Lion Oil Company v. NATIONAL LABOR RELATIONS BOARD, 15158.

• Decision Date: 22 April 1955
• Docket Number: No. 15158.,15158.
• Citation: 221 F.2d 231
• Parties: LION OIL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

221 F.2d 231 (1955)

LION OIL COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15158.

United States Court of Appeals Eighth Circuit.

April 22, 1955.

Jeff Davis, El Dorado, Ark. (B. L. Allen and H. D. Dickens, El Dorado, Ark., on the brief), for petitioner.

Duane Beeson, Washington, D. C. (George J. Bott, David P. Findling, Marcel Mallet-Prevost and Frederick U. Reel, Washington, D. C., on the brief), for respondent.

Lindsay P. Walden and William E. Rentfro, Denver, Colo., filed brief for Oil Workers International Union, CIO, as amici curiæ.

Before SANBORN, JOHNSEN and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

This case is before the court upon the petition of Lion Oil Company to review and set aside an order of the National Labor Relations Board, and upon request of the Board for enforcement of its order issued against the Lion Oil Company on August 5, 1954, following proceedings under Section 10 of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 151 et seq.

The petitioner, Lion Oil Company (hereinafter referred to as "Company") and Oil Workers International Union CIO (hereinafter referred to as "Union") entered into a collective bargaining contract providing in detail the wages, hours and conditions under which employees should work for the Company during the term of the agreement. Insofar as it is applicable to the problem presented herein, the agreement between the Company and the Union provided as follows:

"Article I

"Term of Agreement

"This agreement shall remain in full force and effect for the period beginning October 23, 1950, and ending October 23, 1951, and thereafter until canceled in the manner hereinafter in this Article provided.

"This agreement may be canceled and terminated by the Company or the Union as of a date subsequent to October 23, 1951, by compliance with the following procedure:

"(a) If either party to this agreement desires to amend the terms of this agreement, it shall notify the other party in writing of its desire to that effect, by registered mail. No such notice shall be given prior to August 24, 1951. Within the period of 60 days, immediately following the date of the receipt of said notice by the party to which notice is so delivered, the Company and the Union shall attempt to agree as to the desired amendments to this agreement.

"(b) If an agreement with respect to amendment of this agreement has not been reached within the 60-day period mentioned in the subsection immediately preceding, either party may terminate this agreement thereafter upon not less than sixty days' written notice to the other. Any such notice of termination shall state the date upon which the termination of this agreement shall be effective."

On August 24, 1951, the Union transmitted by mail to the Company and to the Federal Mediation and Conciliation Service the following letter:

"Oil Workers International Union, C.I.O El Dorado Local No. 434 El Dorado, Arkansas August 24, 1951 Registered Mail Return Receipt Requested Special Delivery "Lion Oil Company Lion Oil Building El Dorado, Arkansas Attention: Mr. T. M. Martin, President Federal Mediation and Conciliation Service 14th and Constitution Avenue, N. W Washington 25, D. C "Gentlemen:

"Pursuant to the provisions of the Labor-Management Relations Act of 1947, you are hereby notified that we desire to modify the collective bargaining contract now in effect between your company and this Union, in accordance with the provisions of the agreement.

"We are attaching hereto some of the proposed changes which we desire to include in a new contract or as modifications to the present agreement. We shall be glad to and now offer to meet and confer with you for the purpose of negotiating a new contract or modifications to the present agreement.

"Copies of this notice are being served upon the Federal Mediation and Conciliation Service, and the appropriate State Agency for the purpose of advising them of this dispute solely because of the alleged requirements of Section 8(d) (3) of the Labor-Management Relations Act of 1947, and subject to the validity of all provisions of such Act.

"Sincerely yours Oil Workers International Union, C.I.O. By /s/ E. P. Shelton Chairman Workmen's Committee Lion Oil Group Local 434-OWIU-CIO"

Representatives of the Company and the Union first met on August 29, 1951, to discuss the proposed amendments. Between that date and April 30, 1952, there were 37 meetings held for the same purpose. No agreement was arrived at.

On April 30, 1952, the employees of the Company went on strike for a wage increase and other benefits.

Neither the Company nor the Union notified the other that it intended to terminate the contract. On June 21, 1952, after the employees here involved had been on strike continuously from April 30, 1952, the Union offered to return all striking employees to work unconditionally. The Company refused such offer. Subsequently it distributed to all employees copies of a letter to the Union in which it defended its position that there would be no reinstatement of the strikers "until such time as the (employees) are willing to agree to go to work and continue to work for a period of at least one year with no strike or other work stoppage during that period".

Subsequent to June 21st numbers of employees, singly and in groups, appeared at the Company's plant, were interviewed by the plant superintendent and rehired upon the assurance of each individual that he would "continue to come to work daily and continuously throughout the period of the remainder of the strike" and that he would not honor any picket line at the Company's plant. It was made clear that without such assurances no striker would be permitted reinstatement. Between June 21, 1952, and August 3, 1952, 27 negotiation meetings between representatives of the Company and the Union were held in an effort to settle the dispute.

On August 3, 1952, a new agreement was formally executed with the employees being reinstated the following day.

During the period of negotiations the Union filed with the National Labor Relations Board a charge of unfair labor practices against the Company. The charge was based upon the activities of the Company subsequent to the Union's offer to return the strikers to work.

The Company filed an answer to the charge in which it denied the allegations of unfair labor practices and, further, set up as a separate defense the claim that the strike was an unlawful one because it was called by the Union at a time when there was in effect between the Union and the Company a collective bargaining contract; that the strike was in violation of the contract provisions, constituted an unfair labor practice and that the employees participating therein thereby lost their status as employees and were not entitled to relief.

By a split decision, (one member dissenting and one concurring specially) the Board held that the Company was guilty of unfair labor practices within the meaning of Sections 8(a) (1), 8(a) (3) and 8(a) (5) of the National Labor Relations Act and rejected the Company's defense that the strikers had lost the protection of the Act because they had struck while a contract was in effect. It is this decision and the resulting order that are under review here.

The primary question is this: Was the strike of April 30, 1952 in violation of the agreement between the parties and contrary to the provisions of Section 8 (d) of the Act? The relevant portions of that Section are as follows:

"* * * where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party

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