Retail, Wholesale and Department Store U. v. NLRB, 24867

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWRIGHT, McGOWAN and ROBB, Circuit
Citation466 F.2d 380
Docket Number71-1103.,No. 24867,24867
Decision Date28 July 1972


Mr. Marvin Menaker, Dallas, Tex., for petitioner in No. 24867.

Mr. Charles N. Steele, Atty., N.L.R.B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Ronald I. Tish, Atty., N.L.R.B., were on the brief, for petitioner in No. 71-1003 and respondent in No. 24867.

Mr. Hugh M. Smith, Dallas, Tex., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court, with whom Mr. J. Parker Connor, Washington, D. C., was on the brief, for respondent in No. 71-1103.

Before WRIGHT, McGOWAN and ROBB, Circuit Judges.

McGOWAN, Circuit Judge:

The decision of the National Labor Relations Board now before us arises out of a strike by the Retail, Wholesale and Department Store Union against Coca Cola Bottling Works, Inc. The petitioning Union in No. 24867 complains of the Board's order in certain respects. In No. 71-1103, the Board seeks enforcement. The most significant issue relates to the propriety of the Board's retroactive application of a change in policy effectuated by it through adjudication rather than rule making. For the reasons set forth hereinafter, the order of the Board is enforced only in part.


On February 18, 1966 the Union was certified as the collective bargaining agent of the workers at the Company's plant in Dallas, Texas. On July 26, 1966, as the result of a bargaining impasse, the workers went out on strike. The Company decided to continue operations with employees who chose not to strike and new employees hired to replace the strikers. During the course of the strike, the Company eliminated all of its electric eye bottle inspecting machines and abolished eleven sales helper jobs. The Union maintains that not submitting these decisions to the collective bargaining process constituted an unfair labor practice under Section 8(a)(5) of the National Labor Relations Act,1 and thus converted what was admittedly an economic strike into an unfair labor practice strike.

Two weeks after the beginning of the strike, some of the strikers began distributing "Health Warning" leaflets in the community, implying that, because of the inexperienced replacements at the plant, Coca-Cola bottles might be unclean and a hazard to health.2 The Company claims that this leafleting was not protected activity under the Act, and that the Company was therefore justified in subsequently refusing to offer reinstatement to any strikers who personally engaged in it.

The Union announced the end of the strike on November 4, 1966, and at that time requested reinstatement for all striking employees. The Union also asked for a list of all strikers permanently replaced during the strike. Instead of furnishing such a list, the Company responded by asking the Union to submit a list of all strikers who actually desired reinstatement. On November 7, the Union submitted a list of 137 strikers who allegedly desired reinstatement, and on that day 40 of those appeared personally at the plant. The Company spent November 7 interviewing most of those 40 to determine whether or not any of them had engaged in the distribution of the "Health Warning" leaflet. On November 10, the Company notified the Union that 12 of the strikers had been offered reinstatement, but that all other strikers had been permanently replaced or had had their jobs abolished. By November 14, ten of the strikers offered reinstatement were actually reinstated.3 Bargaining between the Company and the Union continued after the strike until February 22, 1967.4 During that time, 242 job vacancies occurred in the normal turnover of personnel. Although aware that a substantial number of former strikers desired reinstatement, the Company never attempted to fill these vacancies by actively seeking out and offering positions to any of the unreinstated strikers, but instead filled them with other applicants obtained through newspaper advertisements and private employment services. On a number of occasions, however, the Company informed the Union that any of its members who came down to the plant and applied for work would be given "due consideration." Moreover, there is no evidence that any former striker who did so was ever denied reinstatement.

On February 22, 1967, the Company announced that it would no longer bargain with the Union because it did not believe that the Union continued to represent a majority of the employees.

On the basis of these facts, the Board's General Counsel filed a complaint against the Company charging a number of unfair labor practices, and, on December 4, 1970, the Board came to the following conclusions:5

1. The elimination of the bottle inspecting machines was not an unfair labor practice because it did not eliminate or significantly affect the job of any employee.
2. The Company committed an unfair labor practice by unduly delaying the reinstatement of the ten employees eventually reinstated on November 14.
3. Although the leafleting was not protected activity, the Company subsequently condoned or forgave the activity, and thus was not justified in refusing to consider any of the participants for reinstatement.
4. The Company\'s failure actively to seek out and offer reinstatement to unreinstated strikers was an unfair labor practice under the Board\'s decision in Laidlaw, note 5 supra.
5. The Company committed an unfair labor practice in withdrawing recognition from the Union on February 22, 1966.6

On the basis of these conclusions, the Board ordered the Company to cease and desist from engaging in the cited unfair labor practices. The Board further ordered the Company to make whole the ten strikers whose reinstatement was unduly delayed, and to offer immediate reinstatement to the unreinstated strikers and to make them whole for the Company's failure to offer them jobs as they became available, discharging if necessary any employees hired instead.7 The Board now seeks enforcement of its order.


The Union challenges only the Board's determinations that (1) the elimination of the bottle inspecting machines was not an unfair labor practice, and (2) the distribution of the "Health Warning" leaflets was not protected activity. There is ample evidence in the record to support the finding of the trial examiner, affirmed by the Board, that the elimination of the machines had no significant effect on the job of any worker, and that consequently the Company was not obliged to submit this decision to collective bargaining. The decision of the Board on this issue is affirmed.

The Board's conclusion that the leafleting was not protected activity rested on its view that the intent and effect of the leaflet was to attack the Company's product rather than inform the public of a genuine issue in a labor dispute.8 We need not concern ourselves with the validity of this view because the Board resolved the matter in favor of the Union on the basis of condonation. We turn to the Company's challenge to this resolution, after first considering the question of undue delay in reinstatement.

1. Delay in Reinstatement.

The law is clear that striking employees may request reinstatement collectively through their union;9 and that, once a request is made, the obligation is upon the employer to offer reinstatement to those employees for whom there are available positions.10 The Board's position on the issue of undue delay in this case is that the Company's responding to the November 4 request for reinstatement by a counterrequest for a list of names of strikers specifically desiring reinstatement had the effect of shifting the burden back to the employees. Consequently, the Board has taken the position that any delay occasioned by such a counter-request is unreasonable per se.

The Company argues, on the other hand, that its attempt to find out which strikers actually wanted reinstatement before indiscriminately offering reinstatement to some who may not have wanted it was a reasonable and perhaps more expeditious method of reinstatement. Although the question is not entirely free from doubt, we are not prepared to say that the Board's position is plainly unreasonable or arbitrary. Certainly the employer does not need to know which specific employees desire reinstatement in order to determine which positions are available; and whether the Company's course of action in this case was a more or less expeditious method of reinstatement is a matter well within the expertise of a Board far more familiar than we with the realities of labor-management relations. It is not the function of reviewing courts to substitute their judgment for the determination of an administrative agency, so long as that determination is not plainly capricious.11

2. Condonation of the Leafleting

The Company next challenges the Board's finding that the Company condoned, or forgave, the distribution of the "Health Warning" leaflets by some of the strikers. On Monday, November 7, 1966, the Company's personnel manager, Wortham, interviewed thirty-seven strikers who appeared at the plant seeking reinstatement. The Company maintains that the purpose of the interviews was to screen out from reinstatement those strikers who admitted to personal involvement in the leafleting, and the record indicates that the interviewees were in fact asked about their relationship to that effort. Wortham testified that he made a list of fourteen interviewees who admitted participation, and none of them were reinstated. The Board's finding of condonation is based on the fact that three employees, Parker, Smith, and Reese, who were...

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