Before LEARNED HAND, AUGUSTUS N. HAND and CLARK, Circuit Judges.
The respondent, E.A. Laboratories, Inc. (E.A.L.), was at all times here pertinent engaged primarily in the production of articles for the War and Navy Departments. In November 1943 it had entered into a labor contract signed by both the International Union (International) and Local 844 (Local), United Automobile, Aircraft and Agricultural Implements Workers of America, CIO, which contained a no strike clause. However, relations between the Local and E.A.L. were antagonistic from the beginning. On August 5, 1944, the three top officers of the Local were arrested for extorting money from Aufiero, the president of E.A.L., as the price of labor peace. These men were thereupon discharged by E.A.L. and were indicted on September 18, 1944, whereupon, on September 22, the first strike leading to the order under review began.
From the beginning of the strike E.A.L. offered to take back the rank and file of the strikers but refused to rehire the extortionists and take back certain other union leaders. However, the rank and file refused to return to work unless all previous employees were allowed to return.
The bulk of the testimony at the hearings before the National Labor Relations Board (NLRB) examiner concerned the legality or illegality of this strike, but that question is not now before us for the decision of the NLRB ordering reinstatement of the strikers with back pay to November 11, 1944, was based on a finding of condonation by E.A.L. of the strikers' conduct, making the issue of legality of the original strike quite irrelevant.
The circumstances surrounding the asserted condonation are as follows:
The three extortionists having been found guilty, a pre-sentence hearing was set for November 10, 1944, in Kings County Court, at which time large numbers of strikers were present in the courtroom. The judge, apparently disturbed that so many persons should not be working during the war, inquired as to the cause of the assemblage. Informed that a strike was in progress, he then asked Newman, the representative of the strikers present, if he would lead them back to work, and asked Aufiero if he would take them back if they returned. Both answered in the affirmative. E.A.L. argues that both parties were but restating their positions held both before and after this incident, i.e., on the part of E.A.L. that the rank and file could return but not the leaders. However, the NLRB found that by this action Aufiero agreed to let bygones be bygones and take back all previous workers except the extortionists, and there was evidence to support this finding. It, therefore, held that E.A.L.'s refusal to take back the strikers on November 11, 1944, when they returned to the plant, and continued refusal to take them back unless they abandoned the Local and joined a company union, was in violation of § 8(3) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. § 151, et seq. (NLRA), and ordered reinstatement with back pay to November 11 to those who had then offered to return. In view of the finding as to condonation on November 10, 1944, such an order was proper and enforcement is granted.
It is argued by the respondent that the finding of condonation lacked substantial support. But we do not think such was the case for it would seem strange that when Aufiero was asked by the judge "if these people came to your plant tomorrow morning would you let them go into the plant and go back to work," he did not suggest that he would not take back the strike leaders. It is only reasonable to suppose that the convicted three extortionists were disregarded by all parties and that the judge, Newman and Aufiero all agreed that the other strikers were to be taken back. Yet the plant was closed against them the next morning when they sought to return to work.
Respondent contends that even if the finding of condonation is proper, the NLRB could not order rinstatement with back pay without first determining if such a remedy would best effectuate the purpose of the NLRA and that this determination cannot be made without deciding whether the strike was originally for an illegal purpose. We disagree. The condonation wiped the slate clean. The subsequent refusal to take the men back was properly held a separate and distinct violation of the NLRA independent of what had gone before. The NLRB's decision as to the appropriate remedy for such a violation will not justify a remand unless erroneous. No such error appears.
In April 1945, respondent and the Local entered into an agreement whereby the Local waived its claims to back pay for its members and the strike was settled shortly thereafter. It is clear that this waiver, which was not sanctioned by the NLRB, does not prevent the NLRB from ordering back pay. 29 U.S.C. § 160(a); NLRB v. Prettyman, 6 Cir., 117 F.2d 786; NLRB v. General Motors Corp., 7 Cir., 116 F.2d 306.
The balance of the order under attack concerns a subsequent strike in 1945. The 1943 labor contract was to expire 90 days after the end of the hostilities with Germany many (May 7, 1945). During this 90 day period E.A.L. refused to bargain with the Local with respect to a new contract. The Local thereafter on August 27, 1945, filed a strike notice as required by § 8(a) of the War Labor Disputes Act, 57 Stat. 163, 50 U.S.C. § 1501 et seq. (WLDA), and went out on strike the next day instead of waiting 30 days as required by § 8(a) of the WLDA and remained on strike until October 12, 1945. The NLRB found, and this finding is not challenged by the respondent, that this strike arose out of E.A.L's violations of the NLRA and that when the strike ended 27 named persons were threrafter discriminatorily refused reinstatement and that 34 other persons failed to apply for reinstatement, believing such application to be futile. It directed that the 27 named persons in the first group be reinstated with back pay and the 34 in the second group be placed on a preferential hiring list. E.A.L. argues that by striking in violation of the WLDA the persons involved lost all rights to reinstatement and back pay. As to the broad question involved we are disposed to follow the decision of the Sixth Circuit in Hamilton v. NLRB, 160 F.2d 465, 471, cert. den. sub. nom. Kalamazoo Stationery Co. v. NLRB, 332 U.S. 762, that a violation of the WLDA does not constitute a forfeiture of rights under the NLRA and that the order directing reinstatement and preferential hiring was therefore proper. However, if the Hamilton case is to be read as denying any effect to WLDA even to the extent of empowering the NLRB to order back pay to strikers for wages lost during the thirty day "cooling off" period therein provided we are not disposed to follow it. The whole purpose of the "cooling off" period provided by the WLDA would be subverted if those who struck in violation of that provision should be paid for so doing. Furthermore, such an order would seem to involve a circuity of action for under § 8(c) of the WLDA, E.A.L. could recover from the strikers for damages caused by a strike during the "cooling off" period and part of such damage would seem to be payment of the strikers for work they should have but did not perform during that period.
For the foregoing reasons the order is reversed in so far as it directed any payment to the strikers for loss of wages during the "cooling off" period.
Respondent's last objection to the order is that, although the original contract was with both the International and the Local, it is now directed to recognize only the International as sole bargaining agent, the Local's charter having been revoked by the International in 1946, and adverts to technical rules of agency which are not apposite here in support of its claim. The NLRB is preeminently qualified to decide who is the proper representative of a given group of employees and we will not say that their decision was wrong that the International, by ...