Simmons, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1963

145 N.L.R.B. 348 (N.L.R.B. 1963)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees have the right to form, join , or assist any labor organiza-
tion or to refrain from doing so.
MOVIE STAR, INC, and
MOVIE STAR OF SUMRALL, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola ), 701 Loyola Avenue, New Orleans , Louisiana, Tele-
phone No. 529-2411, if they have any question concerning this notice or com-
pliance with its provisions.
Simmons , Inc. and George L. Weasler and Mariano Vazques
Ariel Morales. Cases Nos. 24-CA-1167 and 24-CA-1168. De-
cember 10, 1963
SUPPLEMENTAL DECISION AND RECOMMENDATION
On December 7, 1961, the Board issued a Decision and Order in this
case.' The Board found, inter alia , that the Respondent: (a) on
March 20, 1959 , unlawfully threatened employees with discharge for
engaging in protected organizational activities; (b) on March 24, un-
lawfully discharged Avilles-Padilla, member of a five -man committee
known as the Comite; and ( c) on or about April 15, unlawfully dis-
charged employees who had gone on strike on March 25 to protest the
Respondent 's discharge of Padilla as well as of the four other members
of the Comite whose discharges were found to have been lawful.
Concluding that the Respondent had violated Section 8 ( a.) (1) and
(3) of the Act , the Board ordered Respondent to reinstate Padilla
with backpay and to remedy its discrimination against the striking
employees.
Thereafter , on March 21 , 1963, the United States Court of Appeals
for the First Circuit handed down its opinion in this matter.2 The
court accepted the Board 's finding of the 8 ( a) (1) violation based on
the Respondent 's threats of March 20 and agreed with the Board that
the Respondent violated 8(a) (3) of the Act by its discharge of
Padilla on March 24. However, the court rejected the Board's con-
clusion that the strike of March 25 was an unfair labor practice strike.
In addition, the court held that a contract containing a no-strike
clause which was executed by Respondent sand the SIU on April 10,
during the course of the strike , became binding upon the striking
employees and converted the strike into an unprotected activity as
of that date . The court therefore refused enforcement of that part of
the Board 's Order granting relief to the striking employees. With
1134 NLRB 1038.
2315F 2d143.
145 NLRB No. 35.
SIMMONS, INC. 349
respect to the remedy accorded Padilla, the court remanded that ques-
tion to the Board for reconsideration, saying :
This employee was not discharged on April 15, but on March 24.
On the uncontradicted evidence, he participated actively in the
strike of March 25. He may well have continued to do so after
April 10. In a sense, since his claim for reinstatement is based
on the contention that he was never lawfully discharged, he, like
the others, was bound by the no-strike clause. On the other hand,
we could understand that the Board might believe it would be
consistent with the policies of the Act to grant him some measure
of relief. Since the Board did not pass on this question in the
proper framework, we believe it should now do so.
In considering the matter remanded to us, we accept as the law
of the case the court's findings and conclusions. In this posture of the
case, we have carefully reviewed all the evidence in the record i bear-
ing on the extent and nature of any participation by Padilla in the
strike after the critical April 10 date. The evidence fails to provide
an altogether satisfactory picture of the strike and picketing activity
and of those who participated therein. It appears that the strike of
March 25 was in protest of the discharge of the five Comite members.
It began while the Comite members were at the office of the Seafarers
International Union complaining about their discharge. When word
of the strike reached them, these Comite members, who had hinted to
the SIU official present that a strike might be necessary to help regain
their jobs, denied prior knowledge of, or responsibility for, the strike
which had occurred. They agreed to urge the strikers to return to
work. Thereafter, they participated in the negotiations between the
SIU and Respondent during which they sought unsuccessfully to
gain reinstatement. There is testimony that one of them, Garcia,
stated that they could end the strike whenever they wished but that
he, Garcia, would not do so until all of them were reinstated. The
Comite members attended no more bargaining sessions after April 7
because of dissatisfaction with the contract provisions being nego-
tiated, particularly the no-strike provision. On April 8, Pacheco,
a member of the Comite, was observed directing the movement of
strikers. On April 10, a no-strike contract was executed. During
the critical period which followed, members of the Comite came
"daily" to the area of the picket line and talked to strikers when they
were gathered ;`across the street" from the picket line; a the record
contains no evidence of what was said in such conversations.
3 We have examined the record in the Section 8(b) (4) (C) proceeding, as well as that
made at the hearing on the instant charges, in view of the parties' agreement that the
earlier record be incorporated here We have also considered the Respondent's brief with
respect to the remanded matter
4 According to the testimony, strikers picketed for alternating 1-hour periods. They
would customarily gather "across the street " during the free hour
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As already indicated, our disposition of this remand is guided by
the view of the court that Padilla, in a sense, like the others, became
bound by the no-strike clause in the contract executed on April 10
and that his active participation in the strike after April 10 would
have been in breach of the no-strike clause. However, if we are to
fashion a remedy herein upon evidence evaluated in the "proper
framework" as directed by the court, we must appraise any possible
violation by Padilla of a no-strike clause in the light of other pertinent
facts and considerations, among them the following : Padilla was
unlawfully discharged by Respondent on March 24 and his activity
after April 10, as before, was aimed, at least in part, at righting the
wrong which had been done him personally." His connection with
the strike and the attendant picketing has not been shown to have
been in violation of law. So far as the record shows, his own conduct
throughout the course of the strike was peaceful ,6 and there is no
evidence that he incited others to violence or unlawful action. So far
as appears, he engaged in no conduct so reprehensible as to render him
unfit for further employment with Respondent. The remedy the
Board normally deems necessary to effectuate the policies of the Act
for an unlawful discharge such as was suffered by Padilla is reinstate-
ment with backpay. Experience has demonstrated that the deleteri-
ous effects of an unlawful discharge are imperfectly remedied when
the discriminates is not restored to his former status with reimburse-
ment for lost wages.
Upon the entire record, and based upon the foregoing considera-
tions, we believe that any breach of the no-strike contract by Padilla
does not outweigh the paramount importance of effectuating the
policies of the Act by remedying Respondent's earlier unlawful dis-
charge of Padilla. And we believe further that the reinstatement of
Padilla with backpay as originally directed is the remedy which is
necessary to effectuate fully the policies of the Act in this case. Ac-
cordingly, the National Labor Relations Board hereby respectfully
recommends to the United States Court of Appeals for the First
Circuit that paragraph 2(a) of the Order issued by the Board on
December 7, 1961, as it pertains to Padilla, and the related notice pro-
vision, be enforced as issued.
MEMBER JENKINS took no part in the consideration of the above
Supplemental Decision and Recommendation.
5 As a previously discharged striker, Padilla did not stand precisely in the position of
other strikers vis-a -vss the no -strike clause for it would have been obviously futile for him
to offer to return to work following his unlawful discharge in order to comply with the
no-strike clause which became effective during the strike
9 Credibility resolutions of the Trial Examiner in this connection which were adopted by
the Board were not disturbed by the court.