NLRB v. Johnson

• Decision Date: 04 September 1963
• Docket Number: No. 15031.,15031.
• Citation: 322 F.2d 216
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Fred H. JOHNSON, Trustee Under the Will of Clay M. Thomas, Deceased, d/b/a Atlas Linen and Industrial Supply, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

322 F.2d 216 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Fred H. JOHNSON, Trustee Under the Will of Clay M. Thomas, Deceased, d/b/a Atlas Linen and Industrial Supply, Respondent.

No. 15031.

United States Court of Appeals Sixth Circuit.

September 4, 1963.

Solomon I. Hirsh, N. L. R. B., Washington, D. C., for petitioner, Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert Sewell, Atty., N. L. R. B., Washington, D. C., on the brief.

Thomas S. Calder, Cincinnati, Ohio, for respondent, Jack G. Evans, Thomas S. Calder, Dinsmore, Shohl, Barrett, Coates & Deupree, Cincinnati, Ohio, Robert W. Newlon, Warren C. Armstrong, Columbus, Ohio, on the brief.

Before WEICK, Circuit Judge, and BOYD and THORNTON, District Judges.

BOYD, District Judge.

Pursuant to Section 10(e), National Labor Relations Act, 29 U.S.C. § 160(e), the National Labor Relations Board has petitioned this court for enforcement of its order against the respondent, a cleaning and linen supply establishment, which furnishes its services to industries in the Columbus, Ohio, area and which is owned by a testamentary trust. The jurisdiction of the Board in this matter is not a subject of contest. The Board found that respondent violated Sections 8(a) (3) and (1) of the Act by discriminatorily discharging certain of its employees, who were engaging at the time of the alleged discharge in a protected economic strike of respondent's two plants in Columbus. It also found that certain conduct on the part of respondent's management representatives constituted coercion and interference in violation of Section 8(a) (1) of the Act.

Commencing in February, 1959, respondent's production and maintenance employees were the object of an organizational campaign waged by District 50, United Mine Workers of America. One Pacifico, Field Representative of District 50, apprised the production and maintenance employees that because of District 50's failure to comply with the affidavit filing requirements of the now-repealed¹ Section 9(f) (g) and (h) of the Act, the Union could not petition the Board for a representation election and that consequently a strike for recognition was foreseeable. No opposition to such a course was apparent among the employees. Letters to and meetings with management representatives of respondent failed to result in recognition progress satisfactory to District 50. On April 9, 1959, a mass meeting of the production and maintenance employees was addressed by Pacifico, he informing them that it was time to reveal the Union's strength. A strike was called for the following morning. Approximately two hundred fifty of respondent's three hundred production and maintenance employees reported for picket duty. That afternoon the number of pickets was limited by court order from the Franklin County Court of Common Pleas. It suffices for our purposes to here observe that the strike failed and the striking employees requested reinstatement on April 15. Those denied reinstatement on this occasion made additional efforts toward reinstatement. Those who were successful in this regard were told at the time of reinstatement that they were being taken back as new employees, having lost their seniority and vacation benefits. The nineteen charging parties herein were never reinstated.

The complaint issued by the Board charged the respondent with violation of Sections 8(a) (1) and (3) of the Act in that the respondent refused to reinstate or reemploy the charging parties upon termination of the strike and following their requests for reinstatement. The complaint also charged 8(a) (1) violations, to which there will be brief reference later.

An important question of administrative procedure is presented by this petition. Although there is no mention of discriminatory discharge in the complaint issued by the Board against this respondent, the Trial Examiner found these charging parties to have been discriminatorily discharged in violation of Section 8(a) (3) of the Act. An exception to the Trial Examiner's finding on this point was taken by the respondent. In its initial decision and order the Board found this exception to be well-taken. It said:

"Respondent excepts to the Trial Examiner\'s finding that charging parties were discriminatorily discharged on the first day of the strike. We find merit in this exception. We note that the complaint herein did not allege discriminatory discharges; rather the complaint alleged that the charging parties engaged in an economic strike and that respondent violated 8(a) (3) by failing to reinstate them. Moreover, the issue as to whether they were discharged was not fully litigated at the hearing. Accordingly we do not adopt the Trial Examiner\'s finding in this report. However, we do find in agreement with the Trial Examiner and as alleged in the complaint that the respondent violated Section 8(a) (1) and 8(a) (3) of the Act by failing to reemploy the charging parties."²

As indicated in the quoted excerpt, the Board did adopt the Trial Examiner's finding that there was an unlawful failure to reemploy the within charging parties. This strike was an economic strike, as distinguished from an unfair labor practices strike. Economic strikers are entitled to reinstatement following an economic strike unless the employer has replaced the strikers. National Labor Relations Board v. Mackay Company, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381. The Board concluded in its first decision and order that there was nothing in the record before it to indicate replacement of the charging parties prior to their requests for reinstatement. The respondent was ordered to cease and desist from the unfair practices found and, affirmatively, to offer reinstatement to the charging parties with back pay. A petition for enforcement of its order was filed by the Board in this court. Leave to voluntarily withdraw its petition without prejudice was then sought by and granted to the Board by order of the court. The Board subsequently entered its Supplemental Decision and Order,³ which is featured by a complete reversal of its original position. Upon reconsideration of the case the Board found insufficient evidence of unlawful failure to reinstate economic strikers, but found sufficient evidence of discriminatory discharge of the within charging parties on the first day of the strike. The Board's original order was thus, for the most part, kept intact. Upon its reconsideration the Board found that the allegations in the complaint were broad enough to include discriminatory discharge and that, at any rate, the discriminatory discharge aspect was fully litigated at the hearing before the Examiner. From our examination of the complaint, the applicable law and the record as a whole, we cannot agree that the language of the complaint reasonably gave notice of the issue of...