N.L.R.B. v. Murray Products, Inc.

• Decision Date: 27 October 1978
• Docket Number: No. 77-1909,77-1909
• Citation: 584 F.2d 934
• Parties: 99 L.R.R.M. (BNA) 3269, 84 Lab.Cas. P 10,930 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MURRAY PRODUCTS, INC., Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 934

584 F.2d 934

99 L.R.R.M. (BNA) 3269, 84 Lab.Cas. P 10,930

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MURRAY PRODUCTS, INC., Respondent.

No. 77-1909.

United States Court of Appeals, Ninth Circuit.

Oct. 27, 1978.

Michael Messitee, Atty. (argued), Washington, D. C., for petitioner.

J. Nicholas Counter, III (argued), Mitchell, Silberberg & Knupp, Los Angeles, Cal., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before CHOY and ANDERSON, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge:

This is an application by the National Labor Relations Board (the Board) for enforcement of its order finding Murray Products, Inc. (the Company) guilty of unfair labor practices under sections 8(a)(1) and (3) of the National Labor Relations Act (the Act). ¹ In its decision and order, reported at 228 N.L.R.B. 268 (1977), the Board found that the Company had discriminatorily refused to reinstate nine striking employees when they unconditionally applied for reinstatement. In partial reversal of the Administrative Law Judge, a divided Board also found that the Company's offers of reinstatement made within the two weeks following the strikers' application were invalid. The Board ordered backpay from the date of the employees' reinstatement application until the date when valid offers of reinstatement were made, a period of some two months.

Murray Products, Inc., located in Orange, California, manufactures plastic laminated countertops and bars and is an employer engaged in commerce. Norman Murray is president of the Company; his sons Kenneth and William are secretary-treasurer and vice-president, respectively. In March, 1975, a majority of the Company's employees chose the Orange County District Council of Carpenters (the Union), affiliated with the United Brotherhood of Carpenters and Joiners, AFL-CIO, as their exclusive collective bargaining representative, and the Union was so certified by the Board. Negotiations for an initial contract reached an impasse on July 16, and on July 17, a strike was called.

Two new employees, Francis and Taylor, ² had been hired just before the strike but did not begin work until July 18. Between the beginning of the strike and August 4, the Company hired eight more persons: D. Foust, Koerner, DeVito, and Harms on July 21-22, Sanford on July 29, R. Foust on July 31, and Wyatt and Elliott on August 1. Before Taylor and Francis started work, they were told that there was a labor dispute in progress and that their employment was therefore temporary, and a statement to that effect was placed on their job applications ³ and signed by them. Substantially the same statement was made to D. Foust, DeVito, Koerner, and Wyatt, both orally and on their job applications, and was acknowledged by their signatures. Harms was told, however, that he was being hired for a "new position." The job applications of Sanford and R. Foust did not contain the "temporary" notation. Nevertheless, Kenneth Murray, who had hired them, testified that he had been advised that he "had an obligation to put it on there" and that its omission was an "oversight," and furthermore that he had orally informed all employees hired during the strike that a labor dispute was in progress.

On the morning of August 4, 1975, eighteen days after the strike began, eleven strikers came to the Company's plant. Their picket captain, R. Bennett, told Kenneth Murray that the picket signs were down and that they wanted their jobs back. Murray answered, however, that their jobs had been filled and that there were no openings at that time. A striker asked if this meant that they had been terminated, and Murray said, "No. . . . Things are slow." The strikers then left the plant.

Later that day, Kenneth and Norman Murray met with R. Bennett and two officers of the Union. One of the officers, Osburn, asked for an employee seniority list. Norman Murray said, "Yes, and I assume this is for the purpose of bringing the strikers back to work as openings occur." It is disputed whether Osburn agreed with this statement. Such a list was subsequently prepared and supplied to the Union.

On August 6, the strike and picketing resumed. The Company, which had just received a rush order from a customer, began on August 6 to offer reinstatement to the strikers in order of their seniority. ⁴ R. and D. Bennett, Dillon, Mileham, F. and J. Moreno, and Chavez were approached individually on the picket line by Kenneth Murray between August 6 and August 12 and were offered their jobs back. Only one, Dillon (not a discriminatee herein), accepted and was immediately returned to work. At least three of this group were told that the Company had "an opening." In all instances, Murray carried a seniority list in his hand, and as each striker rejected the offer usually because he was unwilling to cross the picket line Murray drew a line through his name in his presence. In the case of Chavez, a Union official who was at the scene asked whether a "no" response to the offer would mean that Chavez was terminated, and Murray answered, "No, your (Chavez') name would just be taken off the list." By contrast, however, at least two strikers, D. Bennett and Mileham, were told that the offer did represent their "last chance" and was the Company's "final offer," and that if they did not take it "now," they would be terminated permanently.

Two strikers were telephoned at home with offers of reinstatement. Kenneth Murray telephoned Schmitz at 7:00 or 8:00 A.M. on August 8 and asked him to be at the plant by 10:00 A.M. Schmitz agreed, though it is disputed whether he agreed to return to work or only to talk with Murray at that time about doing so. In any case, when Schmitz arrived, he found the picket line still up and refused to cross it. Murray thereupon crossed his name off the seniority list. On August 11, Kenneth Murray telephoned Corcoran at home to offer him immediate reinstatement, but Corcoran refused unless all the strikers were reinstated together.

The last striker involved in this case, Garcia, proved unreachable by telephone on August 11 and 12, and Kenneth Murray eventually was told that he had taken another job. Nevertheless, the following telegram was sent to Garcia on August 12: "This is your last chance to report to work on or before 7 A.M. Aug. 14 pursuant to your unconditional offer to return to work of Aug. 4." Garcia did not respond to the telegram.

During the month of August, two strikers who had not been in the group that came to the plant on August 4 requested reinstatement, one on August 9 and the other during the week of August 18. Both were immediately returned to their old jobs, and neither is alleged to be a discriminatee herein.

Finally, on October 8, 1975, seven strikers R. and D. Bennett, F. and J. Moreno, Mileham, Schmitz, and Corcoran again came to the plant to request reinstatement. Although William Murray said that there were no openings at that time, he took their names and all were reinstated shortly thereafter, five to their prestrike jobs and two to different jobs within the plant. Garcia was offered reinstatement but declined, and Chavez had been an employee for the summer only and so did not return in October.

Discussion

Two issues are presented by this case: (1) Did the Company discriminatorily refuse to reinstate the strikers when they first requested reinstatement? (2) If so, were the Company's offers of reinstatement during the following week valid, tolling its backpay obligation which accrued at the time of the refusal?

I. The Refusal to Reinstate

Employees who are not working because of a labor dispute continue to be "employees" of their employer unless they have obtained regular and substantially equivalent work elsewhere. National Labor Relations Act § 2(3), as amended, 29 U.S.C. § 152(3) (1970); NLRB v. Fleetwood Trailer Co.,389 U.S. 375, 378, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). When the labor dispute is economic in nature, however, the employer is entitled to hire permanent replacements for strikers for the legitimate business purpose of continuing operations. Mackay, supra, 304 U.S. at 345-46, 58 S.Ct. 904; See Plastilite Corp., 153 N.L.R.B. 180 (1965), Modified on other grounds and enforced, 375 F.2d 343 (8th Cir. 1967). Economic strikers who have been permanently replaced are entitled to reinstatement only as vacancies occur thereafter in the employer's work force; the employer is not obliged to discharge the permanent replacements in order to make room for them. Mackay, supra, 304 U.S. at 345-46, 58 S.Ct. 904; General Teamsters Local 162 v. NLRB, 568 F.2d 665, 668(9th Cir. 1978); H. & F. Binch Co. v. NLRB, 456 F.2d 357, 363 (2d Cir. 1972); Snow v. NLRB, 308 F.2d 687, 694 (9th Cir. 1962); Laidlaw Corp., 171 N.L.R.B. 1366, 1369-70 (1968), Enforced, 414 F.2d 99 (7th Cir. 1969), Cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). If the strikers have not been permanently replaced, however, the burden of proof to that effect resting with the employer, NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34-35, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967), they are entitled to immediate reinstatement upon their unconditional application to return to work. NLRB v. International Van Lines, 409 U.S. 48, 50, 93 S.Ct. 74, 34 L.Ed.2d 201 (1972); Mackay, supra, 304 U.S. at 345-46, 58 S.Ct. 904. Without such proof, a refusal to reinstate employees after a strike constitutes an unfair labor practice despite the absence of bad faith or antiunion animus, since such a refusal "discourage(s) employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act (. . . 29 U.S.C. §§ 157 and 163)." Fleetwood, supra, 389 U.S. at 378, 88 S.Ct. at 546.

The Company first argues that its refusal to reinstate the strikers on August 4 did not...