NLRB v. Rubber Rolls, Inc., 16471.

• Decision Date: 28 December 1967
• Docket Number: No. 16471.,16471.
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RUBBER ROLLS, INC., Respondent.
• Court: U.S. Court of Appeals — Third Circuit

388 F.2d 71 (1967)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RUBBER ROLLS, INC., Respondent.

No. 16471.

United States Court of Appeals Third Circuit.

Argued September 14, 1967.

Decided December 28, 1967.

Abigail Baskir, National Labor Relations Board, Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Solomon I. Hirsh, Richard S. Rodin, Attorneys, National Labor Relations Board, on the brief), for petitioner.

Leo J. Kelly, Metz, Cook, Hanna & Kelly, Pittsburgh, Pa. (David C. Baldus, Pittsburgh, Pa., on the brief), for respondent.

Before BIGGS, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order that Rubber Rolls, Inc., reinstate Frederick J. Anderson with back pay on the ground that he had been discharged in violation of §§ 8(a) (1) and (3) of the National Labor Relations Act¹ because of his union activities.

The company is a manufacturer of rubber covering and lining for pipes, tanks and fittings. Anderson became its employee in March, 1960, and remained with the company until his discharge on July 13, 1965.

The company had encountered union activities beginning in 1960. Anderson was active at that time in organizing a local of the Teamsters Union as the certified bargaining representative of the employees in the plant and was a member of the union's negotiating team. Initial negotiations with the company broke down, and an unsuccessful strike ensued. After a few months, in May, 1961, the employees asked to be reinstated and the union's representation was terminated. In 1963 the company's plant manager learned that the Teamsters Union was seeking to rekindle interest among the employees when he saw a copy of a letter which the union had sent to the employees. The president of the company called Anderson to his office and warned him that if he had anything to do with this, he was "on his way out". Again, in the latter part of 1964, Anderson was active in an organizing campaign among the production and maintenance employees of the company on behalf of the Molders Union. Another labor organization, the International Rubber Union, contested the Molders Union's petition for certification and defeated it in an election conducted by the Board on April 21, 1965, and was certified as the representative of those employees. During this campaign Anderson was called to the company office and told that he was "on his way out" if the company found that he had anything to do with it.

During the negotiations which ensued between the International Rubber Union and the company, the union called a meeting in May, 1965, at which the employees unanimously authorized the bargaining committee to call a strike if it wished. By the end of June, Anderson, who had joined the union and had participated in the strike vote, became critical because the negotiations were slow and protracted. The company received reports of Anderson's attitude and that he was advocating a strike. At the final negotiating sessions in the beginning of July, 1965, the plant manager and the president of the company remarked that Anderson was a troublemaker, had caused trouble year after year, and inquired what the union's reaction would be if he he was discharged. On July 9, 1965, the day the negotiating parties reached agreement on a collective bargaining contract the company decided to discharge Anderson. This decision was carried into effect on July 13. The plant manager in discharging Anderson told him that it was because he did not get along with the men, had refused to talk with the company, had falsified his 1960 employment application and had a poor work record.

At the hearing before the trial examiner the company claimed that Anderson was discharged because he had been derelict in his work, had misstated his income on a loan application, and because it had learned, two years earlier, that he had misstated his physical condition on his employment application. The plant manager testified that the primary reason for Anderson's discharge was his work performance and then went on to say that "the secondary reason for his discharge or I don't know the straw that broke my back on this man was when our negotiating committee walked in and said Fred is causing trouble and inciting the thought of strike in the men's minds. My gosh, all the time that I put up with it because of this element of he is a union man and I recognized it. And, this snowballing and accumulation of these little lack of respect on his part for our problems and management's problems on his work. Those are the primary things."

The trial examiner found that the justifications which the company offered for its discharge of Anderson were mere pretexts and that taken separately or as a package they were not the cause of Anderson's discharge. "Each and every one of them was either stale, unimportant, condoned or pure hearsay or speculation. In fact, separately and together, they bear the earmarks of long-forgotten incidents dredged up from the bottom of the barrel as pretexts for the discharge in order to cover up the fact that the actual reason for the discharge of Anderson * * * was the one which `broke the camel's back,' to wit, his union activities and his protected activity in suggesting a strike in order to hurry up the protracted negotiations * * *. It is quite clear * * * that but for the `straw' of his union activities, both past and present, Anderson would not have been discharged on July 13, because of any or all of the above alleged derelictions of duty." The Board approved these findings.

If Anderson's most recent conduct could be described accurately as advocating a wildcat strike for which he was discharged, there would be presented the question whether it is protected activity under the Act.² The problem is a fundamental one, for it involves the sometimes incompatible policies of...