NLRB v. COMMUNITY MOTOR BUS COMPANY

• Decision Date: 22 March 1971
• Docket Number: No. 15049.,15049.
• Citation: 439 F.2d 965
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COMMUNITY MOTOR BUS COMPANY, Inc., Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

439 F.2d 965 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. COMMUNITY MOTOR BUS COMPANY, Inc., Respondent.

No. 15049.

United States Court of Appeals, Fourth Circuit.

Argued February 1, 1971.

Decided March 22, 1971.

Joseph E. Mayer, Asst. General Counsel (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Warren M. Davison, Deputy Asst. Gen. Counsel, and Baruch A. Fellner, Washington, D. C., Attorney, on the brief), for petitioner.

M. R. Broudy, Norfolk, Va. (Broudy & Broudy, Norfolk, Va., on the brief), for respondent.

Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

On the first day of an economic strike against Community Motor Bus Company, some members of the union (Division 1177, Amalgamated Transit Union, AFL-CIO), engaged in mass picketing at the company's terminal. After the strike was settled and a new collective bargaining agreement signed, the company refused to reinstate 12 of the pickets. Six were belatedly reinstated with loss of seniority. All 18 presented grievances and called for arbitration under the new agreement, but the company refused, claiming it had reserved the right to screen the pickets to determine which had forfeited their right to reinstatement on account of picket line misconduct. The National Labor Relations Board held that the company committed unfair labor practices by denying full reinstatement to the strikers and by refusing to process their grievances.¹ We hold that the 18 employees forfeited their rights to reinstatement and that the dispute was not subject to arbitration. Consequently, we deny enforcement.

I.

Upon the expiration of their collective bargaining agreement on September 30, 1968, the union and the company entered into negotiations. When talks broke down, some of the unit employees struck and began picketing the employer's premises on October 28. About 24 pickets, including the 18 whose discharge or loss of seniority is the subject of this action, blocked the gates of the terminal, preventing buses from leaving on their scheduled runs and shutting off access by non-striking employees. Following instructions, 20 pickets marched in an elliptical pattern three or four feet apart in front of the main gate.

When the first bus tried to leave, the picket line did not break and, after some jockeying back and forth, the bus backed off. After several more unsuccessful attempts by non-striking drivers to leave on their scheduled runs, the company called the police. Under police escort, nine or ten buses left the terminal. By admission of Walter J. Bierwagen, a member of the executive board of the international, after the first police escort left, the strikers reverted to the same style of picketing. "We continued to picket until the part-time school bus drivers attempted to leave the property. They could not break our picket line. Subsequently they were again escorted out by police."

Later that afternoon the pickets were instructed by union leaders to reduce their number and not to block access to the terminal. The same afternoon, the company obtained an order against the union restraining them from interfering with ingress to and egress from the bus terminal. There was no other mass picketing or picket line misconduct for the duration of the strike.²

The Board ruled that the company's refusal to reemploy 12 of the strikers, its delay in rehiring the other six, and denial of seniority rights to them violated § 8(a) (3) and (1) of the Act 29 U.S.C. § 158(a) (3) and (1). It ordered the company to reinstate all 18 employees with full seniority rights and back pay. We decline to enforce these provisions of the Board's order because the mass picketing that blocked access to the work site exceeded the permissible scope of economic strike activity and relieved the company of the obligation to rehire the strikers.

The pickets were not engaged in trivial acts of misconduct, but were interfering with a basic right guaranteed by statute — the right of non-striking employees to continue working. The right to strike, guaranteed by § 7 of the Act, is the most powerful weapon of organized labor, but § 7 also imposes a duty on strikers not to interfere with the right of other employees to refrain from concerted activities. Oneita Knitting Mills v. NLRB, 375 F.2d 385 (4th Cir. 1967), holds that blocking free access to the plant violates this right and is grounds for denying reinstatement. The facts of this case present a stronger argument for denial of reinstatement than in Oneita. There the strike had been precipitated by the unfair labor practices of the employer. The court held the strikers to a less stringent standard of conduct than that of economic strikers, applying the balancing test of NLRB v. Thayer Co., 213 F.2d 748, (1st Cir.), cert. denied, 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694 (1954). The distinction between economic strikers and unfair labor practice strikers disposes of most of the cases cited by the Board where picket line misconduct was held not to forfeit reinstatement rights.³ Since the picket line misconduct in Oneita forfeited the reinstatement rights of unfair labor practice strikers, similar conduct by economic strikers in this case is to be at least as strongly condemned.

The Board also relies on Terry Coach Industries, Inc., 166 NLRB 560 (1967), enf'd, 411 F.2d 612 (9th Cir. 1969), which ordered reinstatement of an economic striker. There the employee blocked a truck for a short time, stopped a lunch truck for a few minutes, told the driver not to come back, and used profane language. The trial examiner, ruling that this conduct did not forfeit the protection of the Act, described it as a rough trivial incident.

Here, in contrast, the mass picketing that blocked the company's gate was organized and persistent. It does not significantly differ from the conduct that Oneita condemned. Accordingly, we conclude the company was not obligated to reinstate the participants.

II.

The Board also ruled that even if the strikers engaged in illegal picketing, the company on two occasions nevertheless condoned their activity, and therefore, it could not refuse reinstatement. On November 1, the first payday after the strike began, the company issued paychecks reflecting deductions for the full amount each striking employee owed the company for his uniform. This was contrary to the regular practice of deducting $3.00 a week for uniforms, prompting union officials to inquire whether the men were being fired. The company's superintendent said they were not fired, that the company wanted all the strikers back, but that he was afraid some of the employees might leave without having reimbursed the company for their uniforms. The union refused to accept this explanation. Fearing that an already tense confrontation might deteriorate into violence, the union and the company agreed to call in a representative from the State Labor Commission. After discussing the situation with him, the company agreed to deduct only the usual $3.00.

Since the superintendent, knowing about the illegal picketing, expressed his hope that all the strikers would return, the Board infers that the company intended to condone the picketing. We find the inference unwarranted. The paycheck incident took place only a few days after the strike began and emotions were dangerously high. It was only after long discussion with a neutral party that the company decided not to deduct the full amount owed for uniforms, and, even then, the decision was made primarily to keep the peace. The superintendent's reassurances that the men were needed and wanted back on the job falls short of condonation. The evidence does not establish a clear showing of an attitude of forgiveness and a willingness to "wipe the slate clean." See Kohler Co., 128 NLRB 1062, 1105 (1960), enf'd in part and remanded sub nom. Local 833, UAW-AFL-CIO, International Union United Automobile, Aircraft, and Agricultural Implement Workers of America v. NLRB, 112 U.S. App.D.C. 107, 300 F.2d 699, cert. denied, 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962); Plasti-Line, Inc. v. NLRB, 278 F.2d 482, 486 (6th Cir. 1960); NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 409, 414 (5th Cir. 1955). Even assuming that the superintendent's statements could be construed as an unequivocal invitation to the strikers to return to work regardless of their picket line misconduct, the invitation was rejected. The men continued to strike for another week. In such a case, a spurned offer, which is never renewed, does not forever waive the employer's right to refuse reinstatement for cause. Packers Hide Ass'n v. NLRB, 360 F.2d 59 (8th Cir. 1966).

The Board's second reason for holding that the company condoned the mass picketing was the company's reinstatement of six of the drivers. Edgar A. Tugman, the company's labor consultant, drew a distinction between those he believed to have engaged in deliberate illegal picket line activity and those who had been innocently involved. He, therefore, recommended that the company should reemploy six of the pickets and that it should deny reinstatement to 12. The company reemployed the six men early in December. It did not accord them seniority, though it did not rule out reconsidering this at a later date when it believed the impact on non-striking employees might be less.

The Board determined on the basis of credibility that the company had not proved misconduct attributed to 12 of the strikers along the bus routes. It also found that all 18 employees participated in the mass picketing that blocked the gates of the terminal. It concluded that the company by reinstating six of the employees had condoned the illegal picket line activity, and, therefore, it ordered reinstatement of all 18 employees with full seniority and back pay.

Although we accept as supported by substantial evidence the Board's findings...