Greenville Cotton Oil Company And American Federation Of Grain Millers, A. F. L., 1033 (1951)

Docket Number:16-RC-32 and 16-CA-125
Party Name:1072
 
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In the Matter of GREENVILLE COTTON OIL COMPANY and AMERICAN FEDERATION OF GRAIN MILLERS, A. F. L.

Cases Nos. 16-RC-32 and 16-CA-125.-Decided December 09, 1950 DECISION AND ORDER On December 15, 1949, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also recommended that the election be set aside and the representation petition be dismissed. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the cast, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only insofar as they are consistent herewith.1 1. Although the alleged refusals to bargain which precipitated this case occurred in November and December 1947 and January 1948, the Union did not file the original charge and serve a copy of it upon the Respondent until December 18, 1948, considerably more than 6 months later. The proviso to Section 10 (b) precludes the issuance of a complaint 'based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made...' The General Counsel nevertheless issued a complaint in 1949 alleging in part violations of Section 8 (a) (1) and (5) which occurred more than 6 months prior to the charge, and a violation of Section 8 (a) (3) which, although occurring within the 6-month SThe Respondent's request for oral argument is hereby denied, as the record and exceptions and brief, in our opinion, adequately present the issues and the positions of the parties.

92 NLRB No. 175.

period, was wholly dependent on these 8 (a) (1) and (5) allegations.

At the hearing the Respondent argued that the proviso precluded the foregoing allegations. The Trial Examiner rejected this argument and sustained the complaint. In its brief to the Board, the Respondent again argues that the proviso to Section 10 (b) precludes such allegations of the complaint. We find merit in the Respondent's argument.

The Act empowers the Board to prevent a respondent from engaging in unfair labor practices only as therein provided.2 In the amended Section 10 (b), Congress incorporated a specific mand.ate that no complaint should issue 'based upon' any unfair labor practice occurring more than 6 months prior to the filing and service of the charge, which in this case took place on December 18, 1948. This provision thus excludes all allegations based upon unfair labor practices occurring before June 18, 1943.3 Otherwise stated, the Act authorizes the Board to make unfair labor practice findings only with respect to such unlawful conduct of the Respondent as occurred on and after that date.4 The principal unfair labor practice alleged during this period was the discriminatory refusal to reinstate the strikers. In view of the fact that tile strikers had been permanently replaced before June 18, 1948, and that there was no showing of any vacancies available for them when they applied for reinstatement, this refusal did not constitute an unfair labor practice unless it could be shown that they had become unfair labor practice strikers before being replaced.5 In other words, they were economic stfikers who took their chances on being replaced. Only if they can show that their strike was caused or prolonged by unfair labor practices are they entitled to preferred treatment.

But it is just such a showing which the proviso to Section 10 (b) expressly prohibits, for any finding of an unfair labor practice strike here would necessarily have to be 'based upon' unfair labor practices occurring more than 6 months prior to the charge.' Because the proviso thus precludes finding an unfair labor practice strike and 2 Section 10 (a).

See Cathey Lumber Company, 86 NLRB 157.

4 See Cathey Lumber Company, supra; Brown and Root, Inc., 86 NLRB 520; Westinghouse Pacific Coast Brake Company, 89 NLRB 145.

5 Augusta Chemical Co., 83 NLRB 53; Dalton Telephone Company, 82 NLRB 1001. Cf.

N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333; Kansas Milling Company v.

N. L. R. B., 185 F. 2d 413 (C. A. 10).

6 Cf. Axelson Manufacturing Company, 88 NLRB 761, where the Board held that evidence of alleged unfair labor practices occurring more than 6 months before the charge was admissible only as background for interpretation or clarification. Cf. also Tennessee Knitting Mills, Inc., 88 NLRB 1103, where the Board refused to base an unfair labor oractice finding even in part on alleged unfair labor practices occurring more than 6 months before the charge.

1035 the consequent discriminatory refusal to reinstate the strikers, we must dismiss this allegation of the complaint.7 It follows that because the strikers were permanently replaced, and because the Union did not show that it represented a majority of these replacements on and after June 18, 1948, we must also dismiss the allegation of an unlawful refusal to bargain at any time during this period. In addition we shall dismiss the allegations of the complaint to the effect that the Respondent in any manner violated the Act before June 18, 1948.

2. The complaint further alleged, and the Trial Examiner found, that the Respondent violated Section 8 (a) (1) after the beginning of the 6-month period prior to the charge, and that it interfered with the election of November 4, 1948. We agree with these findings, and shall issue an appropriate order.8 ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Greenville Cotton Oil Company, Greenville, Texas, and its officers, agents, successors, and.

assigns, shall:

1. Cease and desist from basing reinstatement on the condition, express or implied, that employees humble themselves and forget American Federation of Grain Millers, A. F. L., or any other labor organization; promising employment in return for a favorable vote in a Board election; threatening loss of employment if they vote in favor of the said Union in a Board election; or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the said Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage ' While Member Styles joins in this holding for the reasons stated in the text, he is also of the opinion that any other construction of Section 10 (b) would constitute legislation by administrative flat, a practice in which this Board should never indulge whether the result would be favorable to the union or to the ]Employer. See the majority opinion in New Jersey Carpet Mills, Inc., 92 NLRB 604. Doubtless the result reached here works a hardship upon the employees who engaged in lawful concerted activity against conduct which, but for Section 10 (b), the Board would hold constituted a refusal to bargain. They now find that their failure, or that of their Union, to file charges within 6 months of that conduct has destroyed what would otherwise be their lawful right as unfair labor practice strikers to reinstatement despite their replacement. While the possibility may not have been foreseen that Section 10 (b) would have the kind of chain reaction which has resulted in this case, nonetheless it is a result which the statute commands.

SWhen the Regional Director advises that the circumstances permit a free choice of collective bargaining representatives, we shall direct a new election. See Calmes Engineering Company, 90 NLRB 771.

in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act.

2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act:

(

  1. Post at its Greenville, Texas, plant copies of the notice attached hereto marked Appendix A.Y Copies of the said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by Respondent, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.

    (b) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith.

    IT IS FURTHER ORDERED that the camplaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8 (a) (3) and (5) of the Act, and that it violated Section 8 (a) (1) before June 18, 1948.

    AND IT IS FURTHER ORDERED that the election be, and it hereby is, set aside.

    MEMBER HOUSTON took no part in the consideration of the above Decision and Order.

    APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National...

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