Laidlaw Corporation v. NLRB, 17033.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation414 F.2d 99
Docket NumberNo. 17033.,17033.
Decision Date02 September 1969

414 F.2d 99 (1969)


No. 17033.

United States Court of Appeals Seventh Circuit.

July 28, 1969.

Rehearing Denied September 2, 1969.

414 F.2d 100

D. C. Duck, Charles W. Culp, Indianapolis, Ind., for petitioner; Cadick, Burns, Duck & Neighbours, Indianapolis, Ind., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Norton J. Come, Atty., N.L.R.B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate General Counsel, John D. Burgoyne, Michael N. Sohn, Sanford H. Fisher, Attys., N.L.R.B., for respondent.

Before MAJOR, Senior Circuit Judge, KILEY and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

The principal question presented in this review is whether the rule enunciated in NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), should be applied to the facts in this case.

The Laidlaw Corporation is engaged in the manufacture of wire and related products. It petitioned this court to review an order of the Labor Board issued June 13, 1968. The Board cross-petitioned for the enforcement of its order.

The violations of the National Labor Relations Act which the Board found were: section 8(a) (1) by threatening to deny employment forever to its employees if they struck and were replaced and by maintaining an invalid no-distribution rule; and section 8(a) (3) and (1) by failing and refusing to offer a replaced striker full reinstatement to his former job, by terminating the employment status of a large number of other replaced strikers following their unconditional offer to return to work, and by later failing and refusing to offer them reinstatement.

The factual background giving rise to these violations is as follows. In June 1962, as a result of a representation election, the International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, was certified as the collective bargaining representative of Laidlaw's production and maintenance employees at its Peru, Indiana plant. Since then Laidlaw and the union have operated under successive collective bargaining agreements, the most recent covering the period December 14, 1964 to December 13, 1966. The contract contained a provision for mid-term negotiations with respect to wages. Such negotiations, if requested by either party, were to take place during the period from December 14, 1965 to January 13, 1966.

In October and November 1965 the union notified Laidlaw of its desire to reopen the contract pursuant to the wage-reopener clause in order to renegotiate wages. Thereafter the parties met at various times in December 1965 and January 1966. At a meeting on January 7, 1966 the company refused to offer any wage increase, asserting that it had lost money in previous years and wanted to see whether its operations, which had been profitable for the first two months of its current fiscal year, would continue to show a profit for the next three months. The company said that it would agree to new wage negotiations in three months if the union would abandon its demands.

On January 8, 1966 the employees rejected the company's proposal and voted to strike in support of their demand for a wage increase.

On January 11 the union sent the company a telegram stating that the strike

414 F.2d 101
would begin at noon on January 12. That afternoon, plant manager Johnston read a prepared speech to about seventy-five of the company's employees. He said in part
The Company has decided to continue to operate through the strike, and in doing so will provide work for all employees who decide to work and will hire new employees to replace those on strike.
Mr. Wentz has told those of you at the Union meeting last Saturday that our attorney Mr. Duck lied to you on last Friday when he told you that under Federal Law if you do go on strike and the Company hires a replacement for you you Lose Forever your right to employment by this company. I want to assure you that such IS the law. Mr. Duck told you the absolute truth. Let me suggest that before you take action that can seriously and permanently affect your future here, you check with any lawyer of your own choice or with the Indianapolis Office of the National Labor Relations Board. You will find Mr. Wentz has misled you and Mr. Duck has told you the absolute truth. (Emphasis in original text.)

The following day, seventy of the company's ninety-nine employees went on strike. Picket lines were immediately set up with signs reading, "Local 681 on strike for fair wages."

William Massey, an employee of the company since June 1961, was one of the strikers. On February 14 he telephoned his supervisor and asked to return to work and was told to report the next morning. When Massey arrived, he was informed by the employment manager that his job was "filled" at that time as were the jobs of all male employees. He was also told that if the company were to reemploy him, it would be as a "new employee" at the minimum contract starting wage. Three days later the employment manager telephoned Massey and asked him to return to work. Massey was assured that he would receive the same pay he was earning when he went on strike, but that he "would have to be reinstated as a new employee." Later that afternoon, Massey spoke with the plant manager about the loss of his accrued seniority and vacation rights. He was told that he would be denied his seniority and vacation pay. Massey refused to return to work under these circumstances and continued to strike.

During the strike, plant manager Johnston told foreman Bridges that they should replace the strikers "as fast as we can" and to get rid of the employees with the most seniority because they were the "troublemakers." On February 10 approximately fifty of the striking employees met and voted to abandon the strike and return to work. The following morning about forty strikers appeared at the plant and conveyed their desire for reinstatement. The union representative informed Johnston of the vote taken the preceding day and handed him a sheet of paper which "outlined briefly" the employees' decision to return to work. Additionally, each of the employees present gave to Johnston a printed form letter stating:

On January 12, 1966 I, along, with some 70 other Laidlaw employees, went on strike in protest of certain unfair labor practices.
As of this date I am unconditionally offering to return to work immediately.
Please advise me immediately.

Following a telephone conversation with the company's attorney, Johnston read the following statement to the gathered employees:

Many of you have been permanently replaced and are not entitled to reinstatement. As soon as we can determine if there are job openings today, those of you for whom there are such openings, if any, will be notified on or before Monday to report to work.

The union representative emphasized to Johnston that although many of the strikers were not present that morning, "our unconditional offer to return did

414 F.2d 102
apply to all of the members of the local union."

Following this meeting with the employees, the company determined that, as of February 11, all but five of the strikers had been replaced and, hence, only five employees were needed to bring the work force up to its prestrike level. On February 11 five of the striking employees were notified by telegram of the vacancies and offered reinstatement.

On February 15 the company received five additional requests for reinstatement from striking employees. Again, the company checked its vacancies and determined this time that it had nine openings. Accordingly, it sent employment offers to all five. Four of the five returned to work the next day. The fifth requesting employee made no response. The other four openings were "filled with new hires," whose applications the company had "on file." The new employees also reported for work the next day. In deciding how to fill the remaining four openings, the company gave no consideration to any of the striking employees who had applied for work on February 11 because, according to Johnston, "We were handling this on the basis of the dates they applied for reinstatement," and "if they didn't apply on the right day the company was not going to call them the next day, so to speak."

On February 16 the company received four more requests for reinstatement from strikers. At this time, however, the company had no openings, and it, therefore, made no offers. On the same day, the company began mailing to the Indiana Employment Security Division printed "termination" notices, setting forth the "date of separation" of each striking employee to whom it had not offered reinstatement, which in each case was the date on which the company received the striker's request for reinstatement. Each notice stated, "This person permanently replaced while on economic strike and no job available on date of application for reinstatement." Copies of these notices were also sent to each affected employee.

On February 18 the company received applications for reinstatement from three more strikers. Johnston again reviewed the company's needs for that day and determined that four jobs were available. The three employees whose applications were received that day were offered reinstatement. Again, none of the strikers whose application for reinstatement had been received on previous days was considered for the additional vacancy; the opening was considered for the additional vacancy; the opening was filled with a new employee.

During the week of February 14 to 18, the employees who were not reinstated continued to picket outside the company's premises, but when the reinstated employees approached the plant to go to work, the picketing employees took the picket line down in order to allow them to enter without having to cross a picket line.

On February 20 a group of approximately eleven employees who had been...

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