Before MAJOR, Chief Judge, FINNEGAN and SWAIM, Circuit Judges.
In this proceeding The W. T. Rawleigh Company seeks review of a decision and order of the National Labor Relations Board, entered in August 17, 1950, requiring petitioner: (1) to cease and desist from discouraging membership in or discriminating against The Warehouse and Distribution Workers' Union, International Longshoremen's and Warehousemen's Union, or any other labor organization; (2) to offer immediate reinstatement, with back pay from December 22, 1947, to 45 named employees; and (3) to post prescribed notices in its plant for thirty days.
It appears that the petitioner is an Illinois corporation having its main office and plant at Freeport, Illinois. It is engaged in the manufacture and sale of medicines, insecticides, food products, soups, poultry preparations, and other similar products, and employed about 366 production employees in October of 1947.
The present controversy arose out of a strike at petitioner's plant in Freeport, Illinois, in the months of November and December, 1947. For several years prior to that time petitioner's production employees were represented for collective bargaining purposes by Warehouse and Distribution Workers' Union, International Longshoremen's and Warehousemen's Union, hereinafter referred to as the Union. The officers of petitioner and the officials of the Union met and conferred five or six times during October of 1947, in order to negotiate a new contract to replace an agreement which was to expire on October 31, 1947. The meetings were unsuccessful, the negotiators were unable to agree concerning a check-off clause demanded by the Union, and were also unable to reach agreement as to the amount of a proposed wage increase. It is conceded that the Union was not in compliance with section 9(f) and (g) regarding financial reporting requirements, and that its officers did not sign noncommunist affidavits as required by section 9(h) of the Labor Management Relations Act of 1947.
Following the failure of the negotiations for a new contract, a strike was called by the members of the Union at a meeting held on October 31, 1947. In its inception the strike was economic and the trial examiner so found. However, both the examiner and the Board concluded that the unfair labor practices of the petitioner converted the strike from an economic strike into an "unfair labor practice" strike. The strike ended on or about December 22, 1947.
Following the termination of the strike, 54 former employees of petitioner filed an unfair labor practice charge with the National Labor Relations Board. An amended charge was filed on January 28, 1948, and more than a year later on February 25, 1949, a complaint was issued by the general counsel on behalf of the Board.
The complaint alleges that petitioner violated section 8(a)(3) of the Labor Management Relations Act by discharging the 54 associated complainants at various times during the course of the strike; that it violated the Act by refusing to reinstate the complainants, and by conditioning their reinstatement upon a "coercive individual interview with each employee." It is also charged that certain acts of the petitioner violated section 8(a)(1) of the Act by interfering with, restraining and coercing employees in the exercise of the rights guaranteed them by section 7 of the Act.
Paragraph 4 of the complaint states "that the complaint is not to be construed to suggest that the respondent (meaning the petitioner) has any duty to bargain with I.L.W.U. (meaning the Union) in view of its failure to comply with section 9(h) of the Act."
In its answer and amended answer, the petitioner denied all the material allegations of the complaint. It alleged: (1) that the 54 complainants named either terminated their employment voluntarily or were discharged for cause; (2) that during the course of the strike the strikers engaged in unlawful conduct which made it necessary for petitioner to seek and to obtain a temporary injunction prohibiting such unlawful acts and conduct, and that the injunction so obtained was amended by the court issuing it so as to enjoin further unlawful conduct; and (3) that the petitioner had on two occasions, on December 5 and 9, 1947, offered to reinstate all but two striking employees.
After an extended hearing the trial examiner, on November 30, 1949, filed his intermediate report and recomended order.In his report he concluded that the petitioner had interfered with, restrained and coerced its employees in the exercise of their rights under section 7 of the Act by threatening discharge for striking, both before and during the strike, and by requiring abandonment of membership in the Union; by requiring individual interviews, and insisting that one of the employees, Burns, be excluded, as a condition of returning to work. he also found that petitioner had caused the arrest of certain of its employees on false charges.
The intermediate report further found that petitioner had discharged 46 of the complaining employees because of their union activities, and had refused to reinstate eight of the complainants "except upon discriminatory conditions because of their union activities."
The trial examiner, in his intermediate report, denied petitioner's contention that complaining employees had forfeited their rights to reinstatement because they had engaged in mass picketing, in violence and in the prevention of attempts of non-striking employees to go to work, and in interfering with railroad and truck movements to and from petitioner's plant, and in other acts of coercion violative of section 8(b)(1)(a) of the Act. He did, however, find that seven of the complainants had physically assaulted or blocked non-striking employees from entering petitioner's plant in one or the other of picket line incidents. He denied reinstatement to each of these employees. He further found that one complaining employee had returned to work voluntarily, prior to the termination of the strike, and that another had been discharged for reasons other then union activities, and as to them, recommended no order for reinstatement or for back pay.
Both respondent and the general counsel of the Board filed exceptions to the intermediate report. The Board thereupon reviewed the proceedings and found that no prejudicial error was committed. The rulings of the trial examiner were affirmed and his findings, conclusions and recommendations, with some additions and modifications, were adopted.
Thereupon, The W. T. Rawleigh Company filed the petition now before us to review the order of the National Labor Relations Board.
In the brief filed in support of its petition, The W. T. Rawleigh Company states that it has concluded, without in any way conceding that the Board's decision was justifiable, that its own best interests will be served by foregoing argument on the question as to whether or not it engaged in unfair labor practices. It does, however, insist that the name of the non-complying Union, Warehouse and Distribution Workers' Union, International Longshoremen's and Warehousemen's Union be deleted from that portion of the Board's order, 1(a) and 1(b), which provides that the petitioner cease and desist from discouraging membership in the named Union or any other labor organization of its employees in various enumerated ways, and from in any other manner interfering with, restraining or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist the named Union, or any other labor organizations."
Petitioner's contention in the non-compliance issue is based on the fact that neither the local union nor the national union involved had complied with the provisions of the Act (sec. 9(h)) which provides that no investigation shall be made and that no complaint shall be issued on a charge made by a labor organization unless there is on file with the Board an affidavit executed by each officer of the labor organization and by each officer of any national or international labor organization of which it is an affiliate or constituent unit, that he is not a member of the Communist party or affiliated therewith, and that he does not believe in or hold membership in or support any organization that believes in or teaches the overthrow of the United States government by illegal or unconstitutional methods.
Moreover, petitioner expresses great concern over that portion of the order which directs the reinstatement with back pay of 45 of the named complainants, who, petitioner claims, participated in a course of conduct which bars the remedy of ...