AMERICAN FLINT GLASS WKRS. UNION v. NATIONAL LAB. R. BD.

• Decision Date: 30 January 1956
• Docket Number: No. 12620.,12620.
• Citation: 230 F.2d 212
• Parties: AMERICAN FLINT GLASS WORKERS' UNION OF NORTH AMERICA et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Bartlett-Collins Company, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

230 F.2d 212 (1956)

AMERICAN FLINT GLASS WORKERS' UNION OF NORTH AMERICA et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent Bartlett-Collins Company, Intervenor.

No. 12620.

United States Court of Appeals District of Columbia Circuit.

Argued December 1, 1955.

Decided January 30, 1956.

Mr. Donald W. Fisher, of the bar of the Supreme Court of Ohio, Toledo, Ohio, pro hac vice, by special leave of court, with whom Messrs. Edward J. Hickey, Jr., and James L. Highsaw, Jr., Washington, D. C., were on the brief, for petitioner. Mr. Clarence M. Mulholland, Toledo, Ohio, also entered an appearance for petitioner.

Miss Fannie M. Boyls, of the bar of the Supreme Court of Texas, Washington, D. C., pro hac vice, by special leave of court, with whom Mr. Marcel Mallet-Prevost, Asst. General Counsel, and Mrs. Nancy M. Sherman, Washington, D. C., Attorney, were on the brief, for respondent. Mr. Robert G. Johnson, Washington, D. C., Attorney, also entered an appearance for respondent.

Mr. Karl H. Mueller, Fort Worth, Tex., with whom Mr. Jesse R. Smith, Washington, D. C., was on the brief, for intervenor.

Before BAZELON, DANAHER and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

This case is before the court on petition for review or to modify an order of the National Labor Relations Board. The petitioners are American Flint Glass Workers' Union of North America (A. F. of L.) and twenty-five individuals, members of that union, formerly employed by the intervenor, Bartlett-Collins Company, of Sapulpa, Oklahoma.

The proceedings before the Board began with a complaint filed with the Board by its General Counsel, alleging that the company had engaged in unfair labor practices proscribed by § 8(a) (1) and (3) of the Labor-Management Relations Act of 1947, 29 U.S.C.A. § 158 (a) (1) and (3), by discriminatorily refusing to reinstate or reemploy the present petitioners, among others, following a strike.

The Board's Hearing Examiner found that the company had engaged in unfair labor practices, and recommended a cease and desist order, reinstatement of the petitioners in their former or substantially equivalent jobs, and back pay for all but two of the petitioners. The Board, in its order of October 19, 1954, the order appealed from, reversed the examiner's findings and found that, upon the whole record, the General Counsel had failed to establish, by a preponderance of the evidence, unfair labor practices as charged.

The issue presented by the petitioners for review is whether or not the Board's finding that the General Counsel had failed to sustain the burden of proof that the individual petitioners were refused reemployment for discriminatory reasons, in violation of § 8(a) (1) and (3), is supported by the record considered as a whole.

We agree with the Board.

Prior to the strike hereinafter referred to, the company had recognized and bargained with the union for a number of years. Since 1915 it had dealt with the union regarding a unit of moldmakers and other skilled employees. Following an election in 1941 the company bargained with the union regarding a unit of miscellaneous production and maintenance employees. During negotiations for the contract in 1941 a strike was called, which resulted in a contract, following which the company reinstated all the strikers, including some of the individual petitioners in the instant proceeding. From 1941 to 1951 the company and the union maintained continuous contractual relations, including a check-off. No unfair labor practices are alleged or have been proved to have occurred during that period.

In January 1951 the union formally notified the company that as of March 7, 1951, it would terminate the current contract and that, unless a new contract was agreed upon, a strike would be called. Negotiations were not concluded and, on March 14, 1951, an economic strike was called. One hundred and seventy of approximately 460 employees in the production and maintenance unit participated, along with 11 moldmakers. By the end of the strike on March 29, 1951, all strikers had been replaced except those strikers who returned during the strike and the 11 moldmakers.

The picketing, which had been entirely peaceful, ceased on the morning of March 29 and a conference was had between representatives of the union and of the company at 2:00 P.M. of that day. The company's representative stated that the moldmakers, who were especially skilled workers, could return to work under the same conditions as prior to the strike, and this was done. In answer to a question as to whether or not the respondent would take back other strikers as soon as it could, the representative of the company stated that the company would put on these people when it could, that the company would do the best it could.¹ The union representative then advised the replaced strikers to make applications for reemployment. Many, in fact, had already done so upon removal of the picket line that morning.

About 100 strikers thereupon applied for reemployment, all but a few within a two and a half-week period. New applications for employment were not required as the old applications were on file, but the company placed their names on a separate list and informed them that they would be called in the event of an opening.

The examiner and the Board found that of the 170 strikers in the production and maintenance unit² 30 returned during the strike and 73 after the strike, this despite the fact that the company had restaffed its plant with new employees and the strikers who had returned during the strike. Thirty-eight of the remainder did not apply and asserted no claim to reemployment.

The rest included those named in the complaint and, of these, the trial examiner found that 25 had been discriminatorily refused reemployment. As evidence, the trial examiner reported that only two of the union officers and committeemen were reemployed and that a large majority of those named in the complaint, and who were not reemployed, had walked the picket line in the last two days of the strike.

As the Board points out, however, only four of the ten union officers and committeemen are named in the complaint. One of the remaining six did not go out on strike, two returned to work during the strike, and the remaining three asserted no claim to reemployment. Of the four referred to by the examiner, three either specifically asked for their old jobs back (which had been filled at the time) or did not apply until five or more weeks after the strike.

Although many of the complainants walked the picket line during the last two days of the strike, this was true also of a substantial number of strikers whom the company later reemployed.

The Board further found that the evidence was insufficient to support a finding of discriminatory motivation on the part of the respondent. It found that the respondent had a background free of unfair labor practices, that the great majority of the strikers who applied for reemployment were rehired, and that there had been no showing that any of the strikers who were also union members and had participated in picketing were discriminatorily treated after their return to work.

The company's position with reference to the claim that it failed to rehire certain of the strikers was that there were no positions available when the requests for employment were in an active status. It appears that the personnel manager of the company was personally and solely in charge of the hiring of personnel. It was the testimony of the personnel manager, and this is uncontradicted, that when employees were needed by the company they were needed at once and that, if any applicants were physically present in the personnel office when the need arose, they were usually hired on the spot. It was further testified that, due to the labor situation in Sapulpa, applicants for employment were generally not available for work after a week or two, as they had by that time ordinarily accepted other employment. It was also the testimony of the personnel manager that he had found it to be a waste of time to attempt to get in touch with applicants even a week after the applications were filed and that he ordinarily made no attempt to get in touch with any applicant for employment more than four weeks from the time the application was filed. He further testified that he did not handle the petitioners' applications any differently from those of new applicants.

It is of interest too that immediately after the strike the company was overstaffed, with an average employment of 511 compared to 461 before the strike. The uncontradicted testimony of the personnel manager was obviously believed by the Board and we cannot say that it was not justified in so doing.

The Board concluded that under all the circumstances, and upon the record as a whole, the General Counsel had failed, by a preponderance of the evidence, to sustain his burden of proof of discriminatory motivation.

Stress is laid by the petitioners upon the fact that the examiner's findings were reversed.³

The matter of the overruling of a trial examiner's findings by a Board was before the Supreme Court in Federal Communications Commission v. Allentown Broadcasting Co., 1955, 349 U.S. 358, 363-364, 75 S.Ct. 855, 859, 99 L.Ed. 1147, a case arising in this circuit. There the court said:

"In reaching its conclusion to set aside the Commission\'s order awarding the license to Easton, the Court of Appeals found that the Commission\'s reversal of its Hearing Examiner was erroneous. That court analyzed the evidence before the Commission as to Easton\'s uncertainty on affiliating with radio networks to secure their programs for its listeners, the reluctance, evasiveness and lack of candor of Easton\'s principal witnesses and the concentration of local communications media in the hands of the Easton applicant who was the publisher of the only local newspaper, the licensee of one of two

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