WAREHOUSEMEN & MAIL ORDER EMP., LOCAL NO. 743 v. NLRB

• Decision Date: 23 January 1962
• Docket Number: No. 16267.,16267.
• Citation: 302 F.2d 865,112 US App. DC 280
• Parties: WAREHOUSEMEN AND MAIL ORDER EMPLOYEES, LOCAL NO. 743, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; and Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 US App. DC 280, 302 F.2d 865 (1962)

WAREHOUSEMEN AND MAIL ORDER EMPLOYEES, LOCAL NO. 743, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA; and Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16267.

United States Court of Appeals District of Columbia Circuit.

Argued September 28, 1961.

Decided January 23, 1962.

Mr. Bernard Dunau, Washington, D. C., for petitioners.

Mr. Allison W. Brown, Jr., Atty., with whom Messrs. Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph C. Thackery, Atty., National Labor Relations Board, were on the brief, for respondent.

Before PRETTYMAN, WASHINGTON and DANAHER, Circuit Judges.

DANAHER, Circuit Judge.

More fully identified as captioned above, the Warehousemen, Local 743, and the Truck Drivers, Local 705, ask us to set aside the Board's Decision and Order which dismissed a consolidated unfair labor practice proceeding against Aetna Plywood and Veneer Company. Counsel for the petitioners and the Board at a prehearing conference held pursuant to our Rule 38(k), 28 U.S.C.A. stipulated the issues before us to be:

(1) Whether the Board properly found that the employer had not refused to bargain in good faith with petitioner Local 743 in violation of Section 8(a) (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (5).

(2) Whether the Board properly found that the employer\'s discharge of the warehousemen was not in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, and that the employer\'s refusal to reinstate or reemploy the drivers was not in violation of Section 8(a) (1) and (3) of the National Labor Relations Act. The issue pertaining to the discharge of the warehousemen includes the question whether they had been permanently replaced before they were discharged.

Petitioners agree that from April, 1958 to November 5, 1958 the Company did not fail to bargain in good faith with the Warehousemen, Local 743, but contend that the Company so failed for the period commencing November 6, 1958. It is argued that such failure converted the strike into an unfair labor practice strike so that the Company's discharge of the warehousemen and its refusal to reinstate the warehousemen and drivers were unlawful. The Board found that throughout there had been an economic strike, and that the Company did not violate the Act when it later discharged some 14 warehouse employees who on July 22, 1958, went on strike in support of Local 743's economic demands and had been permanently replaced. So, too, the Board found no violation in the Company's denial of reinstatement to five truck driver members of Local 705 who were permanently replaced after they had refused to cross Local 743's picket line¹ in July, 1958 and thereafter.

The Trial Examiner found against the Company, but the full Board unanimously concluded otherwise, largely placing its own interpretation upon and drawing different conclusions from the facts.² Under section 10(f) of the Act, 29 U.S. C.A. § 160(f), the findings of the Board are conclusive if supported by substantial evidence on the record considered as a whole. The responsibility for decision rests primarily upon the Board,³ to be sure. But after according to its findings that respect which the Board's expertness requires, we are free to reverse if we "cannot conscientiously"⁴ find its decision to be supported by substantial evidence of record viewed in its entirety. An appraisal of the record, so to be considered, devolves upon this court.⁵

Here the facts are largely undisputed whether as found by the Trial Examiner or by the Board. Such differences as may be perceived stem not from issues as to credibility but from inferences which the Board was free to draw.⁶ We have carefully reviewed the Intermediate Report, the Decision of the Board, the exhibits and the record as a whole. Salient is the long-standing relationship between the parties with no suggestion of a refusal to bargain. Indeed, the representatives of Local 743 and the Company met for bargaining discussions both before the existing contract expired, and repeatedly thereafter. Next in importance perhaps, as we reconstruct the situation, was that the Local went on strike in July, 1958, ill-advisedly it may have appeared to the Board, when very substantial progress had already been achieved. Again, these 14 warehouse employees handled plywood in sheets, a task which for many months after the strike began was executed by a warehouse superintendent, two foremen and six clerks. Bargaining sessions still went forward. Such was the background against which we need provide few details in view of the more complete recital appearing in the Board's Decision and Order.⁷

In 1955 the Company and Local 743 had executed a contract to expire April 30, 1958, covering a 14-man warehouse unit at the Company's Chicago plant. The business representative of Local 743 already aware, of course, of the provisions of the expiring contract, in March, 1958, submitted a list of eleven changes and modifications the Local intended to seek in a new contract. There was no refusal of continued recognition of the union. There was no rejection out of hand of the proposals — no suggestion that an accord might not be reached. On the contrary, the first meeting of a long series of negotiating sessions was held in April, 1958. At that conference, the Company's comptroller made reference to the Company's desire for the deletion of some paragraphs and the addition of others. Again, at the conciliation commissioner's office, he pointed out that discussion as to the Local's proposals was subject to consideration of the Company's points. The parties proceeded first to resolution of the Local's proposals, and negotiations so continued through some 10 or 12 sessions down into November, 1958.

By July 8, 1958, the parties, after some six bargaining sessions, had agreed upon seven of the Local's eleven proposals with an impasse particularly as to a wage increase. The Company claimed it had lost many thousands of dollars in recent years. The Company offered 8 cents the first year, and five, the second and third years. The Local voted to strike unless it received ten cents, seven and seven. The 14 warehouse employees walked out, July 22, 1958. From July 8, 1958, to February 6, 1959, eleven additional negotiating sessions were held, with the strike still in progress.⁸

The Company in February, 1959, commenced hiring replacements for the strikers, and as of March 23, 1959, notified the latter that they had been permanently replaced. The Local concedes that in an economic strike

"the employer can replace the striking employees with others in an effort to carry on the business and is not required to discharge those hired to fill the places of the strikers upon the election of the latter to resume their employment. * * *

"However, if the strike is caused by an unfair labor practice, the striking employees are entitled to reinstatement upon the termination of the strike."⁹

The Local argued to the Board "that even if no refusal to bargain is found, the strikers are entitled to reinstatement since they were never permanently replaced." The Board concluded that "There is no merit to this contention," adding, after noting highlights from the evidence, that since the warehouse employees on strike "were economic strikers at all times," the Company was entitled to replace them. We agree.

We turn back accordingly to consideration of the circumstances as they developed early in November, 1958 and thereafter. There is no suggestion that the Company had, at least until then, been motivated by bad faith in its ten or more previous bargaining sessions with the Local. On November 6, 1958 the negotiators again met. The Local's representative pointed out that the increase in wages and cost-of-living issues were "still prime factors." The Company said there were some changes in the contract which it desired. The Company was asked by the Local's attorney to reduce to writing its proposed modifications, and it did so, presenting four points¹⁰ when the parties met again the following day.

The Local argues now that by November 7th it "had surrendered its position on all disputed issues which had caused the strike and nothing stood in the way of agreement based on the pre-strike status of bargaining." But at no time, not even once, as far as our careful study of the record discloses, had negotiatory consideration been given to the Company's position. It had stated at the first meeting that it desired certain changes, but the bargaining throughout had proceeded solely with reference to the Local's 11 demands.

We find no evidence that the Local on November 7th had communicated to the Company that the union had "surrendered its position on all disputed issues." On the contrary, it insisted that wage increases and cost of living clauses were still "prime factors." It is totally unrealistic to argue, the Board might well have concluded, that the Company "converted" the economic strike into an unfair labor practice strike by advancing its own proposals. That they were not inherently unreasonable we may agree, for the record shows that the Local promptly acquiesced in two of them. Bargaining went forward as to the others.

The Company insisted that a salesman should be able to pull down a sheet of plywood and show it to a customer without having to get a warehouse helper to handle the plywood. It should be able to call for overtime service when it received word that a shipment of plywood was on the way in. The 3 months' strike had led the Company to believe it had too many warehouse workers, and to announce that after the strike not all men would be...