NLRB v. Difco Laboratories, Inc., 19899.

• Citation: 427 F.2d 170
• Decision Date: 19 May 1970
• Docket Number: No. 19899.,19899.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIFCO LABORATORIES, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

427 F.2d 170 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIFCO LABORATORIES, INC., Respondent.

No. 19899.

United States Court of Appeals, Sixth Circuit.

May 19, 1970.

Charles R. Both, National Labor Relations Board, Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter Ames Eveleth, Nan C. Bases, Attys., National Labor Relations Board, Washington, D. C., on the brief.

Thomas H. Schwarze, Detroit, Mich., for respondent; Leonard A. Keller, Frederick B. Schwarze, Keller, Thoma, McManus & Keller, Detroit, Mich., on the brief.

Before WEICK, EDWARDS and COMBS, Circuit Judges.

PER CURIAM.

The National Labor Relations Board here petitions for enforcement of its order, finding that the company had violated § 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1964), by threatening "disciplinary" measures against strikers and by firing two of the persons who honored a picket line conducted by the United Automobile Workers. Neither of the persons discharged was a member of the UAW, but both were members of the Oil, Chemical & Atomic Workers Union and one was steward for that union in the laboratory of the struck plant where both worked.

Respondent claims that there is no showing of antiunion bias on the part of the company, either in the language used or in the two discharges, and argues that the two discharges were justified by the prior absences of one of the employees and by the abrupt departure from work of the other.

There was, however, substantial evidence from which the Board could have found that both discharges were directly related to these two employees' refusal to cross the United Automobile Workers picket line and that since respondent was "primary employer" of all of the employees involved, the discharges resulted from concerted activity protected by the NLRA.

In Houston Insulation Contractors Ass'n v. NLRB, 386 U.S. 664, 87 S.Ct. 1278, 18 L.Ed.2d 389 (1967), the Supreme Court said:

National Woodwork Mfrs., supra, 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed. 2d 357 (1967) holds that collective activity by employees of the primary employer, the object of which is to affect the labor policies of that primary employer, and not engaged in for its effect elsewhere, is protected primary activity. `Congress was not concerned to protect primary employers against pressures by disinterested unions, but rather to protect disinterested employers against direct pressures by any union.\' The finding of the Board, supported by substantial evidence, was that Local 113\'s object was to influence Armstrong in a dispute with Armstrong employees, and not for its effect elsewhere." Houston Insulation Contractors Ass\'n v. NLRB, supra 386 U.S. at 668, 87 S.Ct. at 1281. (Footnote omitted.)

Nonetheless, respondent contends that under the circumstances of this case, it had a right as an employer to require these two employees, who were not members of the union which struck and picketed at respondent's plant, to cross the picket line on pain of discharge for failure to do so. This court has previously dealt with essentially the same contention in NLRB v. City Yellow Cab Co., 344 F.2d 575 (6th Cir. 1965), wherein we said:

"The cabdrivers testified that they went on strike and engaged in picketing because they were in sympathy with the demand of the switchboard operators for recognition. The Act protects the rights of employees `to engage in * * * concerted activities for the purpose of * * * mutual aid or protection.\' 29 U.S.C. § 157. N.L.R.B. v. Halsey W. Taylor Company, 342 F.2d 406 (C.A. 6, March 3, 1965).

"As said by Judge Learned Hand in N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503, 505 (C.A. 2):

"`Certainly nothing elsewhere in the act

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