AMERICAN FEDERATION, ETC. v. National Labor Rel. Bd.

• Decision Date: 12 June 1952
• Docket Number: No. 13974.,13974.
• Citation: 197 F.2d 451
• Parties: AMERICAN FEDERATION OF GRAIN MILLERS, A. F. OF L., v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 451 (1952)

AMERICAN FEDERATION OF GRAIN MILLERS, A. F. OF L., v. NATIONAL LABOR RELATIONS BOARD.

No. 13974.

United States Court of Appeals Fifth Circuit.

June 12, 1952.

L. N. D. Wells, Dallas, Tex., for appellant.

Frederick U. Reel, Attorney, National Labor Relations Board, A. Norman Somers, Assistant General Counsel, David P. Findling, Associate General Counsel, Washington, D. C., for appellee.

Before HUTCHESON, Chief Judge, and RUSSELL and STRUM, Circuit Judges.

HUTCHESON, Chief Judge.

Filed by the charging union, on whose amended charge the Regional Director had filed a complaint against Greenville Cotton Oil Company, Employer, the petition for review seeks to vacate and set aside the order¹ of the Board dismissing the complaint insofar as it alleges that the respondent violated Sec. 8(a) (3) and (5) of the Act, 29 U.S.C.A. § 158(a) (3, 5), and that it violated 8(a) (1) before June 18, 1948.

In its brief, petitioner states the question for decision² here and summarizes "The Proceedings Before the Board".³

Referring to the examiner's detailed and lengthy findings in support of its contention, petitioner insists that the things found to have been done on the dates set out therein support the examiner's conclusion that unfair labor practices occurred and that the six months' cut off period fixed in the proviso is without application here.

The Board, agreeing with petitioner's statement quoted above, that the sole questions presented are questions of law as to the applicability of the proviso, thus states the questions.⁴

In complete disagreement with petitioner's claim that the dismissed charges were based on unfair labor practices occurring within six months prior to the filing of the charge with the Board and service of a copy thereof, the Board, insisting that this is not so, supports its view with a statement of the facts⁵ of record and of the reasons⁶ for the conclusion that the proviso requires the dismissal of the charge.

We agree with the reasoning and with the conclusion of the Board. We think it is the union and not the Board which misapprehends the meaning and effect of the proviso, and, misapprehending, misapplies it.

As the Board correctly points out, the duty to bargain arises upon request. N. L. R. B. v. Columbian E. & Stamping Co., 306 U.S. 292, at pages 297-299, 59 S.Ct. 501, 83 L.Ed. 660. The Union's theory, of a continuing obligation to bargain, which, without request, renewed itself each day after the first refusal, that, in short, the first refusal created and set in motion a continuing tort, therefore, will not do. Cf. N. L. R. B. v. Pennwoven, Inc., 3 Cir., 194 F. 2d 521.

We agree with the Board, too, that petitioner's other contention, that the refusal after June 18th, to employ the strikers was an unfair labor practice, overlooks the basic fact that by June 18, 1948, the strikers had been replaced so that the union had no further bargaining rights and the strikers had no right to reinstatement. N. L. R. B. v. Fansteel Metallurgical Corp., 306 U.S. 240, at pages 261-262, 59 S.Ct. 490, 83 L.Ed 627, 123 A.L.R. 599.

Finally, we agree with the Board that what the union is in effect seeking to do is to use the happenings after June 18th, as mere connective incidents wherewith to bridge the fatal gap in time between the happenings really relied on as unfair labor practices and the six months' bar, hoping thereby to cross over the six months barrier which otherwise would preclude the charge.

The order of dismissal was rightly entered. The petition to set it aside is denied.

1 92 N.L.R.B. 1073.

2 The sole questions presented are questions of law as to the applicability and effect of the proviso to Section 10(b) of the amended Act, 29 U.S.C.A. § 160(b), which reads:

"* * * Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * *."

3 "The Proceedings Before the Board.

"Following the usual proceedings under Sec. 10 of the Act, the Trial Examiner issued his Report finding, that Employer had discriminated against 36 employees thereby violating Section 8(a) (3) of the Act, had refused to bargain with the Union in violation of 8(a) (5) of the Act, and had committed acts of interference, restraint and coercion violative of Section 8(a) (1) of the Act.

"The Board, on reviewing the Examiner's Report, did not in anywise question the adequacy of the evidence to support the Examiner's findings of fact or conclusions of law. Nevertheless, the Board dismissed the allegations of discrimination against employees and refusal to bargain on the theory that the six month period of limitations in Section 10(b) of the Act, quoted above, `protected (employer) from liability with respect to the alleged violations of Section 8(a) (3) and (5).' Accordingly, the Board dismissed the 8(a) (3) and (5) allegations. On this proceeding to review the action of the Board, petitioner labor union, a party aggrieved by the Order of the Board within the meaning of Section 10 (f) of the Statute, asserts that the Board erred in the dismissal of those portions of the complaint."

4 "1. Whether Section 10(b) precludes the Board from basing a decision upon unfair labor practices committed over six months prior to the filing and service of the charge.

"2. Whether substantial evidence supports the Board's finding that the striking employees had been replaced over six months before the filing and service of the charge."

5 These are the facts as its brief states them:

Petitioner's first unfair labor practice charge against the Company was served on Dec. 18, 1948. The Board accordingly concluded that it was precluded from finding that the Company committed any unfair labor practice prior to June 18, 1948.

Prior to this cut-off date, between Nov. 17, 1947, and Jan. 19, 1948, the Company repeatedly refused to recognize the Union as the bargaining agent of its employees. On Jan. 19, 1948, almost all of the Company's employees went on strike to protest the Company's refusal to bargain. Between Jan. 19 and Mar. 4, 1948, the Union made two unsuccessful attempts to reopen negotiations with the Company. The record does not show that the Union made any subsequent request for recognition. By the middle of March, 1948, the uncontradicted evidence shows that all of the strikers had been replaced by new employees, and the Company's operations were back to normal.

On June 20, 1948 (less than six months before the filing and service of the first...