491 F.2d 388 (3rd Cir. 1974), 73-1309, Food Fair Stores, Inc. v. N.L.R.B.

Docket Nº:73-1309.
Citation:491 F.2d 388
Case Date:January 18, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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491 F.2d 388 (3rd Cir. 1974)




No. 73-1309.

United States Court of Appeals, Third Circuit.

January 18, 1974

Argued Nov. 5, 1973.

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[Copyrighted Material Omitted]

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Joseph Bell, John B. Nason, III, Kleinbard, Bell & Brecker, Philadelphia, Pa., for petitioner.

Robert G. Sewell & Margery E. Lieber, Attys., NLRB; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Asst. Gen. Counsel, NLRB, for respondent.

M. Kalman Gitomer, Peter M. Stern, Kenneth F. Kahn, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., for amicus curiae, Food Employer's Lober Relations, Inc.

Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.


VAN DUSEN, Circuit Judge.

This case is before the court upon the petition of Food Fair Stores, Inc. (hereinafter the 'Company') to review and set aside an order of the National Labor Relations Board issued against the Company on March 12, 1973, and reported at 202 N.L.R.B. No. 51. The Board has filed a cross-application for enforcement of its order. This court has jurisdiction of the proceeding under section 10(e) and (f) of the National Labor Relations Act (hereinafter the 'Act'), as amended, 29 U.S.C. § 151 et seq., since the alleged unfair labor practices occurred in Philadelphia where the Company has a food distribution center from which it supplies retail stores in Pennsylvania and southern New Jersey.

In the course of its business, the Company employs some 200 full-time truck drivers and some 20 to 30 'casual' truck drivers. The casual drivers are those called on to replace a regular driver who is absent or on vacation. The Company's truck drivers, casual as well as regular, are represented by Food Drivers, Helpers and Warehousemen Employees Local 500, IBT (hereinafter the 'Union'). The Company and the Union are parties to a collective bargaining agreement between Food Employer's Labor Relations, Inc., amicus curiae here, representing 18 employers in the food distribution and processing industry, including Food Fair, and four local unions, including Local 500. The agreement is in effect from January 1, 1971, through December 31, 1973, and covers both casual and regular drivers. The provisions relevant to the case are reproduced in the footnote below, 1 which includes the

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prohibition against work stoppages in Article 28.

The casual drivers subsequently became dissatisfied with a number of Company practices, and on November 6, 1971, between 14 and 18 of the casual drivers met to review them. Uppermost among these grievances was their frustration in achieving permanent status as truck drivers. 2 The next day, the casuals presented their problems to Union shop steward Emberger, who agreed to arrange a meeting with Union officials.

On November 16 the casuals met with Emberger, Union Secretary-Treasurer William Brown, and Union Vice-President William O'Farrell. After hearing their grievances, Brown told the drivers there was nothing the Union could do for them. When the men insisted that an effort be made to arrange a meeting with the Company, O'Farrell consented and tried, unsuccessfully, to reach Robert McIntyre, the Company's Assistant Director of Industrial Relations. During this meeting, the casual drivers mentioned the possibility of a protest 'demonstration.'

After the meeting, Emberger, O'Farrell, and probably Brown remained to await a call from McIntyre. When McIntyre did not call, O'Farrell called

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him again and requested a meeting. McIntyre suggested a meeting November 19. 3 O'Farrell told him that unless a meeting was arranged immediately, the casual drivers might demonstrate the following night. McIntyre replied that if they did, there would be no meeting until work recommenced. McIntyre also reminded O'Farrell that as Union officials, he and Brown had an obligation under the contract to make sure that there was no interruption in the Company's operations and told him that if he expected any problem in that regard it was incumbent on him personally to see that it was resolved. O'Farrell assured him that he would do everything possible to keep the men in line.

The following day, November 17, some of the casual drivers gathered at the home of one of their group to await an answer to their request for a meeting with the Company. When they did not receive a call, they telephoned the Union. They were told that the Company had not responded and apparently was not going to meet with the casual drivers. On hearing this, they began to prepare signs for a 'demonstration.'

Between 8:30 and 10:00 P.M. on the night of November 17, the casual drivers began picketing the entrances to the Company's distribution center. The pickets were peaceful and orderly and did not interfere with other workers entering or leaving the center. At about 10:00 P.M., Union representatives Emberger, Brown, and O'Farrell arrived. Brown, in the presence of Company representatives, told the pickets that their activity was not authorized or sanctioned by the Union and that they should disperse. The pickets, with apparent sarcasm, thanked Brown and continued picketing until about 3:30 P.M. on November 18, when the pickets were served with a state court injunction. The walkout thus lasted approximately 18 hours. During this time, only one casual driver was available for work, and many regular drivers also failed to report for work. [3A]

On November 18 the Company terminated the 21 casual drivers who had participated in the walkout and thereafter refused to recall them. Following their discharge, the casual drivers attempted to have the Union file a grievance on their behalf, but the Union refused to do so. Thereafter the casual drivers filed a charge against the Union, alleging that it had denied them fair representation, but that charge was subsequently withdrawn.

The instant charge against the Company was filed on November 23, 1971, and a complaint was issued against the Company in June 1972. Following a hearing, the Decision, including Finding of Fact and Conclusions of Law, as well as a recommended Order, of the Administrative Law Judge was issued on November 17, 1972. On March 13, 1973, the Board affirmed the rulings, findings and conclusions of such judge and adopted his recommendations. In its decision the Board found that the protest walkout in this case was concerted activity protected by section 7 of the Act and that the right of the employees to engage in a walkout of less than 24 hours' duration had not been waived in the collective bargaining agreement. The Board held, therefore, that the Company had violated section 8(a)(1) of the Act by discriminating against the 21 casual

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drivers who had participated in the walkout. 4

There has been much discussion in this case as to whether under the terms of the collective bargaining agreement the Company has the right to discharge employees who engage in work stoppages of less than 24 hours' duration. The Company argues that Article 11, section 1, of the agreement provides for 'immediate discharge' of any employee who participates in an unauthorized strike or walkout and that its right to apply this sanction is in no way abridged by Article 8, section 9. According to the testimony of Mr. McIntyre, the purpose of the disputed clause in Article 8, section 9, was not to forbid discharge during the first 24 hours of an unauthorized strike, but rather to create an exception for workers discharged during that period from the provision that workers disciplined for participation in a wildcat strike are not entitled to have recourse to the grievance procedures of the agreement. In support of this construction, the...

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