CH Guenther & Son, Inc. v. NLRB

• Citation: 427 F.2d 983
• Decision Date: 01 June 1970
• Docket Number: No. 27495.,27495.
• Parties: C. H. GUENTHER & SON, INC. d/b/a Pioneer Flour Mills, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

427 F.2d 983 (1970)

C. H. GUENTHER & SON, INC. d/b/a Pioneer Flour Mills, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

No. 27495.

United States Court of Appeals, Fifth Circuit.

June 1, 1970.

Allen P. Schoolfield, Jr., Dallas, Tex., John H. Wood, Jr., San Antonio, Tex., for petitioner.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Abigail C. Basker, Washington, D. C., N.L.R.B., Clifford W. Potter, Director, N.L.R.B., Houston, Tex., for respondent.

Before WISDOM, GOLDBERG, and INGRAHAM, Circuit Judges.

WISDOM, Circuit Judge:

This case is before the Court upon petition to review an order of the National Labor Relations Board issued against C. H. Guenther & Son, Inc., doing business as Pioneer Flour Mills in San Antonio, Texas. 174 N.L.R.B. No. 174 (1969). In its cross-appeal, the Board asks for full enforcement of its order.

The National Labor Relations Board found that the Company violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to recognize the Union, Brewery Workers Local Union No. 110, after an economic strike, and by refusing to furnish it with information relevant to the conduct of collective bargaining negotiations. The Board further found that the Company violated Section 8(a) (3) and (1) of the Act by discriminatorily refusing to reinstate strikers Wilburn, Samudio, and Woytasczyk at the end of the strike, by failing to recall 14 strikers when their jobs became available upon the departure of temporary or permanent replacements, and by discriminatorily reducing the seniority and other benefits of Robles and Villarreal after they were reinstated. (The Trial Examiner had not found an 8(a) (3) and (1) violation in the failure to recall 11 of the strikers because their replacements, although departed, had been "permanent").

I.

An employer may not, upon termination of an economic strike, refuse to reinstate the strikers because of their participation in the strike. Phelps Dodge Corp. v. NLRB, 1941, 313 U.S. 177, 189, 61 S.Ct. 845, 85 L.Ed. 1271; NLRB v. Albritton Eng. Corp., 5 Cir. 1965, 340 F.2d 281, 283, cert. denied, 382 U.S. 815, 86 S.Ct. 31, 15 L.Ed.2d 62; NLRB v. Marydale Products Co., 5 Cir. 1963, 311 F.2d 890, 891-892, cert. denied, 375 U.S. 817, 84 S.Ct. 53, 11 L.Ed. 2d 52. It is also settled that although an employer may hire permanent replacements during the course of the strike in order to continue his business, and is not bound to discharge those replacements in order to create vacancies for strikers wishing to return to work, he may not resort to antiunion considerations in determining which of the strikers shall return to fill existing vacancies. NLRB v. MacKay Radio & Tel. Co., 1938, 304 U.S. 333, 345-346, 88 S.Ct. 904, 82 L.Ed. 1381.

Ample evidence supports the Board's finding that the Company refused to reinstate Wilburn, Samudio, and Woytasczyk upon termination of the strike for discriminatory reasons, in violation of Section 8(a) (3) and (1) of the Act.

II.

Some of the replacements whom the Company hired during the strike began leaving shortly after the strike terminated. Although almost all of the strikers made unconditional requests for reinstatement, and although the Union made such an offer on behalf of all of the strikers and continued its efforts to obtain their reinstatement throughout the six months following the strike, the Company did not reinstate strikers to fill the jobs vacated by the replacements, but hired instead new employees who had never worked for the Company. The Board determined that 3 of the replacements had only been temporary, and that the remaining 11 had been permanent. It further determined that both temporarily and permanently replaced economic strikers are entitled to reinstatement upon the departure of their replacements, and therefore that the Company violated Section 8(a) (3) and (1) of the Act by hiring new employees, rather than strikers, to fill the vacancies left by the departure of the 14 replacements.

Economic strikers retain their employee status and are entitled to reinstatement upon the departure of their permanent replacements. NLRB v. Fleetwood Trailer Co., 1967, 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614; Laidlaw Corp. v. NLRB, 7 Cir. 1969, 414 F.2d 99, cert. denied, 1970, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100; American Machinery Corp. v. NLRB, 174 N.L.R.B. No. 25 (1969), enforced 5 Cir. 1970, 424 F.2d 1321. Substantial evidence supports the Board's finding that the eleven strikers in question wanted their jobs back, and the Company failed to meet its burden of establishing that there was a legitimate and serious reason for not reinstating these employees.

The Company had a 60-day training period for new employees. Three of the replacements hired during the course of the strike failed to complete this training period, and were terminated between February 14 and March 2. In these circumstances, the Board properly found that these three replacements were not permanent replacements for strikers, but only temporary replacements. Kansas Milling Co., 97 N.L.R.B. 219, 226 (1951). The Company's failure to reinstate the strikers whose positions they had vacated was unlawful. NLRB v. Marydale Products, 5 Cir. 1963, 311 F.2d 890, cert. denied, 375 U.S. 817, 84 S.Ct. 53.

III.

The Company did reinstate two of the strikers, Robles and Villarreal, upon the departure of their permanent replacements. Ten days later they were informed that because of a "new law" they would have to fill out application forms, would not be covered by insurance for 30 days, and would lose their seniority and vacation benefits. In short, they were treated as new employees. Failure to accord these two employees full and complete reinstatement was clearly discriminatory and unlawful.

IV.

Substantial evidence on the record as a whole supports the Board's findings that the Company had no valid basis for doubting the Union's majority status.

Prior to 1959, Congress provided in Section 9(c) (3) of the Labor Management Relations Act that "Employees on strike who are not entitled to reinstatement shall not be eligible to vote." Accordingly, the Board concluded that permanently replaced economic strikers were not to be considered as part of the bargaining unit when determining the Union's majority status. Stoner Rubber Co. Inc., 123 N.L.R.B. 1440 (1959). In 1959, however, Congress amended Section 9(c) (3) of the Act to provide that

Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purpose and provisions of this Act in any election conducted within twelve months after the commencement of the strike.

The Board has subsequently formulated several principles to determine voting eligibility. See NLRB Twenty-fifth Annual Report 47 (1960); Twenty-eighth Annual Report 54-55 (1963). But...