Thompson Products, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1947

72 N.L.R.B. 886 (N.L.R.B. 1947)

In the Matter Of THOMPSON PRODUCTS, INC. and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA (U. A. W.-C. I. 0.)
Case No. 7-C-1266
Mr. N. L. Smokier, of Detroit, Mich., for the U. A. W.-C. I. O.
Mr. Harry E. Srnoyer, of Cleveland, Ohio, for the respondent.
Mr. Milton E. Harris, of counsel to the Board..
AMENDED DECISION
I
AND
ORDER
February 21, 19.17
On August 15, 1946, the Board issued a Decision and Order in
the above-entitled proceeding, finding that the respondent had en-
gaged in certain unfair labor practices affecting commerce, and order-
ing that the respondent cease and desist therefrom and reinstate cer-
tain employees without back pay.
On November 29, 1946, the Board issued a notice herein, advis-
ing the parties that it desired to reconsider its disposition of the
case, that they might file a written statement of position and a sup-
porting brief, and that oral argument would be held before the
Board on the question of whether the Board should vacate the Deci-
sion and Order and, if so, what findings of fact, conclusions of law,
and order should then be made or issued or what other disposition
should be made of the case. Thereafter the respondent duly filed a
written brief. The U. A. W.-C. I. O. originally advised the Board
that its position was set forth in the brief it had previously filed; a
later request to file a brief after oral argument was denied.-'
1 70 N L R B 13 This decision issued before Mr Reynolds took office A separate
opinion was written by each of the then members of the Board Mr. Houston favored
reinstatement of certain discharged strikers with back pay, Mr Reilly urged dismissal of
the compaint , and Chairman Herzog-differing with each of his colleagues in part-held
that the appropriate remedy would be reinstatement without back pay
2'The U A W -C I 0 urges that the Board cannot properly modify Its Decision and
Order , because the notice of November 29, 1946 , failed to satisfy the requirement of Section
72 N L R B., No 150.
886
THOMPSON PRODUCTS, INC. 887
On January 21, 1947, pursuant to notice, the full Board at Wash-
ington, D. C., heard oral argument. The U. A. W.-C. I. O. and the
respondent participated by counsel.
Upon full reconsideration of the case, we have concluded that the
Decision and Order of August 15, 1946, was erroneous to the extent
that it is inconsistent with the disposition hereinafter made of the case.
It will therefore be vacated and set aside.
Upon reconsideration, the Board concludes that the case was cor-
rectly decided by the Trial Examiner in his Intermediate Report dated
August 25, 1945. He found that the respondent had not engaged
in the unfair labor practices affecting commerce alleged in the com-
plaint, and recommended that the complaint be dismissed. The
Board has again considered the rulings of the Trial Examiner at
the hearing, and again finds that no prejudicial error was committed.
His rulings are hereby affirmed. The Board has reconsidered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additional
statement:
As in its original decision, where they are more fully recited 3 the
Board agrees with and adopts all the factual findings of the Trial
Examiner. The Trial Examiner further found and the respondent
urges, in reliance on the American News case,' that the complainants
10 (d) of the Act that "reasonable notice" first be given We find no merit in this aigu-
ment, inasmuch as the notice clearly stated that the Board wished to reconsider its disposi-
tion of the case and the conclusions of law and the order it had previously issued. More-
over , at no time during the period of almost 2 months between the issuance of the notice
and the oral argument before the Board did the U. A W -C I. 0. complain of any alleged
inadequacy in the notice or request the Boaid to particularize it in any respect.
3 "(1) On September 14, 1942 , the Society was certified by the Board as the exclusive
representative of the respondent ' s employees in an appropriate unit , ( 2) on October 1 and
December 29, 1942 , the U A. W -C. I. 0 requested exclusive recognition as the bargaining
representative for the employees in the same unit ; (3) the respondent refused to comply
with the U A W -C. I O.' s demand because of the outstanding Board certification of the
Society , ( 4) the strike which began on December 29, 1942, was for the purpose of com-
pelling the respondent to grant exclusive recognition to the U A. W -C. I. 0 in the face
of the existing certification of the Society, and not for any of the other purposes or reasons
asserted by the U A W -C I. 0 , (5) later that day the respondent , through a notice
posted on its bulletin board and at a conference with a State conciliator and a U. A. W.-
C. I 0. representative , promised to reinstate the strikers without discrimination , whereupon
it was agreed that the strike would be called off , ( 6) the strike of December 30 and 31
was not a new, or second, strike , but was a continuation of the strike of December 29 ,
and (7) the respondent discharged the members of the U. A. W -C. I 0 committee on
January 2 and 4, 1943, and thereafter refused to reinstate them, as Plant Manager
Graham testified, `Simply because they had said they were going back to work and didn't,'
and 'because they were the leaders of the strike ' a nd `were out in front picketing the second
day., „
4 Matter of The American News Company , 55 N. L R B 1302 , decided in 1944 , holding
that a strike whose purpose was to force an employer to violate the War Labor Disputes
Act was not protected by the National Labor Relations Act The discharge of employees
for participating in such a strike was held not to be a violation of the Act, Chairman Millis
dissenting.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-ere not entitled to the protection of the Act because they engaged
in a strike for the purpose of compelling the respondent to violate
the Board's recent certification of the Society, an independent labor
organization. We agree with the Trial Examiner that the purpose
of the strike was to force the respondent to recognize the U. A. W.-
C. I. O. at a time when it was under a legal duty to bargain with
the Society. On reconsideration, we also believe that the respondent
discharged the strikers because they had called and continued a
strike whose purpose was unlawful, and that, on this record, the
fact that its momentary motive may have been a different one should
not alter the legal effect of its action. We hold that the doctrine
laid down in the American News case is applicable to such a situa-
tion and that, in accordance therewith, the complaint should be dis-
missed in its entirety. It follows that the strikers are entitled neither
to reinstatement nor back pay.
In the Decision of August 15, 1946, Chairman Herzog held that
under the special facts revealed by this record reinstatement would
be an appropriate remedy, but that it would not effectuate the policies
of the Act to award back pay to these dischargees. He found, together
with Board Member Reilly, that as the purpose of the strike was to
compel the respondent to violate its obligations under the Board's
certification, the American News doctrine would ordinarily apply so
as to require dismissal of the complaint. He then believed, however,
that an exception was warranted because this respondent had con-
doned the strikers' improper conduct by offering them early rein-
statement, and had thereafter discharged them for an intervening
reason that was proscribed by the Act.. Upon reconsideration, the
Chairman agrees with Mr. Reynolds that there was, in fact, no effec-
tive condonation because, despite the responylent's promise on Decem-
ber 29, 1942, to reinstate the strikers upon the U. A. W.-C. I. O.'s
agreement to discontinue the strike on that date, the strike neverthe-
less was continued on December 30 and 31 for the identical purpose
of compelling the respondent to violate its obligations under the
Board's certification. In such circumstances it cannot be said, as a
matter of law, that the respondent condoned the continuation of the
strike. It follows that the respondent discharged the strikers for
reasons that cannot be disassociated from the strikers' original objec-
tive of compelling the respondent to bargain with one union at a
time when it was under a 'legal obligation, pursuant to the Board's
certification, to bargain with another.
THOMPSON PRODUCTS, INC. 889
On August 15, 1946, in denying back pay to the discharged strikers
even when he believed that this respondent's condonation of the strike
made a reinstatement order appropriate, Chairman Herzog observed
that : "There would be neither moral, legal nor practical justification
for our requiring employers to respect our certifications if we were
unwilling to respect them ourselves." Mr. Reynolds joins whole-
heartedly in this observation, which governs our present decision in
this case.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
and (d) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that its Order of August 15, 1946,
against the respondent, Thompson Products, Inc., Detroit, Nhchigan,
and its officers, agents, successors, and assigns be, and it hereby is,
vacated and set aside..
AND IT IS FURTHER ORDERED that the complaint against the respond-
ent, Thompson Products, Inc., Detroit, Michigan, be, and it hereby is,
dismissed.
MR. JojiN M. HOUSTON took no part in the consideration of the
above Amended Decision and Order.