National Packing Company v. NLRB
| Decision Date | 12 November 1965 |
| Docket Number | No. 7813.,7813. |
| Citation | 352 F.2d 482 |
| Parties | NATIONAL PACKING COMPANY, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward A. Smith, Kansas City, Mo., (George Schwegler, Jr., Howard L. Swartzman, and Wayne F. Caskey, Jr., Kansas City, Mo., with him on the brief), for petitioner.
Melvin Pollack, Washington, D. C., (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Joseph C. Thackery, Washington, D. C., with him on the brief), for respondent.
Before PHILLIPS, BREITENSTEIN and SETH, Circuit Judges.
National Packing Company, Inc., (Company) petitions for review of an order of the National Labor Relations Board (Board) and the Board seeks enforcement of the order.1 The Board action was taken on the complaint of a minority group of the Company's employees (Charging Parties) that the Company had engaged in unfair labor practices. The Board sustained the examiner's findings that the Company had violated § 8(a) (1) of the National Labor Relations Act2 by discharging a group of employees because they had participated in a protected concerted activity, required the reinstatement with pay of 18 employees, and entered the usual compliance order.
In June, 1962, the Company became engaged in the business of slaughtering and processing meat at Kansas City, Kansas. In August the United Packinghouse, Food and Allied Workers, (AFL-CIO), (Union) petitioned the Board for certification as the collective-bargaining representative of the Company's production and maintenance employees. A subsequent consent election went against the Union and no objections were filed with respect thereto. A few weeks later some of the production employees walked out in protest against working conditions. The difficulties were temporarily resolved. On April 18, 1963, about 20 employees, principally those on the kill floor, walked out in protest against the failure of the Company to come forward with a pay raise which was allegedly promised.3 The strikers set up a picket line apparently with the help and cooperation of a Union representative. The Company discharged the strikers and later refused reinstatement. The examiner found, and the Board agreed, that the reason for the discharge and refusal to reinstate was the protected concerted activity in which the Charging Parties had engaged. Substantial evidence sustains this finding.
In defense of the unfair labor practice charge the Company asserts that the Charging Parties forfeited the protection of the Act because they engaged in conduct which violated § 8(b) (7) (B),4 and which sought to compel the Company to violate § 8(a) (1) and (2).5 The Board held that the motivation for the discharge controlled and that the asserted defenses were unavailable.
Section 8(b) (7) (B) declares that it shall be an unfair labor practice for a labor organization to picket an employer with the object of forcing the employer to recognize or bargain with a labor organization when within the preceding 12 months a valid election has been conducted under § 9(c).6 The fact that picketing took place within 12 months of a valid election is not disputed. If the Charging Parties who struck and picketed were a labor organization and if their purpose was to force the Company to recognize them or the Union as the bargaining representative of the employees, a violation of § 8(b) (7) (B) occurred. Also, if the picketing had an organizational or recognitional purpose, the additional question arises of whether the Charging Parties, who represented about 25% of all employees, sought to compel the Company to bargain with a minority group in violation of §§ 8(a) (1) and (2).7
We are concerned with conduct which is claimed to be a direct violation of the Act, rather than with conduct which is merely unprotected by the Act. When conduct is unprotected and not unlawful, motivation for a discharge may be a determining factor. The decided cases are not particularly helpful. In National Labor Relations Board v. Washington Aluminum Co., 370 U.S. 9, 82 S. Ct. 1099, 8 L.Ed.2d 298, the Supreme Court pointed out that it was not concerned with an unlawful activity. Southern Steamship Co. v. National Labor Relations Board, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246, held that the Board could not order reinstatement of employees who engaged in criminal misconduct, mutiny on shipboard. The decision in National Labor Relations Board v. Coal Creek Coal Co., 10 Cir., 204 F.2d 579, 582-583, contrasted protected activities with unprotected activities — not with unlawful activities. In United Furniture Workers of America, AFL-CIO v. National Labor Relations Board, 118 U.S. App.D.C. 350, 336 F.2d 738, 742, the real reason for discharge was participation in an unlawful strike and...
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Nlra Case Notes
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