National Labor Relations Board v. L. G. Everist, Inc.
334 F.2d 312
8th Cir.
1964
Check Treatment

*2 gaging VOGEL, in all. some workers Before MATTHES Judges. BLACKMUN, Circuit Friday, On December the dam being picketed construction was site Judge. VOGEL, Circuit Union which had a dis- Iron Workers Contracting Corpora- Board, pute with Relations Western National Labor tion, 10(e) on the pursuant other contractors of the National La- one to § sign job. apparent car- amended, from the bor Act as Stat. Relations only 151 et ried Western 73 Stat. U.S.C.A. § Jones, Root, petitioned seq., Brown and for en- not has this court sign discharged, being ly picketed. The abandoned the strike- contractor, been to “return to work immedi- offered read: During ately”. interim of this- the entire 184 ON NO. “IRON WORKERS strike, work construction site had- at the A CONTRACT FOR STRIKE *3 ceased because the mechanical diffi- THIS CORP. WESTERN CONTR. that, prime culties apparently any the contractor ABOVE CON- WITH DISPUTE significance might which ONLY” TRACTOR to or dis- be attached strike was lost the Respondent’s ar- truck drivers nine sipated. aggre- their trucks deliver rived with gate response request In to be re Upon to the prime ob- contractor^ to the work, notified the- they turned to serving picket, parked their the picket line representa- drivers had the who crossed their union trucks and called and had continued picket on December 8th tive, to cross the them not who told following working report for the work line. At that time none crossed. Short- ly day. refused, however, to reinstate- thereafter, however, respondent’s su- discharged the- four on the drivers perintendent, Roe, and after Earl arrived ground reemployment that such after- discussing prime the the situation with of com respondent’s a violation instructed nine contractor pany policy.1 picket line and cross the drivers to either their make deliveries or to return their Respondent deliveries to the- resumed respondent’s place of loaded trucks 15th, uti- construction site on December lizing made their business. Five of the drivers deliveries, remaining drivers,' three- its five crossing picket thus line. the supervisors From» and driver. one other Miller, Dunlap, four involved The Taylor here— respond- until Christmas that time about Reeves—refused do so and five were made the ent’s deliveries respond- loaded trucks to returned their originally with them drivers who were day depot as Later ent’s directed. line, picket and who had crossed the supervisors three they upon report- instructions from Roe employees- other and various gave office, front Roe ed to the where during period. Per- who were hired final them their checks replacements were hired about. manent them. Christmas, three su- at which time the Monday, On re- December pervisors to their normal du- returned spondent con- resumed site, using deliveries ties. struction drivers who the five the dis- The Examiner found that together had crossed with the charges re- December respondent’s supervisors .three spondent’s and failure to rein- day, a student how- driver. Later that Reeves, Taylor, Dunlap state Miller and ever, work on the construction site ceased 8(a) (3) of Act not the did violaté § because of mechanical difficulties of the prompted respondent’s since actions were operations not contractor and did operations and its need to continue again resume until December 1961. alleged reprisal for discrim- not in the alleged meantime, dis- the the four having to cross the inatees refused criminatees three of com- line. the He recommended Monday evening, drivers on met alleged plaint insofar as it be dismissed 11th, December and decided strike 8(a) (3). violation of § protest discharge of to the December 8th disagreed with the Exam- Board the four drivers who refused to cross the dissenting, iner, and with two members picketing line. The strike found it morning until the maintained “ * * * 14th, unnecessary to decide driv- December ers, including which time the previous- whether, con- Counsel four the General the who August 9, Dunlap Taylor, hearing stipulated 1. Miller and on At it eventually 1962. offers of reinstatement August 8, 1962, made to Reeves on and to unlawfully Respondent permanent replacements, "tends, held that (cid:127)discharged spondent 8(a) (1) claimants Decem- violated Act refusing view, 'Re- ber since in our to reinstate them. 8(a) (1) spondent violated Section dissenting members of by refusing Act to reinstate —Rogers and Leedom—who had also dis- claimants uncondi- agreed majority with the of the Board’s application tional for reinstatement original Redwing opinion, decision on December at which time stated: replaced.” had not been colleagues “Unlike our of the ma jority, Ex The Board then stated that the Trial we would find that Re aminer, agreement respon spondent did the Act violate *4 dent, misinterpreted Redwing discharging Car claimants December on riers, Inc., 1545, by refusing 137 N.L.R.B. No. aff’d to reinstate them Teamsters, Help sub nom. Chauffeurs & on December 14. For reasons the original 79, ers Local U. of stated in No. Intern. Broth. the Board deci Teamsters, Redwing Chauffeurs, Warehousemen, Carriers, sion in N.L. [130 Helpers B., 1208; see, also, N. D. R.B. America v. L. R. 137 N.L.R.B. Cir., 1963, meaning 1011, C. No. 325 F.2d as we 142] believe that the claim employer lawfully picket that where an ants’ refusal “dis to cross the line charges” employee refusing unprotected activity. an for to We would picket “discharge” line, Respondent cross a find such is. therefore that the discharge lawfully terminating and, acted employment tantamount to a for cause the discharge cause, as in the case of and for claimants the because picket the to their refusal to cross thereafter entitled re the original discharges fuse to line. Since the reinstate the for the justified original reason were for that the dis were therefore cause charge. lawful, noting Contrarily, Board, the we find that further Redwing Respondent employee’s that held that an re the did not thereafter refusing, protected fusal to cross a violate the Act in line for the activity, interpreted meaning reason, same it as in ef to reinstate claim the fect ants.” that: “ ** * ‘discharge’ a for refusal We are told that this is a of first case exception impression appellate is an to cross a in an The court. general employees to the may that views of rule three members of the Board engaging majority for who the are be constituted dia- activity. metrically protected opposed It is concerted to views of the the discharge cause, dissenting for therefore not a two members and the views merely permissible in fur- act hut the Examiner. employer’s therance the probably emphasized here should overricPs^ going ing right keep to his business testimony that the uncontradicted is that ’by replacing employees. To such the contract and the between extent, least, employees the provided contractor that continued are similar to eco- involved herein uninterrupted deliveries were -es- may strikers, also nomic who be re- ; aggregate piles sential that the were> by placed employer permit con- an low; interrupted that deliveries could operation but tinued who, of the business contract; cause to lose its replaced, are if not and that at least some of the drivers were upon un- to reinstatement entitled hired that informed when were de- application.” conditional by interrupted liveries could not be majority Board, finding Board, by decision, that strikes. did its discharged employees findings had made not the four disturb the Examiner’s regard discharges application for rein- this prompted unconditional or that the “were hiring prior by Respondent’s statement need to con- guaranteed Act, reprisal 7 of the tion” not in operations and were

tinue having cross the Court Second refused the claimants Rockaway in N. L. R. B. v. further Circuit did Examiner line.” Cir., 1952, Supply Co., 2 197 F.2d News stated: “ 113, ap 111, * * and as the Court * Having considered affirming parently did in case in interference, I find animus National Relations Board Rock Labor replacement dischax'ges away Co., 1953, News prompted steps fact but S.Ct. em L.Ed. operations, and continue need ployer, nevertheless, right, possessed the Company not discrim- did circumstances, under continue such inatorily these orderly operation of his and efficient unlawfully to reinstate refuse by discharging business the drivers and them.” replacing employees,, them other words, involved do not have we question then in this case must be Fifth with which situation the same of wheth resolved the determination B. v. L. R. in N. Circuit was concerned permanently- er the four discharged drivers Cir., Contracting Co., 5 Brothers Cone December 8th page de certiorari 353, *5 317 F.2d at they of had been virtue the fact that 11 L.Ed. 84 S.Ct. nied 375 U.S. protected activity, in sta court stated: wherein 2d suspended tus activity more or less one “ -* » * appears that a when it right to return to work with the discharge employee for refus of an long they so as the whenever so desired ing picket is resorted to cross a line x-eplaced respondent had not get animus to of anti-union to out following difficulty in them. We have sympathizer not of a union rid reasoning discharges the Board’s that the operation preserve to the efficient reality in not dis of December 8th were charges business, employer’s la an unfair an “merely all but a at constituted 8(a) practice violation of in bor permissible em in of the act furtherance (1) (3) R. B. N. L. occurs. See overx-iding right ployer’s keep his to Montag Bros., Inc., 140 F.2d 730 v. going by replacing em business such (C.A.5, 1944), perhaps J. A. ployees.” equate such B., Bentley R. v. L. Lumber Co. N. “discharged” employees economic with 1950). (C.A.5, See F.2d 641 right strikers and hold had the Swift also Company, L. R. B. John S. N. any up to they time until return to work at (C.A.7, 641, 646 277 F.2d by permanently replaced had been 1960).” respondent. support no We find fo^C N. L. B. v. the Board’s conclusion. In Rockaway R. argues here, however, that The Board Supply Co., supra, the News 8(a) (1) not violated § employee an discharge, on December of the drivers refusing, performance of his only in 8th but its denial of reinstate- duties, picket main to cx’ossa lawful line 14th. ment to them December premises tained ployer’s than his em at considering ease, accept, If, we a union of which he was deciding, of the without the contention rein a member. The Board directed an Boax'd that the Appeals, a The Court of statement. picket his to cross a own, line of a union not court, divided denied enforcement against employer he with whom affirming, three Board’s order. whatsoever, pro- has no connections Court, justices dissenting, activity, that it is an exercise tected S.Ct, U.S., page at of 345 stated * * * right labor assist “the to page 522. * * * organizations engage and to “x x x controversy pur- The actual other concerted activities * * * very scope, pose protec- a narrow here is within mutual aid opin- Board in its narrow that the However, S.Ct. 522. ion said: we see no difference between the refusal “ to cross a violation of such ‘Although Waugh’s refusal bargaining a contract and the refusal protect- cross line was cross a line in violation of the activity, Respondent, ed as ordinary implied obligations of em- right a normal incident its ployment. written, The one is the other operations, to maintain its could implied. In either situation the business Waugh required have to elect operations employer adversely are perform whether all his duties affected and it is on the basis of such or, striker, as a his vacate detriment sustained job way and make for his re- justifies the Board dis- placement by Respondent. In- charges. present It must transfer em- Respondent discharged stead the ployees or hire new ones if it is to con- Waugh.’ operations. tinue * Appeals *, “The Court of said ‘We Here, cannot follow the Board’s rea Rockaway News, as in “ * * * soning.’ Nor can we. distinc finding, there is no evidence replace charge tion between or even the dismissal of * * in this ment context to us as [Dunlap, Miller, Taylor seems unrealistic and in law bias, Reeves] resulted from antiunion unfounded the Court it. This intended to or did discriminate found * * * application against discourage the distinction is not [them] membership organization.” sanctioned National Labor Rela in a labor Mackay tions Board v. Radio & Tele Examiner found that the four driv- *6 graph Co., “discharged” U.S. ers had S.Ct. been and such find- ing 82 L.Ed. 1381. It is not based was not disturbed the Board. any discharges on premised any in the were not on difference effect employee. finding happenstance except And is no there or occurrence replaced They that he was not either refusal to work. condi- were not employee any way. a new tional in transfer of The drivers dis- were charged nonobjeeting respondent duties policy to some em and the had a ployee, appear necessary rehiring any employee of as would who had respondent discharged. if the were to once been maintain right operation. rights the had a to the Substantive maintenance of such policy proceeded, promptly, and duties in the field of labor- it to re- management place depend do not the verbal drivers with other employees perform ritual of their reminiscent of who medieval real property expected delivering law. the work of them — aggregate contractor even finding, “In this case is no there crossing it did mean a charge evidence or even that the dis- against employer. another union another Waugh missal resulted anti- from cross') refusal the drivers here bias, union or was intended to or did merely the line was against sympathetic^^ discriminate him to discour- against activity employer a third with age membership organiza- in a labor and; whom the drivers had no connection (Emphasis tion.” supplied.) they with whose union were not involved.’ Supreme It is true that the Court affirm- activity' It did not constitute strike Rockaway ground ed against News on employer that their own nor the em-) employee there ployer had they making violated a written to whom deliv- bargaining collective contract between eries. no had effect on their own un- employer his union and spe- his ion, relationship? which their contract or their cifically provided against strikes, employer. walk- with their Such refusal was! outs and other cessations of work. 345 no more and no less than a refusal authority cipally on the work, contract Labor Board their a violation they Rockaway hauling Co., could for which News U.S. continue discharged. validly Such S.Ct. that even if it be conceded that and were engaged discharge complete employees protected

Jayoff a in ac was tivity, they perma employer-employee re nevertheless of the severance lationship something nently discharged which on December such and was right discharge complete was had an absolute severance employer-employee relationship, long not the its actions were as do so intended bias or failure to reinstate the em of anti-union result against employees ployees provide could for an 8 no basis to discriminate discourage membership (a) (1) in a la violation. and to organization. no reason see bor We First, it should be noted that Rock- logic provisions law, in the away Supreme expressly Court de- compels acceptance of the which Act promulgate any sweeping clined to ab- attempt equate these drivers Board’s principles respective stract rights as to the status of economic strikers regard- employee to work hold that might ing Secondly, lines. while the legal twilight zone into a enter Supreme expressly hold Court did not they could return to work from which employee involved choosing, any of their own time unprotected activity, it seems to me long permanent it re as was before inescapable this deduction is be- placements had been As the hired. holding cause of the Court’s Rockaway said in News: Court questioned activity discharge and “The distinction between violation of the no-strike clause in the replacement us in this context seems to labor contract.1 It context and unfounded in law unrealistic as )that the Court held was no there (345 the Court of found it.” ¡distinction between and re- 519) “spe 75, 73 S.Ct. The Board’s placement. gener applying cial function I would hold that the here complex provisions al of the Act to the right had the to refuse to cross involved no such ities of industrial life” embraces *7 line, that such power do not it to be and we believe protected activity in ex that it ‘“within the mainstream of its duties”.2 right to assist another labor ercise Enforcement of the Board’s order organization right guaranteed by and a insofar as it is denied based Redwing Carriers, Section 7 Act. spondent’s refusal the four reinstate Inc., nom. 137 NLRB affirmed sub drivers. Enforcement of the remainder Teamsters, Etc., Local U. No. 79 v. n ofthe reality order, which is in uncon- D.C.Cir., NLRB, F.2d 1011. How 325 granted. tested, will be right concedes, ever, as the engage protected employees this Judge (dissent- MATTHES, Circuit activity unlimited, under was not ing). yield proper circumstances must right respondent’s opera presented pivotal this to continue issue Here, respond recognized by par- ^proceeding, tion of his business. overriding right keep ties, four its busi ent’s is whether the refusal justification operation provided line con- to cross the major- pursued activity. protected it does for the course he stituted —but necessarily ques- ity grips that follow come with this not fails to right prin- attempts to refuse to re- had the absolute tion but to demonstrate Respondent Board v. Erie 1. The Board seem to be 2. National Labor Relations agreement Corp., 1963, Court held Resistor 373 U.S. engaged unpro 10 83 S.Ct. L.Ed.2d 308. activity. tected timely employees upon their instate application made before unconditional permanent jobs their had been filled with

replacements. activity protected I believe placed the four em here

ployees in a status to that of similar although eco economic strikers. And may permanently strikers nomic re placed, employer may permissibly them uncon refuse reinstatement ditionally apply prior therefor to the time jobs filled. have been Mackay Co., Labor Cf. Board v. 904; B. 58 S.Ct. N. L. R. v. Mitch J. Inc., 573; ko, Cir., N. L. B. F.2d R. Works, Inc., Cir., United

v. Brass

F.2d 689. regard controlling In view of what I

precedent I am satisfied under the presented record, circumstances properly the B.oard found that the em- ployees were entitled to reinstatement recog- and that failure to right

nize this was violative of the Act. grant

Accordingly, I would enforce- entirety.

ment of the Board’s order its

Maudie WEAVER and Weaver, Harold V. Appellants, *8 America,

UNITED STATES of Appellee.

No. 7563.

United States Court of Tenth Circuit.

July 9, 1964.