S. H. Camp and Co.

In the Matter of S. H. CAMP AND COMPANY and AMALGAMATED CLOTH- ING WORKERS OF AMERICA, AFFILIATED WITH THE CIO Case No. C-0687 SUPPLEMENTAL DECISION AND AMENDED ORDER April 7, 1945 On October 4, 1943, the National Labor Relations Board, herein called the Board, issued a Decision and Order in the above-entitled proceeding,' in which it found that S. H. Camp and Company, Jackson, Michigan, herein called the respondent, had engaged in and was en- gaging in certain unfair labor practices affecting commerce, and or- dered that the respondent cease and desist therefrom and take certain affirmative remedial action.2 During the pendency before the United States Circuit Court of Appeals for the Sixth Circuit of proceedings to review the Board's order, the Comptroller General of the United States issued a ruling 3 according to which an amendment to the appro- priation for the National Labor Relations Board contained in the Labor-Federal Security Appropriation Act for the fiscal year 1944, 1 52 N . L. R. B. 1078. The original charge in this proceeding , alleging violation of Sec- tion 8 ( 1) and (2) of the Act, was filed on January 5,,1943, 2 days prior to the execution of a contract with Jackson Surgical Garment Workers , Inc , an unaffiliated labor organiza- tion, herein called the Surgical Workers Amended charges, alleging that the respondent violated Section 8 (1) and (2) of the National Labor Relations Act, herein called the Act, and that the respondent had discharged certain employees in violation of Section 8 (3) thereof, were filed on April 21, 1943, and on April 29, 1943 2 More specifically , the Board found • (1) that the respondent dominated and interfered with the formation and administration of the Surgical workers and contributed support to it in violation of Section 8 (2) of the Act : ( 2) that, pursuant to a union -shop provision of the contract between the respondent and the Surgical workers, dated January 7, 1943, the respondent discharged eight employees because they refused to join the Surgical workers and because of their union activities in, violation of Section 8 (3) of the Act ; and (3 ) that by various acts and statements , referred to in the Board' s Decision and Order, the respondent interfered with , restrained , and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (1) thereof. Affirmatively to remedy these unfair labor practices , the Board directed, in sub- stance, that the respondent disestablish the Surgial workers, abrogate the contract of January 7 , 1943, reimburse employees for dues and assessments deducted from their wages on behalf of the Surgical workers, and reinstate the eight discriminatorily dis- charged employees with back pay. 2 Opinion of the Comptroller General, No B-40648, dated April 20, 1944. 61 N. L. R. B., No. 55. 432 S. H. CAMP AND COMPANY 433 effective July 12, 1943,4 precluded the expenditure of Board funds in cases such as the instant proceeding.5 Thereafter, on June 6, 1944, but prior to the passage of a less restrictive limitation on the use of Board funds contained in the Labor-Federal Security Appropriation Act, 1945, approved June 28, 1944,8 the Court remanded the case, upon the Board's motion, to the Board for its consideration in the light of the Comptroller General's ruling. Shortly thereafter and subsequent to the passage of the 1945 Appropriation Act, on August 7, 1944, the Board applied to the Court for revocation of its remand, asserting that there was no longer any occasion for the remand in view of the expiration of the Labor-Federal Security Appropriations Act of 1944 on June 30, 1944, and'the presence in the 1945 limitation of the excep- tion as to agreements with labor organizations formed in violation of Section 8 (2) of the Act 7 On October 6, 1944, the Court denied the Board's motion for revocation of the remand, stating: ... It is the view of the court that the issue in respect to the violation of the 1944 Act by the respondent [the Board] in its proceedings against petitioner, involves a question of fact concern- ing which we are not now fully advised and which will perhaps require presentation of evidence and additional findings. It is also the view of the court that the retroactive character of the 4 Act of July 12, 1943, Public Law No. 135, 78th Congress, of the First Session. This amendment provides . "No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement between manage- ment and labor which has been in existence for three months or longer without complaint being filed Provided, That, hereafter, notice of such agreement shall have been posted in the plant affected for said period of three months, said notice containing information as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested persons " In his decision the Comptroller General interpreted the above limitation on the Board's expenditure of funds to apply to cases in which the charge was filed prior to the execution of the contract and also to cases in which amended charges were filed more than 3 months after the execution of the contract The Comptroller's ruling appeared to be applicable to the instant case, because, as indicated above, the respondent's contract with the Surgical workers had been executed after the filing of the original charge and because the amended charge had been filed more than 3 months after the execution of the contract. In its decision, issued October 4, 1943, the Board had held that the amendment to the Appropriations Act did not apply on the ground that the original charge, which had been filed on January 5, 1943, 2 days prior to the execution of the contract, placed in issue the legitimacy of the Surgical workers and thus raised an issue as to the validity of its contract. " The limitation in the Appropriation Act for the 1945 fiscal year is as follows : "No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement, or renewal thereof, between management and .abor which has been in existence for three months or longer without complaint being filed by employee or employees of such plant; Provided, That, hereafter, notice of such agree- ment or a renewal thereof shall have been posted in the plant for said period of three months, said notice containing information as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested person : Provided further, That these limitations shall not apply to agreements with labor organizations formed in violation of Section 158, paragraph 2, title 29, United States Code " Public Law 373, 78th Congress , 2nd Session. Referred to in the 1945 limitation as Section 158, paragraph 2, title 29, United States Cede. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exception noted in the 1945 Act involves a question of law based upon factual considerations and legislative history upon which we are not now informed, and upon which, in any event, we ought to have the fully considered and deliberate judgment of the respond- ent upon a full hearing granted to the petitioner ... . Thereafter, on October 27, 1944, the Board served upon all parties a "Notice Pursuant to Court Opinion" requesting that, on or before November 16,1944, they file statements , supported by briefs, if desired, stating their position with respect to the matters referred to in the Court's opinion and specifically indicating whether a further hearing was desired before a Trial Examiner or the Board, and.if so, the gen- eral nature of the evidence which would be offered at such hearing. In response to the notice, the Surgical Workers filed a motion "to strike" the Trial Examiner's Intermediate Report and the Board's Decision and Order and all other proceedings taken after July 12, 1943, the effective date of the 1944 amendment . The respondent filed a document stating in substance ( a) that it was immaterial to the respondent whether the hearing was before a Trial Examiner or the Board, ,so long as certain stated safeguards were adopted ; (b) that, under the Court's opinion , the burden rested with the Board to initiate an appropriate proceeding and'to present matters of fact and legisla- tive history to supply the data requested by the Court; and (c) that the nature of the respondent's evidence would depend upon the nature of the evidence offered by the Board in such a proceeding. On January 9, 1945, pursuant to notice , oral argument was held before the Board on the issues raised in the Court 's opinion. The respondent, Amalgamated Clothing Workers of America, affiliated with the CIO, the labor organization which had filed the charges in this proceeding, herein called the Union , and the Surgical Workers were represented and participated in the oral argument. For the reasons hereinafter stated, the Surgical Workers' motion to strike, save as consistent with our supplemental decision and amended order hereinafter set forth, is hereby denied. Pursuant to the remand by the United States Circuit Court of Appeals for the Sixth Circuit and upon consideration of the entire record in the proceeding, the Board hereby makes the following: SUPPLEMENTAL DECISION In substance, the respondent and the Surgical Workers contend that all action taken by the Board in the instant proceeding during the effective period of the 1944 limitation on the use of Board funds was illegal, and that the less restrictive limitation contained in the 1945 Appropriation Act has no retroactive effect'and does not operate to cure the Board's allegedly illegal acts. We think that this position S. H. CAMP AND COMPANY 435 is unsound. The limitations contained in the 1944 and 1945 Appro- priation Acts for the Board do not constitute substantive amendments to the National Labor Relations Act; s they merely control the supply of Board funds and the purposes for which they may be used during the fiscal periods involved. The Act, as originally enacted in 1935, has continued in force, unamended in any respect here relevant, throughout the fiscal years of 1944 and 1945, to date. Under the Act, therefore, the Board's order of October 4, 1943, is wholly valid if supported by substantial evidence and otherwise free from legal error, without regard to the appropriation restrictions. The 1945 Appro- priations Act excepts from the ambit of its limitation on the use of Board funds cases, such as the instant case, which arise over "agree- ments with labor organizations formed in violation of" Section 8 (2) of the Act. Thus, nothing contained in the National Labor, Relations Act or in the 1944 and 1945 Appropriations Acts for the Board pre- cludes the Board from expending moneys appropriated for the current fiscal year of 1945 in proceeding with the instant case at the present time.' No cause to the contrary having been shown, we therefore hereby confirm our previous Decision and Order entered in this pro- ceeding on October 4, 1943, except as hereinafter modified.'' In view of the Comptroller General's ruling of April 20, 1944, we shall amend our original order so that the effective period of the 1944 limitation, namely July 12, 1943 to June 30, 1944, shall be excluded in the computation of the back pay due the eight employees discrimi- natorily discharged by the respondent pursuant to the terms of its 8 N. L. R. B. V. Thompson Products , Inc., 141 F. ( 2d) 794 (C. C. A. 9) enf'g 46 N . L. R. B. 514. See also 89 Cong. Rec. 6046 , 6648, 6650 , 7024 , 7025 , 7026, 7103 , 7108 ; 90 Conk Rec 5191, 6045 , 6046 ; Hearings before the House Subcommittee on the Labor-Social Security Appropriations Bill , 1945, Part 1, pp 614-632, 656-750; Hearings before the Senate Subcommittee on the Labor Social Security Appropriations Bill, 1945 , Part 1, pp. 119-133 9 Accordingly , the application of the 1945 limitation to the instant case involves no ques- tion of retroactivity in the usual sense in which courts have used that concept u An examination of the Congressional hearings and debates on the Labor -Federal Security Agency Appropriation Act, 1945 , affords no indication of the Congressional intent with respect to the retroactive effect of the 1945 limitation , if any, on the use of Board funds During debates in the House of Representatives on the appropriation bill, it was stated by Butler B . Hare, chairman of the House Subcommittee on the Labor -Social Security Appropriations Bill: "It will be recalled that with the hope of facilitating the work of this Board , curtailing the practice of raiding , obviating unnecessary friction in war production plants , and thereby promoting maximum production a provision was placed in the appropriation bill last year that where an agreement entered into between management and labor and no dissatisfac- tion had been or should be expressed within 3 months following the execution of the agree- ment , a limitation was placed on the appropriation for use by the Board to consider a com- plaint filed after the expiration of the 3 months and during the life of the appropriation However, in view of a ruling by the Comptroller General and the Board 's interpretation of the intention of the Congress some criticism of the provision arose The committee, therefore , in its recent hearings afforded all interested parties an opportunity to appear with the idea that with additional information the provision may be amended so as to meet the objectives and remove any doubt as to the intentions of the Congress All parties con- ceded that the provision had, in a measure , accomplished its objectives , and we now feel that the revised provision should accomplish the original purposes and meet with little or no criticism." 90 Cong Rec 5191. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-shop contract with the Surgical Workers. The net earnings of these employees during that period shall likewise be excluded in computing their back-pay award. For the same reason, we shall not order the respondent to reimburse its employees who were members of the Surgical Workers for dues and assessments which the respondent deducted from their wages on behalf of the Surgical Workers, during the time the 1944 limitation was in effect. For the reasons which we have indicated, we do not think that the Act requires us so to modify our order. We do conclude, however, that this disposition of the case is the result most likely to accord with the purposes of the Congress in enacting the appropriation limitations. AMENDED ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , S. H. Camp and Company, Jackson, Michigan, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Jackson Surgical Garment Workers Inc., or with the formation or administra- tion of'any other labor organization of its employees , and from con- tributing support to Jackson Surgical Garment Workers, Inc., or to any other labor organization of its employees; (b) Recognizing Jackson Surgical Garment Workers, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes, rates of pay, wages, hours of employment , or conditions of work; (c) Giving effect to its contract, dated January 7 , 1943, with Jack- son Surgical Garment Workers, Inc., or to any extension, renewal, modification , or supplement thereof, or to any superseding contract with Jackson Surgical Garments Workers, Inc., which may now be in force; (d) Discouraging membership in Amalgamated Clothing Workers of America, affiliated with the CIO , or in any other labor organization of its employees, by discharging , laying off , or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment , or any term or condition of their employment ; (e) In any other manner interfering with, restraining , or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act. S. H. CAMP AND COMPANY 437 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Jackson Surgical Garment Workers, Inc., as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Jackson Surgical Garment Workers, Inc., as such representative; (b) Offer to Mabel Cooper, Ethel Russell, Mary Poynter, Hazel Keyes, Frances Herda, Angela Clark, Ethel Woods, and Minnie Lowe immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Mabel Cooper, Ethel Russell, Mary Poynter, Hazel Keyes, Frances Herda, Angela Clark, Ethel Woods, and Minnie Lowe for any loss of pay they may have suffered by reason of the respond- ent's discrimination against them by payment to each of them of a sum of money equal to that which she normally would have earned as wages from the date of the respondent's discrimination against her to July 12, 1943, and from June 30, 1944, to the date of the respond- ent's offer of reinstatement, less her net earnings during such periods; (d) Reimburse all of its employees who were members of Jackson Surgical Garment Workers, Inc., for all dues and assessments, if any, which it had deducted from their wages on behalf of Jackson Surgical Garment Workers, Inc., excluding such deductions made between July 12,1943, and June 30,1944; (e) Post immediately in conspicuous places throughout its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), (d) and (e).of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondent's employees are free to become and remain mem- bers of Amalgamated Clothing Workers of America, affiliated with the CIO, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (f) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the re- spondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar, as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Mabel Van Buren, Mary Manor, and Evelyn Lozier.