NATIONAL LABOR RELATIONS BOARD v. Buzza-Cardozo

• Decision Date: 06 August 1953
• Docket Number: No. 13486.,13486.
• Citation: 205 F.2d 889
• Parties: NATIONAL LABOR RELATIONS BOARD v. BUZZA-CARDOZO.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 889 (1953)

NATIONAL LABOR RELATIONS BOARD v. BUZZA-CARDOZO.

No. 13486.

United States Court of Appeals Ninth Circuit.

July 15, 1953.

Rehearing Denied August 6, 1953.

George J. Bott, Gen. Counsel, David P. Findling, Assoc. Gen. Counsel, A. Norman Somers, Asst. General Counsel, Bernard Dunau and Abraham Siegel, Washington, D. C. (Fredrick Reel, Washington, D. C., argued), for petitioner.

Hill, Farrer & Burrill, Carl M. Gould, Los Angeles, Cal. (Ray L. Johnson, Jr., Los Angeles, Cal., argued), for respondent.

Before MATHEWS, HEALY, and BONE, Circuit Judges.

HEALY, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order requiring reinstatement of a group of 11 employees found to have been discriminatorily discharged by respondent.

Respondent is engaged in the manufacture and sale of greeting cards. In the autumn of 1950 it instituted a bonus-incentive wage plan. This plan was not satisfactory to the employees in its silk-screen department, and on January 17, 1951, these employees met with the management and demanded a wage increase. When the demand was refused they informed the management that they would stay away from work the next day, and the next day 11 of the employees in that department did not report for work. Those not reporting were immediately discharged and were so informed. Subsequently others were hired in their stead.

The Board found that in discharging the employees the respondent had violated § 8 (a)(1) and (3) of the Act, 29 U.S.C.A. § 158(a)(1, 3). As respects the § 8(a)(1) violation, it was found that the strike was an economic strike, that the employees had engaged in concerted activities for their mutual aid and protection and that in discharging them respondent had interfered with the employees in the exercise of their right to engage in such concerted activities. The finding with respect to a violation of § 8(a) (3) will be touched on later.

Respondent, relying on N.L.R.B. v. Brashear Freight Lines, 8 Cir., 119 F.2d 379, contends that the concerted activity was a wildcat strike and as such unprotected. That case, however, is authority for no more than the proposition that the employees who struck did so at the risk of having their places filled with new employees during the pendency of the strike. There is a difference between an employer's duty not to discharge employees for striking and his right to deny reinstatement to economic strikers whose jobs he has filled during the course of the strike in order to continue his operations. This distinction is made clear in N.L.R.B. v. Globe Wireless, 9 Cir., 193 F.2d 748, which decision we regard as controlling here.

Equally without merit is the claim that the strike was unprotected activity because it was a partial strike. This was an announced one-day strike to gain declared ends and was within the protection of the Act, N.L.R.B. v. Kennametal, 3 Cir., 182 F. 2d 817, 19 A.L.R.2d 562; N.L.R.B. v. J. I. Case Co., 8 Cir., 198 F.2d 919. Respondent further contends that the employees were discharged for cause, but the claim is an obvious afterthought and is predicated on wholly inadequate grounds.

A further point, not argued before the Board, provides whatever difficulty there may be in the case. It appears that some three months prior to the strike most of the employees in the silk-screen department had designated the AFL Sign and Pictorial Painters Union as their bargaining representative and that union had filed with the Board a petition for certification as representative of those employees. The petition was not acted upon, and after the one-day strike it was withdrawn and the charges of unfair practices here made were filed. The argument predicated on these circumstances runs somewhat as follows: The striking employees, by their concerted activity, constituted themselves a labor...