213 F.2d 748 (1st Cir. 1954), 4728, N. L. R. B. v. Thayer Co.

Docket Nº:4728.
Citation:213 F.2d 748
Case Date:June 03, 1954
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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213 F.2d 748 (1st Cir. 1954)



THAYER CO. et al.

No. 4728.

United States Court of Appeals, First Circuit.

June 3, 1954

Rehearing Denied June 21, 1954.

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Norton J. Come, Atty., N.L.R.B., Washington, D.C. (George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, N.L.R.B., Washington, D.C., and Irving M. Herman, Atty., N.L.R.B., New York City, with him on the brief), for petitioner.

Joseph N. Welch, Boston, Mass., and Samuel M. Salny, Fitchburg, Mass. (David Burstein, George H. Foley and Hale & Dorr, Boston, Mass., with them on the brief), for respondents.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges.

MAGRUDER, Chief Judge.

The Labor Board, under Sec. 10(e) of the National Labor Relations Act, 61 Stat. 147, 29 U.S.C.A. § 160(e), has petitioned this court to enforce its order promulgated June 30, 1952, and directed against the Thayer Company and H. N. Thayer Company, both in Gardner, Massachusetts. Respondents are closely affiliated corporations, regarded by the Board as a single employer within the meaning of the Act. The order requires inter alia the reinstatement with back pay of 103 of respondents' employees who engaged in a prolonged strike found by the Board to have been precipitated by the companies' unfair labor practice; the disestablishment of unaffiliated labor organizations held to have been supported by the respondents; the payment of a bonus to H. N. Thayer Company employees; and the termination by respondents of conduct deemed violative of Secs. 8(a)(1) and 8(a)(3) of the Act.

Respondents challenge the validity of this order on numerous grounds. Their principal objections are: (1) That the findings of fact made by the trial examiner and adopted by the Board are unsupported on the record; (2) that the proceeding before the trial examiner was unfair and prejudicial to the respondents in that their counsel was not permitted during the course of the hearing to obtain the pre-trial statements given to Board investigators by certain witnesses; (3) that a state court decree enjoining the picketing of respondents' premises should have been treated in the Board proceeding as res judicata with respect to the question of reinstatement; and (4) that even on the facts as found by the Board, reinstatement was improper since the strikers were not engaged in concerted activities within the meaning of Sec. 7 of the Act.

In determining the merits of the latter two contentions by respondents, we accept the version of the facts as found by the Board, for we are convinced after a careful reading of the long and often contradictory testimony in this case that those findings are based upon substantial evidence on the record as a whole.

Thus, for our purposes the relevant facts may be taken as the following: On January 10 and 11 of 1949, seventeen employees of the H. N. Thayer Company were discharged because of their membership in the activities on behalf of Local 154 of the United Furniture Workers of America, CIO. These discharges were the culmination of respondents' long-standing hostility toward the UFW.

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In 1940 the Thayer Company, or Plant 1 as it is called, sponsored the formation of a Workers' Council to combat an organizational drive by the Furniture Workers. A similar Workers' Council was established in 1945 at Plant 2, so called (H. N. Thayer Company). In the fall of 1948 employee dissatisfaction with the Workers' Councils at both plants, and the possibility of a cut-back in wages, led to a new and intensified activity on the part of the CIO union which, on October 26, demanded recognition as the employee bargaining representative. Respondents declined to recognize the UFW. Instead, management, in an attempt to discourage further union gains among its employees, threatened to discharge any of its workers found proselytizing for the CIO and also to close down its plants rather than deal with the union. These tactics proved successful at Plant 1 where a labor agreement was signed with the company-dominated Workers' Council on December 15, 1948.

At the H. N. Thayer Company, or Plant 2, where pro-CIO sentiment was stronger, the management refrained from negotiating a labor agreement for 1949 until after the first of that year, and in an attempt to discourage union activity on the part of its employees it withheld from them the usual Christmas bonus. Subsequently an agreement was negotiated with the company-dominated H. N. Thayer Workers' Council. This contract was circulated among the employees for individual signatures (as had been done at Plat 1) after the aforesaid discharges of January 10 and 11, 1949.

These discharges resulted in a strike by the employees at both factories. The strike commenced at Plant 2 on January 26, and at Plant 1 on January 27. From its inception it was accompanied by picketing on the part of the workers, who were admonished by their leaders to refrain from interfering with those employees who wished to remain at work.

The picketing was intensive. As many as sixty individuals circled Plant 2 at one time, and at Plant 1 one hundred and sixty marched at arm's-length distance apart. The number of pickets, however, was generally far less than this. The 160 figure included employees from other plants in Gardner sympathetically disposed to the cause of the Thayer workers. During the hours when no employees were leaving or entering the plant, only a handful of pickets patrolled the streets outside the factories. The large concentrations occurred in the early morning when the plants opened and at 4:00 P.M. when they closed.

The picket lines were fairly well-behaved, and non-striking employees were able to enter and leave the plants without serious incident. Police were present throughout the strike, and while it was often necessary for them to step in front of the pickets in order to open up the driveways leading to the plants, these police activities met with only very minor resistance on the part of the pickets.

The companies took the position from the outset that the strike was illegal and that they were privileged to discharge any of the participants. They disclosed their opinion to the strikers by an advertisement in a local newspaper and they sought legal support for their position in the courts. Their first attempt to secure an injunction against the picketing of their plants proved unsuccessful. On March 10, 1949, however, respondents did obtain from a judge of the Superior Court of Worcester County a temporary injunction, which was made permanent on March 15, on the basis of a holding that the strike was for an 'illegal purpose' and was carried out by 'illegal means'. This injunction was ultimately sustained by the Massachusetts Supreme Judicial Court on the single ground that the picketing was conducted in an illegal manner, being violent and destructive of property. 1

The injunction broke up the strike, and on March 15 pickets commenced reapplying for their jobs. Eighty-six of the 103 employees covered by the Board's

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reinstatement order were refused reinstatement by the respondents on the ground that they had engaged in the strike and had picketed the plants. The remaining seventeen are the employees discharged on January 10 and 11 because of their union activities.

With this background we turn to the question of what effect the state court injunction had on the propriety of the Board's order reinstating the discharged pickets. It must be remembered that the employees were engaged in a strike provoked by unfair labor practices. This means, of course, that under ordinary circumstances if such strikers apply for their jobs at the termination f the strike, they must be returned to their old positions irrespective of the effect that such reinstatement may have upon the tenure of new employees hired as replacements. See, e.g., N.L.R.B. v. Remington Rand, Inc., 2 Cir., 1942, 130 F.2d 919, 927, 928. Where a strike is not caused by an unfair labor practice but is economic in nature, the employer need not discharge replacements in order to rehire strikers. N.L.R.B. v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381; N.L.R.B. v. Jackson Press, Inc., 7 Cir., 1953, 201 F.2d 541, 546. However, even in the situation of an economic strike, to avoid committing an 8(a) (1) 2 unfair labor practice, the employer generally must rehire those strikers whose positions have not been filled and must refrain from disciplining them for the concerted activity. Home Beneficial Life Ins. Co., Inc. v. N.L.R.B., 4 Cir., 1947, 159 F.2d 280; General Electric Co., 80 N.L.R.B. 174 (1948).

There is an exception to the latter generalization. If an economic strike as conducted is not concerted activity within the protection of Sec. 7, 3 then the employer is free to discharge the participating employees for the strike activity and the Board is powerless to order their reinstatement, see, e.g., N.L.R.B. v. Indiana Desk Co., 7 Cir., 1945, 149 F.2d 987. This is so because, if the particular collective action is not a protected Sec. 7 activity, the employer commits no unfair labor practice by thus terminating the employment relation. He has not interfered with restrained or coerced employees in the exercise of their rights guaranteed in Sec. 7. 4See Cox, The Right to Engage in Concerted Activities, 26 Ind.L.J. 319, 320 (1951). Therefore, since the power of the Board to order reinstatement under Sec. 10(c) 5 is dependent

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upon its finding that an unfair labor practice has been committed, and since by hypothesis the economic strike was not caused by an unfair labor practice, it becomes crucial to the question of...

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