LOCAL NO. 3, ETC. v. National Labor Relations Board
| Decision Date | 09 March 1954 |
| Docket Number | 14883.,No. 14876,14876 |
| Citation | 210 F.2d 325 |
| Parties | LOCAL NO. 3, UNITED PACKING HOUSE WORKERS OF AMERICA, CIO v. NATIONAL LABOR RELATIONS BOARD et al. WILSON & CO., Inc. v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Allen Heald, Cedar Rapids, Iowa, for Local No. 3, United Packinghouse Workers of America, CIO.
John L. Cockrill, Chicago, Ill. (Thomas Freeman, Louis R. Simpson, Howard C. Parson, Chicago, Ill., and Francis X. Reilly, Jr., Chicago, Ill., on the brief), for Wilson & Co., Inc.
Irving M. Herman, Atty., N. L. R. B., Washington, D. C. (George J. Bott, Gen. Counsel, N. L. R. B., David P. Findling, Associate Gen. Counsel, N. L. R. B., A. Norman Somers, Asst. Gen. Counsel, N. L. R. B., and Frederick U. Reel, Atty., N. L. R. B., Washington, D. C., on the brief), for National Labor Relations Board.
Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.
This was a proceeding before the National Labor Relations Board in which Locals 3, 6 and 37 of the United Packinghouse Workers of America, CIO, filed charges with the National Labor Relations Board in the fall of 1948 alleging that Wilson & Co., Inc., the owner and operator of meat packing plants at Faribault, Minnesota, at Albert Lea, Minnesota, and at Cedar Rapids, Iowa, had discriminatorily discharged and refused to reinstate certain named employees whom the unions represented for collective bargaining purposes because of their union activities and affiliations and had failed to reinstate them for like reasons. While the original charges were filed in the fall of 1948 no complaint was issued by the National Labor Relations Board based thereon until June 27, 1952, nearly four years after the filing of the original charges.
Strikes occurred and were carried on at each of the company's plants from March 16, 1948, until June 7, 1948, and were conducted in such a violent and destructive manner that the governor of the state of Minnesota and the governor of the state of Iowa each called out the National Guard of his respective state to protect the company's property, preserve the public peace and prevent threatened damage to persons and property by the striking employees. Injunctions against the strikers were also issued for like reasons.
The complaint as finally issued upon the charges filed alleged that the company had discharged and failed and refused to reinstate certain named employees because they had engaged in a strike and other concerted activities for the purpose of collective bargaining or other mutual aid or protection, with the intent to discourage membership in the local unions and the concerted activities of its employees. The complaint then alleged that the company's acts constituted discrimination in regard to hire and tenure of employment and terms and conditions of employment of its employees and for that reason constituted unfair labor practices within the provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.
The company by its answer denied all charges of unfair labor practices contained in the complaint, pleaded that the strike was an unlawful one because it had been called before the expiration of the contract between the company and its employees and that because of such action they lost their status as employees.
The answer also affirmatively pleaded that the employees named in the complaint were denied re-employment for illegal or unlawful acts or misconduct during or after the strike or for permitting reinstatement rights to lapse or for failure to report for work after the strike on proper notice or were not employees at the start of the strike, and not because of their union activities or affiliations. It was also alleged that the complaint contained names of certain individuals whose claims had been fully settled and released in accordance with an agreement of October 5, 1950, between the company and the union with the approval of representatives of the National Labor Relations Board.
The case was heard before a trial examiner of the Board who heard the testimony on the issues presented.
The Board, in support of the allegations of its complaint, introduced evidence showing that the individuals enumerated in the complaint as having been discriminatorily refused reinstatement because of their union activities were employees of the company at and prior to the time the strike was called; that they participated in the strike; that they were members of the union and that following the strike they reported for work and were denied employment. The company introduced evidence as to the acts of violence committed by the striking employees and evidence tending to show that the employees named in the complaint participated in certain unprotected activities in connection with the strike. The acts of violence shown by the testimony included tipping over automobiles of non-striking employees or supervisors, threatening non-striking employees or supervisors with bodily harm, blocking ingress to or egress from company plants, assaulting non-striking employees or supervisors, throwing rocks at non-striking employees or supervisors, and publicly vilifying supervisors or non-striking employees. It also made proof that other employees who had participated in the strike but who had not taken part in these unprotected activities were reinstated although they were equally prominent in the union and its activities. The company also offered proof that as to five of the employees listed in the complaint two were discharged or refused reinstatement for failure to report to work after the strike, one was discharged for walking off his job, one was discharged or refused reinstatement for failure to make timely return from a leave of absence, and one was refused reinstatement because his job had been eliminated.
The trial examiner in his report to the Board rejected all the company's defenses and found that the company had violated Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act as to all individuals named in the complaint and recommended that the company be ordered by the Board to cease and desist from interfering with employees' rights and to reinstate and make whole each of the individuals named in the complaint.
The Board adopted the findings and recommendations of the examiner except as to one Harry L. Wright as to whom the proceeding was dismissed because he had been discharged for leaving his work before his regular relief time and not for his union activities or affiliations.
It will be necessary to make further reference to the evidence in this case during the course of this opinion.
Subsequent to the entry of the order of the Board, Local No. 3, United Packinghouse Workers of America, CIO, was on application permitted to intervene for the purpose of filing petition for review. Petitions for review have been filed by the company and also by Local No. 3, United Packinghouse Workers of America, CIO. The union in its petition seeks only a modification of the Board's order to the extent that the dismissal of the complaint as to Harry L. Wright be reversed and that he be included in the list of those to be reinstated with back pay and that the order be further modified so as to allow interest to such employees as are ordered reinstated, on the back pay which shall be found to be due them.
The company by its petition for review challenges the validity of the order and the findings on which it is based substantially on all the grounds pleaded in its answer.
The burden of proving the charges of unfair labor practices charged in the complaint was upon the Board. N. L. R. B. v. Reynolds International Pen Co., 7 Cir., 162 F.2d 680; N. L. R. B. v. National Die Casting Co., 7 Cir., 207 F.2d 344; American Smelting & Refining Co. v. N. L. R. B., 8 Cir., 126 F.2d 680. The basis of these charges was that the dismissal of the employees named in the complaint and the refusal to reinstate them was because of their union activities or affiliations and hence, was discriminatory within the purview of the National Labor Relations Act. The jurisdiction of the Board is a limited one and it cannot concern itself with the management of the business of employers nor with the matter of discharges of employees unless such discharges are prompted by union activities or affiliations of the employees. If an employee is wrongfully discharged by his employer he must seek recourse in a court of law unless the discharge be for the union activities or affiliations of the employee. American Smelting & Refining Co. v. N. L. R. B., supra; N. L. R. B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486. In American Smelting & Refining Co. v. N. L. R. B., supra 126 F.2d 686, it was said:
The question of the right to reinstatement or re-employment depends on whether or not the employee was discharged or refused reinstatement for his union activities. If an employee has been discharged or refused reinstatement for other causes, whether justly or unjustly, he is not entitled to reinstatement by order of the Board. In other words, the Act does not confer upon the employee any right of reinstatement if he has been discharged or refused reinstatement for any reason other than his union activities or affiliations. It is therefore of paramount importance in this, as in other similar cases, to consider the entire record for the purpose of determining whether the...
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