NLRB v. Hilton Mobile Homes

• Decision Date: 19 December 1967
• Docket Number: No. 18836.,18836.
• Citation: 387 F.2d 7
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HILTON MOBILE HOMES, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

387 F.2d 7 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HILTON MOBILE HOMES, Respondent.

No. 18836.

United States Court of Appeals Eighth Circuit.

December 19, 1967.

Edward E. Wall, Atty., 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, and Herman M. Levy, Atty., N.L.R.B., were on the brief with him.

Thomas M. Hanna, of McMahon & Berger, St. Louis, Mo., for respondent; Alan I. Berger, McMahon & Berger, St. Louis, Mo., and Hunt & Degnan, Guttenberg, Iowa, filed brief.

Before VAN OOSTERHOUT, MEHAFFY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The National Labor Relations Board seeks to enforce its order of November 16, 1965. The Board found that Hilton had violated: (1) Section 8(a) (1) and (3) of the National Labor Relations Act¹ by discharging employees engaged in a lawful strike,² and (2) Section 8(a) (1) and (5) of the Act³ by adopting and posting new plant rules with respect to employees taking home company tool boxes without prior notification to or consultation with the union.⁴ It ordered Hilton to cease and desist from further commission of the unfair practices found, or otherwise interfering with the rights of its employees. Affirmatively, it required Hilton to make the discharged employees whole and to post appropriate notices.

We enforce the Board's order as it relates to Issue One, but decline to do so as to Issue Two.

I. The discharge of employees engaged in a lawful strike.

The union was certified by the Board as the exclusive bargaining representative of Hilton's production and maintenance employees on July 8, 1963. Intermittent negotiations carried on from that date to May, 1964, failed to produce an agreement. Early on the morning of May 6th, twenty-nine employees went out on strike. They were subsequently joined by a few others. About 10:00 a. m., Jack Degnan, counsel for Hilton, read a statement to the strikers assembled in the vicinity of the plant:

"You have voluntarily left your job. This is an unwarranted work stoppage. Unwarranted work stoppages such as this are not protected by the National Labor Relations Board.

"Since this is the first time that there has been such a work stoppage at this plant, we are giving you an opportunity to return to your jobs within ten (10) minutes after the end of these remarks. In the event that you fail or continue to refuse to return to your job within the ten minutes allowed, such failure shows us that you no longer want to work on your job and desire to voluntarily quit, and our records in this plant will show that you have voluntarily quit your job.

"Employment in this factory will be replaced by individuals who want and need work. You are further advised that in the event of any similar acts of work stoppage such as this, that such acts will be grounds for immediate discharge."

After reading the statement, he added that the strikers "had until 10:30 a. m. to return to work, and that if they did not do so they would have to start as new employees at $1.25 per hour."

The union's business agent learned of the strike shortly after the walkout and immediately went to the plant. He arrived shortly after Degnan had completed his remarks. He was told, by the strikers, that they had been discharged "as of now." He then entered the company premises and discussed the matter with Degnan. He offered to ask the men to return to work without the loss of rights, but Degnan said he could do nothing until he took the matter up with a company vice-president.

The business agent returned after lunch and again requested that the strikers be permitted to return to work without loss of rights. Later in the day, Degnan informed the business agent that the company would not put the strikers back to work.

Still later in the day, the company sent a letter to each of the strikers in which it stated:

"* * * Your failure to return to work indicates to us that you have quit your job and no longer desire to be an employee of Hilton Mobile Homes. * * *

"* * * and will take the necessary steps to fill your job on a permanent basis.

"* * * Your final check will be processed and mailed to you."

A copy of the letter, together with an explanation, was posted on the bulletin board. The explanation stated: "We are now making every effort to fill the vacancies in our employment structure when some of our employees quit their jobs yesterday."

It is now conceded by Hilton that the strike was not unlawful. It contends, however, that it did not discharge the employees on May 6th, but rather notified them that they would be replaced unless they returned to work immediately. It contends it had a right to do so as the employees were economic strikers who could be replaced. Whether Hilton's statements constituted an unlawful discharge depends on whether they would reasonably lead the employees to believe that they had been discharged. N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 875 (8th Cir. 1966); N.L.R.B. v. Trumbull Asphalt Company of Delaware, 327 F.2d 841, 843 (8th Cir. 1964); N.L.R.B. v. Central Okl. Milk Producers Ass'n, 285 F.2d 495, 497-498 (10th Cir. 1960); National Labor Rel. Bd. v. Cement Masons Local No. 555, 225 F.2d 168, 172 (9th Cir. 1955).

The facts here closely parallel those in Comfort where economic strikers were sent the following notice:

"* * * If you have not returned to your regularly scheduled work on Monday, November 4th, and continue to absent yourself from your scheduled employment after 7:00 A.M., Tuesday morning, November 5th, we will have no choice but to believe that you have voluntarily quit your employment with Comfort, Inc., without notice, and your employment record will be so marked and our file closed on your employment."

Id., 365 F.2d at 874 n. 4.

Judge Matthes, speaking for the Court in Comfort, noted:

"* * * an employer cannot lawfully terminate the employment status of economic strikers prior to the time they have been validly replaced. Vogue Lingerie, Inc. v. N.L.R.B., 280 F.2d 224, 226 (3d Cir. 1960); N.L.R.B. v. Wooster Div. of Borg-W. Corp., 236 F.2d 898 (6 Cir.); N.L.R.B. v. Cowles Pub. Co., 214 F.2d 708, 710-711 (9th Cir. 1954), cert. denied, 348 U.S. 876, 75 S.Ct. 110, 99 L.Ed. 689 (1954)."

Id. at 874. Judge Matthes went on to state:

"The issue before us thus narrows to the question whether Respondent\'s letter of November 5th and its `notice of change in employment status,\' dated the same day, were tantamount to a discharge of Respondent\'s employees. We hold that such is the legal effect of Respondent\'s action notwithstanding the nomenclature used to describe the termination of the employment relationship. The fact that Respondent\'s employees received no formal notice of discharge, as was Respondent\'s customary practice, is immaterial, if they could logically infer that their employment status had been terminated at that point. * * * Irrespective of employer connotations, other courts have similarly construed such `voluntary quit\' notices as having the legal effect of a discharge. * * * While Respondent\'s `pink slip\' notices may have been merely tactical strike-breaking devices designed to induce its employees to return to work, we find it clear that the November 5th notice had the intended effect of terminating the employment relationship of Respondent and its employees. Moreover, we note that in later communications with the strikers, Respondent referred to them as `former employees.\'"

Id. at 875.

Here, as in Comfort, we find that the actions and statements of Hilton, on May 6th, had the intended effect of terminating the employment relationship of the striking employees, and was thus an unlawful discharge.

THE REMEDY FOR THE UNLAWFUL DISCHARGES

The Board ordered Hilton to pay the strikers back pay from the day following the day their offers to return to work were received by Hilton until the day of their reinstatement or the day work was made available to them.

There is no dispute as to the date on which the employees offered to return to work, but Hilton contends that it offered, by a letter dated June 24, 1964, directed to each striker, to reinstate them as of that date. It, therefore, urges that its responsibility for back pay should terminate then, rather than on July 23rd, 1964, the date fixed by the Board.

The June 24th letter read as follows:

"This letter is written prior to our next negotiating session so, if you wish, you can refresh your recollection on some of the matters we proposed to you at our last bargaining session on May 27th and May 28th, 1964.

"You recall we spent considerable time discussing the plight of those economic strikers who had been permanently replaced prior to their respective offers to return to work. The Company stated that in order to alleviate this plight and to try and get these strikers back to work, it would change its operation in such a way as to create new jobs for these people. These new jobs would be very similar to those held by these strikers prior to the strike, but with few minor changes.

"The Company production process prior to the strike required a crew of men to work on one line for awhile, and to switch to a second line for awhile, and then switch back to the first line, and so on. Now, it was proposed by the Company that it would set up two crews and eliminate the switching back and forth. The elimination of the switching back and forth would be one of the main changes in the new jobs from that of the old. In any event, these replaced strikers were offered the same rate of pay for these new jobs as that which they had on the jobs they left on the occasion which we subsequently learned was a strike." (Emphasis added.)

Those who had not returned by July 23, 1964, were sent a second letter which read as follows:

"We are in need of qualified workers and with our new facility starting up, we have jobs that need to be staffed and we want

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