Metal Blast, Inc. v. NLRB

• Citation: 324 F.2d 602
• Decision Date: 19 November 1963
• Docket Number: No. 15239.,15239.
• Parties: METAL BLAST, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

324 F.2d 602 (1963)

METAL BLAST, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 15239.

United States Court of Appeals Sixth Circuit.

November 19, 1963.

Marvin S. Zelman, Cleveland, Ohio (Thomas P. Meaney, Jr., David A. Kaufman, Burke, Haber & Berick, Cleveland, Ohio, on the brief), for petitioner.

Melvin Pollack, National Labor Relations Board, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Stuart Broad, Atty. N. L. R. B., Washington, D. C., on the brief), for respondent.

Before MILLER and O'SULLIVAN, Circuit Judges, and TAYLOR, District Judge.

PER CURIAM.

Petitioner, Metal Blast, Inc., seeks to review and set aside an order of the National Labor Relations Board, which held that the company violated Section 8(a) (3) and (1) of the National Labor Relations Act by discharging John L. Thompson, a company employee serving as union shop steward, on account of union activities, and ordered the company to cease and desist from said unfair labor practice, to offer reinstatement to Thompson, to make him whole for any as union shop steward, on account of union activities, and ordered the company to cease and desist from said unfair labor forcement of its order. The company contends that Thompson was discharged for cause. The Board found that Thompson was discharged because of his protest against the temporary layoff by the company of the employees who worked on the "bagging machines," when no work was available because of a water tank becoming inoperative as a result of a breakdown, although the company continued to keep at work employees in the shipping department, which was not affected by the breakdown. Thompson's protest was based on the fact that the employees laid off were older employees than the ones kept on, which was in violation of seniority rights.

Although the collective bargaining agreement contained no provision regarding seniority, we are of the opinion that Thompson was engaged in a protected union activity in insisting that the company follow seniority in effecting the layoffs. The evidence sustains the contention that Thompson was not merely expressing an individual "gripe," but was speaking for the twenty or more employees who were being laid off. Seniority is a valuable right to those employees who have it and is so recognized among employees generally. A spokesman for such employees is engaging in a concerted activity for the employees' "mutual aid and protection," within the meaning of Section 7 of the Act when he attempts to have such rights recognized by the employer, even though they may not be guaranteed by the bargaining agreement. Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048; N. L. R. B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298; N. L. R. B. v. Guernsey-Muskingum Electric Co-operative, 285 F.2d 8, 12, C.A.6th. Accordingly, Thompson was engaged in a protected activity under the Act in protesting against the action of the company, and, if discharged by the company for that reason it was an unfair labor practice under Section 8(a) (1) and (3) of the Act. N. L. R. B. v. Washington Aluminum Co., supra, 370 U.S. 9, 17, 82 S.Ct. 1099, 8 L.Ed.2d 298.

The company contends that Thompson was not discharged for that reason, but that the discharge was for cause, namely, for inciting a wildcat strike in violation of the collective bargaining agreement. If so, the discharge was not an unfair labor practice. Plasti-Line, Inc. v. N. L. R. B., 278 F.2d 482, 486, C.A.6th; N. L. R. B. v. Draper Corp., 145 F.2d 199, 205, 156 A.L.R. 989, C.A. 4th.

The Board was thus presented a factual question. It found that the company's assigned reason for the...