Leonard v. National Labor Relations Board
| Citation | 197 F.2d 435 |
| Decision Date | 29 May 1952 |
| Docket Number | No. 12974.,12974. |
| Parties | LEONARD et al. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Ninth Circuit |
St. Sure & Moore, Oakland, Cal. (George O. Bahrs, San Francisco, Cal., of counsel), for petitioners.
Carroll, Davis & Freidenrich, San Francisco, Cal., for Master Furniture Guild Local No. 1285, amici curiae.
Robert Littler, Wm. A. Ingram (of Littler, Coakley, Lauritzen, & Ferdon), San Francisco, Cal., for California Metal Trades Ass'n, Bakery Employers Ass'n of San Francisco, Food Employers Council, Inc., Truck Owners Ass'n of California, District of Columbia Trucking Ass'n, Motor Carriers' Council, Inc., Carriers Council of New Hampshire, Inc., Motor Carriers' Council, Inc., amici curiae.
Arthur C. Rooney, Chicago, Ill., Eli E. Dorsey, Seattle, Wash., Patterson, Belknap & Webb, Chauncey Belknap, Christopher W. Hoey, New York City, for Chicago
Bakery Employers Labor Council and Seattle Department Stores Ass'n, Inc., amici curiae.
Robert N. Denham, Washington, D. C., for Tanners Ass'n of Fulton County, Inc., Boton Bakery Employers Labor Council and Employing Bakers Ass'n of Washington, D. C., amici curiae.
S. G. Lippman, Chicago, Ill., for Retail Clerk International Ass'n, AFL and Distillery, Rectifying and Wine Workers International Union of America, AFL, amici curiae.
George J. Bott, General Counsel, National Labor Relations Board, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. General Counsel, Harvey B. Diamond, Attorney, National Labor Relations Board, Washington, D. C., for respondent National Labor Relations Board.
Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.
Eleven furniture-dealing firms organized in a multi-employer unit organization,1 hereafter called the Dealers, petition to set aside orders of the respondent Board to cease and desist from locking out temporarily their employees, all of them members of a single labor organization, Master Furniture Guild Local 1225, hereafter called the Union, and to give back pay to the union members so locked out. The Board petitions for the enforcement of its orders.
The Board sustained the Trial Examiner's findings that the temporary lockout occurred while the Dealers' unit and the Union were engaged in active negotiation for an amendment of a prior agreement between them as to wages and conditions of employment. It is clear that the temporary lockout was not a discharge but that the locked out men continued as the Dealers' employees.
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 finding is that the sole motive of the Dealers in temporarily locking out all the Union's members was as a mere reprisal for the Union's causing the strike of the Union Furniture Company's employees. The specific finding is:
Upon this finding the board held that the Dealers had violated sections 8(a) (1) and 8(a) (3) of the Labor Management Relations Act, 29 U.S.C.A. § 158(a) (1, 3).
The Dealers contend this finding is error and that their motivation in temporarily locking out all the employees was for no other purpose than to offset the bargaining power of the Union with which they were then negotiating. The Dealers had made this same contention before the Board which declined to pass upon it, confining the grounds of its order to the finding that the lockout was a mere reprisal for the strike against one of the Dealers' members. The issue whether the evidence sustained the finding is to be considered by us under the rule of review laid down by Section 10(e) of the Act, 29 U.S.C.A. § 160(e), as follows:
"The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive."
We think that, on such a review of the evidence as a whole, the finding of the Board that the lockout was a mere reprisal against the Union Furniture Company strikers and the other employees aiding the strikers is not sustained. We are surprised to discover that nowhere does the Board in its findings mention the evidence that the order of the Union to strike gave power to the Union's strike managers to strike successively against each one of the several dealers. This would be most likely to transfer customers of the struck firm to other members of the Dealers with a possible loss of customers and a depreciation of the Dealer's property in his good will. By repeating this on successive Dealers, a process called "whipsawing," the Dealers' unit power of collective bargaining would be impaired and ultimately the organization itself destroyed.
Taken in connection with this overlooked testimony, the evidence upon which the Board relies does not support its contention that the lockout was a mere reprisal to defeat the strike against the individual member of the Employers. This testimony is what was given by the witness St. Sure who represented the Employers' group in which he stated:
This testimony should be read with the understanding that the Board rejected the Dealers' contention that the lockout here was an economic weapon to force the Union to accept the master contract proposed by the Employers' group.
Other record evidence germane to the purpose of the lockout is the following:
Since we have held that the finding of the Board is not sustained by the evidence, the question arises whether we should determine if the Board's order may be sustained on the ground that it is illegal for the Dealers to use the temporary lockout as counter-economic power to that of the strike in a dispute between employer and employee involving wages and labor conditions.
It is apparent from the declaration of purpose and the terms of the National Labor Relations Act of 1935, 29 U.S.C.A. § 151 et seq., that Congress was then concerned solely with enhancing the power of employees in collective bargaining with their employers for the amount of their wages and their working conditions. It became apparent in the twelve years between 1935 and the enactment of the Taft-Hartley Amendment in 1947 that the earlier act had enormously increased the power of labor unions. This was shown in the great number of successful strikes and...
To continue reading
Request your trial
-
NLRB v. Dalton Brick & Tile Corporation
...Beverage Co. v. N. L. R. B., 7 Cir., 1951, 190 F.2d 576, and after remand to the Board, 7 Cir., 1953, 204 F.2d 529; Leonard v. N. L. R. B., 9 Cir., 1952, 197 F.2d 435, and after remand to the Board, 9 Cir., 1953, 205 F.2d Economic conditions unrelated to negotiations may justify a shutdown ......
-
National Labor Relations Board v. Truck Drivers Local Union No 449, International Brotherhood of Teamsters, Chauffeurs Warehousemen Helpers America
...Co., 8 Cir., 221 F.2d 427; National Labor Relations Board v. Spalding Avery Lumber Co., 8 Cir., 220 F.2d 673; Leonard v. National Labor Relations Board, 9 Cir., 197 F.2d 435; Id., 9 Cir., 205 F.2d 355; Morand Bros. Beverage Co. v. National Labor Relations Board, 7 Cir., 190 F.2d 6 The contr......
-
Truck Drivers Local Union v. National Labor Rel. Bd.
...In the instant case, the Board departed from its previous position by adopting the position of the Ninth Circuit in Leonard v. N. L. R. B., 9 Cir., 197 F.2d 435, Id., 9 Cir., 205 F.2d In its second opinion in the Leonard case, 205 F.2d 355, which the Board cited in its opinion here, the Nin......
-
NLRB v. O'KEEFFE ELECTRIC CO., 21764.
...v. Dalton Brick & Tile Corp., 5 Cir., 1962, 301 F.2d 886; NLRB v. Spalding Avery Lbr. Co., 8 Cir., 1955, 220 F.2d 673; Leonard v. NLRB, 9 Cir., 1952, 197 F.2d 435; id., 1953, 205 F.2d 355; Morand Bros. Beverage Co. v. NLRB, 7 Cir., 1951, 190 F.2d 576; id., 1953, 204 F.2d 529. Respondent's c......