UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
1. 29 U.S.C. § 151 et seq. (1970).
2. The decision and order of the three-member panel of the National Labor Relations Board, empanelled pursuant to § 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b) (1970), is reported at 192 N.L.R.B. No. 37 (1970).
3. During the course of the proceedings before the Labor Board, Cavalier Division of Seeburg Corporation ceased to exist and Cavalier Corporation, which had previously been a sales branch, assumed its obligations and operations. There is no issue raised as to successorship and for purposes of this appeal they are treated as one and the same party.
4. Both parties concede that the impediment to negotiations was a combination of the Company's recent financial problems and the effect of inflation on the employees' real wages.
5. The Company's practice was apparently to close down the entire plant for the two-week vacation period so that all employees, save a skeleton maintenance crew, would be on vacation at the same time.
6. With regard to employee Fletcher, see note 19 (infra).
7. While Rollins was a past president of Local 289 and was still considered to be a leader by many union members, he apparently no longer held any union office.
8. In fact the Company engaged in the manufacture of soft drink vending machines which are purchased by the various Coca-Cola bottling companies throughout the United States.
9. The letter refers to a petition for decertification filed by some dissident union members which raised certain questions concerning representation. The petition was immediately suspended pending the outcome of the present proceedings before the NLRB.
10. 29 U.S.C. § 158(a) (1970) provides in relevant part: (a) It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; . . . (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.
11. 29 U.S.C. § 158(a)(3) (1971) provides in relevant part: (a) It shall be an unfair labor practice for an employer -- . . . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .
12. Most significantly, the Company was ordered to cease and desist from those activities which were held to be violations and to offer reinstatement to the six discharged employees at the same or substantially equivalent positions with certain rights to back pay; to do the same for all employees who were on strike after December 4, 1969, on whose behalf an unconditional request for reinstatement was made by the Union; to make such employees whole for any loss of earnings suffered from February 12, 1970; and, upon request, to bargain collectively with Local 289 as the exclusive bargaining representative of the employees and make available to it certain information.
13. The relevant clause is as follows: Article 9, Section 1. An employee will be entitled to 1 week of vacation pay each year upon completion of 1 year of continuous service and 2 weeks of vacation pay for each year upon completion of 5 years of continuous service provided he has worked 1040 hours in the twelve-month period prior to the vacation date and is in the Company's employ at the time the vacation period begins.
14. See also § 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a) (1970); and NLRB v. C & C Plywood Corp., 385 U.S. 421, 427, 87 S. Ct. 559, 17 L. Ed. 2d 486 (1967).
15. The Company asserts as authority for its interpretation of the clauses in question a 1962 strike of 5 weeks duration wherein the Company rescheduled vacations. Not only was that situation dissimilar from the present one in several respects, but we also feel it is of little value since the terms of the 1966 contract are clear and unequivocal in this respect and since we do not consider one dissimilar situation occurring seven years prior to this dispute to establish "past practice." The further argument that the Union somehow acquiesced in this interpretation prospectively by failing to bring an unfair labor practice charge in 1962 is devoid of any merit.
16. See also Wonder State Manufacturing Co. v. NLRB, 331 F.2d 737, 738 (6th Cir. 1964); Majestic Molded Products, Inc. v. NLRB, 330 F.2d 603, 606 (2d Cir. 1964); NLRB v. Frick Co., 397 F.2d 956, 962-963 (3d Cir. 1968); and Texaco, Inc., 179 N.L.R.B. 989, 993 (1969). See generally Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices: The Supreme Court and the Fictive Formality, 77 Yale L.J. 1269 (1968).
17. Here, when the vacation pay demands were first made and refused, virtually all of the plant personnel were out in support of the strike and no serious effort was made to keep the plant in operation. The refusal to pay, as found by the Trial Examiner and not refuted by the Board, was discriminatorily motivated. The fact that it was ultimately paid and paid to both strikers and nonstrikers does not remove the discriminatory taint -- it was paid at a time when, according to the testimony of the Company, more individuals were working than striking and the plant was substantially operational once again. At that point the Company was obviously less concerned with the strikers than with satisfying and retaining the services of former strikers.
18. Indeed, even if the Company had succeeded in such an assertion it would still be held to have violated § 8(a)(3) and (1) on the basis of the Trial Examiner's conclusion, unrefuted by the Board's holding and supported by substantial evidence on the record as a whole, that the Company possessed the requisite antiunion motive to overcome a showing of substantial business justification. Moreover, even were we to accept the Company's logic and find no "discrimination" within the meaning of 8(a)(3), the Trial Examiner's findings with respect to motive would support an independent violation of § 8(a)(1). See, e.g., NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S. Ct. 457, 11 L. Ed. 2d 435 (1964).
19. Actually, Fletcher was discharged by letter dated April 14, 1970, for certain picture-taking activities on the picket line. This, of course, makes it quite impossible for him to have been discharged again on August 10, 1970, for participation in the car following incident, absent an intervening reinstatement. The Board, affirming the Trial Examiner, held that the initial discharge of Fletcher was violative of § 8(a)(3) and (1) of the Act since it was not the type of conduct which warrants refusal to reinstate, a conclusion which is not challenged in this appeal. The Company does contend, however, that had it not suspended Fletcher for the picture-taking activities, it would have suspended him for the car following activities. We are not permitted to review hypothetical issues and hence are forced to limit our holding to the discharge of Brewer and Snyder, although we do note that absent circumstances which distinguish Fletcher's conduct from that of the former two individuals, we cannot comprehend how such a discharge could be considered to be innocuous.
20. Rollins denied participation in that march.
21. Brief for Cavalier Division of Seeburg Corp., and Cavalier Corp. at 36.
22. Having found that the Company was obligated to bargain with the Union, we similarly hold, in agreement with the Board and the Trial Examiner, that failure to furnish to the Union, upon request, information necessary to fulfill its bargaining obligation resulted in an additional violation of § 8(a)(5) and (1). See Kayser-Roth Hosiery Co., Inc., v. NLRB, 447 F.2d 396 (6th Cir. 1971).
23. The issue, of course, is of significance to the parties in that unfair labor practice strikers are entitled to reinstatement regardless of whether the employer has replaced them, Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278, 76 S. Ct. 349, 100 L. Ed. 309 (1956), while economic strikers are entitled to reinstatement only if they have not been permanently replaced, NLRB v. MacKay Co., 304 U.S. 333, 346, 58 S. Ct. 904, 82 L. Ed. 1381 (1938).
24. The Board, affirming the Trial Examiner, also found that the employer violated § 8(a)(3) and (1) by repeatedly refusing to accept the Union's unconditional offer on behalf of its employees to return to work, but instead insisting upon information to which it had no legal right. We affirm for reasons clearly set out in our recent decision of Retail Store Union v. NLRB, 151 U.S. App. D.C. 209, 466 F.2d 380, 385 (D.C.Cir. 1972).