NLRB v. Hartmann Luggage Company

• Citation: 453 F.2d 178
• Decision Date: 29 December 1971
• Docket Number: No. 71-1047.,71-1047.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARTMANN LUGGAGE COMPANY, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

453 F.2d 178 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HARTMANN LUGGAGE COMPANY, Respondent.

No. 71-1047.

United States Court of Appeals, Sixth Circuit.

December 29, 1971.

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Judith P. Wilkenfeld, N. L. R. B., Washington, D. C., for petitioner; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert E. Williams, Atty., N. L. R. B., Washington, D. C., on brief.

George B. Smith, Atlanta, Ga., for respondent; Fred W. Elarbree, Jr., Robert L. Thompson, Atlanta, Ga. (of counsel), Constangy & Prowell, on brief.

Before PECK, McCREE, and BROOKS, Circuit Judges.

McCREE, Circuit Judge.

We consider an application for enforcement of an order of the National Labor Relations Board which requires the reinstatement with back pay of nine of ten former strikers. The first issue requires us to determine whether, after a strike has ended, a company must reinstate economic strikers if subsequent job openings result from resignations of workers who replaced them.

Respondent contends that the striking employees lost their status as employees entitled to preferential treatment as soon as they were replaced. It also contends that they ceased to be employees one year after the beginning of the strike even if they did not lose their preferred status immediately when they were replaced. Respondent further contends that four of the nine employees did not unconditionally apply for reinstatement, and that seven of them engaged in conduct serious enough to justify the refusal to reinstate them.

The Board, in a decision and order reported at 183 N.L.R.B. No. 128 (1970), ruled that nine employees were entitled to reinstatement and ordered the Company to take appropriate affirmative action and to cease and desist from further similar violations of sections 8(a) (1) and (3) of the Act, 29 U.S.C. §§ 158(a) (1), (3).¹ We enforce the Board's order, except that part of it which directs the reinstatement of Pauline Jordan and Guila Byers whose conduct justified respondent's refusal to reinstate them.

Teamsters Local 327² was certified as the bargaining agent for the company's production and maintenance employees at its Lebanon, Tennessee, plant in July 1967. An economic strike began on January 23, 1968, and picketing continued until March 1969, when the strike ended. Two earlier cases which arose from this dispute resulted in findings that the Company had not committed unfair labor practices, 173 N.L.R.B. No. 193 (1968), and that the Union had violated § 8(b) (1) (A) of the Act, 29 U.S.C. § 158(b) (1) (A), because it was responsible for some unlawfully coercive conduct of the strikers. 173 N.L.R.B. No. 220 (1968), enforced as modified, 419 F.2d 1282 (6th Cir. 1970).

During the course of the strike, the Company attempted to maintain operations by replacing striking employees. Nevertheless, its work force declined from 129 employees to approximately 76, where it remained until the time of this enforcement proceeding. The conduct of the strike was marked by numerous acts of minor violence, mass picketing, threats, and obstruction of plant entrances and exits.

During the 3½ month period following the strike, 13 employees left the Company for various reasons and vacated jobs which the charging parties were qualified to perform. Each of the nine strikers whom the Board ordered reinstated attempted a timely application for reinstatement. However, the Company denied any obligation to employ them.

We begin, as the Supreme Court did in NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed. 2d 614 (1967), by observing that striking workers remain "employees" entitled to the protection of national labor laws:

Section 2(3) of the Act (61 Stat. 137, 29 U.S.C. § 152(3)) provides that an individual whose work has ceased as a consequence of a labor dispute continues to be an employee if he has not obtained regular and substantially equivalent employment. If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to discourage employees from exercising their rights to organize and to strike guaranteed by §§ 7 and 13 of the Act (61 Stat. 140 and 151, 29 U.S.C. §§ 157 and 163). Under §§ 8(a) (1) and (3) (29 U.S.C. §§ 158(1) and (3)) it is an unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to "legitimate and substantial business justifications," he is guilty of an unfair labor practice. NLRB v. Great Dane Trailers, 388 U. S. 26, 34 87 S.Ct. 1792, 1798, 18 L. Ed.2d 1027 (1967). The burden of proving justification is on the employer. Ibid. It is the primary responsibility of the Board and not of the courts "to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy." Id., at 33-34 87 S.Ct., at 1797. See also NLRB v. Erie Resistor Corp., 373 U.S. 221, 228-229, 235-236 83 S. Ct. 1139, 1145, 1149, 10 L.Ed.2d 308 (1963). Universal Camera Corp. v. NLRB, 340 U.S. 474 71 S.Ct. 456, 95 L.Ed. 456 (1951), is not an invitation to disregard this rule. Footnote omitted.

389 U.S. at 378, 88 S.Ct. at 545. Also, it is well settled that an employer may refuse to reinstate employees whose positions are occupied by replacements hired on a permanent basis during the strike. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). But employers are obligated to reinstate applying strikers as production returns to pre-strike levels and positions become available. Fleetwood Trailer Co., supra. Respondent contends that we should distinguish between positions made available by expanding production and those made available by resignations. We do not consider the distinction to be of controlling significance.

Following the Supreme Court's decision in Fleetwood Trailer Co., supra, the Board, in The Laidlaw Corp., 171 N.L.R.B. No. 175 (1968), held that, under these circumstances, strikers are entitled to reinstatement unless the employer can establish that his refusal to reinstate was for legitimate and substantial business reasons. The Board's order in that case was enforced in Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir.) (rehearing denied September 2, 1969), cert. denied, 397 U.S. 920, 90 S. Ct. 928, 25 L.Ed.2d 100 (1970). Subsequently, two additional circuits have agreed that the Board's position is correct. American Machinery Corp. v. NLRB, 424 F.2d 1321 (5th Cir. 1970); NLRB v. Johnson Sheet Metal, Inc., 442 F.2d 1056 (10th Cir. 1971) (rehearing denied June 17, 1971). We also agree.

Respondent's next contention is that economic strikers lose their status as employees 12 months after the beginning of the strike. Respondent would interpret § 9(c) (3) of the Act, 29 U.S. C. § 159(c) (3), as a limitation of the employee status of economic strikers under § 2(3), 29 U.S.C. § 152(3).³ The 1959 amendment of § 9(c) (3) gave replaced economic strikers the right to vote in elections held during the 12 months following the commencement of the strike. Under the Labor Management Relations Act of 1947 no striking employee could vote unless he was entitled to reinstatement. Accordingly, the 1959 amendment gave some economic strikers a right they did not previously possess. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 233-34 n. 12, 83 S. Ct. 1139, 10 L.Ed.2d 308 (1963). We are aware of no authority which indicates that this grant of additional rights should be read as a limitation of the strikers' status as employees under a different section of the Act.

Respondent argues that a strict time limit, such as that imposed upon the right to vote under § 9(c) (3), should be placed upon strikers' status as employees under § 2(3). Otherwise, it would be unreasonably onerous to require employers to keep records for an indefinite time of strikers who might apply for reinstatement after a strike had ended. We see no reason, however, why that consideration cannot be among those to be weighed by the Board in determining whether, in a particular case, the employer has a legitimate business reason substantial enough to outweigh the employee's right to be reinstated. As the court stated in American Machinery Corp. v. NLRB, 424 F.2d 1321, 1328 (5th Cir. 1970),

While the resolution is ultimately for the Board subject to limited judicial review under the Act, a concerned employer will find means to cope with this burden. For example, he might notify the strikers when they request reinstatement of a reasonable time during which their applications will be considered current and at the expiration of which they must take affirmative action to maintain that current status. A reasonable rule would not contravene Fleetwood\'s assertion that "the right to reinstatement does not depend upon technicalities relating to application."

We further observe that the strike and picketing continued for longer than one year in this case. The absolute rule respondent suggests would therefore sharply curtail the right to strike. In this case, openings occurred from one to four months after the picketing ceased; and all strikers who then applied for reinstatement would have been automatically barred. Accordingly, we determine that the nine employees were eligible to apply for reinstatement.

Respondent contends that four of the employees did not make sufficient application for reinstatement. The situations of Gertie Lee Farmer and Vallie Brewington are similar and we consider them together. Both completed application forms at the Company's plant and, on April 10, 1969, each spoke to the Company's Director of Manufacturing, Donald V. Cady. Cady expressed surprise that they would apply for reinstatement under the circumstances. As the Trial Examiner found:

Cady emphasized to Mrs. Brewington the distinct probability that she would be

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