Leonard v. National Labor Relations Board, 13557.

• Decision Date: 23 June 1953
• Docket Number: No. 13557.,13557.
• Citation: 205 F.2d 355
• Parties: LEONARD et al. v. NATIONAL LABOR RELATIONS BOARD. NATIONAL LABOR RELATIONS BOARD v. LEONARD et al.
• Court: U.S. Court of Appeals — Ninth Circuit

205 F.2d 355 (1953)

LEONARD et al. v. NATIONAL LABOR RELATIONS BOARD.

NATIONAL LABOR RELATIONS BOARD v. LEONARD et al.

No. 13557.

United States Court of Appeals Ninth Circuit.

June 23, 1953.

St. Sure & Moore, Oakland, Cal., Christopher W. Hoey, New York City (George O. Bahrs, San Francisco, Cal., of counsel), for petitioners.

Carroll & Davis, San Francisco, Cal., for Master Furniture Guild, as amicus curiae.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Bernard Dunau and Harvey B. Diamond, Attys., N. L. R. B., Washington, D. C., for respondent.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

DENMAN, Chief Judge.

Leonard and other retailers dealing in furniture in an employer unit association, hereafter the Dealers, petition us to set aside an order of the National Labor Relations Board, hereafter the Board. The present Board order now attacked by the Dealers holds a violation of the Taft-Hartley Act, 29 U.S.C.A. § 151 et seq., a temporary lockout from their stores of employees during a pending labor dispute. The dispute has been settled and the question before us is the validity of the Board's order for back pay during the period of the lockout.

The question of the validity of the temporary lockout had been referred by us to the Board in the case of the same title, and based upon the same facts, 9 Cir., 197 F.2d 435. There we gave an extended consideration of the legislative history of the Taft-Hartley Act's provision concerning lockouts and the provisions themselves. What we there stated is to be deemed stated here.

The pertinent facts are that the single union of all the employees of the eleven Dealers was engaged in active negotiations with all the Dealers as a unit for an amendment of an existing agreement between them as to wages and conditions of employment. While the negotiations were pending, the union, by a vote of the employees of all the firms of the Dealers' unit, had called a strike, which followed, of the employees of one of the members of the Dealers, the Union Furniture Company. The latter company at the time the strike was called was complying with all the provisions of the then existing agreement.

The union leader in charge of the strike called it on the particular dealer as the beginning of an announced "whipsawing process" against one after another of the remaining ten, which well could result in strikes against all the Dealers.

The effect of such a recurrent whipsawing process is obvious. No one of the ten remaining dealers could know whether or not its store was next to have its employees sawed off in the continued whipping. Hence none could feel it safe to take orders from its customers on which they would be embarrassed by non-deliveries to them. Likewise, no dealer was safe in placing orders for furniture with the manufacturers, which well might find no employee to unload it in their stores, or if so delivered to the stores it would lie as depreciating overstocked inventories.

To meet this powerful and effective economic coercion by all their employees, the ten remaining Dealers temporarily locked them out though retaining them on their payrolls — but as not working and earning pay — and treating them as employees with protection as to seniority and other benefits when the dispute was settled.

The Board in justifying its holding a temporary layoff in the circumstances violates the Taft-Hartley Act completely ignores the effect of the whipsawing process. It treated the question we referred to it as if the whipsawing factor did not exist and the only fact to be considered was the single strike at one of the stores, stating:

"As we read the Court\'s opinion, the sole question before us for consideration at this time is whether the lockout by all the Dealers in this case was justifiable as a use of economic power to offset the Union\'s economic action in calling a strike against Union Furniture."

In so ignoring the above effects of the whipsawing process, involving successive strikes against employers not knowing the succession, it reverses its position taken before us in the former case on the same facts, in a manner resembling what is known to athletes as "the aerial whirl back-flop." It there stated the law to be that "An employer faced with a threatened strike against himself may lawfully lock out employees if his motive in doing so is to protect his own economic interests." (Emphasis supplied.)

The Board's former contention then proceeded to give its "examples," three of its cases, in which it held the Act permits lockouts. They hold justifiable the lockout to meet exactly the above described injuries caused the employers by the whipsawing process. It will be noted that the first of the Board's cases justifying the lockout was decided in 1943, that is under the Wagner Act. These examples are:

"* * * For example, in Duluth Bottling Association, 48 N.L.R.B. 1335, 1336, 1359-1360, the Board held that where a threatened strike against employers would result in a spoilage of their materials, the employers were entitled to guard against such loss by locking out their employees in anticipation of the strike. In Betts-Cadillac-Olds, Inc., 96 N.L.R.B. 46; 28 L.R. R.M. 1509, the Board held that the union\'s refusal to tell employers when the threatened strike would occur warranted the employers in refusing to accept further orders and locking out their employees, since the employer\'s purpose was to guard against disappointing customers.

"And in International Shoe Co., 93 N.L.R.B. 159, 27 L.R.R.M. 1504, the Board held that an employer faced with the prospect of recurrent work stoppages which made it difficult for him to plan production,

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