National Labor Rel. Bd. v. Rockaway News Supply Co.

• Decision Date: 12 May 1952
• Docket Number: Docket 22252.,No. 208,208
• Citation: 197 F.2d 111
• Parties: NATIONAL LABOR RELATIONS BOARD v. ROCKAWAY NEWS SUPPLY CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

197 F.2d 111 (1952)

NATIONAL LABOR RELATIONS BOARD v. ROCKAWAY NEWS SUPPLY CO., Inc.

No. 208, Docket 22252.

United States Court of Appeals, Second Circuit.

Argued April 10, 1952.

Decided May 12, 1952.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Frederick U. Reel, and Marvin E. Frankel, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

Bandler, Haas & Kass, New York City, for respondent.

Before CHASE, MARIS, and CLARK, Circuit Judges.

MARIS, Circuit Judge.

This is a petition to enforce an order of the National Labor Relations Board. The Board found that respondent, Rockaway News Supply Co., Inc., had violated Sections 8(a) (1) and (3), 29 U.S.C.A. § 158 (a) (1, 3) of the National Labor Relations Act by discharging an employee because of his refusal to cross a picket line at a plant which his duties required him to enter. The undisputed facts upon which this finding is based may be summarized as follows:

Charles Waugh, the employee whose discharge on March 7, 1950, gives rise to this proceeding, had been employed by respondent as a chauffeur and routeman for about seven years. He was a member of the Newspaper and Mail Deliverers' Union of New York and Vicinity, which had for some years been contractually recognized by respondent as the exclusive bargaining representative of its employees. Working five days a week (Tuesdays through Saturdays), from 9:45 a. m. to 6:30 p. m., Waugh's duties consisted of driving a truck along a regularly assigned route and picking up and delivering various newspapers and other publications. Among his scheduled stops was one at the plant of The Daily Review Corporation, Rockville Center, Long Island, New York, publisher of the Nassau Daily Review Star. Before 10:30 a. m. on each working day, except Saturday, Waugh was required to pick up a supply of Review Stars for delivery at subsequent points on his route. This operation consumed about 10 or 15 minutes of each day.

On the morning of Thursday, March 2, 1950, before beginning work, Waugh learned that the Nassau County Typographical Union had placed pickets before the premises of The Daily Review Corporation. He then went to his foreman and told him that he, as a union man, would not cross that union picket line and thereby become a "scab" or a strikebreaker. The foreman suggested that he should not take that attitude, it might mean his job. But Waugh reiterated his position and suggested that copies of the Review Star be brought out to him in some way which would not entail his crossing the picket lines.

Respondent arranged to have its consignment of Review Stars brought on that day to its plant at Valley Stream, from which point Waugh took them and proceeded on his route as usual. Again on the next day, Friday, March 3, respondent had the papers brought by another of its employees to Waugh outside the picket line. On Tuesday, March 7, however, the next day on which Waugh's duties included picking up copies of the Review Star, his foreman told him that arrangements like those of the preceding Thursday and Friday would not be made and that respondent expected him to cross the picket line. "Otherwise," said the foreman, "you are fired; if you refuse, you are fired." Persisting in his refusal to cross the picket line, Waugh left respondent's premises. On the following day, Waugh returned seeking to be rehired but the foreman told him that he couldn't hire him, he had been fired. On each succeeding day for about three weeks Waugh appeared at the respondent's plant but was not rehired.

On April 7, 1950 Waugh filed a charge and on November 8, 1950 the General Counsel of the Board issued a complaint against the respondent. After a hearing before a trial examiner and an intermediate report by him the Board filed its decision holding that Waugh had a right, guaranteed by Section 7 of the Act, 29 U.S.C.A. § 157, to refuse to cross the picket line and that accordingly his discharge was in violation of Sections 8(a) (1) and (3) of the Act. Accordingly the Board entered an order which required respondent to cease and desist from (1) interfering with, restraining, or coercing its employees in the exercise of their right to assist the Typographical Union, or any other labor organization, and their right to engage in, or refrain from, other concerted activities and (2) discouraging activity on behalf of and membership in the Typographical Union, or any other labor organization, by discriminating in regard to the hire or tenure of its employees. Affirmatively, the order required respondent to reinstate Waugh with back pay, to make available to the Board necessary records bearing on Waugh's right to reinstatement and back pay, and to post appropriate notices. 95 N.L.R.B.

It will thus be seen that this case squarely presents the question whether it is an unfair labor practice for an employer to discharge an employee who refuses to obey the employer's orders to perform that part of his regular daily duties which involve his crossing the picket line of another union than his own at another plant than that of his employer. In considering this question we accept the contention of the Board that the refusal of an employee to cross a picket line of another union than his own at another plant than that of his employer is an exercise of "the right to * * * assist labor organizations * * * and to engage in other concerted activities for the purpose of * * * mutual aid or protection," which is expressly guaranteed by Section 7 of the Act. Such refusal to cross a picket line is habitual with union workers as this court has recently pointed out,¹ it is frequently of assistance to the labor organization whose picket line is respected, and it is in a broad but very real sense directed to mutual aid or protection.² But accepting the proposition that the refusal of an employee to cross a picket line is a right guaranteed by Section 7 of the Act does not answer the question which this case poses. For, as the Supreme Court pointed out in Republic Aviation Corp. v. National Labor Relations Board, 1945, 324 U.S. 793, 798, 65 S.Ct. 982, 985, 89 L.Ed. 1372:

"Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee."

It was in recognition of this limitation upon the rights guaranteed by Section 7 that the Board itself in its decision in Peyton Packing Company, Inc., 1943, 49 N.L. R.B. 828, 843, said:

"The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose."

It is true that in the Peyton Packing Company case the Board found that the union solicitation for which the employees were discharged, although occurring on the company's premises, had taken place on the employee's time before or after work or during luncheon or rest periods and not during their working time. It accordingly held their discharges to be in violation of Section 8(1) of the Act. The distinction which the Board has thus made between an employee's activities on his own time, even though on his employer's premises, and his activities during his actual working time is a sound and reasonable one and has been upheld by the courts.³

In the cases to which we have referred the distinction between union activities by an employee during working time in violation of the employer's rules and such activities on the employee's own time was applied to the soliciting of union memberships in the plant. The right to assist a union of which one is not a member by refusing to cross its picket line is certainly of no higher dignity or importance to the individual than the right to ask his fellow workers in his own plant to join with him in the union of which he is a member in concerted activities which will directly protect or aid in promoting their common interests. We think that the former is subject to the same limitations as the latter. In other words an employee is of course free to exercise his right to refuse to cross a picket line when he is on his own time and his discharge for so doing would doubtless be a violation of Section 8(a) (1). But he is not free to exercise the right during his working time in violation of his employer's working rules by refusing to perform that part of his regular duties which requires him to cross the picket line.⁴ To hold otherwise would be to permit an employee unilaterally to dictate the terms of his employment which it is well settled he may not do.⁵

The Board in its decision in this case stated:

"Although Waugh\'s refusal to cross the picket line was a protected activity, the Respondent, as a normal incident of its right to maintain its operations, could have required Waugh to elect whether to perform all his duties or, as a striker, to vacate his job and make way for his replacement by the Respondent."

It will be noted that the Board here concedes that the Respondent could have required Waugh to cross the picket line or "vacate his job." But by vacating his job the Board seems to mean going out on strike rather than resigning. We cannot follow the Board's reasoning. For Waugh had no grievance against the respondent nor any economic demands against it which a strike on his part might have enforced. On the contrary, if he had gone on strike it could only have been to assist the striking members of the Typographical Union at the Daily Review Corporation plant by seeking to force his employer not to deal with that corporation. If Waugh's union had supported him in such a...