National Labor Rel. Bd. v. Textile Machine Works

• Decision Date: 14 July 1954
• Docket Number: No. 11204.,11204.
• Citation: 214 F.2d 929
• Parties: NATIONAL LABOR RELATIONS BOARD v. TEXTILE MACHINE WORKS, Inc.
• Court: U.S. Court of Appeals — Third Circuit

214 F.2d 929 (1954)

NATIONAL LABOR RELATIONS BOARD v. TEXTILE MACHINE WORKS, Inc.

No. 11204.

United States Court of Appeals, Third Circuit.

Argued March 18, 1954.

Decided July 14, 1954.

Frederick U. Reel, Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Melvin Pollack, Attorneys, National Labor Relations Board, Washington, D.C., on the brief), for petitioner.

Geoffrey J. Cunniff, Philadelphia, Pa., (Joseph S. Kleinbard, Robert John Brecker, Philadelphia, Pa., Kleinbard, Bell & Brecker, Philadelphia, Pa., on the brief), for respondent.

Before BIGGS, Chief Judge, and MARIS and STALEY, Circuit Judges.

BIGGS, Chief Judge.

The National Labor Relations Board has petitioned this court to enforce an order issued by it against the respondent, Textile Machine Works, Inc. The jurisdiction of this court is based upon Section 10(e) of the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S.C.A. § 141 et seq. The principal question of law which we must decide is the effect of that proviso of Section 10(b) of the Act, which requires unfair labor practice charges to be filed and served no later than six months after the alleged unfair labor practice occurs.¹ A similar question was involved in two recent decisions, one by this court, N.L. R.B. v. Pennwoven, Inc., 1952, 194 F.2d 521 and one by the Court of Appeals for the Second Circuit, N.L.R.B. v. Childs Co., 1952, 195 F.2d 617. Our decision is governed largely by these two precedents.

On August 1, 1947 a strike occurred in Textile's plant at Wyomissing, Pennsylvania. The strike ended about September 3, when the strikers' negotiating committee came to see Textile's employment manager, Fleischmann, to arrange for the strikers to go back to their jobs. The employment manager told them that the strikers should sign an employment register maintained by Textile under his immediate charge and that he would notify them when to come back to work. They complied with his instructions, signed the register and left the plant.

On September 6 and October 15, 1947, Textile discharged approximately 200 former employees, all of whom had been strikers. The respondent sent registered letters to each of the 200, notifying them that their employment with the company had been terminated. Most of this group of 200 asked the respondent for reemployment at various times after they had been discharged, but none was rehired.

The first unfair labor practice charge was filed with the Board on September 8, 1948, more than a year after the end of the strike. This first charge named 70 former employees as having been subjected to unfair labor practices. A subsequent charge was filed on July 22, 1949 and two more on January 12, 1950. The total number of former employees named in all four charges was 212. The Board's General Counsel consolidated the charges into a formal complaint filed on June 5, 1950. 85 former employees selected from the 212 named in the charges were named in the complaint.² All of these 85 were strikers and were among the 200 employees who had been discharged on September 6 and October 15, 1947.

The complaint charges that the respondent refused "to employ or to reinstate" the former employees named therein because they had been active in a labor organization and in efforts at collective bargaining, in violation of Sections 8(a) (1) and 8(a) (3) of Act, 29 U.S.C.A. § 158(a) (1) and (a) (3). The law is now settled that a refusal to hire on account of past union activity is a violation of the cited sections of the Act. See Phelps Dodge Corp. v. N. L. R. B., 1941, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271. In the instant case the usual administrative process began after the complaint was filed. Extensive hearings were held. The trial examiner who conducted them made an "Intermediate Report" in which he recommended that 83 of the 85 former employees named in the complaint as amended be offered "immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges * * *" with payment "* * * of a sum of money equal to that which they would have earned as wages from the date of discriminatory refusal to rehire to the date of offer of reinstatement." After Textile excepted to the findings and conclusions of the trial examiner the Board entered its own decision and order on November 5, 1951. This order modified the trial examiner's recommendation and required the respondent to offer to all 85 former employees "immediate employment with such seniority or other rights and privileges as each would have enjoyed had each been employed on the dates when, absent the Respondent's discrimination against them, the Respondent would have employed them in accordance with its nondiscriminatory hiring practices." See 96 N.L. R.B. 1333 at p. 1364. No further action was taken in the case until after the decisions in the Pennwoven and Childs cases, supra. After these opinions were handed down the Board undertook to reexamine its own decision in the light of the opinions filed by the Court of Appeals for the Second Circuit and by this court. In a Supplemental Decision and Order, filed on June 17, 1953, the Board concluded that the evidence in the record, read in the light of the Pennwoven and Childs opinions, still supported its original order as to 84 of the 85 former employees. It should be noted that the Board's order does not require Textile's designated former employees to be reinstated as if they had never ceased working for Textile. The remedy awarded the employees was limited to back pay and seniority rights to which they, the employees, would have been entitled if they had been employed for the first time when a vacancy occurred after they applied for reemployment.

As has been stated, the first unfair labor practice charge was not filed with the Board until September 8, 1948, over a year after the strike and ten months after the respondent mailed the discharge letters. The proviso in Section 10(b) of the Act, quoted in footnote 1, supra, requires that charges be filed no more than six months after the unfair labor practice occurs. Therefore, if Textile committed any unfair labor practice in discharging the 84 employees named in the order which the Board now seeks to enforce, that unfair labor practice is now barred by passage of time. The General Counsel apparently recognized this for the complaint does not allege an unfair labor practice based on discharge but only on a refusal "to employ or to reinstate" the former employees. The complaint fixes the date of the refusal to employ or reinstate as the period "beginning on or about March 20, 1948", within six months before the first charge was filed.

In Pennwoven this court distinguished between an application for reinstatement by a discharged employee and an application for new employment. The distinction is critical in dealing with cases involving the six month limitation provided by Section 10(b) for the following reason. A discharged employee who seeks to be reinstated is really litigating the unfairness of his original discharge because only if the original discharge was discriminatory is he entitled to be reinstated as if he had never ceased working for the employer. The word reinstatement must be employed in this connection as the equivalent of uninterrupted employment. In this sense, the employee is restored to all of the rights and privileges which were his before he was discharged, plus any new rights and privileges which would have accrued to him in the meantime. Compare the "escalator" concept used in reinstating veterans in their former positions under the Universal Military Training Act of 1951, 65 Stat. 75, 50 U.S.C.A.Appendix § 459. See Diehl v. Lehigh Valley Railroad Co., 3 Cir., 1954, 211 F.2d 95. The concept of a discriminatory refusal to hire is a different concept. If a person — whether a former employee or not — applies for employment and discriminatorily is refused employment on account of prior union activity, the employer has committed a separate and distinct unfair labor practice. See Phelps Dodge Corp., Inc. v. N. L. R. B., supra. And the separate unfair labor practice of refusal to hire occurs when another applicant for employment is hired instead of the applicant discriminated against. Cf. N. L. R. B. v. Pennwoven, supra, 194 F.2d at page 526 (concurring opinion).

We therefore have to decide whether the evidence in the record supports the conclusion of the Board that each of the 84 employees covered by the present petition had applied for jobs as new employees and that Textile committed the unfair labor practice of discriminatorily refusing to hire them after March 8, 1948, six months before the first charge in this case was filed.³ Our review of the Board's order is limited to determining whether the Board applied the correct principles of law and whether upon a review of the whole record there is substantial evidence to support the Board's decision. See Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

In its Supplemental Decision and Order the Board in general correctly applied the law as it had been declared in Pennwoven and in Childs. The Board accepted the distinction which had been made between an application for reinstatement and an application for new employment and applied that distinction in the main correctly to the facts as they were developed in the record before it. The Board concluded that the record sustained the charge of an unlawful refusal to hire 84 former employees.

In its Supplemental Decision and Order the Board found that 84 of the 85 former employees named in the complaint as amended actually applied to the respondent for employment as new employees. This is the crucial fact finding, because if the former employees did not apply as new employees but wanted only...