N.L.R.B. v. W.C. McQuaide, Inc.
| Decision Date | 24 February 1977 |
| Docket Number | No. 76-1403,76-1403 |
| Citation | 552 F.2d 519 |
| Parties | 94 L.R.R.M. (BNA) 2950, 81 Lab.Cas. P 13,081 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W. C. McQUAIDE, INC., Respondent. |
| Court | U.S. Court of Appeals — Third Circuit |
W. Christian Schumann, William R. Stewart, John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
Stephen J. Cabot, Pechner, Dorfman, Wolffe & Rounick, Philadelphia, Pa., for respondent.
Before GIBBONS and GARTH, Circuit Judges, and COHEN, District Judge. *
The National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., petitions for enforcement of its order issued against W. C. McQuaide, Inc. 1 We enforce in part and remand for further findings.
W. C. McQuaide, Inc. (Company) is a family-held corporation which operates a trucking business from its terminal at Johnstown, Pennsylvania. Before the commencement of the strike, the Company employed approximately 300 employees. 2 On April 1, 1974, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local 110 (the Union) served on the Company a letter in which it claimed to represent a majority of the drivers and warehousemen. When the Company refused recognition, the Union filed a representation petition with the Board seeking an election. On April 17, 1974, between 120-150 employees struck. The strikers picketed the various entrances to the McQuaide terminal and utilized roving pickets at delivery points. The purpose of the strike was to obtain recognition of the Union, to get a prompt election, and to secure improvements in wages and working conditions.
The strike, which lasted four months, seriously disrupted the Company's business and was marked by considerable damage to Company property. Truck windshields were smashed, air hoses were cut and a warehouse, airplane, and hangar were burned, but the responsibility for these acts could not be attributed to anyone. During the course of the strike, the Company sent letters to striking employees and held meetings encouraging them to return to work.
A week after the strike began, the Company obtained a broad temporary restraining order from the Court of Common Pleas of Cambria County. 3 A modified consent order was entered five days later. On May 1, 1974, the Company petitioned the Court of Common Pleas to have certain named strikers adjudged in contempt of the consent order and a hearing (the Ebensburg hearing) was held on May 6 and 7, 1974. No specific findings of fact were made, but seven strikers were found in contempt. Frank Petrosky, Harry Lavely, Robert Lesnak, Dennis Patterson, Dennis Albert, and Lawrence Gindelsperger were each fined $50. John Geisel was fined $100. 4
The strike continued and the Company transferred ten employees from other departments to the dock and hired fourteen new employees. On May 17, 1974, nineteen striking dockworkers were notified that they had been permanently replaced. Two days later the Company discharged the seven strikers who were found in contempt at the Ebensburg hearing.
On August 8, 1974, the Company, the Union and their attorneys met at a hearing before the Pennsylvania Unemployment Compensation Board of Review. The Company's attorney, Stephen Cabot, stated that the Company was "ready, willing and able" to take back any employee who wanted to come back. The statement was made privately to Union President Adams as well as in response to the Referee's questions. On the same date, the Union sent a letter to the Company stating that the strikers were "unconditionally ready, willing and able to return to work immediately." The Union terminated all pickets except those at the main entrance to the terminal. 5
Upon receipt of the Union's letter on August 12, 1974, Company President L. McQuaide sent the following letter to a large number of employees:
"Today, for the first time, I have received information which leads me to believe that you may be willing to return to work unconditionally, and to do so at once.
If you desire to return to work unconditionally, please notify me of your:
1. Intention to return to work, and
2. The earliest available date you can return to work.
If you want your previous job which is available, contact me as soon as possible."
On August 15, 1974, L. McQuaide wrote two additional letters to employees. To the dockworkers who had received the replacement letter, he wrote:
As you know on May 17, 1974 I wrote a letter informing you that you were permanently replaced. I would appreciate hearing from you no later than Friday, August 23, 1974, if you have any desire to work for W. C. McQuaide, Inc.
If you are currently available and desire to fill a vacancy should one occur, please notify me of your intention no later than August 23, 1974. If possible, please convey this information to me at my office.
The following letter was sent to the other strikers:
Today, for the first time, I have received information that leads me to believe that you may be willing to return to work unconditionally and to do so at once.
If you desire to return to work unconditionally, please notify me of your:
1. Intention to return to work, and
2. The earliest available date you can return to work.
If I do not hear from you by Friday, August 23, 1974, I will assume that you have no desire to return to work. If possible, please see me at my office to discuss this matter.
During this period of time, Cabot again told Adams that jobs were available to employees who requested them. He complained to Adams that the continuation of a picket line was inconsistent with the Union's letter of August 8. Adams replied that he would do what he could about eliminating the picket line and about having strikers notify McQuaide concerning reinstatement.
On August 29, 1974, L. McQuaide wrote to all strikers who had responded to the Company's August 15 letter. Appointments were scheduled for them to see him in his office. To those who had not responded, L. McQuaide sent letters stating his assumption that they no longer desired to work for the Company and that he would have their personnel records marked accordingly.
Between September 3 and 5, 1974, L. McQuaide interviewed about thirty to forty strikers. In general, he asked them whether they wanted to come back to work and when they would be available. He questioned many of them about strike violence and vandalism.
Between August 18 and November 11, 1974, the Company hired ten new drivers and thirty new dockworkers in addition to the strikers who were reinstated in August. 6
The Board filed unfair labor practice charges in October 1974, alleging that the Company violated Section 8(a)(1) and (3) of the Act 7 by discharging seven named strikers 8 and by failing to reinstate certain named dockworkers 9 as well as unnamed striking employees, and that the Company violated Section 8(a)(1) of the Act by coercively interrogating applicants for reinstatement. A hearing was held before an Administrative Law Judge who found:
(1) that various Company letters and statements indicated anti-union animus; 10
(2) that the discharge of Gindelsperger was justified on the basis of serious strike misconduct; 11 but that Geisel, Lavely, Petrosky, Patterson, Albert and Lesnak were unlawfully discharged;
(3) that the Union's offer to return to work was bona fide and unconditional;
(4) that neither the Company's statements of August 8 nor the letters of August 12 and 15, 1974 were valid, unconditional offers of reinstatement;
(5) that the Company unlawfully failed to reinstate nineteen named dockworkers and other unnamed strikers after August 12, 1974;
(6) that R. J. Kessler, claimed by the Company to be a supervisor and, therefore, not covered by the provisions of the Act, was an employee within the meaning of the Act;
(7) that the Company unlawfully and coercively interrogated returning strikers Klimek, Edwards, Sawko, Liberfinger, Weyandt, Christener and Wright.
He recommended a broad cease and desist order, the posting of notices and an offer of full reinstatement to the six discharged employees, to the nineteen named strikers and to all employees who concertedly engaged in the work stoppage, with back pay running from five days after August 12, 1974. 12
The Board's sole disagreement with the Administrative Law Judge concerned the reinstatement of Lesnak, Patterson and Albert. It concluded that each of these strikers had engaged in conduct sufficiently egregious to justify their discharges. 13 In all other respects, the findings, conclusions and recommendations of the Administrative Law Judge were adopted.
The Company resists the Board's order and argues that most of the findings are either erroneous or not supported by substantial evidence.
At the outset, we reject the Company's contention that the Ebensburg contempt citations justified the discharges of these three strikers. We agree with the Board that, in the absence of specific findings of fact by the Ebensburg court, the contempt rulings are not controlling. In N.L.R.B. v. Cambria Clay Products, Co., 215 F.2d 48 (6th Cir. 1954), the court, faced with a similar situation, stated:
. . . It is not the fact that there was a violation of the injunction that determines whether they should or should not be reinstated, but the type of conduct they engaged in, and the manner and nature and seriousness of their violation of the order.
Id. at 54. See also N.L.R.B. v. J. H. Rutter-Rex Manufacturing Co., Inc., 158 N.L.R.B. 1414, 1419 (1967), enforced on this ground, 399 F.2d 356 (5th Cir. 1968); rev'd on other grounds, 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969).
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