The Davis Fire Brick Co.

THE DAVIS FIRE BRICK COMPANY 393 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices , I shall rec- ommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organ- ization within the meaning of Section 2(5) of the Act. 2. By interrogating its employees, and by using them as informers , for the pur- pose of obtaining information as to the progress of the Union's organizationl cam- paign and the identity of its employees who signed union cards or engaged in other union activities, Respondent has engaged in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The evidence does not establish that Respondent violated Section 8(a)(3) or ( 1) of the Act by discharging Gordon Horsford. [Recommendations omitted from publication.] The Davis Fire Brick Company and United Brick and Clay Workers of America, AFL-CIO. Case No. 9-CA-f2105. May 2, 1961 DECISION AND ORDER On October 7, 1960, Trial Examiner Stanley Gilbert issued his Order on Motion to Dismiss in the above-entitled proceeding, grant- ing the Respondent's motion to dismiss the complaint, as set forth in the copy of the Order attached hereto. Thereafter the General Coun- sel and the Charging Party filed requests for review of the Trial Ex- aminer's Order together with briefs in support of their requests. The Respondent filed a brief and a supplemental brief in support of the Trial Examiner's Order. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Order, the requests for review, the briefs, and the entire record in the case, and hereby affirms the Trial Examiner's ruling. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the consideration of the above Decision and Order. 131 NLRB No. 50. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER ON MOTION TO DISMISS STATEMENT OF THE CASE On April 22, 1960, United Brick and Clay Workers of America , AFL-CIO, herein called Union, filed a charge against The Davis Fire Brick Company, herein called either Respondent or Company, and on May 19, 1960, the Union filed an amended charge against the Company. Based upon said charges , which were duly served on the Respondent, an amended complaint was issued alleging, inter alia, that the Company violated Section 8(a)(3) and ( 1) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by reason of certain alleged facts which are substantially as follows: (a) On December 1, 1958, the Union was certified by the Board as the exclusive collective-bargaining representative of Respondent's employees (with exceptions that are immaterial in this proceeding). (b) On or about March 19, 1959, the Union called a strike against the Respondent because of Respondent's unfair labor practices "involved in Case No. 9-CA-1677" (a previous proceeding, not published in NLRB volumes, involving the same parties and hereinafter referred to as the first Davis case). (c) The "unfair labor practice strike" continued until February 23, 1960, at which time it was called off by the Union. (d) Certain employees named in the amended complaint participated in the strike for its duration and upon its termination made unconditional offers to return to work. (e) Respondent had in its employ on February 23, 1960, certain employees in- cluding 12 named individuals who had been hired after the commencement of said strike and 11 of these named individuals have been continued in their employment.' (f) Two of the four named strikers were not recalled until March 28 and April 12, 1960, respectively, and 2 have never been recalled despite the continuance of the employment of the aforementioned 12 individuals in the same or substantially equivalent positions as those previously held by the 4 strikers. The gist of the complaint is that Respondent engaged in unfair labor practices in failing to reinstate the four strikers upon application , since they were "unfair labor practice strikers." The Respondent filed its answer to the amended complaint, denying certain of the allegations and setting forth affirmative defenses . In its answer the Respondent admitted that the strike did occur, but denied that it was an unfair labor practice strike. THE MOTION To DISMISS Subsequently on July 8, 1960, Respondent filed a motion to dismiss the complaint. In substance, Respondent contends as the basis for its motion that in order to prove that the strikers whom it failed to rehire at the time of their offer to return to work were "unfair labor practice strikers," it is necessary to establish that Respondent committed alleged unfair labor practices which occurred well beyond the 6-month period prior to the filing of the charges in this proceeding. The strike, itself, which it is alleged was provoked by the unfair labor practices was called approximately 13 months prior to the filing of the charges in this proceeding . Therefore, it is con- tended that Section 10 (b) of the Act would preclude the finding of an "unfair labor practice strike." General Counsel filed its opposition to the motion and by order of the Regional Director of the Ninth Region, the motion was referred to the Trial Examiner for ruling. The duly designated Trial Examiner opened the hearing and heard argu- ments of counsel in support of and opposition to the motion . Thereafter, he ad- journed the hearing sine die and gave the parties 21 days in which to file briefs in further support of their contentions , which briefs have been duly filed. In the complaint and in the oral argument , reference was made to the previous proceeding involving the same parties, the first Davis case , in which charges were filed with respect to the alleged unfair labor practices which it is herein alleged provoked the strike . In the first Davis case , Respondent executed a settlement stipulation on February 9, 1960, which provided for a consent Board order and court decree. On or about April 4, 1960, the Board issued its Decision and Order based upon said settlement stipulation and on or about June 21, 1960, the United 1 The 12th was separated and subsequently rehired, but for the purpose of the issue before me the facts with regard to him are immaterial. THE DAVIS FIRE BRICK COMPANY 395 States Court of Appeals for the Sixth Circuit issued its decree enforcing said order. It was agreed by the parties that the Trial Examiner may take judicial notice of the contents of the formal file in the first Davis case. The Trial Examiner having fully considered the record in this proceeding, the pertinent portions of the record in said first Davis case, and arguments of counsel, has arrived at the following: Analysis and Conclusions In Greenville Cotton Oil Company, 92 NLRB 1033, which was cited with approval by the Supreme Court in Local Lodge No. 1424, International Association of Ma- chinists, AFL-CIO, et al. v. N.L.R.B., 362 U.S. 411, 420 (frequently referred to as the Bryan case), the Board held that Section 10 (b) of the Act precluded the finding of an unfair labor practice strike which was denied to have been provoked by al- leged unfair labor practices that occurred more than 6 months prior to the filing of the charge therein. The holding in the Greenville case would appear to be dis- positive of the instant matter, unless there is some factor or factors present in the instant matter which would remove it from the ambit of the Greenville decision. General Counsel in attempting to supply such distinguishing factors proposes what appears to be a three-pronged armument which, I believe, may be summarized sub- stantially as follows: (a) General Counsel may introduce testimony in this proceeding to establish the unfair labor practices of the Respondent which allegedly motivated the strike be- cause timely charges were filed in the first Davis case with respect to said unfair labor practices thereby, in effect, tolling the running of the limitations imposed by Section 10(b). (b) General Counsel may rely on he order of the Board and the decree of the court in the first Davis case to establish the commission of the unfair labor practices and introduce testimony to show that the strike was motivated by them. (c) The alleged unfair labor practices (including a refusal to bargain) which moti- vated the strike persisted until the strike was terminated on February 23, 1960, since the strike would not have continued if the Respondent had not persisted in refusing to bargain, and that, therefore, there was a "refusal to bargain" by the Respondent within the 6-month period prior to the filing of the charges in this proceeding which prolonged the strike. The merits of these three, somewhat intertwined arguments are analyzed below in the order stated. (a) As to the filing of timely charges in the first Davis case- General Counsel -cites the two Brown and Root cases (86 NLRB 520 and 99 NLRB 1031) in support ,of his contention that he may prove an unfair labor strike in this proceeding. There is a striking similarity between the cases cited and the instant and previous proceed- ings (the two Davis cases). In the first Brown and Root case a charge was timely filed of a refusal to bargain on the part of the respondent employer therein and shortly thereafter the union called a strike. However, there is a factor present in ,the Brown and Root cases which is not present in the two proceedings involving the Respondent herein. Following a hearing and Intermediate Report, the Board, in the first Brown and Root case, issued a decision in which it found that the respondent had, indeed, refused to bargain in violation of the Act, but failed to make any find- ing as to the nature of the strike. In the second Brown and Root case, the charge was filed approximately 13 months after the strike commenced. The complaint alleged that the Respondent refused to reinstate unfair labor practice strikers upon their unconditional offer to return to work. Respondent moved to dismiss the com- plaint citing the Greenville case, supra. However, the Trial Examiner took judicial notice of the previous Brown and Root case and distinguished the Greenville case, stating, "In the instant case, unlike the Greenville case, the respondents have been found guilty of unfair labor practices in a prior timely prosecution." [Emphasis supplied.] He ruled that evidence pertaining to the "refusal to bargain" was not relevant to the issues of the second case and permitted the General Counsel to intro- duce testimony to show that a strike was called and that it was motivated by the refusal to bargain. The Board in considering the exceptions filed by Respondent which asserted the applicability of the Greenville case stated: However, like the Trial Examiner, we find a very basic distinction between the two cases. In the case before us, unlike the Greenville case, a separate timely charge was filed with respect to the unfair labor practice causing the strike, which indeed culminated in a finding of a violation of Section 8(a) (5) of the 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act by the Board and the Court in another proceeding. [Latter emphasis supplied.] I cannot be persuaded that the Board's language is suspectible of the interpretation that the mere timely filing of the charge in the previous proceeding was sufficient to toll the provision of Section 10(b). It is abundantly clear, not only from the lan- guage of the Trial Examiner but also from the Board's decision, that there must have been more than a timely filing of the charge of a violation of Section 8(a)(5). There must also have been a proceeding in which the charge "culminated" in a finding of the violation. It is obvious that the rationale of the second Brown and Root case is that it is not necessary to relitigate the issue of whether there had been a violation of Section 8(a)(5) when it had already been established in a prior proceeding (in- volving the same parties) of which judicial notice could be taken. Thus, in order to draw an analogy between the Brown and Root cases and the two proceedings involving the Respondent herein, there would have had to have been a finding in the first Davis case (Case No. 9-CA-1577) that Respondent had violated the Act. There was no such finding? Without such a previous finding, it would be necessary to litigate in this proceeding the isuse of whether the Respondent engaged in unfair labor practices by its conduct during a period well before the 6 months prior to the filing of the charges herein. In order to characterize a strike as an unfair labor practice strike, it must be proved that it was motivated by an unfair labor practice of the employer respondent which he, in fact, did commit. Greenville Cotton Oil Company, supra. Therefore, evidence with respect to the conduct of Respondent in refusing to bargain or other unfair labor practices would not be background material, but necessary to establish part of the gravamen of the charge. However, I would be precluded from taking such evidence since it would be with respect to the actions of Respondent occurring over 13 months prior to the filing of the charges herein. Bryan case, supra. For the purpose of this order I have not deemed it necessary to pass upon the question of whether the Bryan case overrules the holding in the second Brown and Root case that evidence may be taken to establish a strike was motivated by unfair labor practices which have previously been found (in a prior proceeding involving the same parties) to have been committed. (b) As to the effect of the Board order and court decree in the first Davis case: Alternatively General Counsel contends that, if evidence may not be taken in this proceeding with respect to the commission by the Respondent of the unfair labor practices which, it is alleged provoked the strike, the Board order and court decree in the first Davis case may be relied upon to establish the fact that Respondent did engage in unfair labor practices prior to the strike. While there was no finding in the first Davis case that any unfair labor practices were committed, the Board order and the court decree ordered Respondent to bargain with the Union, and to cease and desist from conduct which would constitute violations of the Act. The first Davis case was settled by a stipulation which provided in paragraph 10, thereof, as follows: This stipulation, contains the,entire,agreement between the parties, there being no agreement of any kind, verbal or otherwise, which vanes, alters or adds to it. However, it is understood that the signing of this stipulation by the Respondents does not constitute an admission that they have violated the Act except for the purposes of this stipulation and the order and decree herein provided for. Even if there had been a specific finding in the order or decree of a violation of the Act by the Respondent, it would not have been predicated upon evidence intro- duced in a hearing, as was true in the first Brown and Root case, but upon admissions in the stipulation which, by its very terms, limited the use of the admissions to the scope of the order and decree in the first Davis proceeding. To use the order and decree as Proof in a subsequent proceeding for the purpose of obtaining remedies not envisioned in the first proceeding would not only be violative of the spirit and letter of the contract between the parties, evidenced by their settlement stipulation. but would, to my mind, be violative of the apparent policy of the Board to encourage settlement of cases brought under the Act. it would certainly deter a respondent from settling a matter, if he were aware of the fact that there might be future and 'Except that it may be argued that a violation occurred by Inference from the fact that the Order and Decree required the Respondent to take certain affirmative action and cease and desist from various acts which constitute violations of the Act The question of whether the Order and Decree establish that unfair labor practices were in fact com- mitted is discussed hereinbelow. THE DAVIS FIRE BRICK COMPANY 397 unforeseen uses of the admissions he made for the purpose of the settlement, despite an agreement to limit their use to that specified purpose. I have no hesitancy in taking judicial notice of the fact that frequently respondents will, in order to avoid litigation, settle a matter despite the fact that they do not believe themselves to be guilty of the violations alleged or because they are willing to comply with the agreed- upon remedy. If a respondent could not rely on the Board to honor the limitations provided in a settlement stipulation, a respondent might well feel that he would be opening a "Pandora's box" by agreeing to a settlement. General Counsel has not submitted any precedent for taking judicial notice of a consent Board order or court decree for purposes outside the scope of those specified in the stipulation upon which the order or decree is based. The Respondent points out in its brief, citing 31 Corpus Juris Secundum, pages 1083-1084, that it is the general American rule that a stipulation which by its terms is limited to a particular occasion or object possesses no force beyond the occasion or after the purpose has been accomplished. General Counsel admits the limitation is contained in the stipulation, but argues that the limitation does not "affect" the Board order and court decree. I have taken judicial notice not only of the order and decree but of the entire formal file in the first Davis case. However, that has not permitted me to arrive at the conclusion that the alleged unfair labor practices which the consent order and decree were designed to remedy were, in fact, committed. It may be argued that a respondent would not be ordered to take some affirmative action which he had not previously refused to do, or would not have been ordered to cease and desist from engaging in certain conduct of which he had not been previous- ly guilty. However, it is no less logical that a respondent would agree to take speci- fied affirmative action to which he has no objection and has never refused to take, or to agree to "cease and desist" from a line of conduct in which he has never engaged. It can readily be seen that a respondent might prefer to consent to a decree being issued by a court setting forth certain requirements with which he is willing to comply, rather than go through litigation to establish whether or not his past conduct justified the issuance of such a decree. No matter how logical may seem the infer- ence from the consent order and decree that there were unfair labor practices com- mitted some 13 months prior to the filing of the charges, such an inference cannot be a substitute for admissable evidence upon which a finding of fact could be made. This is particularly true when it is asked that I infer from the order and decree the existence of facts upon which the order and decree were predicated with the specific understanding of the parties that the existence of such facts are admitted by the Respondent only for a specified use which did not include the purposes of this proceeding. In something of a variation on this point General Counsel also asks that I take judicial notice of the order and decree, not to establish a "new" unfair labor practice, but as background information to show that the Respondent has engaged in con- duct that has been characterized by the Board as constituting unfair labor practices. Granting this request would be of no aid to General Counsel, if it is incumbent upon him to prove, as a necessary element of the charge, that the Respondent did, in fact, commit the unfair labor practices which it is alleged provoked the strike. The General Counsel has offered no precedent upon which I could predicate the con- clusion he urges, that the conduct of the Respondent which allegedly provoked the strike may be considered merely background information. The Greenville case and the second Brown and Root case are strongly indicative of the contrary, that the commission of the unfair labor practices is a necessary element of the charge to be proved. (c) As to the prolongation of the strike into the 10(b) period: General Counsel also contends that the fact that the strike continued into the 10(b) period (i.e., it was concluded at a date which was within 6 months prior to the filing of the charges herein) would permit him to establish that Respondent engaged in an unfair labor practice within the "10(b) period." There is no allegation in the complaint of a violation by the Respondent of Section 8(a) (5) of the Act within the 10(b) period. If there had been such a violation, I assume that the complaint would have con- tained an allegation to that effect and that the strike was prolonged as a result. However, General Counsel by a syllogistic process argues that there was such a violation. The argument, in substance, is as follows: (1) The duty to bargain con- tinued well into the 10(b) period; (2) if there was a failure to bargain outside the 10(b) period that failure can be presumed to have continued until the strike was terminated; and (3) evidence may be taken as to Respondent's failure to bargain outside the 10(b) period as background information clarifying Respondent's con- duct within the 10(b) period. There would, perhaps, be merit in the argument ad- 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vanced, if there had been some conduct of the Respondent within the 10(b) period which would constitute a violation of Section 8(a)(5). However, it is urged that such conduct be presumed. This presumption would have to be based upon proof of such conduct on the part of Respondent outside the 10(b) period as would establish a violation of Section 8(a)(5) and an inference that had the violation not continued the strike would not have been prolonged. While I am impressed by the ingenuity of the argument I am far from impressed by its cogency. It is inherently fallacious in that it must be based on the major premise that there was a refusal to bargain outside the 10(b) period. From that premise it is deduced that the refusal to bargain continued into the 10(b) period, because the strike also continued. Once having established this minor premise it is then argued that evidence as to matters outside the 10(b) period, is in the nature of background information and is admissable to clarify the conduct of Respondent within the 10(b) period. In effect General Counsel's argument amounts to nothing more than proving the truth of the major premise by reliance on the minor premise, a bit of legerdemain in logic which may be aptly described as circular reasoning. In making this argument General Counsel cites the Bryan case as authority for admissability of evidence in the nature of background material, disregarding the analogy between this and the Bryan case. In the latter the court held that evidence was not admissable as to facts outside the 10(b) period to show that a contract between the union and employer was illegal, despite the argument that the con- tract was being enforced within the 10(b) period. The court pointed out, in essence, that the contract could well have been legal and that such a presumption could not be overcome without reliance on facts which occurred outside the 10(b) period, that proof of such facts was necessary to establish the charge. In the instant case the burden of proof is on General Counsel to establish that the strike was motivated by the alleged unfair labor practices which occurred outside of the 10(b) period. The continuing illegality of the contract could not be proved in the Bryan case because the alleged facts necessary to establish its illegality occurred beyond the 6-month period. By the same token the continuing characterization of the strike involved in this matter as an unfair labor strike cannot be proved because the alleged facts necessary to establish such characterization occurred beyond the 6 months period. Thus it appears that General Counsel, in order to prove an unfair labor practice within the 10(b) period which allegedly prolonged the strike, must prove that Re- spondent engaged in unfair labor practices at a time well beyond the statutory period. The Supreme Court stated in the Bryan case, The second situation is where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was other- wise lawful. And where a complaint based upon that earlier event is time- barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice. Thus the Bryan case, as well as the Greenville case, support Respondent's motion to dismiss. General Counsel in the course of his argument questioned the Trial Examiner as to what remedy is available to an unfair labor practice striker if the strike is pro- longed beyond the limitations period. This was evidently an appeal for consideration of the equities in this matter. Even if I were to assume that there is no remedy, I cannot legislate a protection for such striker by disregarding the protection the Act specifically provides to the employer. ORDER Upon consideration of the record herein, the record in the first Davis case (Case No. 9-CA-1677), the oral arguments and briefs of the parties, and the foregoing analysis and conclusions, IT IS HEREBY ORDERED, pursuant to Section 102.25 and 102.35(h) of the Board's Rules and Regulations, Series 8, that Respondent's motion to dismiss the com- plaint be granted. The complaint is hereby dismissed in its entirety. In accordance with Section 102.27 of the Board's Rules and Regulations, this case shall be deemed closed, unless a request for review of this order is filed with the Board pursuant to said Section within 10 days from the date hereof.