National Labor Relations Board v. Globe Wireless

• Decision Date: 27 December 1951
• Docket Number: No. 12736.,12736.
• Citation: 193 F.2d 748
• Parties: NATIONAL LABOR RELATIONS BOARD v. GLOBE WIRELESS, Limited.
• Court: U.S. Court of Appeals — Ninth Circuit

193 F.2d 748 (1951)

NATIONAL LABOR RELATIONS BOARD v. GLOBE WIRELESS, Limited.

No. 12736.

United States Court of Appeals, Ninth Circuit.

December 27, 1951.

George J. Bott, Gen. Counsel, David P. Findling, Asso. Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, Frederick U. Reel, Albert M. Dreyer, Attorneys, NL RB, all of Washington, D. C., for petitioner.

Gregory A. Harrison, Richard Ernst, Malcolm T. Dungan and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for respondent.

Before HEALY and POPE, Circuit Judges and LEMMON, District Judge.

HEALY, Circuit Judge.

This matter is before us on petition of the National Labor Relations Board for enforcement of an order requiring respondent to reinstate a group of 19 employees found by the Board to have been discriminatorily discharged.

Respondent is engaged in the transmission of international radio communications. On January 21, 1949, it discharged for insubordination one Jones, an employee who was a member of and active in the American Communications Association, a labor organization, referred to in the briefs as ACA.¹ Jones then attended an ACA meeting for members employed on the afternoon watch, and the members voted to protest his discharge. Shortly after the shift went on duty a protest was lodged with Bash, respondent's chief operator. The union members on duty gathered round Bash and were told by the latter to get back to their circuits. They refused. Bash reported to McPherson, respondent's district manager, and on orders from the latter Bash again asked each operator to return to work. Each said he would do so only if Jones were reinstated. Bash then told them they were discharged. The operators came to the district manager, who confirmed their discharge but offered them the opportunity to go back to work. They repeated the demand that Jones be reinstated as a condition to resuming work, and the manager told them they were discharged. Thereupon the operators at once left respondent's premises. When the members of the midnight watch came on duty they likewise voted to protest Jones' discharge, and the afternoon pattern of conduct repeated itself in almost identical fashion. Later, three other employees who had not been on either shift at the time of the earlier occurrences were discharged under substantially similar circumstances. A few days afterwards all the operators in question received through the mails a final paycheck and a form of notice of termination of employment.

1. The trial examiner found, as did the Board, that the protest strike was an economic strike, that is, not one brought on by unfair labor practices, since Jones' discharge was for cause. The examiner was of opinion that respondent did not violate the Act by discharging the men.² The Board disagreed, holding that while respondent was free to replace the strikers at any time prior to their unconditional request for reinstatement it was not free to discharge them before their places had been filled. It concluded that the discharges in advance of the employees' having been replaced were in violation of § 8(a)(1) and (3) of the Act, 29 U.S.C.A. § 158(a)(1, 3).

We think the Board was correct in its application of the law to the facts of the case. By striking in protest against the discharge of Jones the operators clearly engaged in a concerted activity for "mutual aid or protection" within the intendment of § 7 of the Act, 29 U.S.C.A. § 157. N. L. R. B. v. Peter C. K. Swiss Choc. Co., 2 Cir., 130 F.2d 503, 505; Carter Carburetor Corp. v. N. L. R. B., 8 Cir., 140 F.2d 714. They did not by striking in these circumstances cease to be employees. Their discharge for engaging in the strike was accordingly a violation of § 8(a)(1) and (3) of the Act. N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 347, 58 S.Ct. 904, 82 L.Ed. 1381, and cases last above cited. It has long been settled that in a situation like the present the employer is free to hire replacements for the strikers, N. L. R. B. v. Mackay, supra, but the authorities uniformly hold that the discharge of economic strikers prior, as here, to the time their places are filled constitutes an unfair labor practice. While the Mackay case, supra, foreshadowed this doctrine, the first clear enunciation of it appears to have been by the second circuit in N. L. R. B. v. Remington Rand, Inc., 130 F.2d 919. Among the numerous subsequent holdings to this effect see Carter Carburetor Corp. v. N. L. R. B., supra; N. L. R. B. v. Kalamazoo Stationery Co., 6 Cir., 160 F.2d 465; J. A. Bentley Lumber Co. v. N. L. R. B., 5 Cir., 180 F.2d 641; N. L. R. B. v. Kennametal, Inc., 3 Cir., 182 F.2d 817; Morand Bros. Beverage Co. v. N. L. R. B., 7 Cir., 190 F.2d 576, 582, 583; Cusano v. N. L. R. B., 3 Cir., 190 F.2d 898, 901, 902.

The evidence is undisputed that the 19 striking employees were discharged flatly and immediately. The violation thus was a fait accompli. It would seem immaterial what might have been the attitude of the employer had the strikers thereafter given up their demand regarding Jones' reinstatement and sought to get their jobs back.

2. Respondent argues that it was justified in discharging the strikers because the strike was illegal. For the most part the grounds on which illegality is predicated are unworthy of serious attention. We notice only the claim that the strike was called in violation of the Federal Communications Act, 47 U.S.C.A. § 201 et seq.

This Act imposes on carriers engaged in interstate or foreign communications by wire or radio the duty to serve all without discrimination upon reasonable request. 47 U.S.C.A. § 201. The carrier is prohibited from abandoning service without first obtaining permission from the FCC. 47 U.S.C.A. § 214. There is a provision making it unlawful for any person willfully and knowingly to cause or suffer to be done anything declared by the statute to be unlawful, or to cause or suffer to be omitted anything required by the statute. 47 U.S.C.A. § 501. It is argued that the employees committed a crime under that section by striking and thereby causing respondent to violate the first two provisions referred to above. Southern Steamship Co. v. N. L. R. B., 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246, is cited as a controlling precedent. That case stands in a class by itself, involving as it did the impact of the Mutiny Act on the conduct of seamen who struck on board ship away from home port. A sufficient answer to the argument predicated on the Southern Steamship decision is that the Communications Act does not confer upon licensees thereunder the right to conscript labor, nor does it expressly or by reasonable implication undertake to restrict the right of employees to strike or quit their jobs, either singly or in concert. On the other side of the picture the right of employees to strike and to engage in concerted activities for their mutual aid and protection is expressly recognized in the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. International Union of United Automobile Workers v. O'Brien, 339 U.S. 454, 70 S.Ct. 781, 94 L.Ed. 978. It seems purely fanciful to assume, as does respondent, that the failure of a licensee to...