Silbaugh v. NLRB
| Decision Date | 05 August 1970 |
| Docket Number | No. 23478.,23478. |
| Citation | 429 F.2d 761 |
| Parties | Alvin SILBAUGH, Jr., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Kroger Co., Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. James C. Paradise, Cincinnati, Ohio, for petitioner.
Mr. Warren Davison, Attorney, National Labor Relations Board, for respondent. Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Robert A. Giannasi, Attorney, National Labor Relations Board, were on the brief for respondent.
Messrs. George A. Leonard, Cincinnati, Ohio, Edward E. Wall, Cincinnati, Ohio, and George F. Lynch, Cleveland, Ohio, were on the brief for intervenor.
Before FAHY, Senior Circuit Judge, and ROBINSON and ROBB, Circuit Judges.
The Labor Board, with two of its members in dissent, agreed with the Trial Examiner and dismissed a complaint charging Intervenor, the Kroger Company (Cleveland Division), with violating Sections 8(a)(1)1 and 8(a)(3)2 of the Labor Act. The complaint alleged the Company had discharged eight and had disciplined 165 other employees for participating in a strike against the Company in May, 1967. One of the eight discharged employees is our petitioner.
The parties appear to agree generally that a strike in violation of a union's commitment to an employer not to do so is not a protected activity and that an employer who dismisses a striking employee under these conditions is not engaging in an unfair labor practice.3 See NLRB v. Sands Mfg. Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682 (1939); Artim Transportation System, Inc. v. NLRB, 396 F.2d 359 (7th Cir. 1968); International Union, UMW v. NLRB, 103 U.S.App.D.C. 207, 257 F.2d 211 (1958); cf. Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956). The controlling question presented in the present case is whether the Board decision that the strike was in violation of such an agreement on the part of petitioner's Union4 has been reached in a manner sustainable upon this review.
In 1964 the Company and the Union entered into a written collective bargaining agreement governing the conditions of employment. The expiration date of the agreement was April 8, 1967, except that under its terms it was thereafter to continue on a year to year basis unless either party served written notice 60 days prior to April 8 of a desire to terminate or modify it. The Union gave such notice prior to April 8, 1967. Another provision of the agreement was the following:
During the term hereof the Union agrees that there shall be no strike or any other interference with or interruption of the normal conditions of the Employer\'s business by the Union or its members. The employer agrees that there shall be no lockout.
Negotiations for a new agreement began before April 8, 1967, and extended beyond that date. It was during these negotiations that the no-strike agreement, as found by the Board, was made. The membership of the Union, however, after rejecting various proposals including a "final offer" of the Company, became impatient with the progress of the negotiations. The membership voted to strike beginning May 21, 1967. The Trial Examiner's conclusion, adopted by the Board, was that the vote was designed to give additional weight to the bargaining position of the Union negotiators and that it was understood among the membership that there would be no strike until a bargaining impasse had been reached and a decision to strike was authorized by the Union's international affiliate. Nevertheless, a majority of the members, including the eight discharged and the 165 disciplined, did strike May 21 and stayed out until May 28, and for this activity on...
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