NLRB v. LG Everist, Inc.

• Decision Date: 23 July 1964
• Docket Number: No. 17486.,17486.
• Citation: 334 F.2d 312
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. G. EVERIST, INC., Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

334 F.2d 312 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. L. G. EVERIST, INC., Respondent.

No. 17486.

United States Court of Appeals Eighth Circuit.

July 23, 1964.

Janet A. Kohn, Atty., N. L. R. B., Washington, D. C., made argument for the petitioner and Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Warren M. Davison and Paul Resnik, Attys., N. L. R. B., Washington, D. C., were on the brief.

Curtis L. Roy, of Dorsey, Owen, Marquart, Windhorst & West, Minneapolis, Minn., made argument for the respondent and filed brief with Curtis D. Forslund, Minneapolis, Minn., and John Burke, Sioux Falls, S. D.

Before VOGEL, MATTHES and BLACKMUN, Circuit Judges.

VOGEL, Circuit Judge.

The National Labor Relations Board, pursuant to § 10(e) of the National Labor Relations Act as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq., has petitioned this court for enforcement of its order of April 23, 1963, corrected on June 7, 1963, following the usual proceedings under § 10 of the Act. The Board's decision and order are reported in 142 N.L.R.B. No. 20. This court has jurisdiction under § 10(e) of the Act. The Board found that respondent had violated § 8(a) (1) of the Act by refusing to reinstate four drivers upon their unconditional application for employment which followed their discharge after they had refused to cross a picket line of another and different union picketing an employer with whom the drivers had no connection. The Board also found that at times other than referred to herein respondent had further violated § 8(a) (1) by creating an impression of surveillance and by threatening employees with loss of their jobs if they supported the union. The second violation of § 8(a) (1) is not in actual dispute here. This controversy surrounds solely the refusal of the employer to reinstate the four drivers. There is little or no dispute in the actual physical facts which we summarize as follows:

L. G. Everist, Inc., the respondent, is engaged in the production, sale and hauling of aggregate and related products. Its drivers were represented at all times material herein by the General Drivers and Workers Union Local 749, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Such union was certified by the Board as the exclusive bargaining representative. In late 1961 respondent contracted with a transportation company to haul aggregate to Jones, Brown and Root Construction Company, prime contractor at a dam construction site near Chamberlain, South Dakota. The construction project was a large one engaging some 550 workers in all.

On Friday, December 8, 1961, the dam construction site was being picketed by the Iron Workers Union which had a dispute with Western Contracting Corporation, one of the other contractors on the job. It was apparent from the sign carried by the picket that only Western and not Jones, Brown and Root, the prime contractor, was being picketed. The sign read:

"IRON WORKERS NO. 184 ON STRIKE FOR A CONTRACT WESTERN CONTR. CORP. THIS DISPUTE WITH ABOVE CONTRACTOR ONLY"

Respondent's nine truck drivers arrived with their trucks to deliver aggregate to the prime contractor. Upon observing the picket, they parked their trucks and called their union representative, who told them not to cross the picket line. At that time none crossed. Shortly thereafter, however, respondent's superintendent, Earl Roe, arrived and after discussing the situation with the prime contractor instructed respondent's nine drivers to either cross the picket line and make their deliveries or to return their loaded trucks to respondent's place of business. Five of the drivers made their deliveries, thus crossing the picket line. The four involved here — Dunlap, Miller, Taylor and Reeves — refused to do so and returned their loaded trucks to respondent's depot as directed. Later that day upon instructions from Roe they reported to the front office, where Roe gave them their final checks and discharged them.

On Monday, December 11, 1961, respondent resumed deliveries to the construction site, using the five drivers who had crossed the picket line together with three of the respondent's supervisors and a student driver. Later that day, however, work on the construction site ceased because of mechanical difficulties of the prime contractor and operations did not again resume until December 15, 1961. In the meantime, the four alleged discriminatees and three of respondent's other drivers met on Monday evening, December 11th, and decided to strike in protest to the December 8th discharge of the four drivers who refused to cross the picket line. The strike and picketing were maintained until the morning of December 14th, at which time the drivers, including the four who had previously been discharged, abandoned the strike and offered to "return to work immediately". During the entire interim of this strike, work at the construction site had ceased because of the mechanical difficulties of the prime contractor so that apparently any significance which might be attached to the strike was lost or dissipated.

In response to the request to be returned to work, respondent notified the drivers who had crossed the picket line on December 8th and had continued working to report for work the following day. It refused, however, to reinstate the four discharged drivers on the ground that such reemployment after discharge would be a violation of company policy.¹

Respondent resumed deliveries to the construction site on December 15th, utilizing its five remaining drivers, three supervisors and one other driver. From that time until about Christmas respondent's deliveries were made by the five drivers who were with them originally and who had crossed the picket line, three supervisors and various other employees who were hired during that period. Permanent replacements were hired about Christmas, at which time the three supervisors returned to their normal duties.

The Examiner found that the discharges of December 8, 1961, and respondent's refusal and failure to reinstate Reeves, Taylor, Miller and Dunlap did not violate § 8(a) (3) of the Act since respondent's actions were prompted by its need to continue operations and not in reprisal for the alleged discriminatees having refused to cross the picket line. He recommended that the complaint be dismissed insofar as it alleged violation of § 8(a) (3).

The Board disagreed with the Examiner, and with two members dissenting, found it

"* * * unnecessary to decide whether, as the General Counsel contends, the Respondent unlawfully discharged the claimants on December 8, since in our view, the Respondent violated Section 8(a) (1) of the Act by refusing to reinstate the claimants upon their unconditional application for reinstatement on December 14, at which time they had not been permanently replaced."

The Board then stated that the Trial Examiner, in agreement with the respondent, had misinterpreted Redwing Carriers, Inc., 137 N.L.R.B. No. 1545, aff'd sub nom. Teamsters, Chauffeurs & Helpers Local U. No. 79, Intern. Broth. of Teamsters, Chauffeurs, Warehousemen, and Helpers of America v. N. L. R. B., D. C. Cir., 1963, 325 F.2d 1011, as meaning that where an employer lawfully "discharges" an employee for refusing to cross a picket line, such "discharge" is tantamount to a discharge for cause and, as in the case of and discharge for cause, the employer is thereafter entitled to refuse to reinstate the employee for the reason that justified the original discharge. Contrarily, the Board, in noting that Redwing held that an employee's refusal to cross a picket line was protected activity, interpreted it as meaning in effect that:

"* * * a `discharge\' for refusal to cross a picket line is an exception to the general rule that employees may not be discharged for engaging in protected concerted activity. It is therefore not a discharge for cause, but merely a permissible act in furtherance of the employer\'s overriding right to keep his business going by replacing such employees. To this extent, at least, the employees involved herein are similar to economic strikers, who may also be replaced by an employer to permit continued operation of the business but who, if not permanently replaced, are entitled to reinstatement upon unconditional application."

The majority of the Board, finding that the four discharged employees had made an unconditional application for reinstatement prior to respondent's hiring of permanent replacements, held that respondent violated § 8(a) (1) of the Act by refusing to reinstate them.

The dissenting members of the Board — Rogers and Leedom — who had also disagreed with the majority of the Board's decision in the original Redwing opinion, stated:

"Unlike our colleagues of the majority, we would find that the Respondent did not violate the Act by discharging claimants on December 8 and by refusing to reinstate them on December 14. For the reasons stated in the original Board decision in Redwing Carriers, 130 N.L. R.B. 1208; see, also, 137 N.L.R.B. No. 142 we believe that the claimants\' refusal to cross the picket line was unprotected activity. We would therefore find that the Respondent acted lawfully in terminating the employment of the claimants because of their refusal to cross the picket line. Since the original discharges were for cause and were therefore lawful, we would further find that the Respondent did not thereafter violate the Act in refusing, for the same reason, to reinstate the claimants."

We are told that this is a case of first impression in an appellate court. The views of three members of the Board who constituted the majority are diametrically opposed to the views of the two dissenting members and the views of the Examiner.

It should probably be emphasized here that the uncontradicted testimony is that the contract between responde...