National Labor Rel. Bd. v. Marshall Car Wheel & F. Co.

• Decision Date: 07 January 1955
• Docket Number: No. 14947.,14947.
• Parties: NATIONAL LABOR RELATIONS BOARD v. MARSHALL CAR WHEEL AND FOUNDRY CO. OF MARSHALL, TEXAS, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 409 (1955)

NATIONAL LABOR RELATIONS BOARD v. MARSHALL CAR WHEEL AND FOUNDRY CO. OF MARSHALL, TEXAS, Inc.

No. 14947.

United States Court of Appeals, Fifth Circuit.

January 7, 1955.

Bernard Dunau, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, George J. Bott, Gen. Counsel, William J. Avrutis, National Labor Relations Board, Washington, D. C., for petitioner.

Joseph A. Jenkins, J. A. Gooch, Cantey, Hanger, Johnson, Scarborough & Gooch, Rawlings, Sayers, Scurlock & Eidson, Fort Worth, Tex., for respondent.

Before HUTCHESON, Chief Judge, and BORAH and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The Board petitions for enforcement of its order issued against respondent on May 28, 1953, based on findings that respondent had discriminatorily discharged certain of its striking employees and denied others full reinstatement privileges because of their prior concerted activity. The decision and order of the Board are reported in 105 N.L.R.B. 132.

Respondent is a Texas corporation with principal offices and plant at Marshall, Texas, where it employs over 200 workers in the operation of an iron foundry. It manufactures and sells in interstate commerce car wheels, pipe and related products.

Pursuant to a Board conducted election held on August 15, 1951, at which the charging union prevailed,¹ the Board certified the union on August 23, 1951 as the exclusive bargaining representative of respondent's employees in the appropriate unit.² Thereafter, the union sought to institute bargaining negotiations, but shortly became dissatisfied with the progress made, principally because of the alleged discriminatory layoff of eleven employees, respondent's further failure to accede to its wage demands, and the union's inability to arrange bargaining meetings to its satisfaction with respondent's attorney-representative, J. A. Gooch. Because of these grievances, a strike was voted by the employees at the union meeting held on the evening of October 15. At 11 A.M. the following day, in accordance with their predetermined plan, approximately 45% of respondent's employees then at work walked out of the plant. It is practically undisputed that the striking employees intentionally chose a time for their walkout when molten iron in the plant cupola was ready to be poured off,³ and that a lack of sufficient help to carry out the critical pouring operation might well have resulted in substantial property damage and pecuniary loss to respondent, though it was further shown that certain employees, who did not honor the strike, together with respondent's supervisory staff, were able to pour off the molten metal and prevent any actual damage.

The union representative, J. A. Lee, arrived in town shortly after the employee walkout at 11 A.M. and tried unsuccessfully to telephone respondent's vice president and general manager, Emory E. Fry. When Fry returned Lee's call around noon, Lee requested him to meet with the union committee to discuss the alleged discriminatory layoffs, and further offered to return a number of the strikers to help pour the molten lead from the cupola and relieve the emergency situation created by the employee walkout. Fry, who was then quite understandably engaged in pouring molten metal, declined the belated offer of help. Even in the emergency situation, however, Fry stated respondent's position with respect to reinstatement of the striking employees substantially as follows: that because of their violation of respondent's "long-standing rule" prohibiting employees from leaving the plant "without notice and permission", they had, in effect, quit their employment; that whether they would be permitted to return "was strictly up to the foreman"; and that, if they were taken back, "they would have to come back as new employees". According to further findings, to which the Board attached crucial significance, Fry did not specifically mention either then, or in a later telephone conversation with Lee that afternoon,⁴ that the risk of property damage occasioned by the precipitate nature of the walkout during a critical stage of respondent's manufacturing process was the underlying reason for respondent's refusal to permit return of the strikers except "as new employees".

Following the abortive strike, the union set up a picket line at respondent's plant, and on October 17th and 18th wrote respondent letters restating Lee's prior unconditional offer to return the striking employees to work. In spite of repeated efforts, both by the union and the individual strikers, to secure their unconditional reinstatement, respondent never receded materially from its prior position, but reasserted through its attorney at a conference on November 6th that "the men would be rehired if their job had not been filled," but that "if they returned, they would be returned as new employees". Though respondent concededly did not maintain a seniority system, as such, the effect of its position that all the striking employees had actually terminated their employment through violation of the previously mentioned plant rule,⁵ and particularly its consistent treatment of a number of strikers actually rehired "as new employees", was that Christmas bonuses and vacation time of these employees, which would have accrued in their favor but for the strike, were substantially restricted by respondent's failure to credit them with their period of employment preceding the strike. On November 8th, the union ended the strike and removed the picket line.

The Board originally adopted those findings of the Trial Examiner here material to the effect that respondent's employees, by engaging in the walkout on October 16, 1951, were economic strikers entitled to reinstatement with back pay from the time of their unconditional application through union representative, Lee, as of 3:30 P.M. that same day; that respondent, in refusing to take them back before any permanent replacements had been hired, except "as new employees" with restricted bonus and vacation benefits, had in effect discriminatorily discharged and refused to reinstate them because of its plant rule, in violation of Sections 8(a) (3) and (1) of the Act, 29 U.S.C.A. § 158(a) (1, 3).⁶ In a supplemental decision and order denying respondent's motion for reconsideration, a majority of the Board conceded that "at least some of the strikers engaged in unprotected activity", and expressly acknowledged "the validity of the general principle" that employees who deliberately time a strike so as to create a risk of substantial property damage thereby "engage in unprotected activity for which they may be discharged or subjected to other forms of discipline affecting their employment conditions". The majority concluded, however, with Chairman Guy Farmer dissenting, that this principle had no application so as to bar reinstatement of any of the striking employees here. Relying upon well settled principles that "a striker does not automatically lose his status as an employee under the Act", and that "an employer may waive his right to discharge or discipline an employee for engaging in such conduct" in such manner that he "may not later assert the misconduct as a valid reason for discharge or refusal to reinstate", the majority observed that the crucial issue was "whether the Respondent did in fact condone or waive the strikers' misconduct." They viewed the record as disclosing "clear and convincing evidence of such condonation", unlike the dissenting Chairman, who could find "no real evidence of condonation in this case."

We think the majority of the Board had no authority to compel reinstatement of those employees who either participated in, authorized or ratified the illegal walkout of October 16, 1951. That the union deliberately timed its strike without prior warning and with the purpose of causing maximum plant damage and financial loss to respondent cannot be denied.⁷ Even conceding the validity of the general principle relied upon, i. e. that employees who engage in certain unprotected activities do not automatically lose their employee status for remedial purposes under the Act,⁸ it seems to us that the illegitimate nature of this activity, though taking the form of a concerted walkout rather than a sit-down strike, renders it closely akin to that type of irresponsible and unprotected activity condemned by the Supreme Court as effectively removing the guilty employees from statutory protection. See N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240, 255-259, 59 S.Ct. 490, 83 L.Ed. 627; Southern S. S. Co. v. National Labor Relations Board, 316 U.S. 31, 38, 62 S.Ct. 886, 86 L.Ed. 1246; McNeely & Price Co. v. N. L.R.B., 3 Cir., 106 F.2d 878, 880; N.L. R.B. v. Ohio Calcium Co., 6 Cir., 133 F. 2d 721, 726-727; Mid-Continent Petroleum Corp. v. N.L.R.B., No. 134, 54 N.L. R.B. pp. 912, 931-933.

Assuming, however, that the majority espoused doctrine of condonation is properly applicable to vitiate the unlawful character of this strike, we agree with the dissenting Chairman that there is no substantial evidence to support a finding of employer condonation here. Where, as here, the strike misconduct is clearly shown, condonation may not be lightly presumed from mere silence or equivocal statements, but must clearly appear from some positive act by an employer indicating forgiveness and an intention of treating the guilty employees as if their misconduct had not occurred. We think respondent correctly asserts that the essential elements of condonation, i.e. forgiveness and the resumption of the former relationship between the strikers and respondent, are patently lacking here. As the Board Chairman observed, respondent never affirmatively indicated its forgiveness for the strikers' misconduct, nor did it ever actually consent to re-employ them without penalty, but at the union's insistence agreed to take them back only ...