NLRB v. RC Can Company

• Decision Date: 05 May 1964
• Docket Number: No. 20609.,20609.
• Citation: 328 F.2d 974
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. C. CAN COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

328 F.2d 974 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. C. CAN COMPANY, Respondent.

No. 20609.

United States Court of Appeals Fifth Circuit.

March 11, 1964.

Rehearing Denied May 5, 1964.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick Manoli, Associate Gen. Counsel, Melvin Pollack, Atty., Arnold Ordman, Gen. Counsel, Joseph C. Thackery, Atty., N. L. R. B., Washington, D. C., for petitioner.

Karl H. Mueller, Harold E. Mueller, Mueller & Mueller, Fort Worth, Tex., for respondent.

Before TUTTLE, Chief Judge, and BROWN and GEWIN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case presents problems arising out of a quickie strike participated in by only a few employees and over almost as soon as it started. The Board seeks enforcement of its Order determining that the strike was protected activity and that the failure of the Employer to reinstate the strikers to their prior and unfilled jobs violated § 8(a) (3) and (1) of the Act. 29 U.S.C.A. § 158(a) (3) and (1). The Order also calls for back pay during the two weeks' suspension. We enforce.

The Employer¹ is engaged in the manufacture of cans and metal containers for the food industry and primarily for the packaging of frozen bakery products. Some eight months before this occurrence on Wednesday, January 31, 1962, the Union² had been certified as the bargaining representative of the production and related employees who numbered approximately 50.

Bargaining negotiations had been going on for some time, but not with much success. One of the problems seems to have been the difficulty of agreeing on a time acceptable and convenient to both parties for bargaining sessions. The employees were very restive about this difficulty and the consequent inability to get anywhere in actual bargaining. The Union representative Lee, in collaboration with the 3-man negotiating committee,³ called a Union meeting for the evening of Tuesday, January 30. The leaflet, distributed to all employees, briefly describing the lack of progress and ending with the urgent plea, "come to the meeting Tuesday and let us reason together", pinpointed the grievance in these words:

"The company will not meet with us unless they have their well-paid attorney with them and the result is meetings have been held only at the convenience of the attorney."

At the meeting on Tuesday, January 30, Lee outlined the "difficulty we had had in getting meetings to negotiate an agreement." He reported that although the Union had "made many concessions," they had not yet been able to get agreement. It was Lee's opinion that the Employer was "not actually interested in reaching an agreement." As was true of previous Union meetings, there was talk of a strike, but Lee "recommended against the strike," and the general consensus seemed to be that "there wouldn't be a walkout at that time." No strike vote was taken, however, nor were any plans made for a walkout, strike, or similar action on the part of the organization.

On Wednesday morning, January 31, during working time on the 7:00 a. m. shift, Scott talked to Brewer and a few others about having a "meeting and see what we could work out amongst ourselves to get the company to negotiate with us." The word was spread and at the 10:00 a. m. coffee break, Scott, Brewer and six others left the plant. The Employer became aware of this activity when the plant superintendent observed the men on their way out. And while leaving, Scott told Foreman Tekell that the men "were going to try to get some pressure on the company to meet with us" and that they would probably "get the production manager Lloyd Smith's blood pressure up." Apparently that did not happen as such, but Smith was soon advised that the plant superintendent "thought some of the boys were walking off the job."

Just what was in their mind does not appear. It is plain, however, that they did not intend to return to their work stations at the end of the coffee break. The group went to a bowling alley some distance away, and there had a discussion while having coffee. After about a thirty-minute discussion on generally what could be done to get the Employer to meet more often and "get this contract settled," the eight men returned to the plant at about 11:00 a. m. where they picketed two principal entrances displaying crude signs reading "On Strike." Scott had called Lee to tell him what had happened and asked him to "come out." On his arrival at the plant shortly thereafter, Lee told Scott that he wished that the group had not walked out. He did state, however, that their activity was "protected" and he thought that the men should offer to return to work "unconditionally." The men were at first opposed to this suggestion, but after further conferences with Lee, they agreed that the picket line would be withdrawn. The understanding was, however, that this would be done shortly after 3:30 p. m. at which time the second shift would commence, and they would wait a few minutes thereafter to inform the Employer of their decision. Pursuing this understanding, the picket line was withdrawn at about 3:30, and at about 3:45 p. m. the negotiating committee informed production manager Smith that the eight employees "would like to come back to work." To this Smith replied that the men were "under investigation" and that he would notify them when to return to work. In response to their efforts to work on the 7:00 a. m. shift the following morning, Thursday, February 1, a foreman reiterated that they were still "under investigation." And later that day, in response to Lee's telephone request to reinstate the eight men, production manager Smith reaffirmed that they were "under investigation." On February 1 unconditional letters of application were sent. The group next called on Smith on the following Monday, February 5, to reaffirm that they were "ready to work." After some discussion about statements made by Scott in his application for Texas unemployment compensation insurance, Smith remarked that the men were still under investigation. The Employer by letter of February 12, 1962, offered these employees work effective February 19.

In the meantime, the Employer had to reckon with the fact of the strike. On learning of the picket line, production manager Smith conferred with the Employer's labor counsel. This discussion seemed to be concerned primarily with the operational ability to man the plant with the remaining labor force not on strike. We may assume that counsel advised that if the plant could be manned, the Employer was legally justified in following such a course. Steps were taken to carry on production. Essentially this was to be done by suspending the second shift as of Thursday, February 1 (3:30 p. m. to 12:00 midnight) and assigning such personnel to the day shift. As this plan — although admittedly conceived to meet the strike — was actually continued until February 18, just before the men were called back to work, it is necessary to examine some of the evidentiary detail to determine whether this constituted a discriminatory refusal to reinstate to former and unfilled jobs.

The Employer had two principal production lines. One was the 2" biscuit can, the other the 2¼" roll line. For some time prior to Friday, January 26, the Employer had operated on a single one-shift basis during daylight hours, but running both of these lines. As an excessive inventory of 2¼" stock had built up, the 2¼" line was shut down at the close of work Friday, January 26. This would, of course, throw these operators out of work. Consequently, the Employer, following its general practice of trying to find substitute work for its regular employees as inventories fluctuated, simultaneously scheduled a second shift on the 2" biscuit line to begin Monday, January 29 (3:30 p. m. to 12:00 midnight). In this way employees who had been working on the 2¼" line were assigned to other jobs. The result would be that the 2" biscuit line would operate on two shifts. It seems rather clear that the second shift on the 2" biscuit line was not then required to obtain increased production.⁴ But it seems plain that when the Employer on Friday, January 26, established the two-shift production schedule to commence Monday, January 29, it must have assumed that production of the 2" biscuit cans would be substantially doubled. When the strike hit, the decision was made to terminate the second shift as of the next day, Thursday, February 1. The personnel assigned to the second shift would then be transferred to the day shift to fill the places of those on strike. Since the strike was still apparently going on at 3:30 p. m., Wednesday, January 31, the management instructed those workers on the second shift to report the following morning, Thursday, February 1, for the day shift at 7:00 a. m. This they did. No new or additional production employees were hired between January 31, 1962, and February 18, 1962. The single day shift during the period January 31-February 18, 1962, produced all of the 2" biscuit cans that the Employer desired or needed.⁵ With increase in orders and decrease in inventory from intervening shipments, resumption of production of the 2¼" line became necessary. To fill the demand for labor thus needed, the Employer sent its letter of February 12 calling the men back for work on Monday, February 19.⁶

Although this is almost always a close question, we conclude that the walkout and momentary picket line was protected activity on the part of these employees. It must be recognized, of course, that in seeking to effectuate the aim of the Act — industrial peace — competing policies are at work. Since the employer is required to bargain with the representatives of the worker, it must have some assurance, first, as to the identity of that agent. More important, however, it must be able to deal with that agent as the responsible spokesman for the employees of the unit. There cannot be...