National Labor Relations Board v. R. C. Can Company

cuse, Y., Welch, erty Syracuse, county of N. Walter E. office clerk of Y., Onondaga plaintiífs-appellants. County February 6, N. of for counsel 1956. corporation opportunity Hence had no n Oberdorfer, Atty. Gen., Louis F. Asst. plan adopt liquidation a of before con- Jackson, Walter, Lee A. David O. Robert demnation, and the conditions of section Golten, Attys., Dept, Justice, J. Wash- may appear 337 could not met. This ington, C., Mahoney, Justin U. D. S. result, a harsh tois be corrected Atty., Barns, and Arthur F. U. Asst. S. Congress act; must the courts have Atty., counsel, defendant-appellee. power to do so. SWAN, SMITH, Before MOORE and judgment is affirmed on the au- Judges. Circuit thority of the Wendell decision.

PER CURIAM. appeal judgment Plaintiffs from a missing complaint in an action against United States refund They federal income taxes. trans- are corporation, ferees of a L. House & Sons Co., Inc., capital gain a realized Syra- condemnation of its real estate cuse, They gain Y.N. contend that the NATIONAL LABOR RELATIONS February 1958, was not realized until BOARD, Petitioner, paid, when the condemnation award was gain exempted and that the tax- from COMPANY, Respondent. R. CAN C. ation section the Internal Rev- No. 20609. enue Code 337.1 U.S.C.A. § Appeals gain United States Court The United States contends that the Fifth Circuit. was realized in 1956 when the property Judge March was condemned. 1964. Bren- opinion reported nan so held in an in 225 Rehearing 5,May Denied 1964. F.Supp. 933.2 governed by present appeal court’s recent decision Wendell et R., Cir., (1964). al. v. C. I. 326 F.2d 600 City There the condemnation procedure of New York and the such give property as to notice of owner Here, intended condemnation. corporation’s property demnation High- was effected section under way Law, McKinney’s Consolidated Annotated, 25, by Law of New York c. filing map description prop- Gewin, Judge, Circuit dissented. liquidation, complete 1. 26 Ü.S.C. 337: are distributed claims, “Sec. 337. Gain loss on sales or ex- less retained to meet assets changes in connection with gain recognized then no or loss shall he liquidations certain corporation ex- from the sale or “(a) rule. —If— General change property 12- it of within such “(1) corporation adopts plan period.” month complete liquidation on or after June opinion See also his Driscoll Bros. “(2) period begin- N.D.N.Y., Company States, within the 12-month & v. United ning adoption F.Supp. 603, on the date of the of such case. related plan, corporation all of the assets of the 158(a) (3) the Act. 29 U.S.C.A. § (1). pay The Order also calls for back during suspension. the two weeks’ We enforce. Employer1 engaged

The in the man ufacture cans and metal containers industry primarily for the food and for packaging bakery products. of frozen eight Some before this months occur Wednesday, January 31, 1962, rence on the Union had been certified as the bar gaining representative employees and ap related who numbered proximately 50. Bargaining negotiations had been going time, on for some but not with problems much success. One of the difficulty agree- seems to have been the ing acceptable on a time and convenient parties to both for sessions. employees very restive about difficulty consequent and inabil- ity get anywhere bargaining. in actual representative Lee, The Union in collabo- negotiating ration wtih the 3-man com- Mallet-Prevost, Asst. Marcel Gen. mittee,3 meeting called a Union for the Counsel, Manoli, Dominick Associate evening Tuesday, January 30. The Counsel, Atty., Pollack, Gen. Melvin leaflet, employees, distributed brief- Counsel, Ordman, Joseph Arnold ly Gen. C. describing progress lack of and Thackery, Atty., B., Washington, N. L. R. ending urgent plea, “come C., petitioner. D. meeting Tuesday and let us reason to- gether”, pinpointed grievance Mueller, Mueller, Karl H. Harold these E. words: Worth, Tex., Mueller, Mueller & Fort respondent. company “The will not meet with us they well-paid unless have their at- TUTTLE, Judge, Before Chief and torney with them and the result GEWIN, Judges. BROWN Circuit and meetings have been held at the attorney.” convenience of the BROWN, Judge. JOHN R. Circuit presents problems arising meeting January ease Tuesday, At the quickie participated out “difficulty Lee outlined the [we] by only meetings getting negotiate and few over almost had in agreement.” as soon as it reported started. The Board seeks [an] He al- determining though many enforcement of Order its the Union had “made protected activity cessions,” that the they yet strike was had not been able to failure, get Employer agreement. that the opinion to rein- It was Lee’s prior state the Employer actually strikers un- that the was “not in- jobs 8(a) (3) agreement.” reaching filled violated terested in an As Company. three, Scott, 1. R. chairman, instigat- C. Can 3. Of the joined ed the walkout strike and was America, 2. United Steelworkers of AFL- member, member Brewer. The third CIO. No local union was formed.' The Huffman, was on a different shift. representative Lee, Union was J. A. employee of the International. tionally.” opposed meetings, The men were at first previous Union was true suggestion, after further con- to this but strike, Lee “rec- talk there agreed Lee, they strike,” that the against ferences with and the ommended picket line be withdrawn. general to be seemed consensus however, was, understanding a walkout “there wouldn’t shortly p. taken, 3:30 m. at would be done after how- strike vote time.” No com- the second shift would any plans walk- which time for a ever, made nor were mence, would wait a min- few strike, out, action similar organization. utes thereafter to inform Pursuing of their decision. this under- January 31, Wednesday morning, On picket standing, the line was withdrawn working during m. 7:00 a. time on the 3:30, p. m. at about at about 3:45 shift, and a few to Brewer Scott talked negotiating pro- committee informed “meeting having and see about others manager eight duction Smith that amongst could what we work out our- employees to “would like come back to get company negotiate to selves to replied To work.” this Smith that the spread and at with us.” The word was investigation” men were “under and that break, Scott, Brew- m. coffee 10:00 a. notify he would them to to return plant. The er and six others left the response work. In to to their efforts activity Employer of this became aware following work on the 7:00 a. m. shift the plant superintendent when the observed morning, Thursday, February 1, a fore- way And the men on their out. while they man reiterated “un- that were still leaving, Foreman Tekell that Scott told investigation.” day, der And later that going try get the pressure “were to some men to response telephone request to Lee’s to company on the to meet with eight men, production reinstate the ager man- “get they probably us” and that they Smith reaffirmed that were Lloyd production manager] [the Smith’s investigation.” February “under On pressure up.” Apparently blood that did application unconditional letters were happen such, not was soon but Smith group sent. The on next called on Smith plant superintendent advised following February 5, Monday, re- to “thought boys some of the were walk- they “ready affirm that to were work.” job.” ing off the After some discussion about statements does not in their mind Just what was application made Scott his they however, appear. plain, It is unemployment compensation Texas in- their work return to did not intend to surance, remarked that the men Smith of the coffee break. stations at the end investigation. were still under The Em- bowling alley group some went to a February 12, 1962, ployer letter of away, a discus- and there had distance offered work effective these having about a After sion while coffee. February 19. generally thirty-minute discussion get meantime, Employer to Employer had what could be done to “get On fact of the strike. reckon with the more often and to meet line, learning picket production eight settled,” returned men tract manager Em- plant conferred with m. Smith 11:00 a. where to the they picketed at about ployer’s This discussion principal labor counsel. entrances two primarily signs reading concerned playing seemed be “On Strike.” crude plant ability operational to man him what had had called Lee to tell Scott remaining labor force happened out.” with him to “come and asked may counsel shortly assume plant strike. We there- his arrival at the On plant man- be could after, that if the he advised Lee Scott that wished told justified legally Emplpyer'was ned, out. He did had walked Steps following activity course. state, however, that their such production. Essen- thought carry on “protected” the men taken and he by suspending tially tó this was be'done work “uncondi- should offer return to Thursday, day, shift Feb- nate the second shift as of the second the next (3:30 midnight) Thursday, February ruary p. personnel m. to 12:00 1. The day assigning assigned personnel to the the second shift would then plan although day admitted- shift. As this transferred shift — ly places ac- fill the to meet strike —was those on strike. Since conceived February 18, just going tually apparently until was still continued work, p. m., Wednesday, January called back to on at 3:30 before the men were management necessary examine some of the those instructed evidentiary report whether workers on the detail determine second shift discriminatory following morning, Thursday, refusal Feb- constituted jobs. ruary 1, day to former and unfilled for the shift at a. m. to reinstate 7:00 did. No new or additional pro- Employer principal had two employees were hired be- 2" duction lines. One was the biscuit January 31, 1962, tween can, 2y¡y' For roll the other line. single day during 1962. The shift January 26, prior Friday, some time period January 31-February single operated on a produced of the 2" biscuit cans during daylight hours, one-shift basis Employer or desired needed.5 running As an both of these lines. With increase in in orders and decrease inventory of excessive 2stock inventory intervening shipments, from 2%," up, built line was shut down resumption production of the 214" Friday, January 26. the close work necessary. line became fill To the de- course, op- would, throw these needed, mand for labor thus the Em- Consequently, out of work. erators ployer its sent letter of general following Employer, practice its calling the men back for work on Mon- trying to find work for its substitute day, February 19.6 regular employees as fluc- inventoi’ies Although tuated, simultaneously always a sec- this is almost scheduled begin question, a close ond 2” we shift on the biscuit line to conclude that January (3:30 momentary p. picket Monday, walkout and to 12:00 m. line was midnight). protected activity way employees In this who on these employees. working recognized, 2yy' had been line It must be assigned seeking course, jobs. to other The result would effectuate operate peace aim of the be that the 2" biscuit would Act —industrial line —com peting policies on two clear that are at work. shifts. It seems rather Since employer required bargain is the second shift on 2" line was biscuit representatives required worker, of the not then to obtain it must increased production.4 assurance, first, plain have some as to But it seems identity agent. Employer important, Friday, of that More Janu- ary however, pro- it must be able to deal established the two-shift agent responsible Monday, spokesman as duction to commence schedule January 29, it must of the unit. There have assumed bargaining 2" would cannot be biscuit cans real sense substantially be has to doubled. the strike deal with indi When hit, splinter groups. just viduals the decision was made to termi- And desired, normal, approximately Super- 4. The stock of 2” biscuit six hours overtime. 850,000 1,000,000. “help appears cans was between visors had out” but January customary undisputed On it is that stock to have been a when- required 1,376,008. ever occasion it. rescheduling In February 19, 1962, addition to the second 6. As of the inventories day Employer shift, shift to the at- were: necessary production Quantity force tained the Item adding leadman, to the duties of trans- a 944,604 2" biscuit cans . 2yy factory ferring girl hand in- office a 428,676 roll cans shipping department, working to the groups negotiation attempted with such difference between what these men were mockery sought. out after would make a and what the Union or individuals Union, bargaining, so, too, must witness hand bill and the single meeting negotiations agency kept try- purpose, called for that ing get generated pressures from divisive free to sit down and That, too, talk. On the other dissident elements. was the aim of these be, Although is, hand, men. a union or at should is least it true that at very meeting reason Union a democratic device. The there was no vote strike, equally is the its existence existence of true there no any event, law formal vote not members others for whom the In strike. says Consequently, the law it acts. the consensus that the Union present should be that members at the declare time slow com- effectively speak Employer. of their municated to cannot in behalf In no sense organization and ob- could it Employer’s own and the aims have affected the jectives collectively response picket which it seeks line. And one thing quite in their behalf. seems assert these clear. moment flicting may policies, expressed action, there be found Lee learned of the he disappointment basis for resolution: the action of the that the men had taken way repudiate it. But individuals or a small in criticism did he it. to, of, opposition policies contrary, To the and ac- he told the men their organiza- protected, position action was tions theretofore taken immedi- ately Or, contrary, by assisting tion? is it more corroborated nearly things preparation support letters of uncondition- trying application accomplish? plus telephone If it al the union is calls to divisive, manager former, cap all, is the then such Smith. To it protected. single action is not L. there is sident N. not a stitch of evidence Draper Cir., Corp., 1944, R. B. 4 145 put v. to indicate that this action the Em- Harnischfeger 989; 199, F.2d 156 A.L.R. ployer any quandary. in sort of It was Corp. B., Cir., 1953, L. R. 7 207 N. put position choosing be- 575; B., Plasti-Line, F.2d Inc. v. L. R. N. tween the demands of the Union and the 1960, If, Cir., 6 278 F.2d on the 482. pro- demands of these strikers. Whether hand, generate support other it seeks to unprotected, Employer tected re- acceptance an the demands garded the action as an economic strike by put union, protected forth so employees. some of its And its reflex long, course, as the means used do simply prepare was for battle. disagreement with, repudiation involve a brings question This us to the of, policy pre or criticism a or decision finding Board’s order violation of viously as, for taken the union such (3) pay and the back cooling example, pledge, a no a off provision during period of non-em during negotiation. period, or the like ployment. engaged Since the men were Contracting B., Corp. v. N. L. Western R. recognize protected activity, Cir., 1963, 10 322 F.2d 893.7 rights they enjoyed equivalent to eco support- light, find Thus, Viewed we nomic com strikers. none could discharge pel Employer person able factual conclusion that the Board’s a activity during replacement concerted within the hired serve as protection hand, of the Act. was no There real On the if the strike. other points up, Lighting Co., Cir., 7. As the dissent that case 7 F.2d rejects really expressly decision cannot rest on the fact that at which he majority opin- ultimately separate concurring union of the mem thesis of the two expressly support quickie bers voted ions the matter is to be determined precipitated presence sit-down because this was or absence of a minority any action. See also the dissent of the union members in such conduct. Judge Swygert in N. L. R. B. v. Sunbeam problem job position filled of this we had not been could assume that no pay replacement, Employer’s striker back due the economic decision, good to his former entitled be reinstated held determined in having job faith, actually turned out without discrimination been to have Footwear, participated in the Reinstate Cf. Rubin strike. unfounded. Bros. subject gen B., Cir., 1953, Inc. v. L. R. would also be N. ment 486; principle, frequently applied Burnup Sims, Inc., N. R. eral most L. B. v. & Cir., 1963, granted, in the case of established discrimination F.2d cert. applicable equally none is 375 U.S. 11 L.Ed. where S.Ct. recognizes principle 2d 472. found. if, since the activ time propositions But these and as changed ity, actually so conditions have unavailing. sumptions are here The rec particular job that the has abolish been amply finding, supports ord the Board’s ed, need not create a new express rejecting implied, the claim job old. or revive the In that situation pending that reinstatement deferred remedy adapted has to be to such investigation. simple is that fact economic-business conditions8 proof there is no such investi Employer Board’s attacks the here gation investiga made, or that such challenging first, by order, the existence brought tion or its conclusion ei about discriminatory requisite motive suspension ther the weeks’ or the 2% by asserting and, second, that there was Employer’s re-employment notice jobs and hence no until inven- work course, true, It is tory required pro- conditions increased production manager Smith told the put at men duction which time the men late that afternoon that their re back to work. employment would an “in have await vestigation,” repeated a statement support first, following morning later, them the argues with considerable basis that when telephone inquiry. Likewise, Lee his precipitated by the strike was this small February 5, committee called group, was, best, there as to doubt again reinstatement, on Smith about he nonprotected its or status. pending “investigation.” deferred decision the Consequently, it was entitled to an make investigation 9 investigation But an ever on inclu- which to base its made, proof pattern sion and its conduct there is no thereafter was at all either accordingly. We can assume that it was as to what was or done what was looked investigate. entitled to R. B. Cf. N. L. for. Smith’s recollection was a virtual Mills, Cir., 1960, v. Dan River 5 274 F.2d blank, Company’s lawyer, the who 388; 381, at N. L. R. B. Minute Maid legitimately suggested investigation, Corp., 710; 1960, 705, Cir., 5 283 F.2d supply missing when, did not the link Mfg. Cir., B., Hendrix Co. v. 5 N. L. R. voluntarily relinquishing profession 100, Obviously, 321 F.2d 105. this privilege, al he took the witness stand to investigation would take Had an time. testimony offer as to certain activities really been made and on it a conclusion during bargaining. Perhaps more im reached, we could further for the assume portant, re-employment the of the men purposes of this case that for the inter- resulted, investigation not from vening or period required to make time conclusion, investigation, its pay but rather from need no back could be And, purposes ordered. production. at least for for increased Aggregate Co., Scott, 8. N. L. R. B. v. American 9. As to Smith’s remarks indicated Cir., 1962, 563-565; investigation complete 305 F.2d N. L. ivas on Bldg. Co., Cir., receipt unemployment compensation R. B. v. American Steel of the 480, 482; application showing quit” 278 F.2d N. L. B. v. R. “had Scott Biscayne Corp., Cir., dispute. Television in a labor 340. right regular Employer’s Employer’s claim of a The The was significance generous investigate a benevolent and one. has unusual When to production declined, For it to find other these circumstances. what tried under regular jobs justification put either for. work forward as a which its em assigned. failing re-employ delay ployees Frequently could or re-em work, ployment out nonexistent. this took the form of turns to be maintenance strictly cleaning Although speak painting, up Employer, plant, On etc. going occasion, policy to this ing, forward share-the-work had burden applied by justify conduct, L. v. was N. R. B. the decision announced cf. 406, Friday, January 26, McGahey, Cir., 1956, 233 F.2d to institute on the following ground sought Monday, January after it to do so and unestablished, Board noon shift to alleviate in substantial turned out to be regard suspend certainly as the decision on entitled to was " actually significant ques plan roll crucial line. was element on 2^4 put discriminatory January Monday, into effect on motivation. tion by eliminating the line roll on 21/i" urged justification The other first shift and the addition an after delay rehiring the asserted noon shift for the 2" biscuit line. seeking re lack of work for the strikers Then strike hit. was too late to It employment. Ordinarily question of changes make afternoon shift so jobs open to be whether there were still manage- went But scheduled. relate refilled work do ment, reality strike, faced problem g., remedy, e. re prior p. time m. some 3:45 that after- Here, pay, instatement, the like. back noon made the decision discontinue bearing however, a dual it serves newly shift and instituted afternoon remedy. on motivation well as assign day such workers to the shift analyzing ease, aspect we commencing following morning, Feb- theory reject emphasized one following ruary course Of way. Board. It runs this morning, February 1, the strike was over p. m. on Wed- least terminated at 3:45 Shortly ask- knew it. the strikers nesday, January was, 31. This of course February 1, m., for reinstatement.10 prior ed at which 7:00 a. shift, afternoon reshuf- time the former Why were the men not reinstated? go duty. strike, to meet the fled Employer answers, first, in that an Therefore, failure of the vestigation being made, a reason assign day shifts, after- the normal might adequate which inquiry actually have been noon, on so unreasonable gone final on to decision punitive prove mo- anti-union as to itself good Second, more in faith. now and this, case, is is often tive. But as critical, Employer the men answers: equivocal too on which base here re-employed were not was because there finding. B. v. Citizens N. crucial L. R. support no an work. second this Cir., 1964, Company, F.2d 5 326 Hotel swer, Employer a formidable makes 501. showing fully which can credit we con cerning its current both inventories on of reasonable- think the element We accept products. 2" can completely the We is or unreasonableness ness 2:!4" Employer’s proposed conclusion also done, was viewed here. What immaterial pro general that there no real need light Employer’s would have duction which these strikers and, important, more its they re-employed. ample strike, achieved had been just prior affords simple (3) not (1) But the fact is that did 8(a) Board’s for the basis change represent of condition. conclusion. employee application Board, ample basis, as Gerald the reinstatement 10. The fixed February 8, 1962. as Williams 982 exactly Helpers 1961, B., as situation same it was America N. L. R. morning 667, 11; 835, before when the men 365 went U.S. S.Ct. 6 L.Ed.2d 81 ill-timed, on out ill-starred Radio strike.11 Union of Officers Commercial course, pro Telegraphers Union, true, B., It added AFL is v. N. R.L. 17, 1954, duction from men was 347 these not 74 needed. U.S. S.Ct. 98 L.Ed. Wednesday. Neither put was it on Never Neither of two for reasons investiga Employer (1) theless had for its own ward — good reasons, otherwise, (2) tion, benevolent no-work—turns out to well go made the decision founded cause for failure re only change on forward two shifts. There was instate. in circum resulting employment new one factor: the strike. Had stance in not the versus- non-employment place, strike taken each of these is the men fact of inter vening momentary working Thursday, would have been on strike. The Board they was, working, therefore, justified eminently 1. Had been its- in they producing that, objectively, would have been conclusion articles viewed this- Employer’s (a) precipitated shows evidence discrimination be quite strongly protected activity, not (b) needed. cause ob only reason, viously therefore, having discouraging these men effect working gone membership. Reaching were not is that union con out on strike.12 clusion, the was also to- Board entitled during pay period order back the short might Whatever have been suspension. Holcombe, L.N. R. B. v. subjective Employer, motives Cir., 1963, re 325 F.2d 508. That the may clear now that an not might sult have well been different13 upon consequence visit this sort of em change had there an actual in eco been rights engage ployees who resulting in nomic business conditions by the Act. If this conduct is not inter work, particular the abolition restraint, with, ference or coercion of job, like, help Em or the does guar rights the exercise ployer change, here. There was to be anteed § U.S.C.A. con § change strike, sure. But was the stituting 8(a) (1), violation then § its commencement its termination. assuredly

most it is conduct condemned enough. And that was not 8(a) (3). The § element of anti- discriminatory union Order enforced. motive essential sufficiently present when, be, judged it must the conduct is ob Judge GEWIN, (dissenting). Circuit jectively, subjectively, terms I. likely consequences under the facts of specific setting. My disagreement N. L. R. L. B. v. W. basic ma- Co., Cir., 1961, jority holding Rives 288 F.2d at arises from 516; activity and also B. “protected.” N. L. R. v. Dalton Brick of the men Corp., Cir., difficulty seeing & Tile I have much how such discussing 895-897, length activity at Local said of men can be represent policies International Brotherhood of Team of a union ster's, Chauffeurs, approximately meeting Warehousemen and 50 men when in a was, course, production strike, employees who, 1 1. There of the of had there been no January Wednesday, working Employ- the first shift on would have been the 31, interrupted by strike, substantially doing as was the it er the identical or re- plus that of the shift. afternoon But there lated work. In addition some clerical of- is no evidence whatsoever to indicate ei fice workers shifted to were though jobs regular ther what 2" that was in terms of biscuit their were not abolish- cans, management by or that considered this ed or filled others. one-day any significance. addition of See, g., 8, supra. 1 3. e. cited in the cases note employees 12. The substitute were not real- ly “replacements.” They regular

n legal night employer very before, repre- to stances an would be bound the the discouraged negotiate group, with individual union had sentative small, employer had strike, however unless the the mem- talk of and advised knowledge everything possible full of decisions made at union should be bers that indulged resorting meetings, presumption Al- the to a done before walkout. meeting though representatives had new been chosen no vote was taken places strike, testimony representatives to take of with indi- the to the whether employer previously generally whom such ne understood it cates that was gotiated. Indeed, by employer The bound is § no strike. there would be negotiate legal (a) to out, of the Act walked when the ly representative Apparently, Un simply constituted meet and confer. to Supreme the ion and no one else. Court made at The to the decision bowling Supply Corp. alley. v. in Medo Photo was unau- stated decision B., N. L. R. 321 U.S. S.Ct. in direct conflict with thorised and was 1011: Union L.Ed. conclusion reached the the meeting night before. When the held the case, present- “For in as will either representative Lee, whom the with union ly nego- appear, we think that the deal, of Company to heard was bound the wage by petitioner in- tiations immediately strike, the he instructed the anyone with other than the creases union, They refused. to to work. men return designated representa- majority of the action The states employees, tive of the was an unfair * * * opposition to the individual practice. labor The Nation- Union, prior divi- is then action it it al Eelations Act makes Labor pro- sive, not dissident action and hence duty bargain employer col- action taken Not was the tected. by lectively representa- with the chosen opposition to the 8 here in direct obliga- employees. tives his The night very Union the taken action being 9(a) exclusive, tion see § op- before, direct continued to be in it Act, 29 U.S.C.A. § [9 position position taken 159(a)], it exacts F.C.A. Tit. representative instruct- Union negative duty ‘the treat with immediately, them to return work ed other’.” majority they The refused. from other There are numerous cases activity protected so cludes that long directly point Circuits generate support for seeks to controlling A case. should be in this Union, already un- made demands them will short discussion two disagreement action less such involves majority fallacy of the suffice show policy previously decision Draper Corp., opinion. N. L. R. B. Yet, adopted somehow the the Union. 156 A.L.R. Cir. majority does not see the walkout here working per 989, 25 cent the total disagreement ac- with the Union’s question walked force of the night simply tivities of the before be- “they out considered that because “ * * * no formal there was cause they ‘stalling’ company and that not strike.” vote get it.” The wanted ‘action’ and would complaint was strikers were fired and a gen- concedes The Board filed with the Labor Board. opinion the union eral consensus protected. to be the action held meeting “that members stating: Circuit reversed Fourth present not strike at Union would “ ** * * * q'kg purpose goes act was on to hold time guarantee walkout was nevertheless the activity right please but Company to do as did because right guarantee of col- to them the to decide Union had failed know that the bargaining purpose reasoning for leads lective the This line of to strike. peace. preserving The industrial of circum- such to absurd result. 984 designated forth, policy 29 or of is thus set resentatives selected the act by purposes for the of 151: denial collective U.S.C.A. ‘The em- bar- § gaining by right majority ployers employees the of of to of em- the the by ployees organize appropriate unit and the refusal em- purposes, accept procedure ployers shall of exclusive- to employees n representatives bargaining all the collective lead strikes of purposes in such unit col- and other forms of industrial strife of rates n bargaining respect unrest, lective or which have the intent or burdening pay, wages, employment, necessary hours the obstructing effect of of or other conditions of * * * employment: It commerce. of Provided, any hereby policy That individual em- declared to be ployee employees States to eliminate of the United or a of shall right causes of certain substantial obstruc- present have the time to grievances tions to the free flow of commerce employer.’" mitigate and to and eliminate these (Italics supplied) obstructions when oc- have bargaining “A union selected by encouraging curred agent is thus made exclusive bargain- procedure and of collective representative employees, of all the ing by protecting and the exercise bargain purpose for the of collective of full workers freedom of as- ing. Virginian said in As R. v.Co.

sociation, self-organization, des- and System Federation, 300 U.S. ignation representatives of their 592, 600, 57 S.Ct. 81 L.Ed. choosing, purpose own for the ‘imposes duty the law affirmative negotiating and the terms conditions only repre to treat with the true employment of their or other mutual sentative, negative- and hence the protection.’ aid or duty to treat with no other.’ See- McQuay-Norris Mfg. perfectly “It is clear also N. Co. v. Cir., 748; particularly L.R.B., ‘wild cat’ strike is Tex demoralizing N.L.R.B., Cir., harmful arkana Bus and form Co. v. 484; unrest, industrial strife and F.2d the nec- North Electric- Mfg. essary N.L.R.B., Cir., effect of which Co. v. F. is to burden commerce, employees 2d obstruct also must through necessarily majority act of that the voice of the destructive bargaining bargaining agent collective which it is the chosen purpose Minority promote. majority. groups of the act Even must though acquiesce action of the ma em- ployees industry may jority bargaining agent they in an have bargaining agent chosen; minority and, just selected their have as a agent may right recognized separate- no have been has bargaining arrangements to enter into employer, there can with the- be no ef- bargaining right employer, groups fective so small it has to take employees ignore liberty independent are at with action to interfere bargaining bargaining agency up, set the course which is. thus particular being duly take carried matters into their author bargaining agent independently own hands deal chosen the- ized majority. employer. pur- proviso to section The whole pose give quoted, preserving the act is to individ to the em- above through right ployees whole, groups as a action uals or right majority, bargain grievances present with to the em negatives by necessary respect ployer, infer to such right wages, matters as hours and condi- on their call ence the act, tions of work. Section 9 strikes for the ing influenc being provides: ‘Rep- 29 U.S.C.A. carried om followed case v. (cid:127)orderly (cid:127)of (cid:127)certified n .R.B., petitioners n (cid:127)of the change ’“The Act is based cerning these matters. To have done with the -any (cid:127)contrary .sions and actions satisfied with '“Here under the contract (cid:127)doubt but n between employeesand not ried tive.” L.Ed. 1007.” through law positive Act tion ing “True, grievances by it. Medo Photo reached rect defiance of the representative and the so would have resulted in a violation dress. The Sixth Circuit in by taken its “ of its N.L.R.B., * ^[*] ****** very striking group with this under employees.” of Section position imposes promoting other. * * 321 U.S. petitioners’ the strike was called Draper and held: must or alter the situation chosen settlement of certain Their action eliminated striking group responded to -X- collective similar to the duty bargaining orderly disposition of the position 6 Cir. were not parties, and in defiance Thus, Therefore, acquiesce irresponsible with Supply Corp. ^[*] representatives of the strikers minority group seniority 1960, representative and bargaining and an bargain industrial upon act, obligations on these representative.” the strike and also 64 S.Ct. the Union ^[*] purpose of the majority disputes. representative empowered Plasti-Line, Inc. bargain now seek in the deci- affected, settlements representa- present rights ^[*] minority, were F.2d principle minority and car- the Act. contract v. N.L matters a viola to the in di- of his peace deal con 482, -X- re- all case, a phasis tracting Corp. N.L.R.B., ployees because: participated the proving thority, of Kiley beam ticipation sented on that walkouts are not cent protected because the record failed to sus tain the ers had den It is also sent in Western The dissent majority employees work until reasons: At least truck drivers incident the strike nine minority In a drivers who different from those fore the Hamischfeger group “But, Finally, majority “The stalled.” teaching Board record sustained General Counsel had was not met. ****** Judge of the unit. “[A] Lighting Co., origin in a employees.” workers had added). (of went on strike very case before us participated, held Board’s interesting that the walkout was before the action is respective two addition, concurring a total majority of the total Although Castle, action for of Sunbeam and stated: over 50 here was not joined with the recent ground that, that the constituted, v. the heaters were by voted finding and Sunbeam. requires majority par- must the night-shift 10th citing at least over 50 soon after the participated. per Judge Swygert dis the conduct of the case, courts in eleven) day-shift Cir. and that such bur this conduct had Circuits have held opinion, which were N.L.R.B. walkout was employees, protest note cent of the work protected of all Circuit followed * * that a not return Board’s substantially Draper as au Western Con in his regarded minority it is 10 Cir. agreed following plant’s burden Draper, drivers. protected. held true, majority opinion, Here, v. Sun the dis- finding first unless Judge be- in- with (em- F.2d em per opinion Harnischfeger premise N.L.R.B., of the main Corp. “The also See is that a 207 F.2d 575. 7 Cir. activity engaged membership. shows, in concerted which So far as the record derogation position in of all of the was not non-strikers were members of agent. bargaining by union, yet taken same the charged. none of dis them was support put I in Could find the record All of the strikers were premise I would be in com- back to work such as soon as re plete quirements permit accord.” without imposition any of conditions relative every in case It not contended that membership. company union The by majority supported a strike must be a negotiated reg met and with the Union of the workers in order constitute ularly prior for some months to the strike activity.1 protected *I do conclude under meeting being only days —the last be e., peculiar case, facts of this i. employer’s fore the strike. Even if the by rejection tacit of a the union strike justifiably could action be to be construed night walkout, the agent’s before the retribution for or interference with the minority admonitions to the activity minority group strikers, of the immediately, to work return showing there has been whatever ignored disregarded by which purpose of, was for or conduct pro minority, cannot be said to be discouraging had the effect of union mem Indeed, tected. it falls far short bership. Perhaps the error of the Board by majority: laid test down finding: by is demonstrated “ * * * protected long, it is so discriminating regard “By in course, as means do a not involve * * * employment of tenure of disagreement with, repudiation or thereby discouraging memberships of, policy pre- a criticism or decision in and labor activities on a ” * * * behalf of viously by taken the union ” * * * organization (emphasis added) II. 8(a) (3) must be Such an extension § majority sus Board found and the by Congress, Board. made not the a violation tained approval extension Judicial of such an I record thor

Act.2 have searched the strengthen justify it. does not oughly diligently, not found but have Draper, supra, 4th stated: Circuit 3 tending any to show either evidence employer perfectly that, in on the clear “It is discourage any membership, charge reemploy, union and refusal discourage employer calculated to conduct of the there was no intent discouraging organiza- membership any union have the effect in labor Draper Corp., supra, bargaining gen- bring 1. In N. L. R. B. v. into collective disrepute ‘wild the court said: than to hold that eral “ * * * say, by do We not mean to the collec- cat’ strikes are course, strike can be called tive statute.” bargaining union, or that less than pro- pertinent portion will not be Section is they go protec- tected in follows: rights. Carpet tion of their See Firth “It shall an unfair labor * * B., Cir., Co. v. N. L. R. 129 F.2d 633. discrimina- —* * * * say encourage minori- What we do mean to is that tion age or discour- engage strikes, organiza- membership in ties who ‘wild cat’ labor rights violation of established col- tion.” bargaining statute, lective ing can find noth- protects supra in that statute which them : 3. As was said Sunbeam “ * * * discharge. findings from In the absence of the are en- The Board’s statute, nothing respect they there the law titled to are to be meas- discharge support- which forbade the of strikers. whether or are ured nothing statute, properly There is construed, record ed substantial evidence on the protects discharge from Cam- considered as a whole. Universal pro- Corporation B., who those strike in defiance of its R. era v. N. L. 340 U. way visions. No surer found could be S. 71 S.Ct. 95 L.Ed. 456.” meaning tion, noted, section within the “As the case at bar is barren great majority any (cid:127)8(3) act. The such evidence. To the con- employees, trary, members undisputed who were (cid:127)of the facts reflect work; union, opposite continued of the that the There true. n company recognize election, continued to a certification bargaining representa- which, union as the Board and a contract at the discharge employees; controversy arose, of its tive time this be- employ ing recognized. did affect and refusal to No one of the the status and couldnot have affected of strikers testified that his union bargaining represen- anything membership union as of the do to with tative; being discharged. is not a scintilla and there his The Court is support unable, light conclusion record, of evidence in the of this discharge to sustain the Board’s ‘wild cat action on this of the phase reemploy Certainly, of the case. refusal to there strikers or the any support is no evidence of discouraged kind encouraged or them 8(a) (3) an inference of a Section organiza- any membership labor petitioners’ violation. The any to have tion or was intended charge and refusal to reinstate the Cartridge Co. such Western effect. strikers, in the circumstances of this N.L.R.B., Cir., F.2d 855.” case, not, any could under stretch of N.L.R.B., Plasti-Line, 6 Cir. Inc. v. imagination, be considered an 1960, Circuit the Sixth unfair labor under the lat- stated. ter section of the Act. N.L.R.B. v. Draper Corp., supra.” holding regard the second “With Board, of violation of the firmly in this case con- The record (3) petitioners 8(a) of Section that the actions of this minor- vinces me ity group proof Act, there is not a scintilla of strikers, perhaps taken with support in the record in thereof. motive that the Union the same ultimate Court, N.L.R.B. v. Adkins had, consistent with means Co., Cir., F.2d Transfer policies the Union. methods of forth criteria neces- set long majority apparently so hold that sary of this a violation to establish objective same, is the the ultimate follows: section minority activity protected. Such “ ‘In to establish an order surely will result construction the Act violation, there must be evidence by dissident in- in unauthorized action encouraged employer’s act opin- groups when, or in their dividuals discouraged membership. or union moving ion, In our union is too slow. requires that the dis- The section Congress ap- view, did not intend regard to tenure crimination sought conduct,4 prove employment have both hope such course action demn discouraging union and effect of peace.” promoting “industrial membership, out a and make appear case, em- must must, therefore, dissent. I has, by discrimination, ployer en- Rehearing denied; GEWIN, Circuit couraged discouraged member- dissenting. Judge, organization.’ ship in a labor all,’ represent recog- Supply Photo Medo Footnote See reports Congressional nized tlie supra: Corp., recommending adoption implica- committees clear ‘carries the the Act “That of the bill which the National employers became interfere’ shall tion Sen.Rep. Act. No. right Labor Relations of collective H.Rep. Cong., Sess., p. 13; mi- 74th 1st ‘by bargaining individuals p. Cong., Sess., behalf, No. 74th 20.” nority groups 1st after own in their picked representatives have been

Case Details

Case Name: National Labor Relations Board v. R. C. Can Company

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 5, 1964

Citation: 328 F.2d 974

Docket Number: 20609_1

Court Abbreviation: 5th Cir.