H. & F. BINCH CO. PLANT OF NATIVE LACES, ETC. v. NLRB

• Decision Date: 17 February 1972
• Docket Number: Dockets 71-1229,No. 376,377,71-1356.,376
• Citation: 456 F.2d 357
• Parties: H. & F. BINCH CO. PLANT OF the NATIVE LACES AND TEXTILE DIVISION OF INDIAN HEAD, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

456 F.2d 357 (1972)

H. & F. BINCH CO. PLANT OF the NATIVE LACES AND TEXTILE DIVISION OF INDIAN HEAD, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 376, 377, Dockets 71-1229, 71-1356.

United States Court of Appeals, Second Circuit.

Argued January 7, 1972.

Decided February 17, 1972.

COPYRIGHT MATERIAL OMITTED

Fred W. Elarbee, Jr., Atlanta, Ga. (Lowell W. Olson and Constangy & Prowell, Atlanta, Ga., of counsel), for petitioner.

Jack H. Weiner, Washington, D. C. (Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and William Wachter, Washington, D. C., of counsel), for National Labor Relations Board.

Before FRIENDLY, Chief Judge, and MOORE and OAKES, Circuit Judges.

FRIENDLY, Chief Judge:

I.

This labor dispute stemmed from the posting by an employer, H. & F. Binch Co. Plant of the Native Laces and Textile Division of Indian Head, Inc. (hereafter Binch), of a new work schedule for its greige mill at Glens Falls, N. Y., late in the afternoon of Friday, March 15, 1968. The notice, signed by Cavanaugh, manager of the greige mill, informed the employees that in order to increase production to fulfill commitments to customers, "effective immediately and until further notice, all departments in the greige mill will work a seven day week schedule. . . . " Each of the three shifts was to get one day off; on those days the other two shifts were to work twelve hours each.

It was scarcely surprising that the notice provoked a lively reaction among the then unorganized employees of the raschel (knitting) department, which is in the greige mill. At 8:00 P.M., two hours before the end of their shift, 15, or somewhat less than half, of the employees on the evening shift in the raschel department, acting by prearrangement, met and walked out of the plant in protest, without punching their time cards. Having repaired to a nearby cafe and consulted Rhodes, the head of the Greater Glens Falls Labor Council, they voted to return in a body at 2:00 P.M. on the following day, March 16, when their next shift would begin. They did not communicate this decision to Binch.

Red Macey, the foreman, and John Armstrong, the assistant production foreman, who had observed the walkout, immediately informed Cavanaugh, who contacted Plant Manager Misogianes and Plant Personnel Manager LaVaute. Friends and relatives of management personnel and employees who had remained at their jobs were hastily called in that evening to man the strikers' machines. Macey pulled from the rack the timecards of the employees who had walked out, inadvertently omitting the timecard of Joan Shippe. Misogianes was in telephone communication with Binch's counsel in Atlanta, Georgia. Counsel advised that Binch could protect its production by hiring immediate replacements for the strikers but could not discharge them. LaVaute and Misogianes got to work on this early on Saturday morning, reviewing recent applications and asking supervisors to contact anyone they knew who might be interested in a job. By noon the Company had ostensibly replaced all 15 strikers and had noted on its records just who replaced whom. Misogianes reported this to counsel who advised that if the strikers showed up for work, they should be told they had been replaced and should report to the personnel office on Monday morning if they wished to apply for work—correct advice if the replacements had in fact been made. Misogianes relayed this to Macey.

At 2:00 P.M. the 15 strikers went into the mill as a group. As they walked past the timeclock, Foreman Macey asked where they were going. When they answered they were going to work, he said "I'm sorry but you have been replaced. You have to report to the personnel office at 8:00 A.M. Monday morning." As the group was leaving, Joan Shippe noticed that her timecard was still on the rack. Conversation developed that she had been part of the group that had walked out and that she had been replaced; Macey removed her timecard.

The group went back to the Hideaway and reported their misadventure to Rhodes. It was decided that the Textile Workers Union of America, AFL-CIO, (TWUA) would sponsor a meeting on Sunday. A leaflet was prepared, stating in effect that the meeting was scheduled "for the employees about those fifteen employees getting discharged." About 50 employees attended. Rubenstein, state director of the TWUA, told the meeting that when the 15 had sought to return to their jobs, "they found they had been replaced by other employees" and this was "very unfair." All agreed to strike "in sympathy for those people that went out."

Some 25 employees not previously on strike failed to report for work on Monday, March 18, and picketing began. After meetings that day and the next, two members of a committee that had been formed sent a telegram on March 19, requesting a meeting and containing an offer to return to work which we set out in the margin.¹ Some of the March 18 strikers who had not been replaced came back to work and were reinstated without incident. By March 23, seventeen replacements for the March 18 strikers had been hired and one employee was transferred from another part of the mill.

On April 3 the strikers' committee sent a second telegram stating that the strikers offered to "return to work unconditionally." Misogianes answered that any striker desiring to make such an offer should contact the personnel office individually. Most of the strikers signed individual letters advising that the employee offered to return to work unconditionally and asking to be advised when he or she might do so. On April 9 all strikers who had by that time signed such letters, plus one additional striker who had not, went to the mill as a group. LaVaute refused to speak to them as such but said he would be glad to interview them individually. They were interviewed as to their job and shift desires. When asked whether they would accept a job in some other department or shift, several replied that they would but only under protest since they preferred their old jobs.

The company prepared a preferential hiring list of 24 strikers who had sent letters or appeared at the personnel office. In late April and May it began hiring new employees, mostly to man a third shift in the finishing department. Binch was diligent in contacting the 24 employees as openings occurred; twelve accepted. They were hired as new employees at the minimum rate, with fringe benefits to be acquired only as earned by the new service. Beginning in June, jobs formerly held by the strikers began to open up. Both strikers who had returned, and some who had not, asked for such openings but were refused in favor of persons whose employment antedated April 6. With respect to six employees Binch changed this policy after June 19, 1968, when the NLRB made public its June 13 decision in The Laidlaw Corp., 171 N.L.R.B. No. 175, enforced 414 F.2d 99 (7 Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970); as to others it did not.

A three-man panel of the Board concluded that only eleven of the fifteen March 15 strikers had in fact been replaced before 2:00 P.M. on March 16; that the striking employees' offer to return to work on that date was unconditional;² and that, accordingly, the March 18 strike was an unfair labor practice strike. It held in consequence that Binch violated § 8(a) (3) and (1) of the National Labor Relations Act by failing to reinstate the March 18 strikers within five days after their submitting individual applications for reinstatement. It found a similar violation in the failure to reinstate the four March 15 strikers who, in its view, had not been replaced by 2:00 P.M. on March 16. It found further violations in the failure to accord four other March 15 strikers the rights to their old jobs when these became available, as the Laidlaw decision demanded.³ The order contained cease and desist provisions and directions for reinstatement and backpay consistent with these conclusions.

Challenging the order, Binch contends that it had replaced all fifteen March 15 strikers by 2:00 P.M. on March 16, or at least believed in good faith that it had; that the March 15 strikers did not make an unconditional offer to return to work on March 16; that, for both these reasons, the Board erred in concluding that the March 18 strike was an unfair labor practice strike and in ordering relief with respect to March 18 strikers which would be appropriate only on that basis; that the Laidlaw decision was unwarranted; and that, in any event, it should not be retroactively applied in this case. We sustain only some of these contentions.

II.

The principles governing the rights and duties of an employer with respect to economic strikers were early enunciated in NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). After stating that such strikers remained "employees" under § 2(3) of the Act, Mr. Justice Roberts continued:

Nor was it an unfair labor practice to replace the striking employes with others in an effort to carry on the business. Although § 13 provides, "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike," it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the place of strikers, upon the election of the latter to resume their employment, in order to create places for them. The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice nor was it such to reinstate only so many of the strikers as there were vacant places to be filled.

This left for subsequent determination the subsidiary question of just what circumstances...