Phelps Dodge Corp.

In the Matter of PmiLPs DODGE CORPORATION, A CORPORATION ands INTERNATIONAL UNION OF Mn, EMILL AND SMELTER WORKERS, LOCAL No. 30 Case No. C-500 SUPPLEMENTAL FINDINGS OF FACT AND RECOMMENDATION :September 13, 1941 On January 16, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Order in this case,' wherein it found that Phelps Dodge Corporation , New York City , 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 to take certain affirmative remedial action. Inter alia the Board found that the respondent had discrimi- nated in regard to the hire and tenure of employment of certain named persons 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 that the respondent and its officers, agents, successors , and assigns should offer to these persons : ... immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing if necessary all em- ployees hired since the dates indicated , in the manner set forth in the section entitled "Remedy," above , and place those for whom employment is not immediately available upon a preferential list, and offer employment as it becomes available , in the manner set forth in said section ...2 Thereafter, on July 26, 1940 , upon petition of• the respondent to review and set aside the Board 's order, the United States Circuit Court of Appeals for the Second Circuit modified the order of the Board in certain respects and'enforced the order as so modified. On April 28, 1941, the Supreme Court of the United States, on writs of certiorari obtained by the respondent and the Board, handed down its opinion directing that the decree of the United States Circuit 119 N. L. R. B. 547. 2 Paragraph 2 (a) of the order, 19 N. L. R. B. 547, at 603. 35 N. L. R. B., No. 88. 418 PHELPS DODGE CORPORATION 419 Court of Appeals for the Second Circuit be modified in accordance with said opinion and that the cause be remanded to said Court with directions to remand to the Board the two matters discussed under Fourth and Fifth of said opinion for the Board's determination of these issues. On May 31, 1941, the Supreme Court of the United States entered its judgment in conformity with its opinion and issued its mandate to the United States Circuit Court of Appeals for the Second Circuit embodying said judgment. Thereupon on June 18,- 1941, the United States Circuit Court of Appeals for the Second Cir- cuit entered a decree containing inter alia the following provision : AND IT IS FURTHER ORDERED , ADJUDGED AND DECREED that with respect to the two matters discussed under Fourth and Fifth of the aforesaid opinion of the Supreme Court of the United States handed down April 28, 1941, the cause be remanded to the Board for the Board's determination of these issues in accord- ance with the directions in said opinion which are incorporated herein. The present Supplemental Findings of Fact and Recommenda- tion deal only with the matter discussed under Fourth of the opin- ion of the Supreme Court of the United States. Pursuant to the remand by the United States-Circuit Court of Appeals for the Sec- ond Circuit and upon consideration of the entire record in the case, the Board hereby exercises its judgment on said remanded issue discussed under Fourth of the opinion of the Supreme Court of the United States and hereby makes the following : SUPPLEMENTAL FINDINGS OF FACT The question for us to determine is whether in our judgment the reinstatement of 22 persons 3 will "effectuate the policies" of the Act, notwithstanding the fact that they may possibly, as the re- spondent contends, have obtained substantially equivalent employ- ment elsewhere. In our judgment the reinstatement of these persons is essential to "effectuate the policies" of the Act regardless of any subsequent occupation or employment in which they may have en- gaged. The decisive considerations which lead us to this view are those which we have recently 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 3 Edgar Lewis Hargus, John Henry Key, George Edward Frazee , Edward Bowden, Paul Amaro, Wilfred Davis Mortenson , Anson Perry Windsor, Grover D. Windsor, Martin Vaclav, Montague Reed, Alexander Kalastro , William Henry Bigelow, William Windsor, Ellis Meran Scales, Frank Erkkila, Luke Sertich, Merrell Ernest Johnson , William Graham, Jesse Edge, Grover Cornett, Ben H. Stringer , and Vernon Dell Curtis. 451270-42-vol. 35-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, Local Union No. 249, 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- tained substantially equivalent employment elsewhere. ^ Assum- ing, however, that some or all of the employees who were discriminatorily discharged thereafter obtained regular and sub- stantially 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 appropri- ate 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 the 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 free- dom of self-organization. To withhold the normally appropriate remedy of reinstatement merely because the object of discrimina- tion has obtained compensatory employment would not effectuate these public policies; indeed, it would reducs them, contrary to the intent of Congress, to mere vindication of private rights and restitution for private wrongs. Our power to order affirmative relief was conferred, and it is our duty to exercise it, to the end that conditions permitting free exercise of the publicly significant rights of self-organization and collective 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 imme- diate 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 organization. Accordingly, the purpose of the order to offer reinstatement 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-or- ganization, but have been discouraged therefrom by the threat to them implicit in the discrimination. This essential reassur- ance 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 PHELPS DODGE CORPORATION 421 employment is no more relevant to this purpose than the acquisi- tion 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 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-or- ganization 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. Ac- cordingly, 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 discrimination, 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 these 22 persons 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 Second Circuit that paragraph 2 (a) of the Order of the Board, issued by the Board on January 16, 1940, be enforced as issued.