NATIONAL LABOR RELATIONS BOARD v. UNITED STATES COLD STORAGE CORP.
No. 14035.
United States Court of Appeals Fifth Circuit.
April 23, 1953.
203 F.2d 165
“On the othеr hand, it is clear that, after the factory is completed and is in operation, the principal may not employ an independent contractor to undertake any part of the business of operating the factory and thus escape liability in compensation to the employees actually engaged in carrying out the work undertaken by the independent contractor. For instance, if defendant here had employed Horrell to furnish the necessary labor to оperate the boilers, it is quite evident that Horrell‘s employees would, under the provisions of section 6 of the act, be entitled to look to defendant for compensation in the event of injury. We thus see that, if the original construction work is not a part of the business of the principal, that work may be contracted away, whereas the operation of the factory after construction is completed, being a part of the business of the principal, may not be sо contracted away without the retention of compensation liability.
“If the principal may contract with the independent contractor for original construction, we see no reason why he may not contract for additional necessary construction, or reconstruction later on. If the work contracted for is within the category of operation, then, of course, it may not be contracted for except under the conditions imposed by section 6.” Horrell v. Gulf & Valley Cotton Oil Co., supra, 131 So. at page 712.
Under the affidavits and counter affidavits considered on the motion for summary judgment, it seems clear to us that here, unlike in the Isthmian case, the evidence presented a disputed issue of fact. On this record, the question, whether the work undertaken by the Aber Company was a part of the defendant‘s trade, business, or occupation within the meaning of section 6 of the
The court erred in entering summary judgment because there remained genuine issues as to material facts. Rule 56
Reversed.
Arnold Ordman, Attorney, A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, George J. Bott, General Counsel, Thomas McDermott, Attorney, National Labor Relations Board, all of Washington, D. C., for petitioner.
Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.
BORAH, Circuit Judge.
The National Labor Relations Board petitions for a decree of enforcement of its order of October 29, 1951, against the respondent United States Cold Storage Corp., following the usual proceedings under
The respondent, a Delaware corporation, operates cold storage plants throughout the United States including a plant in Dallas, Texas in which it processes, packs and stores divers food products. The respondent employs an average of sixty-five employees at all times and of this number, the seven employeеs in the engineering department are the only ones involved in this proceeding. On December 14, 1949, following an election held in the previous month among the employees of this department a majority of the votes cast were for the Stationary Engineers, Local 707, International Union of Operating Engineers, A. F. L., and the Board certified the union as the bargaining agent of the employees in the engineering department of respondent‘s Dallas plant. During the period January 9, 1950, to April 3, 1950, respondent and the union engaged in bargaining negotiations and, after sixteen different meetings were held, an agreement was substantially reached on everything except wages and seniority. On April 5, 1950, the union called a strike and established a picket line at the plant from that date until June 23, 1950, when the union withdrew the pickets.
On April 6, 1950, the respondent sent a telegram to each striking employee reading as follows: “We consider the strike illegal since at no time did the company refuse to bargain. Under the circumstances we would like you to report back to your regular job within 24 hours after receiving this telegram on your regular shift
In a letter dated May 1, 1950, the union informed respondent that it considered the discharge of the employees, as set forth in the aforementioned telegram and letter of April 24, discriminatory and in violation of
Agreeable to respondent‘s offer to consider any proposition which the union would submit in writing, the union on May 20, 1950, submitted a proposed agreement and notified respondent that it stood ready at any time to meet with it for the purpose of negotiations. Despite the fact that the union in this proposed contract reduced its demands for wages which had been one of the major issues in thе prestrike bargaining negotiations, respondent found the contract unacceptable and again ignored the union‘s request to meet for the purpose of negotiations; advised the union that it could not agree to the schedule of wages or to other specified provisions of the contract; and stated that if the union cared to revise the contract in line with the respondent‘s stated suggestions and resubmit it, respondent would be glad to consider it. On the day following the uniоn answered again expressing a willingness to meet with respondent by “personal contact” in an effort to reach a satisfactory agreement, stating that it would be agreeable to any date designated by respondent.
On June 19, respondent specifically declined to meet with the union on the ground that the matters about which there is any substantial difference had been thoroughly discussed and it did not believe that there was any further need for discussions in person of these subjects. It agаin reiterated that if the union wished to revise its
The trial examiner found that the respondent did not engage in the unfair labor practices alleged in the complaint and recommended that the complaint be dismissed. More spеcifically he found that this strike being economic in nature and not prompted by any prior unfair labor practices on respondent‘s part, respondent had a right to replace the strikers with permanent employees, if it did so before the strikers capitulated. Further, that respondent was not obliged to advise the strikers that it proposed to replace them and consequently had the right to warn them in a telegram that the jobs would be filled if they did not return to work within 24 hours. The examinеr reasoned that the strikers are presumed to know the law and that the telegram in effect merely restated it for their benefit. In this connection the examiner adverted to the letter of April 24, with the comment that this letter proceeds on the theory that the strikers are no longer employees and concluded that the sending of the telegram and letter did not violate the Act.
The Board disagreed with the trial examiner, holding that respondent‘s telegram of April 6, did not accuratеly “restate” the law and did not constitute a mere statement of respondent‘s right to replace economic strikers but actually operated as a notice of discharge to the striking employees to be effective 24 hours after its receipt if they had not by then reported back to their regular jobs. This conclusion is amply supported by the letter of April 24, which respondent addressed to the strikers and by the testimony of respondent‘s Vice-President and Manager, R. P. MacKenzie, which is set forth in the margin.1
[1,2] We think the Board was correct in its application of the law to the facts of the case. By striking in support of economic demands the employees clearly engaged in a concerted activity for “mutual aid or protection” within the intendment of
The trial examiner further found that the evidence considered as a whole does
The Board agreed with the trial examiner that respondent had bargained in good faith during the period preceding the strike; the Board however did not agree that respondent in failing to meet personally with the union after the strike began had fulfilled its bargaining obligation under
The Courts have repeatedly held that the duty to bargain arises upon request. N. L. R. B. v. Columbian E. & Stamping Co., 306 U.S. 292, 59 S.Ct. 501, 83 L.Ed. 660 (1939); American Federation etc. v. N. L. R. B., 5 Cir., 197 F.2d 451; Joy Silk Mills v. N. L. R. B., 87 U.S.App.D.C. 360, 185 F.2d 732. But here and notwithstanding the fact that the union specifically made four such requests in writing, the respondent refused to meet and confer with the union during the strike for the purpose of collective bargaining.
Having found that the respondent violated
The order will be enforced as prayed in the Board‘s petition.
HUTCHESON, Chief Judge (dissenting).
Because I am of the opinion that the examiner correctly found the facts and as correctly drew the legal conclusions from them, I shall content myself with stating so, and briefly pointing out the nature and source of the errors of the board and the majority of this court in departing therefrom, as I see them.
These errors are: (1) in holding that respondent committed an unfair labor practice in notifying its striking employees that it would like for them to return to their regular jobs and that if they did not return within the time named, the company would consider that they were terminating their employment and a replacement would be hired; (2) In failing to give the proper effect to respondent‘s letter of May 8th, in which, disclaiming any intention to discriminate against the strikers, the company assured the union that while it had secured replacements for some of the men, it could at the present time employ three, and, as far as the other former employees were concerned, they could make application for reemployment and would be reemployed when vacancies occurred; and (3) in holding that the suggestion of the company, after sixteen sessions of oral negotiations had resulted in an impasse, that written proposals be exchanged, was a refusal to bargain.
It seems as clear to me as it did to the examiner as to the first error, that this being an economic and not an unfair labor practice strike,1 the action of the respondent in sending the telegram of April 6th, could not be characterized as an unfair labor practice. In Kansas Milling Co. v. NLRB, note 1, supra, in a situation almost identical with that presented here, the court took a position exactly the contrary of that taken by board and majority here, and in NLRB v. Bradley, note 1, supra, the court took substantially the same position. These authorities aside, however, it seems to me, on the plainest principles of common sense and justice: that an employer, situated as respondent was, with a plant fully working, with sixty-five employees on the job and wholly unconnected with the strike, had the right, in the interest of keeping its plant going, to call these employees back; and that, though under no legal duty, since the strike was an economic one, to do so, it was under a moral duty to give these employees a chance to return before it replaced them.
As to the third error, while I am in no doubt that the normal procedure requires meeting and face to face bargaining, I am equally in no doubt that when, after sixteen such meetings, it clearly appeared that no progress was being made, the suggestion by the respondent that the parties try the exchange of written proposals was not a refusal to bargain. Cf. National Labor Relations Board v. American National Ins. Cо., 342 U.S. 809, 72 S.Ct. 40, 96 L.Ed. 612, where the court, after pointing out the confusion which has arisen from the notion in some quarters that the bargaining had to result in an agreement and quoting the statute on the point, declared, “Thus it is now apparent from the statute itself that the act does not encourage a party to engage in fruitless marathon discussions at the expense of a frank statement and support of his position.” The negotiations had split on wages and seniority. Respondent had made it clear that it could not and would not pay the wages the union demanded. It seems clear to me, as it did to the examiner, that, after sixteen fruitless oral discussions, the company was not only not breaking the law but was indeed acting wisely when it suggested that negotiations at least for a while take the form of written proposals.
Summing up, in this controversy with a small unit of its large plant, seven men went out on strike. Of these seven, each was offered an opportunity to return before the respondent began making replacements. Some of them returned very soon after they went out, some a little later, others did not return or offer to return at all. Yet the respondent finds itself in the position of being branded as a law breaker because it offered these persons a right and opportunity to return, and, adjudged liable to back pay, to persons who did not embrace the opportunity offered them to return.
In my opinion, the respondent in its brief correctly states, “The respondent having rеinstated two strikers and having offered reinstatement to the others as vacancies occurred, and having replaced the strikers who did not return to work and the others not having requested reinstatement during or after the strike, it was error for the board to order their reinstatement with back pay. * * * In the first place the board had no right to order reinstatement because there has never been before, during, or after the strike, an application for reinstatement, particularly by the four strikers who left the picket line on June 23, 1950. In the absence of a request by the strikers for reinstatement, there was no discriminatory discharge and there was no unfair labor practice. * * * The board has uniformly held that an employer is not required to give back pay to strikers in the absence of an unconditional offer to return to work unless it affirmatively appears that an application for reinstatement by the strikers would be futile.”
That such a situation did not exist here is found by the examiner and conceded by the board and the majority of the court.
It is undisputed that the respondent declared its willingness to reinstate the strikers upon application if and when there were vacancies, and there is no proof that any of them made application for and were refused employment.2
I respectfully dissent from the affirmance of the board‘s order.
Notes
“Q. So we say that their employment, then, was terminated approximately 24 hours after 6:30 P. M., April 6, 1950? A. Correct.
“Q. Now, Mr. MacKenzie, when the employees were discharged or their employment terminated by that telegram of April 6th, and their subsequent conduct, their employment was so terminated because of their refusal to work and abandon the strike they were on; is that not correct? A. I consider they terminated their own employment by not returning and running the plant for us.”
1. Cf. Kansas Milling Co. v. N. L. R. B., 10 Cir., 185 F.2d 413; N. L. R. B. v. Bradley, etc., 7 Cir., 192 F.2d 144, at pages 153-154.