Luther W. Shumate, and Union Carbide Corporation, Intervenor v. National Labor Relations Board

al., Petitioners, et Luther W. SHUMATE Intervenor, Corporation,

Union Carbide RELATIONS

NATIONAL LABOR BOARD, Respondent.

No. 15410. Appeals,

United States Court

Fourth Circuit. Sept. 1,

Argued

Decided Dec. Judge, Bryan,

Albert V. Circuit dissenting opinion.

filed a Charleston, Johnson, W. Va. David D. O’Farrell, (Jackson, Kelly, & Holt brief) Va.,

Charleston, W. titioners. York, Atty., Whittlesey, New John W. brief, Corporation, Carbide

Union for intervenor. (Ar- Moore, Atty., N.L.R.B. Elliott Counsel, Ordman, L. Dominick

nold Gen. Counsel, Marcel Manoli, Associate Gen. Counsel, and Mallet-Prevost, Asst. Gen. N.L.R.B., Vogl, Atty., on the Frank brief) respondent. CRAVEN, BRYAN,

Before BUTZNER, Judges. BUTZNER, Judge: initially participated strike, each resigned of them from the re- union and petition This for review of a to turned work before the strike ended. of the National Labor Relations Board responded by The charging union em- the questions application of the Labor the ployees improper cross- conduct for Act's six-months of limitations ing employees the line. the When to of coercion based on a union’s hearings were notified of the union on attempts imposed to collect fines charges, ignored they the proceedings the crossing The held line. because, having they resigned, believed they were barred because they subject were not to the union’s dis- were filed more than six months after ciplinary union, control. The maintain- of the fines.2 We be- that its did constitution lieve, however, subsequent attempts that resignation, employees tried the in their to collect the fines within absence, expelled fined and The them. period provide a basis for of employees received notice action this unlawful coercion are not barred 1968, April November 1967. In lapse of time. We also conclude that employees union wrote the that would the union waived the statute of limita- bring suit to collect the fines unless tions and that the Board committed a immediately paid. Receiving were no re- by invoking error this af- sponse, May 21, in- 1968 the union firmative Accordingly, defense. we set Virginia stituted a suit in a West court aside dismissing the order pending. which is still and remand case for decision on its merits. labor initial unfair Shumate filed the 1968, 21, charge practices and on June I July filed on 1968. others employees it is settled pe- concede that Luther other and the W. Shumate Manufacturing employers NLRB v. Co., titioners of Union Allis-Chalmers 2001, 18 L. Corporation Carbide South Charles- can union ton, Virginia, July Ed.2d 1123 plant West crossing a date, lawfully fine members 1967. On collective bar- contend, however, gaining agreement They line. Local between having from the union before International Association of Ma- dunning line, (AFL- Aerospace chinists Workers CIO), letters, terminated, for collection consti and Union Carbide prohibited practices tuted union unfair authorized an economic 8(b) (A) (1) strike the Act.3 that lasted until 1967. October Although resignations petitioning that the contends employees during members July union on course 24 and 1. lations N.L.R.B. No. No. provides aff’d on Labor for a union (1) (A), Section International Ass’n of Section son “[N]o any service ^[*] $ unfair charge Relations Act, ^[*] 10(b) makes it an unfair labor aof 75 L.R.R.M. 1456 » reconsideration, part: whom with the Board copy of the National (1) U.S.C. Act, shall thereof (A) such 73 L.R.R.M. 29 U.S.C. issue Machinists, to the National Labor made. upon per- Re- Section tion guaranteed membership spect join, gage Provided, tives “the “to other bargain any or all of such activities. impair restrain or coerce right of their in other mutual prescribe * collectively assist That therein. acquisition U.S.C. self-organization, own right section [7] aid or concerted collective exercise right its own choosing, through representa- organizations, paragraph 157, guarantees protection, or retention * rules with activities refrain * * ”* and to * organiza- * rights form, shall em- en- ”* re- *: six-month limitations ineffective strike were parties, may riod in and of themselves consti- lawful. are therefore fines tute, considering to be as a primary substantive issue subject practices. There, earlier events whether light be utilized on the to shed jurisdiction when occurring true line, character of matters submitted crossed period; within the and for stipulated facts. limitations the Board on to ease 10(b) ordinarily does however, decide Board, did not The evidentiary not bar such use of anteri- charges It held the merits. case its events. second situation is that in its because were barred where conduct within the opinion operative facts occurred period charged can be to charges months before more than six practice only be only the pointed out that filed. through reliance on an earlier unfair threat to sue and the practice. There the use of period. place the limitations took practice earlier unfair in and these acts lawful considered merely ‘evidentiary,’ it since does un hold them of themselves and to simply lay putative bare a current un- necessary to deter lawful would be practice. Rather, fair labor it serves illegally im fines were mine that illegality to cloak with that which was finding,” making posed. “In such a otherwise lawful. And where doing pre concluded, it be “would plaint that earlier event is cisely Supreme Court con time-barred, to it- the event etc. demned in No. [Local self to be so used effect results in Manufacturing Co.) (Bryan reviving legally defunct unfair labor 411, 422, 822, L.Ed.2d 4 80 S.Ct. practice.” 362 U.S. at 80 S.Ct. at finding (1960)], namely, a ‘violation grounded inescapably which is on events ” the first This case falls predating period *.’ Bryan. The threats situation described -, L.R. No. current efforts to sue and the suit were R.M. at 1144. crossing punish to states Bryan,4 line. Evidence determining evidence when rules events to illuminate is admissible prove admissible time-barred events is recent tac of the union’s more character practices. of unfair labor tics. stipulated parties the Board true that § “It doubtless proceedings relat- if called that the evidence prevent all use of testify, transpiring state that more would to events hearing appear re- which at the service union’s months before charge. sulted in of the fines be- an longer the union no However, applying of evi- cause believed rules past any jurisdiction authority admissibility over had dence to attempting purposes to reach regard them. Without events, due for us merits of the sufficient requires different two distinguished. fur- recent Board decisions note that kinds situations ish a rational basis for the occurrences one The first where la- Bryan was attacked as an unfair with a collective dealt Noting agree- required practice. agreement bor union member- which Supreme face, employment. ship ment was lawful on Since a condition minority only represented it could be considered ruled that Court illegally agreement it had been ex- unlawful because when the executed, event that occurred ecuted, an inclu- deemed the the Board security before the than six months clause an unfair union sion of the held, therefore, agreement Court After filed. months, were barred ten its continued in effect been U.S.App.D.C. 215, belief. The Board ruled that has 363 F.2d particular denied, members of cert. resign free at will because 17 L.Ed.2d 436 held that any provision for constitution lacked prosecution should not be read voluntarily members withdraw. Aer an unfair labor “[w]hen Lodge 751, onautical Industrial N.L. within the six-month there has R.B. conduct, And the Board has been active as contrasted with held that passive following who from mere old inaction ” ** their union before line offense. In both cases evi Lodge 405, not be fined. Booster concerning dence conduct that occurred (Boeing Co.), IAM beyond N.L.R.B. No. the six-months ad 75 L.R.R.M. 1004 amplify mitted to more recent events. 24,744, 24,687, D.C. pertinent part, Nos. by The same kind of situation is disclosed light, in this Cir., 1972. Viewed Feb. sought this record. The union first suit, not to sue the threat it merely punish more than six fines, that imposition of the filed, charges months before the were employees. pressure on the put actively pursued through goal but it its repetitive attempts money to extract from them period. within the limitations of the fines assessment important only in the union’s as evidence consist also The decision we reach is against judgments civil to obtain holding Local ent with the Board’s alleges employees. The civil (Allis-Chalmers), 149 N.L. UAW required judgment all of the elements (1964), NLRB sub nom. R.B. 67 duration; —the strike and the ex its Manufacturing Co., 388 v. Allis-Chalmers line; istence of the the member 18 L.Ed.2d ship employees, im of the and their 10(b) relief. did not bar § proper line; conduct in involving Allis-Chalmers, sequence In punishment. the union trial and very present events similar benign; suit is not it is a fresh asser by fined union members were tion that were members having lines union for breached union, any and it omits reference during employees filed a strike. resignations. to their Its effectiveness charges depend proved does not on months after the union more than six depends at the union trial. but within proof the union can muster at the state attempt to col months of Moreover, trial. the Board noted as pleaded lect them. The union Boeing, though may even the fines not be charges because were barred through action, collectible court the em approximate imposed fines been ployees must retain counsel serv whose ly year and a half before the require. ices would otherwise not examiner, rul The trial whose 23, at-, 185 N.L.R.B. No. 75 L.R.R.M. ing affirmed burden, too, 1005. This dismissing Bryan peremptorily deemed coercive. here, defense, saying, “[W]here, im as plementing the 6- action is taken Corp NLRB, In Cone Mills F. period, 10(c) v. month [sic] Section (4th proceeding 1969), 2d not bar the Cir. we held that at 76 n. 12. N.L.R.B. interpreted charges involving conclude, therefore, repetitive “a suc We practices are of unfair labor cession of events by 10(b). barred of six months charge.” vein, In same Inter II Automobile, Union, Aer national United ospace Agricultural Implement al that the Board We believe relying America, so committed error Workers AFL-CIO plead municated to the later than The union did not no on § 1967; nor submitted November is there but doubt the statute inherently Board’s dis- these notices were demands on the merits. The its case payment of initia- on its own fines. missal of the rul- tive inconsistent position I. The of limita- “is statute fundamentally, first and is that their tions, jurisdictional. and is not resignations obligation terminated their timely defense, affirmative and if line; not to cross the that con Chicago raised, is waived sequently they could not be held vio Forming Corp., Roll rule; ergo, lation of the union’s NLRB v. enforced sub nom. expulsions impositions mean Chicago Forming Corp., 418 F.2d Roll ingless. They say definitive (7th 1969). Cir. acts of the union the threat of deny suit, We the Board’s suit and of which both occurred order and remand the case for un well within six before the its merits. fair filed. Alternatively, they maintain that at least Judge BRYAN, ALBERT Y. orig these acts were so related to the (dissenting): inal offense continu constitute a Time-barred, and the Board has said They rely desig ance of it. on what is agree, complaint I nated as the first “situation” titioning by employees reason case, Local No. 1424 v. six-month limitation of 362 80 S.Ct. 4 L.Ed. chronology A of the cardinal NLRA. (1960). by 2d 832 is defined circumstances follows: as Court follows: “The first is one where [situation] called. July 1967 Strike August-September occurrences within the six-month lim from Employees 1967 union. itations in and of themselves to work Employees 1967 returned September-October may constitute, as a substantive mat and crossed line. ter, practices. There, unfair labor terminated. 9, 1967 Strike October Charges against em- filed 1967 October earlier events be utilized to shed ployees light on the true character of mat line. occurring ters limitations of hear- notified Employees 1967 October ings on period; and for that ju- deny union Employees 1967 October-November ordinarily does not bar such eviden reason risdiction tiary use of anterior events.” 362 U. resignations. their charges, Hearings held 1967 October-November atS. 80 at 826. S.Ct. appearing. not employees they notified that Employees November 1967 That situation is embraced here fined. and expelled had been majority. No taken. appeal given 1968 Notice April just excerpt As is manifest from the civil suit due, and of disregards quoted, flagrantly this view if not by April paid Bryan. law To come within Suit filed In State court— May 21, 1968 first situation the “occurrences within pending. still the six-month in and June-July Unfair labor 1968 by employees filed may constitute, of themselves a sub- union because practices”. stantive unfair labor threat of suit. they positively Here do not. The Board is- complaint October Consolidated sued on filed urged finds as a fact that “it is not with Board. bring threat January 22, Board dismissed pro- actual as time-barred. institution the court ceedings independently There can notice Act”. be no doubt violated the (A.c- NLRB,-, expulsion and amercement was -n. Counsel, that, right wrong, added.) ad- mark in cent General employees’ plaint. opposing vocacy start of the Without seen, them, not even as we have there is conceded before conclusion of the pretense unfair nothing of an labor unlaw- that “there tice. in in of themselves”. ful acts these .

Id.-. determinations were The November background subsequent simply of a me, completely and For our case is practice. of them unfair Utilization exclusively situation within the second the Court is decried wise stated the Court: “ Bryan, supra, at where conduct at in this fashion: period can be “ * ** un- the earlier the use of charged prac be merely ‘evi- fair only through reliance on an earlier tice lay simply dentiary,’ it does not since practice. unfair And putative current unfair bare a where Rather, serves to cloak it time-barred, event is illegality other- that which was the event itself so in ef used added.) (Accent reviving wise legally fect results de lawful.” practice.” funct U. measuring Finally, the six 416-17, S. S.Ct. the em- November 1967 give verity their the force Whether November 1967 jurisdiction allegations over of no union ineffectual, action was effectual or law- Only in this manner can unlawful, them. ful is still event ignore November incidence of the which the contention of the They thus would brush necessarily, actually affair. must refer. asserting efficacy, of no aside is the antecedent of the threat only forming occurred employees’ matters what the civil suit the em- or no over Jurisdiction Without to the No- advertence question for a complaint was vember 1967 event would Indeed, employees them- body, Board. have no alone was innocu- very ous, issue to selves submitted we have seen. again, there, placing the birth insecurity employees’ of complaint at November of the query: stance is disclosed proceeded merits, this case would Overall, Bryan, supra, at U.S. premise not the determinative have been 415-17, precisely de- legality levy? expulsion signs the collec- here. There gravamen is the agreement executed tive invalidity of the union’s November con- security” August a included “union employees. demnation of the That not on that did condition. As grievance pressed upon the Board. majority represent the em- of a (cid:127)date argue Employees solitary from that base. ployees, in violation clause was irreplaceable Reversion it was be- and so an the NLRA nothing cause there was in the subse- thereafter more tice. Ten or constituting quent contacts an unlawful dem- the Board filed with agree- onstrating illegality of the briefs, the con- declared that complaining par- The Court In their ment. agreement persistence tinued ties with attack the union’s limitation expelling punitive Inci- the 6-month resolves. 10(b). For right- dentally, way.they bar of quite the earlier vitiate reason, presently, Board fully recognize the same acts as declaring original stage Actually, free of error sin. at this notwithstanding imple- late, plaint too the case the correctness or incorrect- incident the November ness of the union’s initial is mentation decisions mandatory months. immaterial. Their in the fact came within worth lies me, jurisdictional limitation a little further. II. Likewise to Whether procedural, quite the Board available to must foreclose ground proviso plea for decision. waiver as a No Board. contrary brought precluding issuance of a case to the has been committed forward. six months footing sound, If the jurisdictional, contend result would be to imbue req- but a management enlarge, power with the Hence, they continue, uisite. it was just they wished, period as far as here, by waivable, and was waived stipulated complaints. law for interpose For this union’s failure to it. By agreement they could confederate to thesis numerous decisions are summon- filing charges refrain from from ed.1 interjecting might waiver. mu- This tually desirable if defer wished to position hardly Employees’ foil indefinitely advisory opinion or di- begin to the Board’s resort To Dispatch rection from the Board. with, Bryan, supra, Court stated in disputes, the resolution of labor to re- “As S.Ct. at blockage commerce, move the flow expositor interest, of the national Con- prompting Congress’ was a cause for ac- gress, judgment six- celeration of Board decisions. Allow- month limitations did ‘not seem * * * parties to extend the time would unreasonable’ barred the public quick thwart interest set- dealing past conduct after management-labor problems. tlement of run, expense even at the has rights”. statutory of the vindication of I would enforce the Board’s order (Accent added.) dismissal. Mr. Justice Frankfur- dissent, opposing ter in while the time- decision, said:

“Congress put no doubt wanted to rest, stale claims to did so relatively short of limita- statute permitting tions claims to be brought litigation. If six months America, UNITED STATES of pass by are allowed to without Plaintiff-Appellee, charge against v. filed, Congress being tice said that ISA, Defendant-Appellant. Musa F. an end and a No. 18766. cannot be filed thereafter.” (Accent at 834. S.Ct. add- Appeals, United States Court of ed.) Seventh Circuit. Oct. Accepting, arguendo, reading perusing of the statute and their- authorities, it cannot be concluded that too, prem- is bound to these Waiver, by employees, ises. as advanced proposition is a enforcible between

litigants; precedents go the cited Corp. Belo Co., Inc., v. (9 F.2d Free Oil 394 F.2d 26 Cir. (5 1969) ; 1968) ; Cir. NLRB majori v. Silver Bakery, Inc., (1 ty, 351 F.2d Chicago Forming Corp., Cir. Roll 1965) ; Co., NLRB A. E. v. Nettleton NLRB sub (2 1957) ; 241 F.2d non., Cir. Chicago NL Forming NLRB Roll v. Clausen, (3 RB Corp., (7 188 F.2d 1969). Cir. 418 F.2d 346 Cir. 1951) ; Ring- cf. N.L.R.B. v. MacMillan

Case Details

Case Name: Luther W. Shumate, and Union Carbide Corporation, Intervenor v. National Labor Relations Board

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 2, 1971

Citation: 452 F.2d 717

Docket Number: 15410

Court Abbreviation: 4th Cir.