NATIONAL LABOR RELATIONS BOARD v. E. A. LABORATORIES, Inc.
No. 79, Docket 21773
United States Court of Appeals Second Circuit
Decided May 7, 1951
188 F.2d 885
Argued April 3, 1951.
After the commencement of Hunt v. Armour and Company, defendant purchased fingers licensed under the Hunt patent and installed them in the accused Albright machine and it argues that by this purchase of the fingers which are covered by one group of claims in the patent, it also obtained a license under the separate groups of machine claims. Each claim of the patent, however, is a separate grant. Sanitary District of Chicago v. Activated Sludge, Inc., 7 Cir., 90 F.2d 727; Radio Corp. of America v. Andrea, 2 Cir., 90 F.2d 612; National Aluminate Corp. v. Permutit Co., 8 Cir., 145 F.2d 175; Automatic Radio Mfg. Co. v. Hazeltine Research, Inc., 339 U.S. 827, 70 S.Ct. 894, 94 L.Ed. 1312. Under the circumstances disclosed by this record the mere sale of these patented fingers did not import a license. The patent grants conferred upon the patentee the right to a monoply on each claim with the right to exact compensation in respect thereto. We think the defense is not sustained by this record.
Being of the view that the court‘s findings of fact and conclusions of law are abundantly sustained by substantial evidence, the judgment appealed from is affirmed.
Olvany, Eisner & Donnelly, New York City (Merwin Lewis and Robert F. Welch, New York City, of counsel), for E. A. Laboratories, Inc., respondent.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
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 Implement Workers of America, CIO, which contained a no strike clause. However, relations betwen 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 (N. L. R. B.) examiner concerned the legality or illegality of this strike, but that question is not now before us for the decision of the N. L. R. B. 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 N. L. R. B. 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 aban-
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 N. L. R. B. could not order reinstatement with back pay without first determining if such a remedy would best effectuate the purpose of the N. L. R. A. 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 N. L. R. A. independent of what had gone before. The N. L. R. B.‘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 N. L. R. B., does not prevent the N. L. R. B. from ordering back pay.
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 (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
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 N. L. R. B. 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 taking over the Local, took over entirely the latter‘s rights and duties to represent the employees previously shared with the International.
Order modified and as modified enforced.
CLARK, Circuit Judge (dissenting in part).
As to the narrow point of back pay to the 1945 strikers during the 30-day cooling-off period, I think it more logical and reasonable to follow the Sixth Circuit fully or not at all. Judge Miller in Hamilton v. N. L. R. B., supra, showed that provisions making violations of the W. L. D. A. also forfeiture of rights under the N. L. R. A. were struck out during the passage of the former Act through Congress and concluded that failure to comply with it was therefore subject only to the sanction therein specifically provided. So
The other suggestion, that circuity of action would thereby be avoided because the damages under the quoted subsection would be the payment to the strikers during the period, seems—I suggest with deference—overingenious. It is a way of setting aside the Sixth Circuit interpretation pro tanto. The damages for which recovery is granted—suffered by the United States or anyone else—are quite clearly those constituting some direct loss from failure of production, such as the loss of a war-production contract or the incurring of penalties for delay under such a contract. The stressed purpose of the Act is to prevent labor disputes “which threaten seriously to interrupt war production.”
Moreover, in view of the large measure of discretion accorded the N. L. R. B. in determining remedies for violation of the N. L. R. A., I think we ought not to interfere thus limitedly without more assured legal grounds than are here disclosed.