insufficient to
show a continued existence, in any form, of the
dissolved Local. If the Respondent has totally ceased
to exist, the motivation for its demise is immaterial.
And the subsequent actions of its former members or
employees it represented or the continued support of
their rights by the parent organization does not
breathe life into the ashes.
Likewise misdirected is the final argument that
public policy demands a resolution that the actions
of the Respondent were unlawful. While it has been
said that a public interest in having the legality of
certain practices settled militates against a mootness
conclusion, 6 it is fundamental that this alone does
not create a litigable controversy. So, if we are
correct in concluding that the party which engaged in
the practices no longer exists, it matters not that
similar practices could be repeated by others.7 There
being no party properly to be compelled to comply
with the Board's Order, the case is moot. According-
ly, we shall dismiss the complaint.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed in its entirety.
s United States v. W. T. Grant Co., 345 U.s. 629, 632 (1953).
7 Cf. N.LR.B. v. Raytheon Co., 398 U.S. 25 (1970).
8 The Dow Chemical Company, 212 NLRB 333 (1974); N. LR.B. v. Grace
Company, 184 F.2d 126, 130-131 (C.A. 8. 1950).
303