Hamilton v. National Labor Relations Board

• Decision Date: 31 March 1947
• Docket Number: No. 10247.,10247.
• Citation: 160 F.2d 465
• Parties: HAMILTON v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD v. KALAMAZOO STATIONERY CO., DIVISION OF WESTERN TABLET & STATIONERY CORPORATION.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F.2d 465 (1947)

HAMILTON v. NATIONAL LABOR RELATIONS BOARD.

NATIONAL LABOR RELATIONS BOARD v. KALAMAZOO STATIONERY CO., DIVISION OF WESTERN TABLET & STATIONERY CORPORATION.

No. 10247.

Circuit Court of Appeals, Sixth Circuit.

March 31, 1947.

COPYRIGHT MATERIAL OMITTED

Mozart G. Ratner, of Washington, D. C. (Gerhard P. Van Arkel, Morris P. Glushien, A. Norman Somers, Mozart G. Ratner and William J. Avrutis, all of Washington, D. C., on the brief), for National Labor Relations Board.

C. N. Sessions, of Muskegon, Mich. (C. N. Sessions, of Muskegon, Mich., on the brief), for Kalamazoo Stationery Co.

Victor E. Bucknell, of Kalamazoo, Mich., for Harold Hamilton.

Before ALLEN, MARTIN, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

This case is before the Court upon petition of Harold Hamilton, an employee of Kalamazoo Stationery Company, Division of Western Tablet and Stationery Corporation, hereinafter referred to as Respondent, to review and set aside in part an order of the National Labor Relations Board. The Board filed an answer requesting that the relief prayed by the petitioner be denied in full and further requesting enforcement of the order in full, to which pleading the company-employer was made a respondent. Respondent concedes the Board's jurisdiction. The present proceedings are brought pursuant to Sections 10(e) and 10 (f) of the National Labor Relations Act, Sections 160(e) and 160(f) Title 29 U.S. C.A.

The Board's order required the respondent to cease and desist from discouraging membership in the International Brotherhood of Bookbinders, affiliated with the American Federation of Labor, a union which was gaining members and strength among the employees of the respondent, and in any other manner interfering with its employees in the exercise of their rights to self-organization and collective bargaining; that two employees, Abraham and Smith, who had been discharged for activities in connection with a strike at respondent's plant, be reinstated without prejudice to their seniority or other rights and privileges and be made whole for any loss of pay; and that the respondent post appropriate notices. It dismissed so much of the complaint as sought reinstatement of the petitioner Hamilton. In this connection, it found that the respondent had discriminated against Hamilton on account of his union membership and activity therein by confining him to the maintenance department and assigning him baser work, but that the layoff of Hamilton, prior to the strike, at a time when conditions compelled the company to lay off approximately seventy of its employees including Hamilton and other members of the Union, was not because of his union activity, but in accord with his seniority status and that no one had been employed by respondent in his stead. It is to set aside this portion of the order that Hamilton filed his petition to review.

The factual side of the case seems somewhat typical of controversies of this type, making it unnecessary to review the evidence in detail. But in order to properly present the several questions of law involved, we review briefly the facts pertaining to the strike which occurred on September 5, 1944, and which resulted in the refusal of the respondent to reinstate the two employees, Abraham and Smith. There is substantial evidence that the respondent discouraged the formation of the union, that it discriminated against Hamilton because of his union membership and activity, and that this attitude on its part towards the union activities led to a proposal on the part of the Union to call a strike. On the evening of September 1, 1944, following Hamilton's layoff, the Union held a special meeting and decided to strike on September 5th. Cards were sent to its members notifying them to be on picket duty on that day. On September 3rd, Hamilton, Abraham and Smith were advised by a representative of another union that the strike would be illegal since it was called without the preliminary notice required by statute. They accordingly called the strike off, notifying employees to that effect by telephone and as they reported to the plant on the morning of September 5th. Nevertheless, rumors pervaded the plant that a strike would occur. During the work day of September 5th, Abraham, who customarily worked without much supervision, was given direct and continuous supervision by a foreman, Nason, who criticised his work. During the lunch hour Abraham discussed the situation with other employees and told them about the way Nason "was riding" him. During the afternoon Nason continued his critical supervision until about 4:00 p. m. when Abraham decided that he was "fed up" with the situation and began cleaning up his press preparatory to going home. Another employee, upon being advised by Abraham of what he was doing, told the other employees in the bindery that they were all going out. The word spread to other departments and numerous other employees joined the walkout. While the striking employees were standing nearby, McMahan, an officer of the respondent, walked up to the group and asked the reason for the walkout. Abraham told him that when the respondent took back 21 union members they had laid off they would return to work. McMahan told Abraham he was not coming back to work, and turning to Smith he told him he was discharged also. Attempts to settle the strike were unsuccessful, and finally the union, whose members were getting low on funds, was forced to call off the strike on condition that those who had not been laid off would be taken back without discrimination. On September 18th, the employees not discharged or laid off returned to work. Abraham and Smith were not reinstated.

The Board's findings that the respondent had engaged in unfair labor practices within the meaning of Section 8(1) and 8(3) of the Act are supported by substantial evidence and are conclusive. Section 10(e) of the Act. They support so much of its order as requires the respondent to cease and desist from discouraging membership in the union or in any other manner interfering with its employees in their rights to self-organization and to bargain collectively and to post appropriate notices. Likewise its finding with respect to the layoff and refusal to reinstate Hamilton is supported by substantial evidence and accordingly justifies the dismissal of the complaint as to Hamilton. So much of the order as requires the reinstatement of Abraham and Smith presents a different and more difficult question.

The respondent contends that so much of the Board's order as directed the reinstatement of Abraham and Smith with back pay is erroneous because said employees had forfeited the protection of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. for the following reasons: (1) While representing a minority of the employees they instigated and participated in a wildcat strike; (2) because they violated the provisions of the War Labor Disputes Act, Section 1501 et seq., Title 50 U.S.C.A.Appendix; and (3) because they violated the provisions of the Michigan State Labor Mediation Act, Michigan Stat.Ann. Vol. 12, c. 154, § 17.454(1) et seq., Comp.Laws Supp.1940, § 8628-1 et seq. We discuss each of these contentions in turn.

Section 2(3) of the National Labor Relations Act, Section 152(3), Title 29 U.S.C.A., provides that "The term `employee' * * * shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment." In construing this section the Supreme Court has said "the plain meaning of the act is that if men strike in connection with a current labor dispute their action is not to be construed as a renunciation of the employment relation and they remain employees for the remedial purposes specified in the act." N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct. 904, 911, 82 L.Ed. 1381. See also N. L. R. B. v. Ohio Calcium Co., 6 Cir., 133 F.2d 721, 726; N. L. R. B. v. Clinton Woolen Mfg. Co., 6 Cir., 141 F.2d 753, 756. The Act, in recognizing the right to strike, contemplates a lawful strike, and is not to be construed as compelling employers to retain persons in their employ regardless of their unlawful conduct in conducting the strike. If an employee engages in such conduct as would justify an employer in discharging him if a strike was not in effect, there is nothing in the Act to prevent such a discharge. N. L. R. B. v. Fansteel Corp., 306 U.S. 240, 254, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599, through 256; N. L. R. B. v. Ohio Calcium Co., supra. But the right to discharge a striker engaged in unlawful acts by refusing to reinstate him after the end of the strike is entirely different from refusing to reinstate a striking employee because of his activity in instigating and participating in the strike. Discrimination in reinstating striking employees because of their activity in connection with the strike is prohibited by Section 8 of the Act. N. L. R. B. v. Mackay Radio & Telegraph Co., supra (304 U.S. 333, 346, 347, 58 S.Ct. 904, 82 L.Ed. 1381). The respondent in its answer to the petition of the Board for enforcement of its order states that Abraham and Smith were leaders and instigators of an unlawful strike "and as such leaders and instigators they were properly discharged by said company." But Section 13 of the Act, Section 163, Title 29 U.S.C.A., provides that nothing in the Act "shall be construed so as to interfere with or impede or diminish in any way the right to strike." The strike was not accompanied by violence or threats. Refusal on the part of the respondent to reinstate Abraham and Smith because of their participation in the strike was not justified. Respondent relies upon N. L. R. B. v. Brashear Freight Lines, Inc., 8 Cir., 119 F.2d 379 and N. L. R. B. v. Draper Corporation,...