Kellogg Company v. NLRB, 71-1367.
| Decision Date | 22 March 1972 |
| Docket Number | No. 71-1367.,71-1367. |
| Citation | 457 F.2d 519 |
| Parties | KELLOGG COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John C. Donnelly, Detroit, Mich., for petitioner; David M. Hayes, William V. Kokko, Clark, Klein, Winter, Parsons & Prewitt, Detroit, Mich., on brief.
Paul J. Spielberg, Atty., N. L. R. B., Washington, D. C., for respondent; Peter G. Nash, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Harold J. Engel, Attys., N. L. R. B., Washington, D. C., on brief.
Before MILLER and KENT, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
This is a petition for review of an order of the National Labor Relations Board1 and a cross petition for enforcement of such order.
The Board ordered reinstatement of two employees of the petitioner with back pay. The Board reversed its Trial Examiner in reaching the conclusion that the employees were entitled to reinstatement. There is little dispute about the facts.
Petitioner's plant in Battle Creek, Michigan, employs approximately 3,500 people. The majority of the hourly rated employees are members of Local No. 3, American Federation of Grain Millers, AFL-CIO, (herein referred to as the Millers). The remainder of the employees (approximately 150) are represented by Printing Specialty and Paper Products Union Local No. 480, International Printing Pressmen and Assistants' Union of North America AFL-CIO. (herein referred to as the Pressmen).
During the month of April, 1969, the contracts which the Petitioner had with each of the Unions expired. The contract of the Millers expired on April 15, but the parties agreed to an extension to May 2 while negotiations continued. A new agreement was reached on April 26, 1969, which was made retroactive to April 15. The agreement between the petitioner and the Millers Local No. 3 was termed a supplemental agreement and included all of the provisions of a master agreement between the Millers International Union and the Company, negotiated in February, 1969, and designed to cover four of the Company's plants. The Pressmen were not as successful as the Millers with their negotiations with the Petitioner and went on strike on April 25, 1969. The strike was not settled until July 22, 1969. The two employees who were the subject of these proceedings refused to cross the Pressmen's picket line and after hearing, in accordance with the Millers' contract, were discharged (for nonattendance). They were not discharged for violation of the no strike clause.
Robert Sutfin, one of the employees, was the son, and Elaine Putnam was a wife, of striking members of the Pressmen. Each employee had been previously warned in regard to excess absenteeism on more than one occasion.
While the basic issues involved relate to the interpretation of the contract between the Petitioner and the Millers, there are also presented questions as to whether the employees' refusal to cross the picket line was because they were honoring the picket line or because of personal reasons, and also as to whether or not each of the employees had made an unconditional demand for reinstatement.
The Master Agreement, incorporated into the supplemental Agreement negotiated by Local No. 3 of the Millers, contained the following provisions relating to strikes and lockouts:
The Petitioner has at all times taken the position that the terms of the contract, quoted above, made it a violation of the contract for the members of the Millers to honor a picket line of another Union at the Battle Creek plant.
At the out-set of the Pressmen's strike many of the members of the Millers refused to cross the Pressmen's picket line. All, except the two here involved, returned to work after the Company warned them that they were violating the Collective Bargaining Agreement by refusing to cross the picket line, and after Representatives of the Local and International of the Millers informed the members of that Union that a sympathy strike was not permitted under the newly negotiated contract. The position taken by Union officials in their interpretation of the contract was communicated to the members through statements given to the local newspapers, to the local radio stations, and by means of notices posted on Company bulletin boards asking workers to report to work and honor their contract.
The Trial Examiner took evidence relating to the advice given by Local and International officers of the Millers and based his conclusion in part upon such evidence. The Board in reversing the Trial Examiner took a different view of this evidence, extraneous to the contract, and reached a different conclusion, as pointed out above.
The Court of Appeals for the District of Columbia in News Union of Baltimore v. N.L.R.B., 129 U.S.App.D.C. 272, 393 F.2d 673 (1968), concluded that the position taken by Union officials that the no strike provisions of the contract covered sympathy strikes was strong evidence that the clause was intended to bar such strikes; and in N.L.R.B. v. Rockaway News Co., 345 U.S. 71, 73 S. Ct. 519, 97 L.Ed. 832 (1953), the United States Supreme Court approved the consideration of extrinsic evidence as an aid in determining the coverage intended by a broad no strike agreement. However, this Circuit in weighing the effect of the attitude of Union officers in regard to refusal to cross another Union's picket line stated in N.L.R.B. v. Difco Laboratories, Inc., 427 F.2d 170, 172 (6th Cir., 1970):
"Finally, whether the UAW did or did not want the two discharged employees to strike obviously has no bearing on their right to do so if they considered such action to be in their own best interest."
Thus, we conclude that if the Millers' contract did not prohibit the sympathetic honoring of another Union's picket line then Putnam and Sutfin were engaging in protected concerted activity (as will be pointed out hereafter), and if the contract did prohibit such activity then they were properly discharged. We, therefore, conclude that after removing the factual issues we are faced with one fundamental problem: The interpretation of the Millers' contract no strike clauses.
The right to strike is guaranteed by the National Labor Relations Act, 29 U. S.C. § 151 et seq., as interpreted in numerous cases. The United States Supreme Court in N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, stated at page 233, 83 S.Ct. 1139, at page 1148, 10 L. Ed.2d 308 (1963).
"Section 7 guarantees, and § 8(a) (1) protects from employer interference the rights of employees to engage in concerted activities, which, as Congress has indicated, H.R.Rep. No. 245, 80th Cong., 1st Sess. 26, include the right to strike."
See also Division 1287, Amalgamated Association of Street, Electric Railway & Motor Coach Employees v. Missouri, 374 U.S. 74, 83 S.Ct. 1657, 10 L.Ed.2d 763 (1963). Any doubt as to the right to strike is removed by the Act itself. 29 U.S.C. § 163.2
The right of employee members of one Union to engage in concerted activities in support of the members of another Union has been reviewed by this Court in N.L.R.B. v. Difco Laboratories, Inc., 427 F.2d 170 (6th Cir., 1970), where at page 171 we said:
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