United Merchants & Mfrs., Inc. v. N.L.R.B.

• Decision Date: 09 May 1977
• Docket Number: No. 76-1465,76-1465
• Citation: 554 F.2d 1276
• Parties: 95 L.R.R.M. (BNA) 2369, 81 Lab.Cas. P 13,216 UNITED MERCHANTS AND MANUFACTURERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1276

554 F.2d 1276

95 L.R.R.M. (BNA) 2369, 81 Lab.Cas. P 13,216

UNITED MERCHANTS AND MANUFACTURERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 76-1465.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 10, 1976.

Decided May 9, 1977.

Joe H. Clark, Atlanta, Ga. (David M. Vaughan, Elarbee, Clark & Paul, Atlanta, Ga., on brief), for petitioner.

Joseph P. Norelli, Atty., N. L. R. B., Washington, D. C. (John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Jay E. Shanklin, Atty., N. L. R. B., Washington, D. C., on brief), for respondent.

Before BRYAN, Senior Circuit Judge, WINTER, Circuit Judge, and FIELD, Senior Circuit Judge.

WINTER, Circuit Judge:

On petition for review and cross-petition to enforce an order of the NLRB remedying the discharge of fifteen coding section employees, we must consider whether substantial evidence supports the Board's findings that the employees were discharged because they engaged in a protected walkout and that a brief work stoppage which preceded the walkout was protected concerted activity for mutual aid and protection. Finding such evidence, we grant enforcement.

I.

The evidence supporting the Board's ultimate findings follows:

United Merchants and Manufacturers, Inc. employed approximately forty unorganized employees of Filipino extraction in the invoice coding section of its Los Angeles plant during the evening shift. On April 8, 1975, supervisor Donald Beska called one of these employees, Rosemary Mendoza, into his office and, notwithstanding that it was customary for employees in the coding section to sign out for one another, he discharged her for having another employee sign out for her. The employee who signed out for Mendoza was also discharged. Another employee, Clarita Garcia, overheard Beska's discharge of Mendoza and reported it to the employees in the coding section, who decided to appeal the discharges but agreed to wait until Mendoza talked to the department manager, Baska's immediate supervisor, to see if he would overturn Beska's decision. The department manager, David Wronski, upheld Mendoza's discharge, and Mendoza returned to the coding section and told the employees of Wronski's action.

The coding clerks then stopped work and grouped in the office area to discuss the discharges. Beska told the employees to return to work but they refused and continued talking among themselves. Wronski instructed Beska to tell the coding clerks to go back to work or sign out and leave, and Beska did so. The employees ignored these directions and continued to discuss their future actions. The employees decided to designate Garcia to appeal the discharges to Beska. Beska reaffirmed his decision, and the employees sought a hearing with Wronski. Wronski agreed to talk to a representative of the employees, and Garcia was chosen. While Garcia was in Wronski's office, Beska continued to tell the employees to go back to work, but the majority refused and the work stoppage continued.

Meanwhile, Garcia, who was in Wronski's office, told him that the employees felt so badly about the discharges that there might be a walkout. Wronski still upheld the discharges. While Garcia was in the office, Beska entered the office and informed Wronski that the work stoppage continued, whereupon Wronski told him to "take the cards of those who walk out and terminate them."

Garcia then returned to the group of employees and informed them of Wronski's decision. The work stoppage had lasted twenty-five minutes at this time. Beska, in response to a request from Garcia, gave permission for the employees to take a break to discuss their action. The employees agreed to walk out for one night to protest the discharges and return the next night. As the employees left the meeting, Beska repeatedly told them "(i)f you leave tonight, you will be terminated so don't come back anymore." Only fifteen employees still walked out.

That night a number of the fifteen communicated with each other, and it was decided that Anita Dungca, who had an exemplary work record, would seek reinstatement at the start of work the next day as representative for that group. The others would meet her there and would apply if she were reinstated. Dungca went to Beska's office at 4:15 p. m. the next day and sought reinstatement. Beska denied reinstatement, telling her that Wronski had ordered the employees who walked out terminated. Dungca went to the other employees and told them there was no point in their returning to the plant since Beska had shown her a list of names of those who had walked out, and they were also terminated.

Work on the night of the walkout was completed by the employees who did not walk out, and employees recruited from other sections. The next day the company obtained fifteen replacements from an employment agency and utilized part-time employees to do the work of the fifteen.

In the weeks after an unfair labor practice charge was filed, four employees were offered reemployment and accepted. The employees who walked out were carried on the payroll which was prepared the following month, and no termination notices were ever sent to them even though it was the employer's practice to do so.

The Board concluded, on this record, that the work stoppage preceding the walkout was concerted activity protected by § 7 of the Act and that the employer had violated § 8(a)(1) of the Act by terminating the fifteen employees for engaging in a protected walkout. Inter alia, it ordered immediate reinstatement and back pay.

II.

A concerted work stoppage and walkout by unrepresented employees for their mutual aid and protection is protected by § 7 of the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9, 14-17, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); NLRB v. Hanes Hosiery Division, 413 F.2d 457, 458 (4 Cir. 1969); NLRB v. Greensboro Coca Cola Bottling Co., 180 F.2d 840, 843 (4 Cir. 1950). Irrespective of the employer's right to discharge the two employees for the time-card infraction, the employees had a right to protest the discharge of their fellow employee by appropriate means, including a strike. LTV Electrosystems, Inc. v. NLRB, 408 F.2d 1122, 1127 (4 Cir. 1969); NLRB v. Greensboro Coca Cola Bottling Co., 180 F.2d 840, 843 (4 Cir. 1950).

We see no need to argue the facts. There was substantial evidence to support the Board's findings that the employees were discharged solely because of the walkout. Beska repeatedly told them that if they left they would be "terminated" and "don't come back." Irrespective of Beska's general authority to discharge employees, the record shows that Wronski had instructed Beska to "take the cards of those who walk out and terminate them"; and the next day, when Dungca sought reinstatement, Beska told her that she had been terminated on "an order by Mr. Wronski." We give no credence to the employer's argument that Beska's choice of the word "terminate" was merely an inappropriate choice of words to convey the thought that the employees would be replaced so as not to create a disruption in the employer's business. In the instant case, unlike Redwing Carriers, Inc., 137 N.L.R.B. 1545 (1962), enforced sub nom., Teamsters Local 79 v. NLRB, 117 U.S.App.D.C. 84, 325 F.2d 1011 (1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 176 (1964), on which the employer principally relies, the employees, except for four, were not given an opportunity to return to work and the employer did not solicit their return. Indeed, when Dungca initially sought to return to work, she was refused and she was told that all employees who had walked out had been terminated.

III.

Having concluded that substantial evidence supports the Board's finding that the employees were discharged solely because of their walkout, we must still determine whether the work stoppage prior to the walkout was so flagrant as to remove the employees from the protection of the Act. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); Elk Lumber Co., 91 N.L.R.B. 333 (1950).

In Cone Mills v. NLRB, 413 F.2d 445 (4 Cir. 1969), we held that eight employees who stopped work protesting the discharge of a fellow employee did not engage in protected activity and, as a consequence, could be discharged. The department shop steward who led the work stoppage knew that a grievance procedure was available to the employees and was advised by the assistant manager to utilize that procedure. The assistant manager also requested the shop steward to get the men back to work. When the steward refused to go back to work, he was told either to leave the plant, go back to work, or he would be discharged. Declining to do the first two, he was discharged. Other employees who were given a similar choice and who followed the steward's example were also discharged. Some of these employees stated they would not return to work until the shop steward was rehired, and another employee indicated he would have to be evicted in order to be forced to leave.

We think that Cone is inapposite here. Unlike the employees in Cone, the employees in the instant case were not occupying the premises in defiance of the employer's rights, nor were they evincing a "defiant and rebellious attitude." Cone, 413 F.2d at 454; NLRB v. Pepsi Cola Bottling Co., 449 F.2d 824, 829 (5 Cir. 1971), cert. denied, 407 U.S. 910, 92 S.Ct. 2434, 32 L.Ed.2d 683 (1972) (interpreting Cone ). The employees here were unrepresented employees who did not have a grievance procedure to utilize. They therefore had resort only to other means to communicate their grievance. Appealing to their supervisors was one. Their conduct only lasted during the time that discussions with the employer were being carried on, and they were attempting to agree on their future actions. There were never any threats of violence by the...