Warehousemen's Union Local 17

National Labor Relations Board - Board Decisions

May 26, 1970

182 N.L.R.B. 781 (N.L.R.B. 1970)

WAREHOUSEMEN'S UNION LOCAL 17 781
Warehousemen 's Union Local 17, International Long-
shoremen 's & Warehousemen 's Union and Los Angeles
By-Products Co. Case 20-CB-1727
May 26, 1970
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On June 13, 1968, the Board issued a Decision and
Order in the above-entitled case, finding that the
Respondent had violated Section 8(b)(3) of the Act by
its refusal to sign a collective-bargaining agreement which
it had reached with the Company. The Board ordered
the Respondent to sign the agreement.'
The Respondent did not comply and, on September
30, 1968, the General Counsel petitioned the United
States Court of Appeals for the Ninth Circuit for enforce-
ment of the Board's Order. On November 4, 1968,
the Respondent and the Company executed a collective-
bargaining agreement other than the one ' specified in
the Board's Order. On December 2, 1968, the Respond-
ent, relying on the new contract, moved the Ninth
Circuit to dismiss the petition for enforcement as moot
or,in the alternative, to remand the case to the Board
pursuant to Section 10(e) of the Act for the purpose
of taking additional evidence concerning changed circum-
stances after the Board's Order; i.e., the execution
of the contract on November 4. The General Counsel
filed a motion concurring in the request to remand
the case to the Board for the taking of further evidence.
On December 18, 1968, the court found that "circum-
stances have arisen after issuance of the Board's order
which may affect the propriety of enforcing said order';,
and granted the motion to remand the case to the Board
for the taking of additional evidence.
On January 22, 1969, the General Counsel moved
the Board to reopen the proceeding for the purpose
of taking additional evidence and on February 11, 1969,
the Respondent filed a response opposing the motion.
On June 11, 1969, the Board ordered that the record
be reopened and a hearing held before a Trail Examiner
to consider the changed circumstances and their effect,
if any, on the Board's Order. Pursuant to said Order,
a hearing was held in Sacramento, California, on August
28, 1969, before Trial Examiner Robert L. Piper.
On November 26, 1969, the Trial Examiner issued
his Supplemental Decision, attached hereto, in which
he found that the Respondent had engaged in further
unlawful refusals to bargain, and recommended that
the Board reaffirm with certain modifications its prior
Order herein. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Supplemental Decision
together with a supporting brief; the General Counsel
filed a brief in support of the Trial Examiner's Supple-
mental Decision.
' 171 NLRB No. 166
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
The Board has reviewed the ruling of the Trial Examin-
er made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Supple-
mental Decision and the entire record in this case,
including the exceptions and briefs, and hereby adopts
the findings,' conclusions,I and recommendations of the
Trial Examiner.
ORDER
Pursuant to the provisions of Section 10(c) of the
National Labor Relations Act, as amended, the National
Labor Relations Board hereby reaffirms, as herein mod-
ified, its Order heretofore entered in this proceeding
on July 13, 1968, and orders that the Respondent, Ware-
housemen's Union Local 17, International Longshore-
men's & Warehousemen's Union, Sacramento and Los
Angeles, California, its officers, agents, and representa-
tives, shall take the action set forth in said Order,
as so modified:
1. Substitute for paragraph 1, the following:
"1. Cease and desist from:
"(a) Refusing to execute the collective-bargaining
agreement submitted to it through Thompson by Mene-
broker on August 11, 1967;
• "(b) In any manner enforcing or giving effect to the
agreement of November 4, 1968;
-- "(c) In any manner violative of Section 8(b)(3) of
the Act, requiring Los Angeles By-Products Co., during
the term of: any, existing agreement, to enter into a
contract different from''said existing agreement."
2. Add the following to paragraph 2, relettering the
remaining subparagraphs accordingly:
"(b) Immediately rescind the agreement of November
4, 1968;
"(c) Make said Company whole for any financial
expenditures made pursuant to the November 4, 1968,
agreement, which it would not have been obligated
to make under the agreement submitted for signature
on August 11, 1967."
3. Add the following as indented paragraphs in the
Notice:3
WE WILL immediately rescind the agreement
which we unlawfully required the Company to enter
into on November 4, 1968.
Y In the view that we take of this case, it is not necessary to
pass on the Trial Examiner ' s assumptions arguendo relating to the
legal consequences had the November 4 agreement been entered into
voluntarily or if it had been found to constitute "full compliance"
with our Order
s In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the Notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Poard "
182 NLRB No. 120
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make the Company whole for any
financial expenditures made pursuant to the Novem-
ber 4, 1968, agreement , which it would not have
been obligated to make under the agreement submit-
ted to us on August 11, 1967.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: On June 13, 1968,'
the National Labor Relations Board issued its Decision
and Order,2 finding that the Union had refused to bargain
with the Company in violation of Section 8(b)(3) of
the Act by refusing to sign the written contract agreed
to by the parties on July 10, 1967, and thereafter submit-
ted to the Union by the Company on August 11, 1967,
and ordered the Union to execute such written contract.
The Board also found that a written contract submitted
to the Company by the Union on July 21, 1967, did
not correctly set forth the agreement of the parties
reached July 10, 1967. On June 20 the Company again
submitted to the Union the written contract which the
Board had ordered it to sign but the Union then and
thereafter continued to refuse to sign said contract.
On September 10 the Company's production employees,
all members of the Union, engaged in a strike and
thereafter refused to work.
On September 30 the Board filed a petition for enforce-
ment of its Order with the Court of Appeals for the
Ninth Circuit, and on October 7 petitioned said Court
for a temporary injunction restraining the strike, which
latter petition the Court denied on or about October
29. On November 4 the parties entered into a written
contract, substantially different from that which the
Board had ordered the Union to sign , and on November
5 the Company's employees returned to work. On
December 2 the Union moved to dismiss the Board's
petition for enforcement as moot because of the execu-
tion of the contract November 4, or alternatively to
remand the case to the Board pursuant to Section 10(e)
of the Act, for the purpose of taking additional evidence
concerning the changed circumstances after the Board's
Order, i.e. the execution of the contract November
4. The Board joined in the Union's motion for remand.
On December 18 the Court denied the Union' s motion
to dismiss and granted its motion to remand for the
taking of additional evidence, finding that "circum-
stances have arisen after issuance of the Board's order
which may affect the propriety of enforcing said order."
On January 22, 1969, the General Counsel moved
the Board to reopen the proceeding for the purpose
of taking additional evidence and on February 11, 1969,
the Union filed a response opposing said motion. On
June 11, 1969, the Board ordered that the record in
this proceeding be "reopened and that a full hearing
be held before a duly designated Trial Examiner for
the purpose of receiving evidence relating to the changed
circumstances after the Board's Order and to consider
the effect, if any, of such circumstances upon the Board's
Order," and thereafter to file a Supplemental Decision
containing findings of fact, conclusions of law, and
recommendations. Thereafter, pursuant to said Order
and a notice of hearing by the Regional Director for
Region 20, hearing was held by the Trial Examiner
in Sacramento, California, on August 28, 1969.
Both parties were represented by counsel and afforded
all rights of due process. At the opening of the hearing,
the Union's motion to quash a subpoena duces tecum
issued by the General Counsel was denied and the
Union was ordered to produce the subpenaed % docu-
ments. The Union refused to produce such documents.
After the close of the hearing, the Union's motion
of September 5, 1969, to reopen the record for the
purpose of offering in evidence certain documents, con-
sistingi of a portion of those subpenaed by the General
Counsel, was denied, no good cause therefor having
been shown.3 The General Counsel and the Union filed
briefs. The General Counsel's unopposed motion to
correct the official transcript of proceedings was granted.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following findings,
conclusions, and recommendations:
A. The Issues
As evidenced by the remands of the Court and the
Board, the basic issues are whether there were any
changed circumstances after the issuance of the Board's
Order, and what effect, if any, such changed circum-
stances should have on the Board's Order. The changed
circumstances after the Board's Order are of course
the strike and the written contract signed by the parties
November 4. Patent subsidiary issues are whether such
contract was entered into voluntarily or as a result
of the economic coercion of the strike and whether
the Union was responsible for or caused the strike.
B. Chronology of Events
As found by the Board in its Decision and Order,
the parties reached agreement as to a contract on July
10, 1967, the written contract submitted by the Union
to the Company on July 21, 1967, was not such agree-
ment, the written contract submitted by the Company
to the Union on August 11, 1967, was the actual agree-
ment of the parties, and the Union refused to sign
such latter agreement. Because of a national copper
strike commencing in September of 1967 shortly after
the Union's refusal to execute the contract, the Compa-
ny's operations and employment declined substantially
until the termination of the strike in May of 1968 and
no particular problems arose because of the Union's
refusal to sign the contract. On June 13 the Board
ordered the Union to sign the contract submitted by
9 The proffered documents , consisting of the Union ' s constitution
and certain minutes of meetings, would merely tend to establish, as
All dates hereinafter refer to 1968 unless otherwise indicated hereinafter found, that the Union did not by official action authorize
2 171 NLRB No. 166 (1968) the strike.
WAREHOUSEMEN 'S UNION LOCAL 17
the Company August 11 , 1967, and on June 20 the
Company again submitted to the Union written copies
of the contract which the Board had ordered the Union
to execute , and the Union again refused and continued
to refuse to execute such contract.
The Company ' s principal operation and processing
plant was at Antelope , California , and its manager was
Ben Litchfield . The Company 's principal office was locat-
ed in Los Angeles, and Litchfield was under the immedi-
ate supervison of John N . Mitchell , the Company's
vice president . Frank Thompson was the Union ' s secre-
tary and principal official . The union shop steward at
Antelope was Vernon Wallis." Wayne Menebroker, an
attorney for the Sacramento Valley Employers ' Council
of which the Company was a member , represented
the Company in collective bargaining with the Union
in 1967 and thereafter.
During June the Company recalled all of its employees
laid off during the copper strike and as a result the
absence of a written contract led to problems , particular-
ly with respect to employee complaints and grievances
concerning their terms and conditions of employment,
the principal one concerning the employees ' seniority
rights as a result of their layoff of more than 6 months
and its resultant effect on their vacation rights. Because
of the Union ' s
_
failure to sign the contract as ordered
by the Board , there was no available grievance or arbitra-
tion procedure for the disposition of these differences.
The record establishes that the employees' primary con-
cern was the lack of a signed contract. During June
and July , Litchfield and Wallis had several discussions
concerning employee grievances, which according to
Wallis were always settled satisfactorily.
Sometime during 'the first half.of August , Thompson,
who was the Union ' s principal bargaining representative
and had been such when the agreement was reached
July 10 , 1967, called Litchfield to request the Company
to meet and "bargain " concerning a contract, and
requested that Menebroker , the Company ' s attorney
who had negotiated the 1967 contract, be excluded from
such meeting . Litchfield replied that such a meeting
would serve no purpose because they had already agreed
to a contract which the Board had ordered the Union
to sign, but on Thompson ' s continued insistence agreed
to contact Mitchell concerning such a meeting. Litchfield
contacted Mitchell , who told him that any meeting would
have to be set up through Menebroker . About a week
later Thompson again called Litchfield concerning the
proposed meeting , whereupon Litchfield informed him
of Mitchell ' s statement concerning Menebroker . Thomp-
son replied that he would get in touch with Menebroker.
On August 21 Thompson called Menebroker and said
that he had spoken to Litchfield who had informed
him that Menebroker was still representing the Company.
Thompson said that he wanted to set up a meeting
to straighten out some differences on the contract and
discuss some grievances . Menebroker replied that as
far as he was concerned the Company already had
Incorrectly spelled "Wallace " in the transcript
7g31
a contract but if Thompson wanted to discuss some
grievances Menebroker would try to set up a meeting.
The parties met on August 29. Thompson , Wallis,
and two other employees represented the Union and
Mitchell , Litchfield, and Menebroker represented the
Company . Thompson asked the Company to sign the
contract which the Union had submitted July 21, 1967,
offering another copy of it. Menebroker replied that
the parties had a contract , as the Board had decided.
Thompson replied that no third party was going to
tell the Union what to do . The parties then discussed
several of the employees ' grievances, including the ques-
tion of interpretation of the seniority rights of employees
who had been laid off for more than 6 months, which
in turn had a bearing upon their vacation rights, as
covered both in the prior contract between the parties
and the one which the Board had ordered the Union
to sign . They also discussed a problem of smoke at
the plant and a personnel problem concerning one of
the Company's supervisors. Toward the close of the
meeting , Menebroker informed Thompson that the Com-
pany's position was that it already had a contract and
that it was right on the seniority question , but that
they would submit the Union 's proposals to the Compa-
ny's top officials and let the Union know the Company's
final position by the following Friday , September 6.
Litchfield called Thompson on the morning of Septem-
ber 6 and said that he had spoken to the Company's
officials and they would like 2 or 3 more days to give
the Union an answer. Thompson replied that he had
been promised a yes or no answer that day as to whether
the Company would sign the contract submitted by
the Union, and that he had to have an answer that
day. Litchfield said that he would call the Company
in Los Angeles and call Thompson back that afternoon.
Litchfield called Thompson that afternoon and said that
he had talked to Mitchell and the Company wanted
to get ahold of Menebroker before it made a decision
and could not reach him until Monday. Thompson sug-
gested that they call Menbroker ' s office and talk to
his associate . Litchfield replied that they had tried that,
whereupon Thompson stated , "it is out of my hands
now, we will see." Wallis, the shop steward, also spoke
to Litchfield on September 6 concerning the Company's
promised reply.
On September 9 Wallis again spoke to Litchfield who
replied that he had spoken to the Company ' s officials
and that they would like another week or two to formu-
late an answer . Wallis replied that he would inform
the employees and that it was up to them . Wallis then
conveyed this information to the rest of the 19 to 22
employees at the Antelope plant . About noon September
9 Menebroker called Thompson , said that he had talked
with Mitchell , and requested the Union to give the
Company an additional 2 weeks to answer with respect
to the Union ' s proposed contract . Thompson replied
that the Company had had enough time. According
to Wallis , near the conclusion of the workday the men
informed him that starting the next day they would
no longer work. Wallis conceded that all of the employees
including himself said that they would not work without
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a signed contract, and that that was the only reason
for the strike After quitting time Wallis called Thomp-
son, told him that the men were going to walk off
the job and report to the union hiring hall the following
morning , and asked him to inform the employees at
the Company's subsidiary sorting operations in Martinez,
Milpitas, San Leandro, and Sacramento of the strike
There were approximately four production workers at
each of the sorting operations On the morning of Sep-
tember 10, none of the Company's employees at its
Antelope plant and its Sacramento , San Leandro, and
Martinez operations reported for work, and they
remained out on strike until November 5 Only the
four production workers at the Milpitas operation showed
up, which operation was subsequently closed because
it could not continue with the Antelope plant shut down
No union official, including Wallis, informed the Compa-
ny that the employees were going to strike
According to Wallis, he called Thompson and informed
him that the men were planning to strike the following
day and Thompson asked him to try to persuade the
men not to walk off the job In this respect I do
not credit Wallis Thompson did not testify Wallis admit-
ted that he did not call Thompson September 9 until
after quitting time , at which time the men had already
decided to strike the following day Wallis called Thomp-
son again later that evening and asked him to inform
the employees at the Company 's sorting operations of
the strike All of the employees from the Antelope
plant and a number of those from the sorting operations
were present at the union hall the following morning
at 7 a in , and were dispatched to other jobs that day
by the Union
On the morning of September 10 Thompson called
Claudus Fred Watkins, a member of the Union and
the Company 's foreman of its San Leandro and Milpitas
sorting operations , and informed him that all of the
employees had decided to shut the job down until the
contract was signed In response to Watkins' inquiry,
Thompson replied that " it was not a strike " Thompson
tried to get Watkins to join the strike When Watkins
replied that he could not afford to work through the
hiring hall a day or so at a time , Thompson replied
that he would get Watkins a steady job if he would
come to Sacramento Watkins refused to join the strike
and advised Thompson that he was going to continue
working for the Company Thompson asked Watkins
to have the employees under him call Thompson and
he would try to secure them employment through a
union agent in Oakland Thompson did secure employ-
ment in Oakland that same day for the employees under
Watkins Later that day Watkins called Litchfield, told
him of Watkins' conversation with Thompson concerning
the employees not working until the contract was signed,
and asked Litchfield if he could continue working Lit-
chfield told Watkins that he could , and he did so
On September 30 the Board filed its petition for
enforcement with the Court of Appeals On October
7 the Board petitioned the Court for a temporary injunc-
tion restraining the strike , which petition was denied
of said denial, the Company requested Menebroker to
notify Thompson that it would sign the contract request-
ed by the Union and to arrange a meeting for that
purpose On November 4 the Company and the Union
met The Company agreed to sign the contract submitted
by the Union July 21, 1967, and found by the Board
not to be the agreement of the parties , with certain
modifications set forth in a simultaneous letter of under-
standing The contract signed that day was substantially
different from that which the Board had ordered the
Union to sign 5 The Company also acceded to the Union's
position concerning the grievance with respect to the
seniority rights of the employees who had been laid
off for more than 6 months On the morning of November
5 at the regular starting time all of the Company's
production employees in the various operations returned
to work
The Company's fiscal records in evidence establish
that as a result of the strike it suffered serious financial
losses during the months of September and October
The record establishes that after the denial of the petition
to enjoin the strike , the Company decided that it could
no longer afford to serious economic losses caused by
the strike and that it was economically compelled to
accede to the Union 's demand to sign the contract
previously submitted by the Union in order to get the
employees back to work, resume operations , and termi-
nate the continuing losses On December 18, as hereina-
bove noted, the Court of Appeals remanded this proceed-
ing for the taking of additional evidence concerning
the changed circumstances
C Concluding Findings
The Union' s position is that the changed circumstance,
i e , the execution of the contract on November 4,
renders the case moot and that the Board should modify
its Order by dismissing the complaint This conclusion
is based on a contention that the contract was the
result of "collective bargaining" between the parties,
which is of course encouraged by the Act and indeed
a primary right guaranteed therein , and hence the matter
should be dismissed The Union 's contention is devoid
of merit and contrary to all of the principles for which
the Act stands The record establishes beyond dispute
that the contract of November 4 was entered into by
the Company as a direct result of the economic coercion
of the strike for which, as hereinafter found , the Union
was responsible or caused , and instead of being the
result of collective bargaining was in reality caused
by the Union' s continued refusal to bargain in violation
of the Act and of the Board 's Order by refusing to
sign the contract which the parties had agreed to and
the Board had ordered the Union to sign , and by insisting
that the Company "bargain" for a contract in direct
violation of the Board 's Order and the agreement previ-
ously reached Instead of being collective bargaining,
such action by the Union was merely an extension
or continuation of its prior refusal to bargain and a
on or about October 29 On November 1, having learned See sections 9 10 14 15 18 19 and 20
WAREHOUSEMEN 'S UNION LOCAL 17
deliberate violation of the Board's Order to sign the
contract submitted August 11, 1967. Once the parties
had reached agreement, as found by the Board, and
had been ordered to sign the contract agreed to, clearly
the Union had no right to request or demand "bargain-
ing" for a different contract, and such demand, aided
and abetted by the economic coercion of a strike, consti-
tuted a continuing violation of the Act and a further
refusal to bargain, not to mention a deliberate violation
of the Board's Order.
Section 8(d) of the Act defines bargaining collectively
as specifically including "the execution of a written
contract incorporating any agreement reached if request-
ed by either party," and thus it follows that the insistence
on "bargaining" for a contract at a time when an agree-
ment has already been reached and the party requesting
bargaining is refusing to sign the written contract neces-
sarily constitutes a refusal to bargain, rather than collec-
tive bargaining as contended by the Union. Such a
conclusion is even more patent after the Board's Order
directing the Union to sign the contract. After the
Board's Order of June 13, the Union not only refused
to sign the contract but continued to insist that the
Company "bargain" about a contract and agree to the
version previously submitted by the Union and rejected
by the.Board. At several points in its brief, the Union
contends that its continuing violation of the Act and
its refusal to comply with the Order of the Board were
proper because the issue of an agreement was unresolved
and pending in the Court of Appeals. This position
is also incorrect. Until the Board's petition of September
30, 20 days after the union caused strike commenced,
nothing was pending in the Court of Appeals and the
issue was not in litigation. Moreover, to economically
coerce the Company to sign a different contract while
the issue of an agreement was pending before the Court
usurps its functions and authority. I conclude and find
that the contract of November 4 was not the result
of "collective bargaining," but was brought about by
the Union's continued violation of the Act and refusal
to comply with the Board's Order and was itself a
further violation of Section 8(b)(3) of the Act.
The record establishes that the Company did not
enter into the contract of November 4 voluntarily but
on the contrary was coerced by the strike and the
resultant economic pressure to agree to the Union's
demands, which were in violation of the Act and the
Board ' s Order . From the time of the original agreement
on July 10, 1967, to and after the Board's Order of
June 13, the Company uniformly insisted that there
was nothing to bargain about, that the parties had reached
agreement, and that the Union should sign the contract
agreed to and as later ordered by the Board. Only
after the substantial economic pressure brought about
by the strike for the contract the Union wanted and
the denial of an injunction thereof did the Company
yield to such pressure and accede to the Union's demand
that it enter into a contract different from that to which
the parties had agreed.
The Union correctly points out that the record contains
no proof that it officially sanctioned or authorized the
785
strike which coerced the Company to sign the November
4 contract. However, it is well settled that a union's
responsibility for or authorization of a strike may be
established by circumstantial evidence." Just as in con-
spiracy cases, patently parties engaging in unlawful con-
duct are unlikely to make admissions against interest
by officially authorizing such conduct. The record here
contains numerous circumstances leading to the conclu-
sion that the Union in fact was responsible for the
strike. Throughout the entire relevant period the Union
adamantly insisted that it would not sign the contract
agreed to and ordered by the Board and instead insisted
that the Company agree to the contract previously sub-
mitted by the Union and rejected by the Board. The
employees were fully aware of this position of the
Union. The record establishes beyond dispute that the
employees struck only to secure a signed contract, the
one demanded by the Union.
In setting up the first meeting after the Board's Order
to "bargain" about a contract, Thompson specifically
requested that Menebroker, the Company's attorney
who had negotiated the agreed-to contract and who
Thompson knew was the Company's bargaining repre-
sentative, be bypassed and not present at such meeting.
When Thompson insisted on August 29 that the Company
bargain about a contract, and the Company replied that
there was nothing to bargain about because the Board
had ordered the Union to sign the contract agreed to,
Thompson replied that no third party was going to
tell the Union what to do. The Union's shop steward
and two other employees were present at the meeting
and thus this position of the Union was known to
the employees. When about I week later on September
6 Litchfield asked Thompson for 2 or 3 days more
for the Company's answer, Thompson replied that he
had to have an answer that day. When the Company
failed to give the Union a reply to its unlawful demand
later that day, Thompson said: "It is out of my hands
now, we will see."
On September 9, when Menebroker conveyed the
Company's request for additional time to Thompson,
he replied that the Company had had enough time.
That same day, which was the next workday after
Thompson's ominous prediction of September 6, all
of the employees at the Antelope plant decided they
would no longer work without a signed contract. After
the Antelope employees decided on the afternoon of
September 9 that they were no longer going to work,
the shop steward' informed Thompson after quitting time
and requested him to notify the employees at the Compa-
ny's other operations of the strike, which apparently
he did. With the exception of the four employees at
the Company's Milpitas operation, all of the employees
including those in Martinez, San Leandro, and Sacramen-
to went on strike at the same time on the morning
of September 10 and substantially all reported to the
union hiring hall. On September 10 Thompson called
the Company's foreman, a member of the Union, at
" International Union of Operating Engineers , Local 925, AFL-CIO
(J L Manta, Inc ), 154 NLRB 671 (1965)
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Leandro and tried to persuade him to join the
strike by offering him a steady job in Sacramento.
On September 10 the Union dispatched all of the
striking employees who reported to the hall to other
jobs and thereafter took no disciplinary action against
them for striking . The strike was in violation of the
contract which the Board had ordered the Union to
sign. Although the record establishes that the employees
only reason for striking was the lack of a signed contract,
affidavits of Wallis and Thompson filed with the court
of appeals by the Union in support of its opposition
to the General Counsel ' s petition for and injunction
stated that the strike was caused by the employees'
grievances, instead of the lack of a signed contract.
On November 4 the Company signed the contract insisted
on by the Union , with certain minimal modifications
agreed to by the Union , which contract was substantially
different from that which the parties had agreed to
and the Board had ordered signed . Although only Thomp-
son and the same three employees who were present
on August 29 were present at the November 4 meeting,
on the following morning at starting time substantially
all of the employees returned to work.
I am satisfied and find from the foregoing circum-
stances that the Union in fact was responsible for the
strike . Moreover , assuming arguendo that the Union
was not directly responsible for the strike , the record
establishes beyond dispute that the Union caused the
strike . As hereinabove found , the employees ' only reason
for refusing to work was the lack of a signed contract
and they immediately returned to work as soon as the
Company signed the contract insisted on by the Union.
It was the Union ' s refusal to bargain by its continued
refusal to sign the contract agreed to and its adamant
insistence that the Company sign a contract different
from that agreed to and ordered by the Board which
caused the lack of a signed contract and the employees
to strike . Regardless of whether the Union was directly
responsible for or specifically authorized the strike, it
was caused by the Union ' s refusal to sign the contract
and its continued violation of the Act and the strike
itself was a continuation of the refusal to bargain by
economic coercion to compel the Company to sign a
contract different from that agreed to by the parties
and ordered by the Board . It follows that the strike
caused by the Union and the contract entered into
November 4 were additional refusals to bargain by the
Union in violation of the Act as well as of the Board's
Order . Such a contract not only does not render the
issue moot and warrant the dismissal of the proceeding,
as urged by the Union , but instead emphasizes the
propriety and necessity of the Board ' s Order directing
the Union to sign the contract agreed to by the parties.
Assuming arguendo , contrary to the above findings,
that the November 4 contract was voluntarily entered
into by the parties as the result of valid collective
bargaining , it is well settled that such private agreements
do not render the proceeding moot or affect the Board's
power under the Act to correct and remedy unfair
labor practices . Section 10 (a) of the Act specifically
provides that the Board ' s power " to prevent any person
from engaging in any unfair labor practice . . . shall
not be affected by any other means of adjustment or
prevention that has been or may be established by
agreement , law, or otherwise ." Moreover , even if the
November 4 contract constituted full compliance with
the Board ' s Order , which clearly it does not, it is well
settled that such compliance is immaterial and should
have no effect on enforcement of the Board ' s Order,
which is concerned with effectuating the policies of
the Act and remedying unfair labor practices rather
than disposing of private rights. As the Supreme Court
has stated:
We think it plain . . . that . . . compliance
with an order of the Board does not render the
cause moot , depriving the Board of its opportunity
to secure enforcement from an appropriate court
A Board order imposes a continuing obligation;
and the Board is entitled to have the resumption
of the unfair labor practice barred by an enforce-
ment decree .. . . "no more is involved than wheth-
er what the law already condemned , the court
shall forbid , and the fact that its judgment adds
to existing sanctions that of punishment for con-
tempt , is not a circumstance to which a court
will ordinarily lend a friendly ear". . . . The Act
does not require the Board to play hide and seek
with those guilty of unfair labor practices . [Citations
omitted.]'
D. The Remedy
The remands of the Court and the Board directed
a consideration of what effect, if any , the changed
circumstances hereinabove found should have on the
Board's Order. As hereinabove found, the Union not
only refused to comply with the Board's Order but
continued to violate the Act by refusing to sign the
contract agreed to , insisting that the Company sign
a different agreement , and coercing the Company to
do so by causing the employees to strike and bring
economic pressure to bear on the Company to effectuate
such result . Under such circumstances it seems clear
that the Board ' s Order should be expanded to include
such continuing and additional violations of the Act.
The record clearly establishes that the Company suffered
substantial economic losses during September and Octo-
ber as a result of the strike caused by the Union's
refusal to bargain in violation of the Act , and it might
well be considered appropriate that the Union be required
to make the Company whole for such losses in order
to remedy the unfair labor practices and effectuate the
purposes of the Act . However , the General Counsel
has not proposed such a comprehensive remedy, but
instead has requested only that the Union be required
to make the Company whole for any financial expendi-
tures required of it as a result of the contract executed
November 4, which it would not have been obligated
to make under the contract the parties agreed to and
the Union refused to sign.
' N L R B v Mexia Textile Mills, 339 U S. 563 (1950)
WAREHOUSEMEN'S UNION LOCAL 17
Under all of the circumstances I am satisfied and
find that this more limited make -whole remedy would
effectuate the purposes of the Act and serve to remedy
the continuing unfair labor practices of the Union . Clear-
ly at this stage of the proceeding a mere confirmation
of the Board's prior Order requiring the Union to sign
the contract agreed to July 10 , 1967, now , which contract
expires in 7 months and patently will have little if
any unexpired time after the disposition of the petition
for enforcement , would permit the Union to retain the
fruits of its unlawful conduct and constitute little if
any effective remedy of its continuing unfair labor prac-
tices. Accordingly I shall recommend that the Union
be required to make the Company whole for any financial
expenditures incurred under the November 4 contract
which it would not have been obligated to pay under
the contract the parties agreed to and the Board directed
the Union to sign.
E. Recommendation
787
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in the case, and
pursuant to Section 10(e) of the Act and the remands
of the court and the Board , I recommend that the
Board reaffirm its Order of June 13, 1968, directing
the Union , inter alia , to immediately execute the collec-
tive-bargaining agreement submitted to it by the Compa-
ny on August 11, 1967, and modify said Order by
requiring the Union to cease and desist from continuing
violations of the Act by causing or attempting to cause
the Company to enter into a written contract different
from the agreement of the parties , and to make the
Company whole for any financial expenditures made
under the November 4, 1968 , contract which it would
not have been obligated to make under the contract
to which the parties had previously agreed.