Summit Mining Corp. v. National Labor Relations Bd.

• Decision Date: 28 October 1958
• Docket Number: No. 12573.,12573.
• Citation: 260 F.2d 894
• Parties: SUMMIT MINING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

260 F.2d 894 (1958)

SUMMIT MINING CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12573.

United States Court of Appeals Third Circuit.

Argued September 16, 1958.

Decided October 28, 1958.

Horace E. Smith, York, Pa. (Thomas H. Reed, York, Pa., Charles W. Wolf, Gettysburg, Pa., on the brief), for petitioner.

Thomas Ryan, Washington, D. C., and Falls Church, Va. (Jerome D. Fenton, General Counsel, Thomas J. McDermott, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Frederick U. Reel, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before GOODRICH, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

This is a petition to review and set aside an order of the National Labor Relations Board¹ requiring the Summit Mining Corporation to cease and desist from refusing to bargain collectively with the United Cement, Lime and Gypsum Workers' International Union, AFL-CIO and to take other affirmative action. The Board in its answer asks enforcement of the order.

The case originated on October 2, 1956, on a charge filed with the Board by the union alleging unfair labor practices within the meaning of Section 8(a), subsections (1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1), (3) and (5).² Specifically, the charge alleged discriminatory discharges resulting from interest, activity, or membership in the union, refusal to bargain collectively with the union, and coercive action by the petitioner which restrained its employees' rights guaranteed by Section 7 of the Act.³ The Board adopted the findings, conclusions, and recommendations of the trial examiner which were to the effect that petitioner had violated Sections 8(a) (1) and (3) of the Act by discharging six employees because they went on strike to protest the lawful discharges of a foreman and a rank-and-file employee. It was further found that petitioner violated Section 8 (a) (5) of the Act by refusing to bargain collectively with the union as the exclusive representative of its employees in an appropriate unit.

On August 23, 1956, all ten of petitioner's production and maintenance crew, as well as three foremen, signed applications for membership in the union. The following day Speciale, a union representative, addressed a letter to petitioner, advising petitioner that the union represented a majority of its employees and requesting a conference. Petitioner replied by letter dated August 30, 1956, and a conference was held on September 7. Speciale again advised petitioner that virtually all its employees had designated the union as their representative. When petitioner's attorney asked how the problem might be resolved (i. e., the request for recognition), Speciale stated, "There are two ways to resolve our problem; one would be for the company to recognize the union on a card check; or we could go to an NLRB election." Petitioner chose the latter method and the union that same day filed a representation petition with the Board. A hearing on the petition was duly set for September 21.

Two days prior to the scheduled hearing petitioner, acting upon the recommendation of Foreman John Baltzley, discharged employee Merl Phillips for what have been admitted were lawful reasons. The next day Baltzley was also discharged upon his refusal to sign a statement concerning Phillips' discharge. That evening a majority of the employees met with Roth, another union representative, and discussed among other matters the discharges of Baltzley and Phillips, both of whom had previously signed applications for union membership. The employees asked Roth to seek reinstatement of the two discharged employees, indicating that they were prepared to strike in support of this demand.

At the representation hearing on September 21, Roth's request for reinstatement was refused by petitioner, whereupon Roth stated that reinstating the two would "avoid trouble." After the hearing Roth informed Baltzley and Phillips that his efforts in behalf of reinstatement had been unsuccessful, and at their request he furnished them several picket signs bearing the name of the union. Later the same day two employees approached petitioner's production manager, Beard, and stated that the union would not be responsible for what happened unless the plant was closed within thirty minutes. One of the employees indicated that a strike would be called unless the two discharged employees were reinstated. Beard refused to reinstate Baltzley and Phillips and ordered the plant closed. Whereupon, six of the nine employees then in the bargaining unit (the others then being on another shift) left the plant and formed a picket line. Still later the same day, petitioner decided to discharge the strikers and accordingly mailed them their final paychecks the following day, September 22.

The picketing which began on September 21 continued until November 12, 1956. Meanwhile, on October 1, the union withdrew its representation petition and subsequently filed unfair labor practice charges with the Board. Three of the six strikers applied for reinstatement on November 12 and were subsequently reinstated.⁴

Petitioner contends that the Board's findings are erroneous as to all three of the charges of unfair labor practices. For the reasons set forth herein, we feel the Board's determinations correct insofar as they relate to violations of Sections 8(a) (1) and (3). However, we are constrained to agree with petitioner's contention that there has been no refusal to bargain, § 8(a) (5).

Specifically, as to the unfair labor practice charge predicated upon Section 8(a) (1) of the Act, petitioner contends that the six discharged employees, who struck in support of a request for reinstatement of Baltzley and Phillips, were not engaged in a concerted activity such as is protected by the Act since it was not for the purpose of advancing their own cause or for their mutual aid or protection. A number of courts have considered this problem. Perhaps the clearest and most concise treatment of the subject is to be found in National Labor Relations Board v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 1942, 130 F.2d 503, 505-506, wherein Judge Learned Hand said:

"When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a `concerted activity\' for `mutual aid or protection,\' although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is \'mutual aid\' in the most literal sense, as nobody doubts."

The fact that the discharges being protested were lawful (i. e., not unfair labor practices in and of themselves) does not preclude a strike in protest thereof being protected. On the contrary, Cusano v. National Labor Relations Board, 3 Cir., 1951, 190 F.2d 898; National Labor Relations Board v. McCatron, 9 Cir., 1954, 216 F.2d 212, certiorari denied 1955, 348 U.S. 943, 75 S.Ct. 365, 99 L.Ed. 738, and National Labor Relations Board v. Globe Wireless, 9 Cir., 1951, 193 F.2d 748, all stand for the proposition that 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.

Principal reliance has been placed by the petitioner upon three cases, only one of which — Joanna Cotton Mills Co. v. National Labor Relations Board, 4 Cir., 1949, 176 F.2d 749 — appears to warrant extended discussion.⁵ In that case an employee was reprimanded by a supervisor for loitering and operating a lottery device. He became angry and abusive and began to circulate a petition demanding the supervisor's discharge. For such activity he was discharged. The Court of Appeals found that the petition was merely a continuation and aggravation of the original defiant conduct of the employee and was in no sense the engaging in "concerted activity" for mutual aid or protection contemplated by the Act. In reaching that conclusion the court recognized that "The petition cannot be viewed apart from the circumstances which give rise to it * * *." 176 F.2d at page 753. The circumstances of the instant case, as found by the trial examiner, can be summarized as follows: the strike was in protest of the discharge of a rank-and-file employee as well as a foreman; both discharged employees were applicants for membership in the union; the movement for reinstatement was approved at a meeting of employees who had applied for membership in the union; a union representative presented the demand for reinstatement to the petitioner; fellow applicants for union membership instituted the strike to enforce their demands for reinstatement; and the union's approval was indicated by the picket signs furnished the strikers. Thus, the case before us is factually dissimilar from the Joanna Cotton Mills case.

Petitioner further contends that the trial examiner, and later the Board, erred in finding an unfair labor practice under Section 8(a) (3) inasmuch as the record fails to establish that petitioner intended to discourage union membership by the discharge of the strikers.

In essence, petitioner asserts that a subjective test should be applied in analyzing its action. Two of the cases principally relied upon by petitioner fail to support this contention and in reality support the opposite conclusion; namely, that an objective test should be utilized. National Labor Relations Board v. Whitin Machine Works, 1 Cir., 1953, 204 F.2d 883; National Labor Relations Board v. J. I. Case Co., 8 Cir., 1952, 198 F.2d 919. If the discharges had the proximate and predictable effect of...