NLRB v. Holcombe

• Decision Date: 11 December 1963
• Docket Number: No. 20388.,20388.
• Citation: 325 F.2d 508
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E. A. HOLCOMBE and J. N. Holcombe, d/b/a Holcombe Armature, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

325 F.2d 508 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. E. A. HOLCOMBE and J. N. Holcombe, d/b/a Holcombe Armature, Respondent.

No. 20388.

United States Court of Appeals Fifth Circuit.

December 11, 1963.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Seymour Strongin, Atty., Arnold Ordman, Gen. Counsel, Elliott Moore, Atty., N. L. R. B., Washington, D. C., for petitioner.

Alexander E. Wilson, Jr., Wilson, Branch, Barwick & Vandiver, Alexander E. Wilson, III, Atlanta, Ga., for respondent.

Before TUTTLE, Chief Judge, and JONES and BELL, Circuit Judges.

TUTTLE, Chief Judge:

This petition by the National Labor Relations Board is very small in substance. The Board charged the respondent with violating Sections 8(a) (3) and (1) of the Act by suspending eight employees because, after they had been told that a fellow employee, Barnes, had been discharged for cause,¹ they had walked off the job. Thereupon, respondent sent letters to the eight employees suspending them for the balance of the week.

During part of the time the eight employees were off, they formed a picket line. The day of the walk-out one Crouch was employed by the company for the first time. He worked that day but the next day he did not report for work, but instead he spent part of his time on the picket line. He was dropped from the company's payrolls on the asserted ground that he had failed to show up for work. This act is also charged by the Board to be a violation of Section 8(a) (3) on the ground that the respondents discharged Crouch for his Union activity in participating in the picketing. Finally, the Board charges an ordinary 8(a) (1) violation based on a conversation between an employee and one of the respondents that the company would take retaliatory measures if the Union drive was successful.

As to the first contention by the Board, we note that the Supreme Court in the latest pronouncement on the subject in N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298, has made it plain that not every concerted activity is protected under Section 7 of the Act.² The Supreme Court there said:

"It is of course true that § 7 does not protect all concerted activities, but that aspect of the section is not involved in this case. The activities engaged in here do not fall within the normal categories of unprotected concerted activities such as those that are unlawful, citing Southern Steamship Co. v. National Labor Relations Board, 316 U.S. 31, 62 S. Ct. 886, 86 L.Ed. 1246 violent citing National Labor Relations Board v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 or in breach of contract citing National Labor Relations Board v. Sands Manufacturing Co., 306 U.S. 332, 59 S.Ct. 508, 83 L.Ed. 682. Nor can they be brought under this Court\'s more recent pronouncement which denied the protection of § 7 to activities characterized as `indefensible\' because they were there found to show a disloyalty to the workers\' employer which this Court deemed unnecessary to carry on the workers\' legitimate concerted activities citing Labor Board v. Local Union No. 1229, International Brotherhood of Electrical Workers, 346 U.S. 464, 477, 74 S.Ct. 172, 98 L.Ed. 195."

Here, to be sure, the Board found that Barnes had been discharged for justifiable cause. Further the Board found that at the time Barnes was discharged neither of the respondents had heard about any organization movement among the men.³ The Board then found "these men walked out spontaneously over the discharge of Barnes under the mistaken notion that Barnes was discharged to discourage membership and activity in the Union."

When the men requested the right to come back to work on the following morning they were told that the matter was under investigation, and were, in fact, not reinstated for a week. The Board found this amounted to a suspension as a punishment for their action in leaving their jobs because of their concerted activity and that such conduct by the respondents discouraged membership and activity in the Union. As none of the jobs had been filled between the time they left on May 22, and their return to work on May 28, the Board found that they were entitled to their jobs upon request, and that they are now entitled to back pay for the six-day period of their suspension.

There can be no substantial doubt but that normally a spontaneous or planned walk-out in protest against the firing of another employee is protected activity. N.L.R.B. v. J. Mitchko, Inc., 3 Cir., 284 F.2d 573. N. L. R. B. v. Solo Cup Co., 8 Cir., 237 F.2d 521. Summit Mining Corp. v. N. L. R. B., 3 Cir., 260 F.2d 894. To be sure, in the last cited case, the Court said, "As long as the strikers in good faith thought that the discharges had been effected because of union activities or for some other reason proscribed by the Act their concerted activity was within the protection of Section 7 of the Act." Here there is no precise explicit finding by the trial examiner or the Board that the eight employees did in good faith believe that Barnes had been fired without cause when they walked out, although the language employed by the fact finder (fn. 3 above) speaks of "the mistaken notion that Barnes was discharged to discourage membership, etc." We think that we need not decide whether this amounted to a positive finding that the employees were then of the good faith belief that Barnes' discharge was for an unlawful purpose. We conclude that the conduct of the employees in protesting his discharge in the manner they chose was concerted activity. Of this there can be little doubt. We also conclude that it was protected, because even though the company had grounds for firing Barnes, the employees had the right to protest the firing as too harsh or because they thought the standard of care in the operation of the equipment was too high. Even though upon more careful reflection they might not have reacted as they did, the wisdom or un-wisdom of their conduct is not a test.

Of course, once they walked off the respondents could have replaced all of them if it had done so before they requested reinstatement. However, in this case the request for reinstatement came very quickly, and the Company could not impose sanctions for the shortlived strike. Having done so, they violated Section 8(a) (3) of the Act. However, we can not find that this conduct on their part was done "to discourage membership or activity in the union" about which respondents did not know until the very moment of the walk-out.

The Board also charges that the discharge of Crouch violated Section 8 (a) (3) because of his participation in the protected activities. This employee had worked only one day and did not report back for duty the following day. We conclude that there is not sufficient evidence on the record as a whole to warrant the finding by the trial court that the company actually knew that Crouch failed to return to work because of the fact that he wished to walk on the picket line. There is no evidence that he had been identified by the respondents with the protected concerted activity.

This disposes of all of the matters presented in this petition except for the alleged 8(a) (1) violation based on the conversation between an employee, Gunnin, and Earl Holcombe, one of the...