Continental Oil Co.

In the Matter of CONTINENTAL OIL COMPANY and OIL WORKERS INTERNATIONAL UNION Cases Nos. C-627 and R-653 SUPPLEMENTAL FINDINGS OF FACT AND RECOMMENDATION September 10, 1941 On May 9, 1939, the National Labor Relations Board, herein called the Board, issued a Decision, Order, and Direction of Election in these cases,' wherein it found that Continental Oil Company, Ponca City, Oklahoma, herein called the respondent, had engaged in and was engaging in certain unfair labor practices affecting commerce, and ordered the respondent to cease and desist therefrom and take certain affirmative remedial action. Inter alia, the Board found that the respondent had discriminatorily discharged two of its employees, Ernest Jones and F. D. Moore, in violation of Section 8 (3) and (1) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and directed, in addition to certain other relief affecting Jones and Moore, that the respondent and its officers, agents, successors, and assigns, should : Offer to Ernest Jones and F. D. Moore immediate and full re- instatement to the positions formerly held by them at Big Muddy Field or positions substantially equivalent thereto at said Field, without prejudice to their seniority, insurance, or other rights and privileges.2 Thereafter, on June 13, 1940, upon petition of the respondent to review and set aside the Board's order in its entirety, the United States Circuit Court of Appeals for the Tenth Circuit modified the order in a respect not now material, but fully enforced the order in so far as it related to Jones and Moore.3 On April 28, 1941, the Supreme Court of the United States; on writ of certiorari obtained by the respondent, reviewed so much of the case as pertained to the reinstatement of Jones and Moore, and held that even if, as the re- 1 12 N. L. R. B. 789. 2 Paragraph 2 (f) of the Order, 12 N. L. R. B. 789, at 825. 1 Continental Oil Company v. National Labor Relations Board, 113 F. ( 2d) 473 (C. C. A. 10). 35 N. L. R. B., No. 66. 331 • 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent contended, neither man remained an "employee" within the meaning of Section 2 (3) of the Act, his reinstatement was not precluded, but that the decisive question was whether his reinstate- ment would "effectuate the policies" of the Act; accordingly the Court remanded the case for an exercise by the Board of its judgment on that issue, in light of the opinion of the Supreme Court in Phelps Dodge Corporation v. National Labor Relations Board, 61 S. Ct. 845.4 Thereupon, on June 30, 1941, the Circuit Court of Appeals for the Tenth Circuit entered a decree containing the following provision : AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that so much of the case as pertains to the reinstatement of Jones and Moore be remanded to the Board for its judgment on the issue whether reinstatement will "effectuate the policies" of the Act, in the light of the opinion of the Supreme Court of the United States in the case of Phelps Dodge Corporation vs. National Labor Rela- tions Board, this Court hereby reserving jurisdiction to make such other or further decree in the premises as may be appropriate after the exercise of the Board's judgment on said remanded issue. Pursuant to such remand by the United States Circuit Court of Appeals for the Tenth Circuit, and upon consideration of the entire record in the case, the Board hereby exercises its judgment on said remanded issue and hereby makes the following : SUPPLEMENTAL FINDINGS OF FACT The question for us to determine is whether, in our judgment, the reinstatement of Jones and Moore will "effectuate the policies" of the Act, notwithstanding the fact that Jones, by becoming a store- keeper and postmaster, and Moore, by becoming a prison guard 5 may possibly, as the respondent contends, have lost their status as "em- ployees" within the meaning of Section 2 (3) of the Act. In our judgment, the reinstatement of Jones and Moore is essential to "effectu- ate the policies" of the Act, regardless of any subsequent occupations or employment in which they may have engaged. The decisive con- siderations which lead us to this view are those which we have re- cently set forth in answer to a similar contention of possible loss of "employee" status through obtainment of substantially equivalent employment in Matter of Ford Motor Company and International Union United Automobile Workers of America, Local Union No. 21.9, 31 N. L. R. B., No. 170, decided by us on May 21, 1941. We there said : The respondent contends that the Board may not order • any employee reinstated without first finding that he has not ob- 4 Continental Oil Company v. National Labor Relations Board, 313 U S 212. 6 12 N. L R. B 789, at 807. CONTINENTAL OIL OOMPAt' Y 333 tamed substantially equivalent employment elsewhere. Assum- ing, however, that some or all of the employees who were discriminatorily discharged thereafter obtained- regular and substantially equivalent employment within the meaning of Section 2 (3) of the Act, the question arises whether we should order that they be offered reinstatement, the normal remedy appropriate to neutralize the effects of unlawful discrimination. The precise question we are called upon to determine, in the exercise of our discretion, is whether it will effectuate the policies of the Act to direct that offers of reinstatement be made to such employees. The policies of 1 he Act, expressly declared in the public in- terest, are to encourage the practice and procedure of collective bargaining and to protect the exercise by employees of full freedom of self-organization. To withhold the normally appro- priate remedy of reinstatement merely because the object of discrimination has obtained compensatory employment would not effectuate these public policies; indeed, it would reduce them, contrary to the intent of Congress, to mere vindication of pri- vate rights and restitution for private wrongs. Our power to order affirmative relief was conferred, and it is our duty to ex- ercise it, to the end that conditions permitting free exercise of the publicly significant rights of self-organization and collec- tive bargaining shall, when destroyed or disrupted, be restored. The Act postulates, and the fact is readily verified by common experience, that anti-union discrimination exercises a coercive effect not only upon the immediate victim, but upon all present or future employees of the particular employer; it impresses upon them the danger to their welfare and security associated with membership in or activity on behalf of a labor organiza- tion. Accordingly, the purpose of the order to offer reinstate- ment is not only to restore the victim of discrimination to the position from which he was unlawfully excluded, but also, and more significantly, to dissipate the deeply coercive effects upon other employees who may desire self-organization, but have been discouraged therefrom by the threat to them implicit in the discrimination. This essential reassurance can be afforded- freedom can be reestablished-only by a demonstration that the Act carries sufficient force to restore to work anyone who has been penalized for exercising rights which the Act guarantees and protects; the acquisition of equivalent employment is no more relevant to this purpose than the acquisition of non- equivalent employment, or of no employment at all. Further, it is a demonstrated fact of which we take notice that necessity almost inevitably compels a discharged employee to 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seek the best available other employment. If reinstatement were rendered inappropriate by reason of success in that search, the employer would be able, through elimination of union adherents, at once to impede or terminate exercise of the right of self- organization in his plant and at the same time to perpetuate his advantage by relying upon the victims' necessity of earning a livelihood elsewhere to assure their permanent riddance. This would afford a ready means for complete and final ouster of those prominent in the employees' efforts at self-organization. For the foregoing reasons, we conclude that the mere obtain- ment of substantially equivalent employment, and evidence per- taining thereto, is irrelevant to considerations decisive of the question whether reinstatement effectuates the policies of the Act. These decisive considerations do not vary from case to case. Accordingly, we find that it will effectuate the policies of the Act to require the respondent to offer reinstatement to all individuals who we have found were victims of discrimina- tion, whether or not they, or any of them, may have obtained other regular and substantially equivalent employment. We here reiterate the views expressed in that case, and for the same reasons find that the reinstatement of Jones and Moore will "effectuate the policies" of the Act. RECOMMENDATION Upon the basis of the above supplemental findings of fact and of the entire record in the case, the National Labor Relations Board hereby respectfully recommends to the United States Circuit Court of Appeals for the Tenth Circuit that paragraph 2 (f) of the Order of the Board, issued by the Board on May 9, 1939, be enforced as issued.