The Dow Chemical Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 14055, United Steelworkers of America, AFL- CIO and The Dow Chemical Company and The Chamber of Commerce of the United States. Cases 7-CC-743 and 7-CC-756 April 27, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 18, 1974, the National Labor Relations Board issued a Decision and Order finding that the Respondent Union had engaged in unfair labor practices within the meaning of Section 8(b)(4)(ii)(B) of the National Labor Relations Act, as amended, and ordering it to cease and desist therefrom, to post appropriate notices, to furnish additional signed notices to the Regional Director, and to notify the Regional Director what steps it had taken to comply. Thereafter, the Respondent petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Board's Order. On December 15, 1975, the court issued its decision, granting the petition for review and denying the Board's application for enforcement of its Order. 2 On February 4, 1976, the court denied a motion for rehearing en banc. Thereafter, the Board, the Dow Chemical Company, and the Chamber of Commerce of the United States filed petitions for a writ of certiorari in the Supreme Court of the United States. On October 4, 1976, the Supreme Court granted certiorari, vacated the judgment of the court of appeals, and remanded the case to the court of appeals with directions to remand the case to the Board for reconsideration in light of intervening circumstances. 3 Pursuant to the order of the Supreme Court, on November 26, 1976, the court of appeals remanded the case to the Board for reconsideration in light of intervening circumstances. Thereafter, the Board invited statements of position from the parties. Such statements were received from all parties. Pursuant to the provisions of the Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The statement of position on behalf of the Respondent was filed by the attorneys representing it when the Board and the court of appeals first considered the case. They contend that the case has been rendered moot by the dissolution of the Respondent and should be dismissed. The General ' 211 NLRB 649. Member Murphy was not then a member of the Board and did not participate in that decision. 2 524 F.2d 853. 229 NLRB No. 43 Counsel concurs in this contention. The Dow Chemical Company and the Chamber of Commerce of the United States argue that the legal issue raised by the case continues to be a justiciable controversy. It is undisputed that the Respondent has been dissolved and that no other labor organization has succeeded to its status as collective-bargaining representative of the employees in the bargaining unit formerly represented by Respondent. In fact, the Board held in a separate proceeding that the Dow Chemical Company lawfully withdrew recognition from this union and its parent organization, United Steelworkers of America, AFL-CIO.4 Dow and the Chamber of Commerce argue, however, that United Steelworkers stands in the shoes of the Respondent for purposes of this proceeding, and that the Board's Order may properly be enforced against it. Dow asserts that the Respondent still exists, despite its formal dissolution because some of its former members are still on strike and because, even if all concerted activity by such members should cease, it could still be found that the Union was merely dormant but capable of reactivation when an opportunity presents itself. Dow argues also that the picketing which the Board found to be unlawful is capable of being repeated, and that the importance of the legal issue signified by the opposite conclu- sions of the Board and the court of appeals as to such picketing is one of broad public concern which demands resolution by the Supreme Court. The Chamber of Commerce argues in addition that United Steelworkers is the alter ego and successor of the Respondent because, as the Chamber claims, United Steelworkers, and not Repondent, was the collective-bargaining representative of the employees of Dow, and because United Steelworkers has provided legal representation to the Respondent and its members and, after its dissolution, its former members, in connection with litigation affecting the rights of the striking employees. The Chamber of Commerce contends also that United Steelworkers, by virtue of its internal legal structure, is inseparable from the Respondent, and that its responsibility for the conduct of the Respondent is further established by its approval and funding of the strike, and by the participation of its representatives in the negotiations preceding the strike, the strike itself, the meeting where the decision was made to engage in the subject picketing, and in other unlawful strike-connected activity which is not the subject of this proceeding. It argues further that when United Steelworkers dis- solved the Respondent it first created and then arbitrarily terminated a trusteeship over the Respon- 3 97 S.Ct. 42, 43, 50 L.Ed.2d 68. 4 The Dow Chemical Company, 216 NLRB 82 (1975). 302 LOCAL 14055, STEELWORKERS dent, which trusteeship, had it continued to exist, would have been responsible for implementing the Board's Order against the Respondent. The Chamber would have us conclude that the imposition and dissolution of the trusteeship, in the circumstances presented here, constitute United Steelworkers as a "disguised continuance" of the Respondent. We find that these arguments are without merit. They break down into three major contentions. The first is that United Steelworkers is itself responsible, by its internal legal structure and by the actions of its agents, for the conduct of the Respondent com- plained of here. Without going into every allegation set forth in support of that contention, we note that it is now approximately 4 years since the charges were filed and the complaint was issued in this case. They named only Local 14055 as Respondent. While we do not expect the parties to have anticipated the events leading to the present contention of mootness, we do expect they were aware or could have been aware of any facts that would have justified naming the parent organization as an additional Respondent. If we had the power to allow the complaint to be so amended at this stage, we cannot imagine any justification for exercising it. But in any event we do not have that power, as the General Counsel has not requested us to allow it.5 Consequently, we shall not entertain any claim that United Steelworkers was responsible for the Respondent's conduct at the time it occurred. The second major contention is best summarized by the argument that the Respondent never really ceased to exist; i.e., that United Steelworkers is acting as a "disguised continuance" of the Local. The evidence offered in support of this is that the 5 GTE Automatic Electric, Inc., 196 NLRB 902 (1972); International Union of Electrical, Radio and Machine Workers. AFL-CIO [NECO Electrical Products Corp.] v. N.LR.B., 289 F.2d 757, 760-762 (C.A.D.C., 1960). trusteeship was dissolved only after the court of appeals held in favor of the Respondent and the opposing parties had filed or were about to file petitions for certiorari; some employees are still on strike; and United Steelworkers has continued to pursue litigation on pending claims on behalf of all the strikers. This evidence is simply insufficient to show a continued existence, in any form, of the dissolved Local. If the Respondent has totally ceased to exist, the motivation for its demise is immaterial. And the subsequent actions of its former members or employees it represented or the continued support of their rights by the parent organization does not breathe life into the ashes. Likewise misdirected is the final argument that public policy demands a resolution that the actions of the Respondent were unlawful. While it has been said that a public interest in having the legality of certain practices settled militates against a mootness conclusion, 6 it is fundamental that this alone does not create a litigable controversy. So, if we are correct in concluding that the party which engaged in the practices no longer exists, it matters not that similar practices could be repeated by others.7 There being no party properly to be compelled to comply with the Board's Order, the case is moot. According- ly, we shall dismiss the complaint.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. s United States v. W. T. Grant Co., 345 U.s. 629, 632 (1953). 7 Cf. N.LR.B. v. Raytheon Co., 398 U.S. 25 (1970). 8 The Dow Chemical Company, 212 NLRB 333 (1974); N. LR.B. v. Grace Company, 184 F.2d 126, 130-131 (C.A. 8. 1950). 303