National Labor Relations Bd. v. Roure-Dupont Mfg.

• Decision Date: 07 November 1952
• Docket Number: Docket 22377.,No. 25,25
• Citation: 199 F.2d 631
• Parties: NATIONAL LABOR RELATIONS BOARD v. ROURE-DUPONT MFG., Inc.
• Court: U.S. Court of Appeals — Second Circuit

199 F.2d 631 (1952)

NATIONAL LABOR RELATIONS BOARD v. ROURE-DUPONT MFG., Inc.

No. 25, Docket 22377.

United States Court of Appeals Second Circuit.

Argued October 14, 1952.

Decided November 7, 1952.

Thomas F. Maher, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, Gen. Counsel, David P. Findling, Asso. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Dominick L. Manoli, Atty., National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Harold L. Luxemburg, New York City, for respondent.

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

CLARK, Circuit Judge.

Pursuant to § 10(e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), the National Labor Relations Board seeks enforcement of its order against respondent, Roure-Dupont Manufacturing, Inc., a manufacturer and distributor of perfumes and related products. Upon review of the lengthy hearing before a Trial Examiner, the Board found that respondent had violated § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1) — the provision against interference with collective bargaining — by offering its employees individual employment contracts and conditioning payment of its regular Christmas bonus on acceptance of these contracts in order to induce the employees to withdraw from Local 65 of the Wholesale and Warehouse Workers Union. The Board further found a violation of this provision, as well as of the provision against discrimination in employment, § 8(a) (3), 29 U.S.C.A. § 158(a) (3), in respondent's discriminatory refusal to rehire six employees who had gone out on strike. Accordingly, the Board ordered respondent to reinstate these employees with back pay, to pay them a bonus amounting to three weeks' wages in compensation for the Christmas bonus which had been denied them, and to cease and desist from future violations of the Act. 93 N.L.R.B. 1240.

Resisting enforcement of this order, respondent charges that the Trial Examiner's bias and hostility rendered the hearing before him unfair. Respondent further contends that the record does not contain substantial evidence to support the Board's findings and order in respect to reinstatement and payment of the Christmas bonus.

In support of its charge of bias against the Trial Examiner, respondent relies on the cumulative force of various rulings against it during the protracted hearings followed by the Examiner's unfavorable Intermediate Report and Recommended Order. Three rulings seem particularly stressed: (1) the Examiner's refusal to grant a three months' continuance until respondent's president returned from Europe; (2) his denial of respondent's request for a bill of particulars; and (3) his permitting amendment of the Board's complaint after several of the Board's witnesses had testified to include the issue as to the Christmas bonus. We find no abuse of discretion in any of these rulings. As to the requested continuance, almost three weeks had elapsed between the time respondent was notified of the hearing and its president's departure for Europe; his testimony could thus easily have been preserved by deposition during this period. Further, although the president was actually subpoenaed for the hearing by the Board's General Counsel several days before he sailed, and although before he left he armed counsel with an affidavit asking for delay, he made no attempt to obey the subpoena or procure its withdrawal; rather he left it to new trial counsel, employed after his departure, to make the first request for adjournment. Similarly, denial of respondent's request for a bill of particulars was not prejudicial, since respondent had previously been supplied orally with the requested information. Amendment of the Board's complaint was also properly allowed; this simply conformed the pleadings to proof which had already been adduced. Cf. Fed.Rules Civ.Proc., rule 15(b), 28 U.S. C.A. The Christmas bonus issue was fully litigated at the hearing and there was no showing of surprise which may have hampered presentation of respondent's defense on this aspect of the case. None of these or other rulings demonstrate that respondent was deprived of a fair hearing. Examination of the typewritten transcript shows that the Examiner was faced with a tactic of unusual and persistent delaying action on the part of resourceful counsel, and that he exercised no more firmness than the circumstances required.

The Board was also justified in ordering reinstatement of six of the striking employees. Respondent was under no obligation to rehire strikers who had been permanently replaced or whose jobs had been abolished during the strike. N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381; Kansas Milling Co. v. N. L. R. B., 10 Cir., 185 F.2d 413. But when an employer promises to rehire striking employees as soon as their positions again become available, he may not discriminatorily violate this undertaking. Wilson & Co. v. N. L. R. B., 7 Cir., 124 F.2d 845; see also our decision in N. L. R. B. v. E. A. Laboratories, 2 Cir., 188 F.2d 885, certiorari denied E. A. Laboratories v. N. L. R. B., 342 U.S. 871, 72 S.Ct. 110. Here the record supports the Board's finding that respondent made such a promise and that it was unconditionally accepted by the strikers. Yet, when respondent gradually replenished its depleted working force, it failed to keep its word and discriminated against the strikers by hiring outsiders instead.

Vacancies did, in fact, occur for each of the six former employees subsequent to the strike. Four of these had worked as laboratory assistants. During the strike and for a month after it ended on February 24, 1949, their tasks were temporarily handled by three employees who had remained at work. In May, 1949, respondent hired four new laboratory assistants without offering to reinstate any of the former employees. At the time each of these new workers was hired, respondent discriminated against the replaced employees, in violation of the provisions of the Act cited above. In this respect we disagree with the Board, which found...