Continental Oil Co.

National Labor Relations Board - Board Decisions

Sep 10, 1941

35 N.L.R.B. 331 (N.L.R.B. 1941)

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.