California Footwear Co.

CALIFORNIA FOOTWEAR COMPANY 37 Jack Lewis and Joe Levitan d/b/a California Footwear Com- pany and United Shoe Workers of America, Local 122 Trina Shoe Company and United Shoe Workers of America, Local 122 Jack Lewis and Joe Levitan d/b/a California Footwear Com- pany and Trina Shoe Company and United Shoe Workers of America, Local 122. Cases Nos. 921-CA-1659, 12-CA-1658, and 21-CA-1863. November 7, 1958 SUPPLEMENTAL DECISION AND RECOMMENDATION On October 31, 1955, the Board issued its Decision and Order in the above-entitled proceeding,' finding inter alia that the Respondents had unlawfully discriminated against Eugene Piasek because he had testified against them at the hearing therein, and ordering that he be reinstated and made whole for any loss of pay suffered as a result of such discrimination. Thereafter, upon petition of the Board, the United States Court of Appeals for the Ninth Circuit decreed en- forcement of the Board's Order in part, but remanded to the Board for reconsideration that portion of the Board's Order concerning Piasek.2 The court did not, however, disagree with the Board's find- ing that the Respondents had unlawfully discriminated against Piasek. Accordingly, pursuant to the remand, the Board has recon- sidered its Order with respect to Piasek and has concluded that said Order, as originally issued on October 31, 1955, was, and is, necessary in the circumstances of the case to effectuate the policies of the Act.' Piasek and one Jack Rosenthal, both cutters, worked for the Respondents for a period until April 28, 1953, when Rosenthal was laid off and Piasek was retained. After a charge was filed alleging that the Respondents' layoff of Rosenthal was discriminatory in vio- lation of the Act, the Respondents, shortly after May 21, 1953, offered Rosenthal employment which he did not accept. Subsequently the General Counsel issued a complaint alleging that the Respondents had violated the Act in various respects; included in the complaint was an allegation with respect to the layoff of Rosenthal. On Novem- ber 16, 1953, during the course of the hearing on the complaint, Piasek testified adversely to the Respondents; on the following day he was discharged by the Respondents and was told at the time only that he was not then needed. On November 21 Rosenthal was offered employ- ment by the Respondents and on November 23 he returned to work. 1114 NLRB 765. 2N.L.R.B. v. Jack Lewis, et at., 246 F. 2d 886 (C.A. 9). The court there noted that Piasek had been offered reinstatement, which he declined. 3 Excluding however, in view of the Respondents ' offer which Piasek did not accept, that portion ordering the Respondents to offer Piasek reinstatement. 122 NLRB No. 8. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing on November 23, the Respondents' counsel announced that Piasek had been replaced by Rosenthal, and moved to dismiss the complaint as to Rosenthal on the grounds that his lay- off was not discriminatory and that in May he had refused a valid offer of reinstatement. The Respondents' counsel also pressed the General Counsel to declare whether he intended to file a complaint as to Piasek, although no charge in that respect had as yet been filed; in connection therewith the Respondents' counsel contended that, although the Respondents, in replacing Piasek with Rosenthal, were trying to accommodate what appeared to be the General Counsel's wishes, the General Counsel was apparently holding Piasek's case in reserve in the event he lost on Rosenthal, and apparently wanted to study the situation to see if he could not also "work the other side of the street." The General Counsel refused to commit himself as to Piasek and opposed the motion to dismiss as to Rosenthal, which motion the Trial Examiner denied. Subsequently, following the filing of a charge, the General Counsel issued a complaint alleging inter alia that the Respondents had dis- criminated against Piasek because of his testimony; as a defense to the complaint the Respondents claimed they had replaced Piasek with Rosenthal to minimize any possible back-pay liability to Rosenthal. In his Intermediate Report issued on April 28, 1954, the Trial Ex- aminer, and thereafter the Board, rejected the Respondents' defense as to Piasek and found discrimination as to him because of his testi- mony 4 The court did not indicate any disagreement with these findings. Following the issuance of the Intermediate Report, Piasek was offered reinstatement which he declined to accept. In its opinion in this proceeding, the court characterized the Gen- eral Counsel's position, after he was informed of Piasek's discharge, as being "we will punish you one way or the other," stating that such a position hardly comported with fair play. The court further ex- pressed the belief that peace in industrial relations would not be advanced by ordering back pay for Piasek, and. stated that, although it had some doubt whether it had discretion to deny enforcement of the Board's Order as to Piasek as it found the record, the Board should nevertheless reconsider the matter. In reconsidering the Order with respect to Piasek, it is apparent that above and beyond any questions of fairness, there is one inescap- able fact which is relevant to the issues posed by the remand-Piasek was discharged by the Respondents because he gave testimony in a Board proceeding. The Congress, obviously concerned with the possi- bility that the broad public purposes of the Act might be frustrated 4In the same Decision the Board dismissed the complaint as to the alleged discrimina- tion against Rosenthal upon the finding that "Rosenthal was in fact laid off because [Respondents] believed Piasek to be more experienced in cutting leather." 114 NLRB at 802. CALIFORNIA FOOTWEAR COMPANY 39 if employees feared to file charges or give testimony because they were not protected from employer discrimination on account of such charges or testimony, sought to afford such protection by including Section 8(4) in the original Act in 1935,5 which section was reenacted without change in 1947 as Section 8 (a) (4) of the Amended Act.6 However, a bare finding of employer discrimination, without an accompanying remedial order, clearly would not afford the protection intended by the Congress, but would instead be an exercise in futility, since it would not protect employees who testified in vindication of the public rights entrusted to the Board for enforcement, and would seriously limit the Board's role in effectuating the purposes and policies of the Act. As has been succinctly pointed out, "the object of the back-pay order is to discourage discharges of employees contrary to the Act ...."' And, as the Supreme Court has stated, "making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces."' Accord- ingly, in full recognition of the principle that "The remedy of back pay . . . is entrusted to the Board's discretion" and "is not mechan- ically compelled by the Act," 9 and having considered "whether an order for back pay will do more toward effectuating the purposes of the Act than to omit it," 10 we conclude that, without regard to any other considerations, the remedy of back pay, as well as the entry of an appropriate cease and desist order, is necessary here to effectuate the purposes of the Act, in order to assure employees who file charges and give testimony in Board proceedings that they will receive the protection from discrimination which the Congress intended, and in order to discourage employer discrimination against employees who file such charges and give such testimony. We are, moreover, unable to perceive any unfairness to the Respond- ents in the prosecution of the complaint as to Piasek at the same time the General Counsel was contending that he had proved discrimina- tion as to Rosenthal. It is of course unquestioned that, at the time Piasek was discharged and Rosenthal rehired, the Respondents could not be sure they would not ultimately be ordered to offer Rosenthal reinstatement and to pay him back pay until the time of such an offer. In these circumstances if the Respondents, in discharging Piasek and recalling Rosenthal, had in fact, as they claimed, been motivated by 5 See p . 29 of Comparison of S. 2926 ( 73d Cong.) and S . 1958 ( 74th Cong.) Senate Committee Print, March 11, 1935, reprinted at p. 1355 of Legislative History of the National Labor Relations Act 1935 (NLRB) ; statements of Senator Wagner, May 16, 1935, 79 Cong. Rec. 7676, reprinted at op. cit. pp. 2401-2402. 8 Page 30, House Report No. 245 on H.R. 3020, 80th Cong., 1st sess., reprinted at p. 321, Legislative History of the Labor Management Relations Act, 1947 (NLRB). 7Waterman Steamship Corporation v. N.L.R.B., 119 F. 2d 760, 763 (C.A. 5). 8 Phelps Dodge Corporation v. N.L.R.B., 313 U.S. 177, 197. 8Id. at 198. 10N.L .R.B. v. Tovrea Packing Company, 111 F. 2d 626 , 630 (C.A. 9). 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a desire to minimize any possible back-pay liability to Rosenthal, they would not have engaged in any unfair labor practice in this respect and would not have been faced with the problem of reinstating Piasek and giving him back pay, whether or not a complaint was issued. But that is not this case. For, as the Trial Examiner and the Board found, and the court did not disagree, the Respondents in fact dis- charged Piasek because of a desire to punish him for his testimony, thereby engaging in an unfair labor practice within the meaning of Section 8 ( a) (4) of the Act , and, in recalling Rosenthal to fill the resulting vacancy, utilized the circumstance to their possible back-pay liability to him as a pretext in an effort to disguise their true moti- vation for the discharge of Piasek . Further, the Respondents im- mediately took the offensive at the hearing and in an effort to becloud the issues sought to make it appear that the General Counsel was trying to persecute them when he very properly refused to commit himself in advance of the filing of a charge and an appropriate investigation. Thereafter, following the filing of a charge, the General Counsel, in performance of his statutory function , issued a complaint based upon Piasek's discharge; at that time Rosenthal had been fully re- instated, the back-pay period, if any, for Rosenthal was at an end, and the Respondents' position with respect to the Piasek complaint could therefore neither affect, nor be affected by, the Rosenthal complaint. Further, as there was no agreement as to the facts of, or motivation for, Piasek's discharge , those issues could be determined only by prose- cution of that complaint through a hearing and to a decision. If the prosecution of that complaint in conformity with the General Coun- sel's statutory function created problems for the Respondents, those problems were of their own making and are no different from the problems confronting any employer who must face the possibility of remedying its unfair labor practices by reinstating and making whole discriminatorily discharged employees whose places have been filled." In view of all the circumstances, therefore, we must respectfully disagree with the belief of the court that the General Counsel's prose- cution of the complaint as to Piasek was unfair to the Respondents and that a remedial order with respect to Piasek would not effectuate the purposes of the Act. RECOMMENDATION Upon the basis of the foregoing and the entire record in this pro- ceeding, the National Labor Relations Board respectfully recommends to the United States Court of Appeals for the Ninth Circuit that the said court enter its decree enforcing paragraphs 1(b), 2(b ), 2(c), 11 See Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278. CONVAIR (POMONA) 41 2(d), and 2(e) of the Board's Order of October 31, 1955, insofar as they relate to Eugene Piasek, excepting only those portions of para- graphs 2(b) and 2(d) of the said Order pertaining to an offer of reinstatement. MEMBER RODGERS took no part in the consideration of the above Supplemental Decision and Recommendation. Convair (Pomona), a Division of Convair, a Division of General Dynamics 1 and Associated Tool and Die Makers of America, Petitioner. Case No. f 1-RC-5174. November 7, 1958 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Ben Grodsky, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer 2 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to sever from the existing production and maintenance unit at the Employer's missile plant at Pomona, Cali- fornia, a unit of employees in the tool manufacturing department (department 42) together with the tooling inspectors in the inspection department (department 27). In the alternative, the Petitioner requests a craft unit of all tool- and die-makers, toolroom machinists and grinders, and tooling inspectors. In the event the Board finds inappropriate both the units requested, the Petitioner expressed its willingness to represent any combination of these units deemed appro- The name of the Employer appears as described at the hearing. o The Petitioner was recently organized by a group of employees to deal with employers concerning wages and working conditions of tool - and die-makers and toolroom machinists, grinders, and inspectors, exclusively . We therefore find, contrary to the Intervenor, International Association of Machinists, District 120, Guided Missile Lodge No. 1254, AFL-CIO, that the Petitioner is a labor organization which meets the traditional union test for the purpose of severing the employees involved herein . Cessna Aircraft Company, 114 NLRB 1191. 122 NLRB No. 4.