Home Beneficial Life Ins. Co. v. National Labor Rel. Bd., 5515.

• Decision Date: 07 January 1947
• Docket Number: No. 5515.,5515.
• Parties: HOME BENEFICIAL LIFE INS. CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fourth Circuit

159 F.2d 280 (1947)

HOME BENEFICIAL LIFE INS. CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.

No. 5515.

Circuit Court of Appeals, Fourth Circuit.

January 7, 1947.

Patrick A. Gibson, of Washington, D. C., and T. Justin Moore, of Richmond, Va. (Francis V. Lowden, Jr., and Hunton, Williams, Anderson, Gay & Moore, all of Richmond, Va., on the brief), for petitioner.

Morris P. Glushien, Associate Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Gerhard P. Van Arkel, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Dominick L. Manoli and Arnold Ordman, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This labor dispute grows out of the discharge of certain agents of the Home Beneficial Life Insurance Company and the refusal of the company to reinstate them. The men had disobeyed a rule of the company, and the issue to be determined is whether or not at the time of the discharge the men were engaged in a strike which had been undertaken in order to secure a modification of the rule. The Board held that the strike had begun when the discharge took place, and that the discharge was merely a tactical maneuver to induce the men to resume work and was not intended to terminate the employer-employee relationship. Subsequently the men offered to return to work, but the company refused to reinstate them and the Board held that this action was a violation of Sections 8(1) and 8(3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3), in that it interfered with the men in the exercise of the rights guaranteed them by Section 7 of the Act, 29 U.S.C.A. § 157, and discouraged membership in the union. With certain exceptions, not material here, the Board adopted the findings and conclusions of the trial examiner to whom the case was referred for hearing.

The Insurance Company is engaged in the sale of ordinary and industrial life, benefit and accident insurance, and maintains twenty-six district offices in the District of Columbia and in Virginia, Delaware, Maryland and Tennessee. It employs seven hundred and sixty agents to sell insurance, collect premiums and service policies. The agents at ten offices of the company in the District of Columbia, Maryland, Virginia and Tennessee are involved in this case. A large part of the business of the company is the sale of industrial policies, and the great bulk of the work of the agents is performed outside the district offices. They visit the homes of the policy holders weekly to collect premiums and make payment of sick claims. They turn in their collections to the district offices, report and receive information as to the placing of policies and the making of claims, and give and receive information as to their routes or debits, as the groups of policy holders assigned to the agents are called. The prompt return of the collections and the prompt settlement of claims are highly important to the success of the business, and on this account a long standing rule of the company requires the agents to report to their respective offices each morning except Sunday before they begin their outside work.

The agents are members of certain locals of the American Federation of Industrial and Ordinary Insurance Agents' Union with which the company has had collective bargaining contracts since 1940. The reporting rule was modified in 1938 to excuse the men from reporting on Saturday, but the five-day requirement was included in the contracts with the union, the last of which expired December 5, 1942. Negotiations for a new contract were begun in January, 1943. The bargaining went on for several months, but the parties were unable to agree on certain matters, and on October 6, 1943 the disputed issues were referred to the National War Labor Board, but the question as to the reporting rule was not referred since the union apparently abandoned its position in this respect. The case was still pending before this Board on August 4, 1944 when the union renewed its request for modification of the reporting rule, but the company refused. Thereupon the union filed notice under the War Labor Disputes Act, 50 U.S.C.A.Appendix, § 1501 et seq. (1944), requesting that a strike vote be taken, but the request was denied on the ground that the company was not a war contractor within the meaning of the statute. The union then invoked the aid of the United States Conciliation Service, and during the negotiations which followed, the possibility of a strike was discussed. The efforts at conciliation failed, and in September the dispute was certified to the National War Labor Board. That Board notified the union that if a strike occurred, it would suspend action upon the dispute relating to the report days; and for some weeks the matter lay in abeyance.

The controversy was brought to a critical point on Monday, October 9, 1944 when the union notified the company that the Washington agents had voted temporarily to report to their offices only on Wednesday and Thursday of each week, beginning Tuesday, October 10. The company wired back on October 9 that it was necessary to refuse the request to modify the rule and that any willful and deliberate violation of the rule on and after October 11 would result in dismissal. After this exchange of telegrams the company notified the United States Conciliation Commissioner, and he arranged a conference between the parties for Thursday, October 12.

In the meantime, the agents did not report on Tuesday, October 10, but did report on Wednesday, October 11, and at this time the company's telegram was read to them. They reported again on Thursday morning, October 12. The union consulted its attorney who was doubtful whether the activity contemplated in the union's telegram of October 9 was within the protection of the National Labor Relations Act, and advised the men either to obey the company's rule or not to go to work at all, that is, to go on a strike. The local held a meeting at noon on Thursday, October 12, at which the men selected a committee to attend a conference between the union and the company representatives to be held that day and authorized the committee to call a strike as of October 13 if the conference failed to reach a satisfactory agreement.

The conference was held that night at Richmond and was attended by representatives of the company, representatives of the union, and their respective attorneys. The company refused to modify the rule, and its attorney declared on its behalf that the agents who failed to report in accordance with the rule the next morning would be discharged. Representatives of the union conferred with their attorney out of the presence of the representatives of the company, and the union was advised that if the men went on strike, then they were protected under the labor statute. Thereupon they requested the union attorney to notify the company that they would strike on the following morning.

The union's attorney, however, failed to give this specific information to the company. In his testimony at the hearing he quoted the exact language he used as he wrote it down as follows: "Members of the union or other agents who did not report for duty tomorrow or at any other time did so for the purpose, by concerted action, of enforcing demands for relief from a situation created by the gas shortage." He testified that he had taken pains to use these precise words for a particular purpose which he did not disclose. The reason doubtless was that the National War Labor Board had notified the union that if a strike occurred, the Board would suspend action upon the dispute as to the report days. At any rate the word "strike" was not used; and when the company's attorney suggested that the union's attorney was getting technical and inquired if he meant that a strike would be called, and further stated that the company expected to have a strike sooner or later and was prepared for it, the union's attorney gave no further answer or explanation. The next day, October 13, the union's attorney, using substantially the same language as on the night before, sent the following telegram to the company on behalf of the union:

"As company was informed last night, members of union or other agents who do not report for duty do so for purpose, by concerted action, of enforcing demands for relief from situation created by gas shortage. If any agent is or has been discharged, agents thereafter failing to report do so to support such discharged agents by concerted action, in addition to purpose of enforcing aforesaid demand, company will be held responsible under Wagner Act for all discharges under foregoing circumstances."

The same day the agents failed to report in the morning, and the company, believing that they were merely persisting in their disobedience to the rule, discharged them.

The fact was, however, that a substantial number of the men began a strike on that day in accordance with the action taken by them at their meetings on the day before. A few days later the National War Labor Board returned the dispute as to the reporting rule to the Conciliation Service, and conferences between the representatives of the union and representatives of the company took place. The conferees endeavored ...