National Labor Relations Bd. v. JI CASE CO., ETC.

• Decision Date: 16 September 1952
• Docket Number: No. 14483.,14483.
• Citation: 198 F.2d 919
• Parties: NATIONAL LABOR RELATIONS BOARD v. J. I. CASE CO., BETTENDORF WORKS.
• Court: U.S. Court of Appeals — Eighth Circuit

198 F.2d 919 (1952)

NATIONAL LABOR RELATIONS BOARD v. J. I. CASE CO., BETTENDORF WORKS.

No. 14483.

United States Court of Appeals Eighth Circuit.

September 16, 1952.

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Arnold Ordman, Washington, D. C., (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Walter F. Hoffmann, Washington, D. C., on the brief), for petitioner.

O. S. Hoebreckx, Milwaukee, Wis. (Robertson & Hoebreckx, Milwaukee, Wis., on the brief), for respondent.

Before SANBORN, JOHNSEN and COLLET, Circuit Judges.

JOHNSEN, Circuit Judge.

Enforcement is sought of an order issued by the National Labor Relations Board against respondent, 95 NLRB No. 14.

The Board found that respondent had violated section 8(a) (1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 158(a) (1) and (3), in discharges made by it of three employees, and in layoffs imposed by it upon two other employees for a two-day period. The three employees discharged were officers or stewards of a union existing in the plant, and the two employees laid off were union members.

Cease and desist provisions were entered as to each of the two statutory subsections found to be violated, and reinstatement and backpay requirements, as applicable to each of the employees, were also imposed. All of these parts of the Board's order are attacked here by respondent.

The discharges and layoffs involved grew out of an attempt one noon by the three employees discharged to instigate a walkout from the plant of all union employees, because of the previous firing that morning of a union steward. The firing of this steward, however, was not shown to have had a union basis, nor did the Board so find. The attempted walkout therefore amounted simply to a protest against the discharge generally of a fellow-union employee.

The three employees who were the ring-leaders of the walkout attempt had made known their plans to some of the other employees during the lunch hour in the plant cafeteria. They left the cafeteria after most of the employees had returned to their stations and instituted a march through several aisles of the plant, expecting that the other employees would join them. Some sporadic accretions occurred, followed by withdrawals, but at no time during the course of the march did there exist a phalanx of more than 12 or 15 persons, out of the plant's 2,000 employees.

When the leaders reached a point near their own work stations, they discovered that they were being accompanied by only the two employees laid off. They accordingly disbanded and returned to their work. Their efforts had consumed approximately 15 minutes of regular working time.

The reason given by the employer for the discharge of the three ringleaders was that they had "walked off job without the permission of foreman and attempted to incite a plant walkout." The ground stated for the layoff of the other two employees was "helping and participating in unlawful walkout."

The Board appraised the situation as having represented and amounted, in its elements, to nothing more than "concerted activities, for the purpose of * * * mutual aid or protection", within the purview of section 7 of the Act, 29 U.S.C.A. § 157, and accordingly held that the discharges and layoffs had constituted unfair labor practices. Under our decision in Carter Carburetor Corp. v. N. L. R. B., 8 Cir., 140 F.2d 714, 718, and the cases there cited, on the object, scope, attributes and consequences of the activities involved, the Board was entitled so to hold in the situation presented. As our opinion in that case states, "Section 7 gives employees the right `to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.' This `mutual aid' and `concerted activities' include, we think, the right to join other workers in quitting work in protest over the treatment of a coemployee, or supporting him in any other grievance connected with his work or his employer's conduct."

And since such a protest might properly take the general form of a strike, it also necessarily would be privileged to be asserted in a lesser form, such as a temporary work stoppage or other controlled demonstration, carried on within bounds and under conditions which could not be declared to be legally unreasonable as a matter of particular plant-situation. Cf. N. L. R. B. v. Kennametal, Inc., 3 Cir, 182 F.2d 817, 19 A.L.R.2d 562; N.L.R.B. v. Globe Wireless, Ltd., 9 Cir., 193 F.2d 748. As said in the Kennametal case, 182 F.2d at page 819, 19 A.L.R.2d 562, "The language of the Act does not require and its purposes would not be served by holding that dissatisfied workmen may receive its protection only if they exert the maximum economic pressure and call a strike."

Nor does it matter under the Act whether such concerted activities have or have not a union purpose or relationship — except possibly as they may involve action on the part of persons subject to the provisions of a collective bargaining agreement between a union and the employer, which action is expressly or inherently violative of that agreement, and which is devoid of all union sanction. See Joanna Cotton Mills Co. v. N. L. R. B., 4 Cir., 176 F.2d 749, 752, 753; N. L. R. B. v. Phoenix Mutual Life Ins. Co., 7 Cir., 167 F.2d 983, 988, 6 A.L.R.2d 408. Of course, no such concerted activities are entitled to take the form of an inside seizure and an exercised control by the employees of the employer's business, such as an attempt to remain on their jobs and perform only such tasks as they choose, or otherwise to presume to conduct the operations of the business on their own terms. Cf. C. G. Conn, Ltd. v. N. L. R. B., 7 Cir., 108 F.2d 390, 397; N. L. R. B. v. Montgomery Ward & Co., Inc., 8 Cir., 157 F.2d 486, 496; Home Beneficial Life Ins. Co., Inc., v. N. L.R.B., 4 Cir., 159 F.2d 280, 284. But none of these inherent qualifications or limitations is involved in the present situation.

As previously stated, the Board was entitled to hold, as it did, that the discharges and layoffs involved had been violative of section 8(a) (1) of the Act. The violation was one which reached to the residual depth of the section — "other mutual aid or protection" generally. The use of this catchall expression in the statute would seem to suggest that the preceding particularization therein of some of the possible forms or objects of concerted activities was at least as much intended to insure the comprehensiveness of the coverage of the term "concerted activities" as to characterize or distinguish one form of concerted activity from another, in relation to any interference, restraint or coercion on the part of an employer. On this basis, we think that respondent's violation of the broad "other mutual aid or protection" provision entitled the Board to include in the cease and desist provisions of its order a prohibition against violation of those particular things which were set out as constituting subjects of possible concerted activities and which represented component parts of the general fundamental right. But even if the enumeration in the section had a purpose beyond this, it seems to us that a disposition to violate the broad-gauged residuum of "other mutual aid...