*1 consist- be exercised bounds and must Ex- ently Securities with the Act.
change United States Commission v. Co., Realty Improvement 310 U.S. It is not 1293. L.Ed. S.Ct. Swan, Judge, dissented equity empowered claim to allow a part. which is statute. barred pro entry tunc or of a nunc juris equity der does not involve phrase Latin diction of the court. merely descriptive inherent
power records to make its of the court
speak record truth —to actually done, be re omitted to entry warrant It is no corded. which was
of an record that order to Blankenship v. be done. See omitted to Cir., Holding Co., Royalty F.2d authority a nunc 77. There was no filing timely
pro tunc order to show timely. was not fact claim which supra. Supernit, InCf. re judgment is affirmed. RELATIONS
NATIONAL LABOR BOARD v. et al. CORP. MASTRO PLASTICS
No. Docket 22905. Appeals.
United States Court Circuit.
Second
Argued April 1954. July 16, 1954.
Decided
463
(2)
(3)
8(a)(1),
tion of Section
and
Labor-Management
Act,
Relations
seq. The sub-
29
141 et
U.S.C.A. §
stance of them was
that
aided Local
various unlawful means
Pulp,
Brotherhood of
International
Workers,
Sulphite
Paper
in at-
Mill
agent
tempting
for
to become
respondents’ employees
a time
they
represented
Local
were
3127;
employee,
that
Frank
one
Cic-
discharged
cone,
discriminatorily
was
be-
in,
membership
cause of
and activi-
his
of,
ties on behalf
Local
and because
join
that
his refusal to
Local
employees
unlawfully
other
were
locked
discharged
reasons;
out or
for the same
applications
reinstatement
rejected.
employees
these
were
sought
relief
was a
and desist or-
cease
discharged
der
reinstatement of
employees
pay.
with back
Respondents’ answer admitted the dis-
charge of
other 76 em-
Ciccone and the
allegations
ployees,
denied
of unfair
Counsel,
Bott,
George
David
J.
Gen.
practices.
For affirmative de-
Counsel,
Findling,
A.
Gen.
P.
Assoc.
alleged
fenses, it was
that Ciccone was
Counsel,
Somers, Asst. Gen.
Norman
discharged
violating
the instructions
Diamond,
Harvey
Dunau,
B.
Bernard
superiors
employment
of his
and that the
C.,
Washington,
Labor
for National
D.
remaining
employees
law-
petitioner.
Relations
fully
they
terminated because
went on
bargain-
McVeigh,
Brenner,
New
Butter
strike
ing
violation of a collective
Fitzpat-
City, Butler, Bennett &
York
8(d)
contract and of Section
City (Bernard
rick,
H. Fitz-
York
New
Act.
City,
counsel), for
patrick,
York
New
Hearings were held before a trial ex-
respondents.
March, 1952;
aminer in
York in
New
Judge,
CHASE,
Chief
findings sustaining
charges
Before
were
Judges.
FRANK,
alleged
except
lockout;
SWAN
as to the
and was recommended
the affirma-
Judge.
CHASE, Chief
defenses, which were
tive
point
established in
legally
fact,
Brotherhood
be held
insufficient.
United
America,
adopted
Carpenters
the On review
and Joiners of
the Board
the find-
agent
ings,
em-
conclusions and recommendations
charges against
examiner,
exception
with
Mastro
one
ployees, filed
here,
Corp.,
and French-American relevant
were
Plastics
Manufacturing
ordered,
Inc.,
Company,
two
two members of the Board dis-
Reeds
though
which,
senting,
corporations
to cease and desist from their
York
New
separate
practices
corporate
separate
entities
reinstate
manage-
pay Frank
under the same
with back
payrolls, are
Ciccone
ment,
named.
and use other
The unfair
the same
have
longer
practices
charges,
are
plant.
as amend- labor
no
contested
same
only part of
and the
the Board’s
ed,
had en-
order
were
requiring
is that
which is
contention
gaged
viola-
notifying
with back
on
their
them
employment
pay.
had
terminated
rea-
been
striking
son of
their
violation
N.L.R.B.
forth
facts are set
*3
bargaining
con-
contract.
51,
only
them
No.
résumé of
and
a brief
respond-
provision upon
tract
which the
1948,
Local
is now
when
needed. Since
ents relied
as
reads
follows:
by
York
31271 was
the New
certified
agrees
“5. The Union
that dur-
it has been
State Labor Relations
ing
agreement,
agent
respond-
of
the term
this
the
for the
any
August
1950,
there shall be no interference of
employees.
In
of
ents’
operations
kind with
the Em-
the
of
Local 65
and Ware-
of the Wholesale
ployers,
any interruptions
or
Union,
or
re-
which was
house Workers
slackening
by any
being
garded
work
by
of
of its
respondents
com-
as
the
organizational
further
dominated,
members.
Union
munist
started
agrees
engaging
from
in
among
employees.
to refrain
To com-
activities
the
during
any
sought
stoppage
strike
work
or
Local 65
bat
the
agreement.”
318,
the
replace
term of this
Inter-
with Local
Local 3127
agreement”
Sulphite
not
Pulp,
As “the
did
term of this
national Brotherhood of
expire
1950,
being
30,
November
the
Paper
Workers,
until
and
the
Mill
latter
during
union,
strike did occur
and so
stronger
the term
and
the
a much
from
strikers,
by
is
20,
it
contended that
the
September
middle of
until November
breaking
right
contract,
1950,
the
lost
the
the
committed rather
flagrant
reinstatement.
practices
achieve
encouraged,
end.
was
Local 318
However,
was
the strike
since
actively
by
sponsored,
the
assisted
by
prolonged
respondents’
caused and
the
signing up
employees;
in
agree
practices,
with the
labor
we
employees
for aid-
some
were rewarded
by
prohibited
Board
is
it
ing
respondents’
Local
contract.
strike-waiver
clause
promises
supervisors
officers and
interpreted
That
in the
clause must be
reprisal
of
related
benefit and threats
light of
it is
the entire contract of which
membership
rival
These
unions
integral
part,
an isolated
as
10,
culminated,
activities
on November
agree
waiver unrelated to the
rest
1950,
employee Frank
in the
ment,
imposes
is
the inhibition
Ciccone
of his activities on. be-
because
regards
operative only
grow
as
strikes
opposition
half of
and his
Local 3127
concerning
disputes
out of
those mat
discharge precipitated
Local 318. His
provisions
ters covered
the contract
following day,
which,
in-
a strike
arising
or
out of
normal relations
respondents’ employees,
all
volved
parties.
Instances of
en
strikes
and which
until March
lasted
changes
provisions
force
in contract
application
clause,
which violate a no-strike
of which
striking employees was made and denied
Company,
65 N.L.R.B.
Scullin-Steel
seventy-six
who
as to Ciccone and
Inc.,
Dyson
Sons,
Joseph
have been
reinstated with back
ordered
examples,
be
N.L.R.B.
are
should
pay.
right
distinguished.
prior
ap-
About
three months
strike
resistance
to unfair
reinstatement,
plications
practices by
on Decem-
is a funda
recognizes
respondents’
11, 1950,
mental one which the statute
some
ber
work and a form
no contractual waiver of
returned to
general
from
all
remain-
is to be inferred
letter
sent
dispute
representation rights
em-
the re
involved
Also
1.
Union,
ployees
spondents
at
Labor
were
various
was Federal
times shifted
unions,
But,
Local
the two
shall
as
them between
we
22045.
jointly
represented by the same
refer
to them
as Local 3127.
Local 3127 were
offices,
persons,
as the
used common
sixty
in full
day
force
effect
contract
in a collective
following notification,
period
with-
caused
clear that strikes
do not make it
practices
out resort
to strike or lock-out.
employer’s unfair labor
(d)(4)
provided
prohibition.
further
in subdivision
See
included
were
engages
“Any employee
Corporation,
who
Products
Electric
National
* *
sixty-day period
within
N.L.R.B. 995. Unfair
way
employee
shall
as an
in no
lose his status
were
of the Act
in violation
* * *
purposes
contract,
con-
for the
of sections
nor did the
covered
”
* * *
combating
8-10
them
of this Act
provide
tract
arising
settling disputes
just
If the word
men-
“strike”
*4
respondents’
course,
And, of
the
them.
tioned subdivision is to be read as mean-
considered
cannot be
unlawful activities
part
ing “any
caused and
strike” however
par-
of the
the normal relations
of
regardless
objectives,
of its
all of the
ties.
strikers
ceased to be
they went on strike and none were en-
argue that,
even
also
titled to reinstatement.
a waiver
clause was
if
no-strike
the
right
out-
as matters
adopting
of
strike
to
the
to
has found
Board
contract,
findings
was violated
side the
it
the trial examiner’s
which were
discharge
upon ample
the strike was caused
the
based
evidence that the strike
Ciccone,
mat-
of
which was an arbitrable
solely
was caused
the unfair
contract, and that
the practices
ter under the
of
and was not
the
purpose
for
continued
the sole
by any purpose
strike was
motivated
to obtain
so
securing
reinstatement.
any
advantage by way
of
Ciccone’s
economic
of con
as to the
Were this assertion accurate
question
tract modification. And so the
cause
the strike
its continuation
squarely
presented
is
statutory
as to whether the
agree. However,
we would
the Board
deprivation
employee
status
found
was caused and applies
the strike
purpose
to strikers whose sole
is
solely by
prolonged
vio-
against
the
protest
to
unlawful conduct on
lations of
Act. Ciccone’s
part
remedy
the
the
the
to
regarded by
unfair labor
which constitute
examiner,
spark
trial
as the
which set such conduct.
strike,
off
not as
essential cause
In
arrive
order to
at the true
it,
supports
amply
and the evidence
meaning of the word “strike” as used in
this conclusion.
subsection,
pur
this
its relation to the
pose
respond-
The main contention
of the subsection as a whole
be
must
given
Though
due consideration.
ents is that
their
defense
some
affirmative
language
may
simple
8(d)
Act,
statutes
be so
in
based on Section
of the
29 U.S.
158(d),
purpose
C.A.
should have
that when all the words are
been sus-
§
literally
inclusively
tained. On October
read
the exact
meaning
clearly appears,
required
notified the
in
often
is
negotiate
manner of their desire to
not so and
in
it isn’t
this instance. As
existing
usually
interpreting
modification of
in
must be done
collective
a
bargaining
brought
statute,
contract. This
all of its
into
should be
light
operation
legislative
8(d),
provides
pur
Section
in
which
read
may
pose
that contracts
be modified
with reference to each other.
ex-
cept
Heirs,
under certain
Boisdore’s
circumstances:
the United States v.
How.
seeking
party
Duparquet
12 L.Ed.
Huot &
modification must serve
Evans,
Moneuse Co. v.
297 U.S.
party sixty days
on
notice
the other
412,
provision for ends, certain terms. con- which such attainment employ- applicable both provision tain conditions has been said that the imposed employees, Act, “Nothing a sanction that, er and this Section to to, measure herein, coercive upon except specifically provided as a as either prevent their use inter- as either to shall be construed so or any prevent the termination impede or to diminish obtain fere with or right way strike, a or to affect modification of period” “sixty-day is a qualifications on that limitations or contract. special right” the status period requires opposite a conclusion respect course, That, quo maintained to be is not so ante is that reached. relationships wrong holding while employer-employee unless we are as statutory upon method limitation there is no up sub- existing participate practice set contracts used; being “strike' relevant, and a division is In so far as here strike. sixty-day period” sig- presupposes no within the a limitation and has *5 the use with in interference whether is one. In nificance as to there words, it is tied In other method. Rela- Local No. 3 etc. v. National Labor modifying by words Board, Cir., method it was to the 210 F.2d tions sixty-day period” employer “within the had not been held Congress imposed guilty practice limits the sanction tie an unfair labor the use upon was, involved employees. accord- It statutory excludes method ingly, practice strike. an unfair labor not protected activities distinguish still which are Perhaps strikes that serves to they with the but, not, are unconnected if our- case from this we find so, this not disagreement. method. Were respectful use selves Congress to attribute would have to we by reopen A motion to merely provide for an intent the orderly way proceedings for introduction of modify exist- to terminate meaning additional evidence as agreements ing collective the no strike clause contract was give employer, an intent both Board and A made before the denied. method, op- advantage taking motion to remand has been here indulge prac- portunity unfair purpose pursuant Board for that would, perhaps, tices which 10(e) Apparently of the Act. Section quickly to resist it too hazardous find opportunity had an the movants to ad- strike, effectively of a hearings duce such evidence at the employees, require who used and to failed to avail themselves of it. least At giving pain method, do so on showing we are not satisfied here just opportunity. such an grounds there are reasonable made that discriminate, respect would present failure to such for their evidence to resist hearings at those and the motion is working striking, un- between denied. contract der a enforced. Order not and between unions who were those existing satisfied such who were Judge SWAN, (dissenting And who were not. and those contracts part). attempt- penalize the latter would lawfully remedy opin- their condition reasons well stated in For the dissenting bargaining. In view of the ion of the members of the peaceful well deny Board, I would enforcement of prevent purpose in- the Act to known of the order. strife, should such an intent dustrial