NLRB v. GREAT FALLS EMPLOYERS'COUNCIL, INC., No. 16565.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtORR, POPE and HAMLEY, Circuit
Citation277 F.2d 772
Decision Date27 April 1960
Docket NumberNo. 16565.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. GREAT FALLS EMPLOYERS' COUNCIL, INC., et al., Respondents.

277 F.2d 772 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
GREAT FALLS EMPLOYERS' COUNCIL, INC., et al., Respondents.

No. 16565.

United States Court of Appeals Ninth Circuit.

April 27, 1960.


277 F.2d 773

Stuart Rothman, Gen. Counsel, Thomas J. McDermott and Marcel Mallet-Prevost, Asst. Gen. Counsel, Fannie M. Boyls, Standau E. Weinbrecht, Attys., N. L. R. B., Washington, D. C., for petitioner.

Howard C. Burton, Great Falls, Mont., for respondent.

Before ORR, POPE and HAMLEY, Circuit Judges.

POPE, Circuit Judge.

The petitioning Board seeks enforcement of its decision and order finding the respondent Great Falls Employers' Council and its member employers guilty of unfair labor practices within the meaning of § 8(a) (3) and 8(a) (1) of the National Labor Relations Act, as amended.1 The facts were all stipulated and the case was submitted directly to the Board. The decision and order are reported in 123 N.L.R.B. 109, where the facts are set forth in more detail than is necessary here.

The respondent Employers' Council is an employer association and the collective bargaining agent of eight member employers, each of which operated food stores at Great Falls, Montana. These employers, through the Council, had a collective bargaining agreement with Local 57 of the Retail Clerks International Association which was exclusive bargaining representative of the respondents' grocery clerks.2 The agreement expired by its terms on March 31, 1957, but was continued in effect by mutual agreement of the parties. Bargaining sessions, looking to a new agreement, began on February 22, 1957, and continued until April 12, when the Council submitted a "final proposal". This the Union rejected and voted to strike one employer member, — the respondent Buttrey. When picketing of Buttrey's stores began, the remaining employers locked out their employees represented by the Union, stating that they did so "to preserve their interest in group bargaining, as guaranteed by law."

The Board agreed with respondent's contention that this lockout, so initiated, was properly privileged under the decision in National Labor Relations Board v. Truck Drivers Union, 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676. Said the Board: "The parties agree that Respondents' purpose in locking out their non-striking employees was only to protect the multi-employer unit from the disintegration threatened by the Union's tactic of calling a `whipsaw' strike against one employer member in support of demands against all. Such a strike threat `per se, constitutes the type of economic operative problem at the plants of the non-struck employers which legally justifies their resort to a temporary lockout of employees.'"3

277 F.2d 774

This initial lockout was followed by other action of these employers, and that further action is what the Board held improper. It came about in the following manner: when the Union voted to strike Buttrey it plainly anticipated that a lockout might follow; so it instructed its members that in case of such a lockout all locked-out employees should register with the Montana Employment Service for other jobs in order to qualify for unemployment compensation. Under the Montana law a claimant who so qualified would be entitled to payments from the unemployment compensation fund of $32 per week for a period of 22 weeks.4

The strike and lockout began on Saturday, April 13. On Monday following, April 15, most of the locked out employees applied to the Montana Unemployment Compensation Commission for unemployment benefits. The respondents protested to the Commission against payments to these employees. The Montana law denies benefits to a claimant whose unemployment "is due to a stoppage of work which exists because of a labor dispute" at the place of his last employment (subject to certain exceptions not here relevant). Also a claimant is disqualified for any week in which he has received employment exceeding an eight-hour day and wages exceeding $15. Respondents, in their protest to the Commission, asserted these employees were involved in a work stoppage because of a labor dispute, within the meaning of the law's disqualifying clause. But apparently to make sure that no benefit payments would be made, each employer, on April 17, called his employees to return to work on April 19, at a specified hour, and to work on April 19 and 20 until each had earned $16 in that week. In like manner they were called to work on two days in the succeeding week to earn another $16.5

When these employees requested guidance from the Union, they were urged to comply with the employers' call to work, and when they did so, on April 19, they were kept on until such time, on April 20, as their earnings reached $16. Then they were released. The same thing happened during the following week, when each employee was permitted to earn $16 on April 26 and April 27. On April 27, a new contract was concluded and reemployment then became regular and the so-called intermittent lockout terminated.

The Board by a vote of three to two, held that thus locking out their recalled employees "was a manipulation of tenure and terms of employment which infringed upon the collective bargaining rights of these employees and tended to discourage support of the Union and concerted

277 F.2d 775
activity for mutual aid or protection in violation of § 8(a) (3) and (1) of the Act."

In one respect the situation here was anomalous; for as the record shows, when the claims of these employees for unemployment compensation were ultimately determined, a month after the strike was over, the Montana Commission denied them, holding that the work stoppage existed because of a labor dispute at Respondents' stores. This means that at no time were the employees entitled to the claimed benefits. So the net result of the recall of the employees was that they were able to earn $16 each week — just $16 more than they would have had had the original lockout been maintained without interruption. If the recall device was intended as an economic weapon, actually, to the extent of $16 a week, it operated as an economic aid.

We consider first the asserted violation of § 8(a) (3), that Respondent's conduct here had amounted to a practice "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." The primary question here is, where is there discrimination? The Board's decision furnishes no answer to this question, — it is not there discussed or even noticed. The employers' action in recalling their employees, and then releasing them was, as the Board's decision discloses, in no sense selective, — it operated as to all employees; none were preferred; none were excluded; all were treated alike. As the Board put it, each employer "requested its employees to report to work at specified hours." On April 20 "as soon as each recalled employee had earned a total of $16, he was again released by his employer."

"The language of § 8(a) (3) is not ambiguous. The unfair labor practice is for an employer to encourage or discourage membership by means of discrimination. Thus this section does not outlaw all encouragement or discouragement of...

To continue reading

Request your trial
5 practice notes
  • MEMCO v. Maryland Employment Sec. Administration, No. 17
    • United States
    • Court of Appeals of Maryland
    • July 1, 1977
    ...(1965); NLRB v. Brown, 380 U.S. 278, 283-84, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). See also NLRB v. Great Falls Employers' Council, Inc., 277 F.2d 772 (9th Cir. 1960) (not an unfair labor practice to recall locked out employees each week and permit them to work only for such time as to disqu......
  • FLIGHT ENGINEERS INT. ASS'N, EAL CHAP. v. Eastern Air Lines
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 10, 1962
    ...Council, Inc., 123 N.L.R.B. 974, 982 (1959), enforcement denied on other grounds N.L.R.B. v. Great Falls Employers' Council, Inc., 277 F.2d 772 (9 Cir. 1960) ("Respondents bargained in good faith until an impasse developed on April 12, 1957, when the Union rejected Respondents' last amended......
  • Hawkeye-Security Insurance Company v. Davis, No. 16391.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 6, 1960
    ...Casualty Co. v. Dalton Coal & Material Co., 8 Cir., 184 F.2d 181, 183; City of New York Ins. Co. v. Stephens, Mo., 248 S.W.2d 648. 653. 277 F.2d 772 It is clear that the Missouri Vexatious Delay Statute affords defendants no basis for allowance of attorney's We are satisfied that no legal b......
  • Caroline Farms Division of Textron, Inc. v. NLRB, No. 12011.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 13, 1968
    ...Inc., 133 NLRB 1132, 48 LRRM 1793 (1961); Great Falls Employers' Council, Inc., 123 NLRB 974, 44 LRRM 1021 (1959), rev'd on other grounds, 277 F.2d 772 (9th Cir. 1960); cf. NLRB v. Hart Cotton Mills, 190 F.2d 964, 969 (4th Cir. 1951). In any event, we do not understand the Board to contend ......
  • Request a trial to view additional results
5 cases
  • MEMCO v. Maryland Employment Sec. Administration, No. 17
    • United States
    • Court of Appeals of Maryland
    • July 1, 1977
    ...(1965); NLRB v. Brown, 380 U.S. 278, 283-84, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). See also NLRB v. Great Falls Employers' Council, Inc., 277 F.2d 772 (9th Cir. 1960) (not an unfair labor practice to recall locked out employees each week and permit them to work only for such time as to disqu......
  • FLIGHT ENGINEERS INT. ASS'N, EAL CHAP. v. Eastern Air Lines
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 10, 1962
    ...Council, Inc., 123 N.L.R.B. 974, 982 (1959), enforcement denied on other grounds N.L.R.B. v. Great Falls Employers' Council, Inc., 277 F.2d 772 (9 Cir. 1960) ("Respondents bargained in good faith until an impasse developed on April 12, 1957, when the Union rejected Respondents' last amended......
  • Hawkeye-Security Insurance Company v. Davis, No. 16391.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 6, 1960
    ...Casualty Co. v. Dalton Coal & Material Co., 8 Cir., 184 F.2d 181, 183; City of New York Ins. Co. v. Stephens, Mo., 248 S.W.2d 648. 653. 277 F.2d 772 It is clear that the Missouri Vexatious Delay Statute affords defendants no basis for allowance of attorney's We are satisfied that no legal b......
  • Caroline Farms Division of Textron, Inc. v. NLRB, No. 12011.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • September 13, 1968
    ...Inc., 133 NLRB 1132, 48 LRRM 1793 (1961); Great Falls Employers' Council, Inc., 123 NLRB 974, 44 LRRM 1021 (1959), rev'd on other grounds, 277 F.2d 772 (9th Cir. 1960); cf. NLRB v. Hart Cotton Mills, 190 F.2d 964, 969 (4th Cir. 1951). In any event, we do not understand the Board to contend ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT