National Labor Relations Board v. Lexington Electric Products Co.

283 F.2d 54
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 29, 1960
DocketNo. 13176
StatusPublished
Cited by1 cases

This text of 283 F.2d 54 (National Labor Relations Board v. Lexington Electric Products Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Lexington Electric Products Co., 283 F.2d 54 (3d Cir. 1960).

Opinion

HASTIE, Circuit Judge.

The National Labor Relations Board has found that a manufacturing corporation, Lexington Electric Products Co., and the union which represents its employees in the New York City area, Local 3, International Brotherhood of Electrical Workers, AFL-CIO, have committed unfair labor practices in connection with the liquidation of Imperial Switchboard, Inc., a corporation engaged in work similar to that of Lexington and found to be under the same top management and control. The Board has found that the union caused a strike at the Lexington plant in Newark, New Jersey, in order to enforce its objections to the conduct of Lexington in utilizing the Imperial plant, located in the neighboring community of Union, New Jersey, for the operation of an additional shop near Newark, but beyond the territorial jurisdiction of Local 3 and not subject to organization by it.

The strike succeeded. Lexington caused the liquidation of the Imperial enterprise and the discharge of its employees, some of whom were later reemployed in the Lexington plant at Newark. Both the union and Lexington were found to have discriminated unlawfully against these Imperial employees by discharging them or causing their discharge in circumstances calculated to encourage union membership.

Throughout this case the parties have contested the basic factual issue whether the object of the strike was to protect the employees of the Lexington plant against “farming out” work opportunities to another shop or, as the Board has found, to bring the Imperial employees within this local’s jurisdiction. Evidence was introduced on both sides of this issue. We shall not analyze all of it. It will suffice to specify certain items which in our view show that the factual findings and conclusions of the trial examiner, as adopted by the Board, have an adequate evidentiary base.

Before the trial examiner, the business agent of Local 3 admitted that during negotiations which preceded the strike he told the controlling administrative officer of both Lexington and Imperial that it was not “fair to operate a union shop and the non union” shop nearby. On the same point Lexington introduced testimony that the business agent had said that a “company which operated in New York City with a Local No. 3 agreement could not have another plant adjacent to Local No. 3 and in that plant contractual relations with another union * #/> The record also shows that during the strike the business agent of Local 3 demanded as a condition of reopening the Lexington plant “that the Imperial men would have to be brought into Lexington and signed up under Local No. 3 contract”. Indeed, one of the terms of the ultimate strike settlement was that the men who had worked in the Imperial plant were to be “picked up” by Lexington.

In addition, some doubt about the union’s alleged primary concern with the removal of work from the Lexington plant is created by evidence that when the strike was called the orders which had been placed with Lexington and farmed out to Imperial represented work in excess of Lexington’s Newark plant capacity. True, the union has argued that, even in this period of full employment, it was concerned primarily lest work be farmed out at some future less busy time. But we cannot say that the Board was unreasonable in refusing to believe that this mere possibility that Lexington workers might lose work in the indefinite future was the basic reason for the strike, particularly when countervailing evidence affirmatively showed expressions of concern by Local 3 officers that their jurisdiction was not recognized in a new neighboring .unit serving the Lexington enterprise.

These considerations persuade us that the Board’s finding as to the object [57]*57of the strike is supported by substantial evidence. While the items we have discussed are but part of a total record containing other evidence favorable to the union’s position, the cited evidence is sufficient to sustain the Board’s findings before a court, limited as we are in reviewing administrative fact finding.

Entirely different questions are raised by certain provisions of the remedial order fashioned by the Board in this case. That order requires Lexington to employ the former Imperial workers in its plant as vacancies occur. An extraordinary feature of that requirement is a stipulation that a valid union security clause in Lexington’s contract with Local 3 be suspended for two years in the cases of those former Imperial employees who are absorbed in the Lexington work force, since the Imperial operation itself was not covered by the union shop agreement. The union strongly objects to this stipulation.

As we have already indicated, the Board found, with justification on the record, that Lexington and Imperial were so related and under such common control that, for present purposes, they may be treated as a single employer. Cf. N. L. R. B. v. Condenser Corp., 3 Cir., 1942, 128 F.2d 67.; N. L. R. B. v. Concrete Haulers, Inc., 5 Cir., 1954, 212 F.2d 477. Normally, an unfair termination of employment at Imperial because of nonmembership in a union would have been redressed by a requirement that the employees be restored to work status at Imperial free of any obligation to join the union. But here the union had made this impossible by insisting upon the closing of the Imperial plant. In these circumstances the feasible remedy which most closely approximates the normal corrective is the remedy devised by the Board. We cannot say that such a solution of the problem is an unjust or inappropriate way of correcting the complaining union’s own wrong. A remedy which is reasonably adapted to correct the injurious effects of an unfair labor practice and thus to effectuate the objectives and policies of the statute should be recognized as within administrative discretion and should not be disturbed by a reviewing court. N. L. R. B. v. Seven-Up Bottling Co., 1953, 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377; Virginia Electric & Power Co. v. N. L. R. B., 1943, 319 U.S. 533, 63 S.Ct. 1214, 87 L.Ed. 1568. We have such a remedy here.

A second feature of the remedy, one to which Lexington takes exception, is a requirement that the employer and the union be jointly and severally liable to make the Imperial employees whole for any loss of pay suffered as a result of the liquidation of Imperial. The employer recognizes that both the union and the employer may be, and normally are, held jointly and severally responsible for a wrongful discharge by the employer in response to the insistence of the union. N. L. R. B. v. Acme Mattress Co., 7 Cir., 1951, 192 F.2d 524; N. L. R. B. v. Newspaper & Mail Deliverers Union, 2 Cir., 1951, 192 F.2d 654. However, this court has not hesitated to refuse to enforce a reinstatement and reimbursement order when the policies of the Act seemed to call for such a course. N. L. R. B. v.

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283 F.2d 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-lexington-electric-products-co-ca3-1960.