*1 BOARD LABOR RELATIONS NATIONAL EQUIPMENT v. ELECTRONICS CO., Inc. 120,Docket 22136.
No. Appeals States Court of
United Circuit. Second
Argued 13, 1951. Dec. 18, 1952.
Decided Feb. *2 George Bott, Findling, P. A. David J. Somers,
Norman Ordman and Arnold Maher, Washington, (ar- D. C. Thomas F. Gromfine, gued by Washington, Isadore J. C.), petitioner. D. Rifkin, City York (argued
Ashe & New Rifkin, by George City), York New respondent. FRANK, CLARK, CHASE, Nothing entirely
Before seems to reasonable. us legislative Judges. Taft-Hartley Act or its history repudiated suggests Congress *3 FRANK, Judge. Circuit Indeed, con- interpretative that distinction. Congress” sidering alone the “silence not validity 1. the Board’s order The temper Congress argument but also the depends let- sending of the on whether the Taft-Hartley, good it there is when enacted activity by legitimate was a concerted ters Congress adopted reason to conclude that pro- employees, for their mutual aid and that distinction. tection, guaranteed by National 7 of the § Act, amended. The Labor Relations as Co., Supply In & N. Piping Midwest 63 was, that it that Electronics’ Board held 1060, Board, 1945, L.R.B. the in held it an activity interference there- with such was practice unfair labor employer for an (1). fore The em- 8(a) a violation of § recognize one of two-unions as the exclu- held) ployer argues (and trial examiner the agent pendency sive bargaining during the a that was the of the letters not certification, petition the rival union’s protected activity, because letters had the (to quote when Board) the the e., an unlawful coerce the em- purpose, i. ques- then there existed a real knew “that ployer at time recognizing into Local 65 a concerning representation tion the unfair when to do so have been an employees.” The Board “Such said: con- * * * practice by employer. labor duct letter contravenes the Act, spirit following and leads those The distinction must not very disputes course, affecting labor disregarded: commerce (1) be Of a union ac proce- which the Board’s tivity proscribed administrative which is not the Act as designed prevent.” basis, dure is On that practice unfair labor does not become an so Circuit, Company the Sixth in The Hoover it aims to induce the because B., Cir., 380, v. N. L. deny- R. 6 191 F.2d which, Act, engage in conduct under the order, ing enforcement of a that Board held practice would be an unfair labor on the protect 7 did a nation-wide hand, not union’s employer’spart. (2) § On the other as accompanied boycott, 'by campaigns held, to as- is activity the Board itself has union sist salesmen of rival sell manufacturers to 7 it protected merely under 'because § products customers, their design- Hoover practice, does not constitute an unfair labor compel recognition ed to exclusive just to which the Board is authorized to at previous Board-sponsored 'Co., a election. penalties. tach The American News boycott Co., The court that since the Thompson sought said 1302; 55 N.L.R.B. Products illegal employer, to induce -an act from the 13, as amended 72 N.L.R.B. N.L.R.B. unlawful, purpose ipso facto 886. pro- therefore could not come within the case, In the American News the Board category legitimate tective concerted ac- protection not within held strike a § tivities. compel employer immediately grant an a forbidden, wage argues court, increase without War La- The Board that the in the case, -approval, by Emergency bor Board Hoover erred in failing observe Thomp- that, decision, Act In the Piping Price Control of 1942. after the Midwest case, Company Congress, Act, the Board Taft-Hartley son Products held in the (a) respect similarily practice with to a strike to com- made it an unfair labor for union pel one union after recognition of the Board to strike after of another -certification union another union. It should similarly had certified be while to deal refusing with (b) that, when case was decided (or that in strike other action union) noted to ob- February, such a strike was not an tain while an election is pending practice; only labor became unfair so certification another and before union. June, 1947, thereby sometime after when Congress the Taft- The contends inferentially put Act into effect. The Hartley went statu- under The (b) 7. em- § hand, interpretation, involving ployer, argues dis- on the other tory above noth- tinction, decisions, Taft-Hartley ing legisla- reflected those Board Act or its * * * purpose was for strike congres- “the as intimates history so much tive ex- respondents grant wing of of compelling bring under sional intention recognition to the UAW-CIO clusive an unfair to be is not declared 7 whatever existing certification face of a union. practice by labor pur- other Society, decide However, we do- not now UAW- by the asserted poses or reasons Taft-Hartley whether, light of in the CIO.” otherwise, doctrine amendments or the Sixth For, 382], F.2d as Hoover as- {191 the 'Hoover decision correct. declarad, said, publicly Local “the is, that it think we suming, arguendo, bulletin, the strike in an official strike Hoover-type we read As case. this is not a *4 Company the called because The Hoover Hoover, was in the decision court’s the the with refused to renew contract which the pre-Hoover rulings Board’s on Workers, refus- Electrical was kind United relied, this in court union activities The back- with the to deal union.” unprotected only ing the union if of case are entirely clear ground that compel of case made it campaigning unlaw- is in to fact Here, boycott seven-month conducted employer. how- that the was by the ful conduct purpose: Com- discharge, one “to make the ever, for but Penchansky’s time at the of only beyond to that the is the pany a threat realize UE-'CIO go the union did agent for workers.” picket, plus to Hoover bargaining invitation strike an and/or called, boycott customers if a were to strike substantially The is different situation begun, evidence picketing or were and the strike or begun here. The union had not a require belief that union in- does not a the boy- picketing. The first a letter solicited time, strike, if to that it a tended at called by a only that customers in the event cott recognition partly do so in order obtain to called, second, although strike were and the compel merely re-employment to point, may rea- ambiguous somewhat on the discharged of its members. is no sonably be construed likewise. There the em- considering evidence that letters harmed the pertinent Before the evidence lettfers, issue, consider, ployer. At the sending that it is well time of the from plant angle, this all of Local in the already the cases but one 65 members cited. Co., supra, employees discharged American fired. The News the strike was had been time, had, attempted purpose compelling up for the sole unsuccess- called of by grant prior fully filing charg- themselves wage increases to reinstate approval they joined to the of the es the Board. with Labor with National War Now Board, Penchansky publiciz- in defiance in Emergency out letters Price True, letters, they cause. ing Act their in U.S.C.A.Appendix, Control these additionally seq., despite agree that “the et asked the fact that negotiate respondent “throughout, sit down to a contract” and co- (employer) operated negotiate good “that the firm in with with Union faith’ and took whatever steps deemed of our own in the necessary were in to the Union choice.” But approval letters, purpose secure the wage comes increases. the statement this ** * dispute There no discharges was statement between after the about respondent and the indicating Union read as that the con- relating to and can be wage otherwise, except only increases or a The tract was means to that end. respondent’s obviously from in arising grant by were novices refusal written letters prior the wage relations, approval appears increases to the of labor as from the field the National War by employees. to a “lock-out” Labor Board.” The reference “A Board said: critical shapes fact which difficult conclude that let- It is not poorly-worded our attempt by consideration of the case is that the ters were provoked preceded strike neither nor to obtain redress of the writers’ writers e., practices.” And unfair labor grievances, i. reinstatement. Similarly own clear, Thompson Co., very Products far from evidence supra, the it on the us, workers, by holding, a strike employees its that the now before based were unprotected otherwise, strike, pursued their have aim on a or finding they making finding question if bargaining exclusive contract fact on an they whether, had they reinstatement. in the attained For context in. which had ex- agreed suspend any written, previously such were letters showed that the Team- pending employees pursue claim clusive intended fact to election, and, their members’ sters’ aim of an exclusive-bargaining before contract. sug- nothing had discharge, said or done Enforcement denied and case remanded. gest to that up to live lack intention noted, promise. is not As the Board CLARK, Judge (dissenting). an ex- that the letters demanded certain Judge FRANK’S initially fine statement 65 at for Local clusive contract bargaining of the law seems me to run down to an mind might have had in all. The writers I opposed prin- inconclusive end. am members-only like a contract something ciple course which serves to drag satisfactory work- insure reinstatement and litigation essentially out determined for the they alone, or ing conditions themselves satisfying procedural niceties. This case might have been mere reinstate- satisfied seems to me of this sort. For the Board ment a contract. without explicitly found that the statements in the *5 of the letters were 'Considering “campaign propa- the actualities no more than proce grievance ganda” proper bargaining collective and within “the of bounds con- dures, activity” realize think the must certed and we hence “that Penchan- claims, sky’s easi discharge part that far-fetched and overstated because of in this his dissuadable, initially by made ly activity are often concerted constituted a violation of dispute (especially when in labor one side Section 8(a) (1) (3) and Act.”' inexperienced relations). it is labor Such Whatever supposed Board is to do on remand, may evaporate well on discussion I claims this should think that this clear an in negotiation, never become statement and shows what its ultimate conclu- purposes. tegral part of the real union’s sion must be and is. seize think that the cannot We ifBut I understand what the is- remand upon ignorant kind of claim—made this ascertain, to I think it on mis- based in their initial demands—in
workers reading record. The settlement of against justify retaliatory measures 22, 1949, July case, of an earlier on a. find He must make some effort them. 24, charge 1949, May dated one Melnick pursue employees fact mean in out if the the firing of himself and another em- claims, which to stick demands these Cohen, ployee, May on 23. It did in- Summary 7. dis protected by are not discharge volve the Penchansky, whose premature especially here. charge seems charge (as points the Board carefully out) was filed on very day prior- of the Nor, indeed, or the has the Board settlement, July case The letters were any finding clear given us trial examiner 12, picket- on July written while the employeesintended serious of fact that ing, according place Penchansky, took con ly pursue bargaining an exclusive July “the week 13” after or his dis- after not in Picketing Local 65. did tract for charge. say participated Later he did he Penchansky’s dis begin until after fact August picket line in without defining it Apparently it lasted July 13. charge on showing further or whether was a re- August. A settle through sometime development. newal or some any new discharged employees’ com ment of fail event to see how I this circumstance plaints Board was entered into on put upon be may used to construction im employees were not July but they which -had letters not borne earlier. agreement. reinstated mediately might It would seem natural the union picketing July after The reason justified course Consequently protesting before call apparent. resume discharge, unprotected, Penchansky’s which letters had not ing the of the been eventually illegal purpose, and which led conducted for an redressed the is- because complaint. Board’s to the Board for suance But remand the case in- we will proper have been picketing of additional evidence and the fact could taking they variety long as for a reasons so fell short of the reason the refused Board find, wit, compulsion attempted during pendency
union representation proceedings. see I do not
how this or change any a remand can from
show the letters now to be different
what the Board has found them to be. So
a remand for a recharacterization
letters hence unnecessary seem Moreover,
undesirable in event. particu-
mandate to the Board seems to me
larly confusing ambiguous in its direc- does
tive. the “context” mean be- What
yond just what the Board has been consid-
ering? “the letters And showed” whom? employer subjectively? Surely
To the construction, proper
is not.a but that seems hope
all is left to be considered. I way clearly its more can see than I.
All this confusion be now Continued perhaps years or
for months cannot make or smooth labor
for settled relations this *6 my
plant. judgment an enforcement issue at once. should CANNERS, et
OXNARD Inc. al. v. BRADLEY.
No. 12931. Appeals States Court
United Ninth Circuit.
Feb.