NLRB v. ALBRITTON ENGINEERING CORPORATION

• Decision Date: 23 February 1965
• Docket Number: No. 21064.,21064.
• Citation: 340 F.2d 281
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALBRITTON ENGINEERING CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

340 F.2d 281 (1965)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ALBRITTON ENGINEERING CORPORATION, Respondent.

No. 21064.

United States Court of Appeals Fifth Circuit.

January 11, 1965.

Rehearing Denied February 23, 1965.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, N. L. R. B., Margaret M. Farmer, Atty., N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., for petitioner.

L. G. Clinton, Jr., H. L. Deakins, Jr., Houston, Tex. (Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., of counsel), for Albritton Engineering Corp.

Before WISDOM and GEWIN, Circuit Judges, and HANNAY, District Judge.

WISDOM, Circuit Judge:

The National Labor Relations Board petitions for enforcement of an order against Albritton Engineering Corporation. The order is based on the Board's finding that the respondent was in violation of Section 8(a) (1) and (3) of the National Labor Relations Act for refusing to rehire former "economic" strikers after the strike ended. In addition to the cease and desist provisions, the order requires the Company to reinstate and make whole twenty-one strikers denied reemployment. We grant enforcement of the order, except as to two of the striking employees.

Albritton has two plants at Bryan, Texas. The Company makes and sells aluminum windows. In August 1959 the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers was certified as bargaining representative of the production employees at the two plants. Negotiations between Albritton and the Union limped along until June 1960, then collapsed. In late May or early June 1960, Ford D. Albritton, Jr., president of the Company, anticipating a strike, called together the workers from both plants and talked to them for about half an hour. Albritton bemoaned the fact that he and the employees would no longer be "one big happy family", and reminded them that under the Texas Right to Work law members of the Union did not have to join any strike that might be called. He promised that he would protect any employee who did not join the strike, and warned that he would replace any who did. June 13, 1960, about fifty-five of the Company's one hundred forty employees walked out. On that day Albritton made speeches at each plant to the employees who had not struck. He repeated and elaborated his earlier statements, and assured the men that the plants would stay open. Albritton announced that any striker who wanted to do so could return to work, and that any who did not return would be permanently replaced. During the first week of the strike the Company sent letters to the strikers, telling them that if they wanted to return they should report for work by 7:00 A.M., June 20. One came back. By July 25 all but two of the strikers, the Company's two most senior employees, had been replaced. July 22, the Union announced its intention to withdraw financial support from the strike. That day, deterred, the strikers stopped picketing.

Between July 25, 1960 and May 15, 1961, further jobs became available and a number of the former strikers asked the Company for reemployment. Only one succeeded. From November 14, 1960 to May 13, 1961, the respondent hired forty-six employees for jobs that the strikers were qualified to perform. May 15, 1961, the Union filed a charge alleging that Albritton had discriminatorily refused employment to twenty-one named complainants. The Trial Examiner and the Board found for the Union. 138 NLRB No. 115.

The Company was privileged to replace strikers during the strike, in the interest of keeping its business going. N.L.R.B. v. Mackay Radio & Telegraph Co., 1937, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381. It was not privileged to discriminate against them when they applied for jobs later becoming available. N.L.R.B. v. Erie Resistor Corporation, 1963, 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308. To refuse to hire, or to rehire, job applicants because of their union membership or activity violates Section 8(a) (1) and (3) of the Labor Relations Act. Phelps Dodge Corporation v. N.L.R.B., 1941, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271; N.L.R.B. v. American Compress Warehouse, Division of Frost-Whited Company, Inc., 5 Cir. 1963, 321 F.2d 547, 549.

We hold that substantial evidence on the record as a whole supports the Board's findings that nineteen of the complainants — all, that is, except Ruiz and Espinoza — applied to Albritton for reemployment and where rejected for a discriminatory motive. Not all of the nineteen filed written application forms; some inquired only by telephone. But each communicated to some responsible company official his request to be rehired, and was told either that he was not eligible, or that the Company would consider his application and let him know if there were any openings.

Two of the complainants, Ruiz and Espinoza, had not applied directly to the Company as of the time that their charges were filed. Both were registered for employment with the Texas Employment Commission from about the time the strike ended until May 26, 1961. Espinoza tried three times, unsuccessfully, to telephone Albritton's personnel managers, Varner and Kilgore, but did not ask that his calls be returned. Ruiz made no attempt to get in touch with any company official until he applied for employment on May 15, 1961, three days after he had signed his charge of discrimination. April 10, 1961, personnel manager Kilgore told the employment commission that Albritton's standing policy of not rehiring former employees was applicable to strikers. May 2, 1961, the Company asked the commission for three employees. The commission referred seven applicants, but passed over Espinoza, Ruiz, and other strikers. Albritton hired three or four of these applicants.

The Examiner and the Board found that the Company was estopped from disavowing responsibility for the actions of the employment commission, and ordered Espinoza and Ruiz reinstated. The Board's reliance on estoppel seems to us misplaced. Application to the commission was not application to the Company, and there is no evidence that Espinoza or Ruiz ever thought otherwise. We must deny enforcement as to these two complainants.

As for the Company's refusal to hire the nineteen employees who did apply for jobs, the Board's finding of discriminatory motive is supported by substantial evidence, but just barely. President Albritton's speeches to the employees, before and after the strike, and a similar speech by personnel manager Varner, demonstrate the Company's anti-union animus. Taking the record as a whole and bearing in mind the Company's strong anti-union policy, the Board could reasonably conclude that the Company's repeated refusal to rehire replaced strikers despite their qualifications was due to their having participated in the strike.

In defense, Albritton attributes its refusal to rehire the strikers to its policy of never rehiring former employees. The Company contends that after a...