Flambeau Plastics Corp.

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flambeau Plastics Corporation and Local No. 380, International Union, Allied Industrial Workers of America, AFL-CIO. Case 30-CA-633 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT June 27, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING, JENKINS , AND ZAGORIA Upon a charge filed on August 11, 1967, by Local No. 380, International Union, Allied Industri- al Workers of America , AFL-CIO, herein called the Union , the General Counsel of the National Labor Relations Board , by the Regional Director for Region 30, issued a complaint dated October 26, 1967, alleging that Flambeau Plastics Corpora- tion, herein called the Respondent, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and ( 3) and Sec- tion 2( 6) and ( 7) of the National Labor Relations Act, as amended . Copies of the charge, complaint, and notice of hearing were duly served on the Respondent and the Union. The complaint alleges that on or about July 20, 1967, certain employees of Respondent who en- gaged in an unfair labor practice strike made appli- cation for reinstatement to their former or substan- tially equivalent positions , and that since on or about July 24, 1967, Respondent has refused to reinstate them in violation of Section 8(a)(1) and (3) of the Act. On November 9, 1967, Respondent filed its answer denying commission of the unfair labor practices alleged. On November 15, 1967 , all parties to this proceeding entered into a stipulation by which they waived a hearing before a Trial Examiner and agreed to submit the case to the Board for findings of fact, conclusions of law , and an order, based upon a record consisting of the charge, the com- plaint, the answer, the exhibits , and a stipulation of facts. On November 17, 1967, the Board approved the stipulation and ordered the proceedings trans- ferred to the Board . Thereafter, the General Coun- sel, the Respondent, and the Union filed briefs with the Board.' Upon the entire record in this case, the Board makes the following: The Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the stipulation and briefs, adequately presents the issues and positions of the parties. The Respondent, a Wisconsin corporation, main- tains its principal office and plant in Baraboo, Wisconsin , where it is engaged in the manufacture, sale, and distribution of plastic products. During the calendar year preceding execution of the stipu- lation , a representative period, Respondent, in the course and conduct of its business operations, sold and shipped , in interstate commerce , products valued in excess of $50,000 to points outside the State of Wisconsin . We find, as stipulated by the parties, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the poli- cies of the Act to assert jurisdiction herein. 11. THE ORGANIZATION INVOLVED Local No. 380, International Union, Allied Indus- trial Workers of America, AFL-CIO, is a labor or- ganization as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts, stipulated by the parties, show that on March 5 , 1963, the Union was certified as the ex- clusive bargaining agent of the Respondent's em- ployees in a production and maintenance unit at the Respondent 's Baraboo, Wisconsin , plant. Thereafter, the Respondent committed several un- fair labor practices.' Approximately 2 years following the Union's cer- tification , the parties entered into a 1-year collec- tive-bargaining agreement . In the spring of 1966, before and during negotiations for a successor agreement, the Respondent again engaged in cer- tain unfair labor practices ,' including, inter alia, a refusal to bargain in good faith . On June 15, 1966, approximately 61 employees struck in protest of these unfair labor practices, and the Union filed charges." Three months after the strike began, on September 15, 1966 , the Respondent withdrew recognition from the Union on the ground that Respondent doubted the Union's continued majori- ty status, and the Union amended its earlier charges to allege that this withdrawal of recognition was un- ' Flambeau Plastics Corporanpn , 151 N LRB 591 ' Flambeau Plastics Corporation , 167 NLRB 735. ' /bid 172 NLRB No. 33 FLAMBEAU PLASTICS CORP. 449 lawful. On May 25, 1967, Trial Examiner Eugene Dixon issued a decision finding that the Employer had engaged in several unfair labor practices, in- cluding unlawfully withdrawing recognition from the Union during the strike which the Trial Ex- aminer found to have been caused by the unfair labor practices.5 The Union, on July 18, 1967, advised Respon- dent that the strike would end on July 20, 1967, and demanded a resumption of bargaining. On July 20, 1967, the day designated by the Union as the last day of the strike, each of the strikers in- dividually sent an identical "Application for Rein- statement" to the Respondent, subject to "the un- derstanding that Flambeau Plastics will continue to recognize and commence bargaining with my duly designated bargaining representative." The Respondent answered separately to the Union and to the strikers on July 24, 1967. To the Union, Respondent wrote that he continued to doubt its majority status . To the strikers, the Respondent wrote that he would "consider an un- conditional offer" that they be reinstated. On July 26, 1967, the strikers wrote to the Respondent again, reiterating their request for rein- statement conditioned upon resumed recognition of and bargaining with the Union. The Respondent replied to them again on July 3 1, 1967, in effect re- jecting their request for reinstatement because it was conditioned upon resumed recognition of the Union, but suggesting that the validity of the withdrawal of recognition be resolved by litigation. The single issue in this case is whether the Respondent violated Section 8(a)(3) and (1) by re- jecting the strikers' reinstatement applications which were expressly made subject to the "un- derstanding" set out above. The determination of that issue turns on whether, in the particular cir- cumstances of this case, the applications are to be viewed as conditional or as unconditional. The Board has long held that unfair labor practice strikers are entitled to reinstatement to their former or substantially equivalent jobs when they make un- conditional applications therefor,' but, subject to certain exceptions not here relevant, that it is not unlawful for an employer to reject requests for rein- statement which are conditioned upon the em- ployer's agreement to remedy unfair labor practices that caused the strike or prolonged it.7 On the facts before us, we find that the unfair labor practice strikers' requests for reinstatement were condi- tional. The two sets of requests for reinstatement explicitly conditioned the strikers' return to work on the Respondent's agreement to resume bargain- ing with the Union. The Respondent's rejection of those requests was explicitly based on its un- willingness to accept that condition, for it expressed willingness to reinstate the strikers and to leave the determination of the validity of its conduct to the processes of the Act. Accordingly, we conclude that the Respondent's refusal to grant reinstatement was not violative of the Act. Indeed, if Respondent had waited until a day after the strikers had returned before unlawfully withdrawing recognition, and if the employees had then resumed their strike in protest against that un- fair labor practice, the new strike would again have been an unfair labor practice strike, and no "back- pay" would have accrued to the strikers. We can see no difference between employees' continu- ing to strike in protest against a refusal to bargain which occurred during an unfair labor practice strike and a new strike to protest the new unfair labor practice. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed. ' TXD-278-67 BSee, e.g., Fansteel Metallurgical Corporation, 5 NLRB 930, 945, enforcement denied on other grounds 98 F.2d 375 (C A. 7), 306 U.S 240. Jesus Foundries, /tic , 101 NLRB 1642 354-126 O-LT - 73 - pt. 1 - 30