National Labor Relations Board v. Childs Co., 60

• Decision Date: 04 April 1952
• Docket Number: No. 60,Docket 22102.,60
• Parties: NATIONAL LABOR RELATIONS BOARD v. CHILDS CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

195 F.2d 617 (1952)

NATIONAL LABOR RELATIONS BOARD v. CHILDS CO. et al.

No. 60, Docket 22102.

United States Court of Appeals Second Circuit.

Argued March 5, 1952.

Decided April 4, 1952.

George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, Frederick U. Reel and Marvin E. Frankel, all of Washington, D. C., Marvin E. Frankel, Washington, D. C., of counsel, for petitioner National Labor Relations Board.

Garey & Garey, New York City, William Helfer, New York City, of counsel, for respondent Childs Co.

Boudin, Cohn & Glickstein, New York City, Vera Boudin and Daniel W. Meyer, New York City, of counsel, for respondent Chain Service Restaurant Employees Union, Local 42.

Before L. HAND, AUGUSTUS N. HAND and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The National Labor Relations Board (hereinafter called the Board) has petitioned for enforcement of its order of February 15, 1951, directing Childs Company, a restaurateur (hereinafter called Childs), and Local 42 of the Restaurant Employees Union (hereinafter called the Union) to cease and desist from specified unfair labor practices. The order further provides that Childs offer its employee Russell R. Potter immediate employment and requires Childs and the Union to make Potter whole for any loss he may have suffered from October 28, 1948, because of the refusal to hire him.

In September 1948 Potter filed with the Board a charge that Childs discharged him on January 23, 1948 upon the ground that a closed shop agreement between Childs and the Union gave the latter power to demand his discharge though his dues were paid to date. On October 29, 1948, Potter filed an amended charge alleging in addition that he had been denied reinstatement when he requested it on October 28, 1948.

The Trial Examiner and the Board found that Childs and the Union entered into a collective bargaining agreement containing a closed shop provision on December 3, 1947, which by its terms expired on September 30, 1948, and that this agreement was renewed on October 6, 1948, to continue until May 1, 1950. The closed shop agreement was unquestionably illegal since it was made subsequent to the passage of the Taft-Hartley Law. 29 U.S.C.A. § 158(a) (3). The Board's jurisdiction has been shown, N. L. R. B. v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284, and so much of the order as requires Childs and the Union to cease and desist from entering into or giving effect to the union security provisions of the collective bargaining agreement should be enforced.

The Union and Childs argue that the order is erroneous in so far as it grants employment and back pay to Potter because Section 10(b) of the Taft-Hartley Act, 29 U.S.C.A. § 160(b) provides that: "* * no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board * * *." It is undisputed that Potter was discharged by Childs on January 23, 1948, and that this was done at the Union's request after his expulsion from the Union for anti-union activities. As the Trial Examiner held in his Intermediate Report: "Any and all rights whatsoever flowing from the illegal discharge were extinguished by reason of Potter's failure to file his charge based thereon with the Board within the 6-month period required by Section 10(b) of the Act." The Board apparently conceded that Potter's cause of action based on his discharge of January 23, 1948, was barred. The Trial Examiner also held that Potter had not requested new employment except as conditioned upon reinstatement to his former position and rights of seniority and back pay. The Board, however, held that Potter in a letter to Childs on October 23, 1948, had unconditionally asked for new employment. It thus found a new discrimination, this time with respect to hiring, which occurred on October 28, 1948, when Childs refused employment to Potter because of its closed shop contract with the Union. In our opinion the Board's finding that the letter of October 23, 1948, constituted a demand for new employment is not supported by the record.

Briefly the facts are as follows: On June 24, 1948, Potter wrote a letter to Mr. Frank, the chairman of the board of directors of Childs, the text of which is set forth in the margin.¹ On July 8, 1948, the Company acknowledged receipt of this letter and advised Potter that his complaint was receiving consideration. Apparently no further communication was had until October 23, 1948, when Potter again wrote Mr. Frank as follows:

"This will again bring to your attention the fact that you have apparently failed to comply with the assertion of your letter to me of July 8th. Which was made in respond to mine of June 24th. In which I voiced to you as New Company Leader, my complaint against my loss of job with the company at the demand of Local 42 officials. Especially the fact that the Company\'s Personnel Director flouted the Taft-Hartley Act in complying with such demands.

"Any way, since no further disposition of of same was received, I desided to take such complaints to the National Labor Relations Board for airing. Which you may or may not know about. And since I had contacted you on the matter I felt I might be sure you are made aware of same."

It is to be noted that the foregoing letter followed the filing of Potter's original charge with the Board in September 1948. On October 28, 1948 the Company replied to Potter's letter as follows:

"Your letter of October 23rd, 1948, addressed to Mr. Frank, has been referred to me. I have reviewed the situation and find, that pursuant to the terms of a contract between the Company and Chain Service Restaurant Employee\'s Union, Local 42, the Company was required to terminate your employment with it. Under these circumstances, the Company cannot restore you to your former position."

The next day Potter filed his amended charge with the Board in which he reiterated his original charge filed in September and added: "On October 23, 1948 I wrote to the Company and requested that I be reinstated to my former position. On October 28, 1948, I was informed by the Company that pursuant to the terms of the existing labor contract, they could not reinstate me to my former position."

The last communication was a letter of Potter to Childs on April 10, 1949, as follows:

"This is an inquiry to ascertain whether you have by this time become familiar with the Taft-Hartley Act, to recognized that you erred in submitting to the Union\'s demand to terminate my employment with Childs Company at 109 West 42nd Street. As you officially stated in letter of October 28th, 1948. `Pursuant to union contract you was required to do.\'

"In the event you may have detected same was made in error. Please except this as another request to be reestablished in the employment of the company with former rights. As well as compensary losses I have so suffered as a results. Which you perhaps are aware is claims I have pending with the National Labor Relations Board."

The April letter was excluded from consideration by the Board apparently on the theory that it was not indicative of Potter's intent at the time of the letter of October 23, 1948, in which the Board found that Potter had requested new employment.

We cannot see any justification for the conclusion of the Board that Potter was asking for new employment rather than reinstatement to his former position and rights. His letter of October 23, 1948 refers to two things: (1) his letter of June 23 in which he complained generally of the Company's failure to oppose the Union's request for his discharge, and (2) the charge he had filed with the Board in September, in which he complained only of the illegality of his discharge. How either reference can be construed as a demand for new employment rather than one for restoration of former rights is beyond our comprehension. In the amended charge filed October 29, 1948, he himself said that the letter was a request for reinstatement to his former position. The letter of April 10, 1949, ties in with all his former utterances and is to be read as interpreting and reaffirming them. It conclusively shows that he was at all times seeking reinstatement to his former rights and not merely new employment. As we have already said, restoration to these rights was barred by failure to file his charge in time and therefore the Company was not required to accede to his demand. So the Third Circuit held in N. L. R. B. v. Pennwoven,...