LOCAL NO. 380 INT. U., ALLIED INDUSTRIAL WKRS. v. NLRB

• Decision Date: 09 June 1969
• Docket Number: No. 17104.,17104.
• Citation: 411 F.2d 249
• Parties: LOCAL NO. 380 INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Flambeau Plastics Corporation, Intervenor.
• Court: U.S. Court of Appeals — Seventh Circuit

411 F.2d 249 (1969)

LOCAL NO. 380 INTERNATIONAL UNION, ALLIED INDUSTRIAL WORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Flambeau Plastics Corporation, Intervenor.

No. 17104.

United States Court of Appeals Seventh Circuit.

June 9, 1969.

Kenneth R. Loebel, Goldberg, Previant & Uelmen, Milwaukee, Wis., for petitioner.

Walter S. Davis, Russ R. Mueller, Davis, Kuelthau, Vergeront & Stover, Milwaukee, Wis., for intervenor.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Charles N. Steele, Atty., N.L. R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., for respondent.

Before KNOCH, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

KNOCH, Senior Circuit Judge.

Petitioner, Local 380, International Union, Allied Industrial Workers of America, AFL-CIO, seeks review and revocation of an Order of the National Labor Relations Board issued June 27, 1968, reported at 172 NLRB No. 33, dismissing an unfair labor practice complaint against the intervenor, Flambeau Plastics Corporation. This Court has jurisdiction under § 10(f) of the National Labor Relations Act, as amended, Title 29 U.S.C. § 151 et seq. The alleged unfair labor practice occurred in Baraboo, Wisconsin, at the intervenor's plant there.

The facts are largely stipulated. The petitioner was certified as the collective bargaining representative of the production and maintenance workers at intervenor's plant in March, 1963. In May, 1965, after a number of unfair labor practices by intervenor, it entered into a one-year contract with the petitioner.

Prior to and during negotiations for a successor agreement, intervenor committed further unfair labor practices. On September 15, 1966, the intervenor withdrew recognition from petitioner asserting a good faith doubt as to the petitioner's continued majority.

Meanwhile a strike had begun on June 15, 1966.

On May 25, 1967, the Trial Examiner found that the intervenor had violated § 8(a) (5). The Board's Order adopting the Examiner's decision was entered October 13, 1967. In its opinion, filed August 2, 1968, in Flambeau Plastics Corporation, petitioner, v. NLRB, respondent, and Local 380, International Union, Allied Industrial Workers of America, AFL-CIO, intervenor, 7 Cir., 401 F.2d 128, cert. den. January 13, 1969, 393 U.S. 1019, 89 S.Ct. 625, 21 L.Ed.2d 563, this Court ordered enforcement of the Board's direction that intervenor bargain with petitioner, and on application offer reinstatement to their former or substantially equivalent positions to all strikers, dismissing, if necessary, persons hired after the strike began.

Prior to the filing of the Board's Order of October 12, 1967, on July 18, 1967, petitioner wrote intervenor that the strike would be "terminated" on July 20, 1967, and demanded resumption of bargaining on the basis of the decision made two months before by the trial examiner whose recommendation was adopted in the Board Order described above.

On July 20, 1967, sixty-one of the strikers sent individual but identical applications for reinstatement to the intervenor. These included the following statement:

Further, I make this application for reinstatement with the understanding that Flambeau Plastics will continue to recognize and commence bargaining with my duly designated bargaining representative * * * in regard to my wages, hours and other terms and conditions of employment. * * * I am no longer striking, but on the contrary I am willing and available to return to work, but not if it means that I must subsidize an employer who imposes unlawful conditions upon my reinstatement.

On July 24, 1967, intervenor replied to the petitioner that it continued to doubt its majority and to the applicants for reinstatement that it was "prepared to consider an unconditional offer * * * to return to regular, full-time employment * * *" and setting a time for such application at the personnel office.

July 26, 1967, fifty-eight of the applicants wrote again stating:

You are conditioning any consideration of my reinstatement on my foregoing my right to presently engage in collective bargaining, which right the National Labor Relations Act affords to me. * * * I am willing

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