Opinion

National Labor Relations Board v. Childs Co.

  • 195 F.2d 617
  • 29 L.R.R.M. (BNA) 2657
  • 1952 U.S. App. LEXIS 3558
Court
Court of Appeals for the Second Circuit
Filed
Apr 4, 1952
Status
Published
Author
Hand
On the bench
Chase, Hand
Cited by
13 cases
Authority
More cited than 24.6%

The opinion

L. HAND, Circuit Judge.

I concur, but by an interpretation of § 10(b) of the Labor-Management Relations Act 1 not quite the same as that of the opinion in chief. The question is as to the meaning of the words “any unfair labor practice occurring more than six months prior to the filing of the charge”, and, as I understand the opinion, this limitation ran .against Potter only because he demanded reinstatement in, and restoration to, his original position with back pay and seniority. Had he merely asked for new employment dating from the time of his demand, it would have been an independent “unfair labor practice” to refuse him, although the refusal were for the original reason: i. e., that the union unlawfully demanded it. It is indeed possible so to read the words, but it seems to me that to do so defeats the purpose of the limitation, because it results in making a new “unfair labor practice” out of each repeated refusal of the employer to relent and retract. The necessary consequence is that the initial wrong can be made to persist indefinitely, unless the employer finally recants and the same must be also true as to the union. It is true that the Third Circuit in National Labor Relations Board v. Pennwoven, Inc., 194 F.2d 521 , did not decide the point, because there too the employees asked for “reinstatement,” or at least so the court held, in that respect reversing the Board. However, the arguments, on which the opinions based their construction of the section, apply equally to a refusal to grant employment de novo as to a refusal to reinstate. These were that it was a corollary of the Board’s position that a discharged employee could never recover future wages; and that there never could be an end to the controversy because in the Board’s view the wrong was a continuing tort.”

I do not believe that by abating a part of his original relief — seniority and back pay — an employee can keep alive an “unfair labor practice,” to which the employer continues to adhere. I of course agree that if the employer refused Potter employment upon a new ground, which also constituted an “unfair labor practice,” the statute would not apply; but it seems to me that when Potter was discharged without condition, the wrong done him should be deemed indivisible, and that to construe the statute as giving him the privilege of keeping alive a part of his grievance, though not the whole, would not conduce to that industrial *622 peace which it is the overall purpose of the Act to secure.

. § 160(b), Title 29, U.S.C.A.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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