National Labor Relations Board v. R. C. Can Company

JOHN R. BROWN, Circuit Judge.

This ease 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 Union ² 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 wtih 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 Emplpyer'was legally justified in following such a course. Steps were taken to carry on production. Essentially this was tó 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 2y¡y' 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 2stock had built up, the 2%," 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 inventoi’ies 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 2yy' 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 214" 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 bargaining in any real sense if the employer has to deal with individuals or splinter groups. And just as attempted negotiation with such groups or individuals would make a mockery out of bargaining, so, too, must bargaining negotiations by a single agency be kept free from divisive pressures generated by dissident elements. On the other hand, a union is, or at least should be, a democratic device. The very reason for its existence is the existence of its members and others for whom the law says it acts. Consequently, the law should be slow to declare that members cannot speak effectively in behalf of their own organization and the aims and objectives which it collectively seeks to assert in their behalf. In these conflicting policies, there may be found a basis for resolution: is the action of the individuals or a small group in criticism of, or opposition to, the policies and actions theretofore taken by the organization? Or, to the contrary, is it more nearly in support of the things which the union is trying to accomplish? If it is the former, then such divisive, dissident action is not protected. N. L. R. B. v. Draper Corp., 4 Cir., 1944, 145 F.2d 199, 156 A.L.R. 989; Harnischfeger Corp. v. N. L. R. B., 7 Cir., 1953, 207 F.2d 575; Plasti-Line, Inc. v. N. L. R. B., 6 Cir., 1960, 278 F.2d 482. If, on the other hand, it seeks to generate support for and an acceptance of the demands put forth by the union, it is protected so long, of course, as the means used do not involve a disagreement with, repudiation or criticism of, a policy or decision previously taken by the union such as, for example, a no strike pledge, a cooling off period, or the like during negotiation. Western Contracting Corp. v. N. L. R. B., 10 Cir., 1963, 322 F.2d 893.⁷

Viewed in this light, we find supportable the Board’s factual conclusion that this was concerted activity within the protection of the Act. There was no real difference between what these men were after and what the Union sought. The Union, as witness the hand bill and the meeting called for that purpose, was trying to get the Employer to sit down and talk. That, too, was the aim of these men. Although it is true that at the Union meeting there was no vote to strike, it is equally true there was no formal vote not to strike. In any event, the consensus that the Union would not strike at the present time was not communicated to the Employer. In no sense could it have affected the Employer’s response to the picket line. And one thing seems quite clear. The moment Lee learned of the action, he expressed a disappointment that the men had taken it. But in no way did he repudiate it. To the contrary, he told the men their action was protected, a position immediately corroborated by assisting in the preparation of the letters of unconditional application plus the telephone calls to production manager Smith. To cap it all, there is not a single stitch of evidence to indicate that this action put the Employer in any sort of quandary. It was not put in the position of choosing between the demands of the Union and the demands of these strikers. Whether protected or unprotected, the Employer regarded the action as an economic strike by some of its employees. And its reflex was simply to prepare for battle.

This brings us to the question of the Board’s order finding violation of § 8(a) (1) and (3) and the back pay provision during the period of non-employment. Since the men were engaged in protected activity, all recognize that they enjoyed rights equivalent to economic strikers. Thus, none could compel the Employer to discharge a person hired to serve as a replacement during the strike. On the other hand, if the job position had not been filled by a replacement, the economic striker was entitled to be reinstated to his former job without discrimination for having participated in the strike. Reinstatement would also be subject to the general principle, most frequently applied in the case of established discrimination but equally applicable where none is found. This principle recognizes that if, since the time of the protected activity, conditions have actually changed so that the particular job has been abolished, an employer need not create a new job or revive the old. In that situation the remedy has to be adapted to such economic-business conditions⁸

The Employer here attacks the Board’s order, first, by challenging the existence of the requisite discriminatory motive and, second, by asserting that there was no work and hence no jobs until inventory conditions required increased production at which time the men were put back to work.

In support of the first, the Employer argues with considerable basis that when the strike was precipitated by this small group, there was, at best, doubt as to its protected or nonprotected status. Consequently, it was entitled to make an investigation on which to base its inclusion and thereafter pattern its conduct accordingly. We can assume that it was entitled to investigate. Cf. N. L. R. B. v. Dan River Mills, 5 Cir., 1960, 274 F.2d 381, at 388; N. L. R. B. v. Minute Maid Corp., 5 Cir., 1960, 283 F.2d 705, 710; Hendrix Mfg. Co. v. N. L. R. B., 5 Cir., 1963, 321 F.2d 100, 105. Obviously, this would take time. Had an investigation really been made and on it a conclusion reached, we could further assume for the purposes of this case that for the intervening period of time required to make the investigation, no back pay could be ordered. And, at least for the purposes of this problem we could assume that no back pay would be due if the Employer’s decision, held and determined in good faith, turned out actually to have been unfounded. Cf. Rubin Bros. Footwear, Inc. v. N. L. R. B., 5 Cir., 1953, 203 F.2d 486; N. L. R. B. v. Burnup & Sims, Inc., 5 Cir., 1963, 322 F.2d 57, cert. granted, 1964, 375 U.S. 983, 84 S.Ct. 518, 11 L.Ed. 2d 472.

But these propositions and assumptions are here unavailing. The record amply supports the Board’s finding, express or implied, rejecting the claim that reinstatement was deferred pending investigation. The simple fact is that there is no proof that any such investigation was made, or that such investigation or its conclusion brought about either the 2% weeks’ suspension or the Employer’s notice of re-employment as of February 19. It is true, of course, that production manager Smith told the men late that afternoon that their reemployment would have to await an “investigation,” a statement repeated to them the following morning and later, to Lee on his telephone inquiry. Likewise, on February 5, when a committee called on Smith about reinstatement, he again deferred decision pending the “investigation.” ⁹ But if an investigation ever was made, there is no proof at all either as to what was done or what was looked for. Smith’s recollection was a virtual blank, and the Company’s lawyer, who legitimately suggested an investigation, did not supply the missing link when, voluntarily relinquishing any professional privilege, he took the witness stand to offer testimony as to certain activities during bargaining. Perhaps more important, the re-employment of the men resulted, not from the investigation or its conclusion, but rather from the need for increased production.

The Employer’s claim of a right to investigate has unusual significance under these circumstances. For what is put forward as a justification either for. failing to re-employ or delay in re-employment turns out to be nonexistent. Although the Employer, strictly speaking, had no burden of going forward to justify its conduct, cf. N. L. R. B. v. McGahey, 5 Cir., 1956, 233 F.2d 406, when it sought to do so and the ground turned out to be unestablished, the Board was certainly entitled to regard this as a significant element on the crucial question of discriminatory motivation.

The other justification urged for the delay in rehiring was the asserted lack of work for the strikers seeking reemployment. Ordinarily the question of whether there were jobs still open to be refilled or work to do would relate only to the problem of the remedy, e. g., reinstatement, back pay, or the like. Here, however, it serves a dual purpose bearing on motivation as well as remedy.

In analyzing this aspect of the ease, we reject one theory emphasized by the Board. It runs this way. The strike terminated at least by 3:45 p. m. on Wednesday, January 31. This was, of course prior to 7:00 a. m., February 1, at which time the former afternoon shift, reshuffled to meet the strike, was to go on duty. Therefore, failure of the Employer to assign the normal shifts, day and afternoon, on February 1 was so unreasonable as to itself prove punitive anti-union motive. But this, as is often the case, is here too equivocal on which to base the crucial finding. N. L. R. B. v. Citizens Hotel Company, 5 Cir., 1964, 326 F.2d 501.

We think the element of reasonableness or unreasonableness is completely immaterial here. What was done, viewed in the light of the Employer’s general practice and, more important, its purpose just prior to the strike, affords ample basis for the Board’s 8(a) (1) and (3) conclusion.

The Employer’s regular practice was a benevolent and generous one. When production declined, it tried to find other work and jobs to which its regular employees could be assigned. Frequently this took the form of maintenance work, painting, cleaning up the plant, etc. On this occasion, the share-the-work policy was applied by the decision announced Friday, January 26, to institute on the following Monday, January 29, the afternoon shift to alleviate in substantial part the decision to suspend production on the 2^4 " roll line. This plan was actually put into effect on Monday, January 29, by eliminating the 21/i" roll line on the first shift and the addition of an afternoon shift for the 2" biscuit line.

Then the strike hit. It was too late to make changes for the afternoon shift so it went on as scheduled. But management, faced with the reality of the strike, some time prior to 3:45 p. m. that afternoon made the decision to discontinue the newly instituted afternoon shift and assign such workers to the day shift commencing the following morning, February 1. Of course by the following morning, February 1, the strike was over and all knew it. Shortly the strikers asked for reinstatement.¹⁰

Why were the men not reinstated? The Employer answers, first, that an investigation was being made, a reason which might have been adequate had the inquiry actually gone on to final decision in good faith. Second, and now more critical, the Employer answers: the men were not re-employed because there was no work. In support of this second answer, the Employer makes a formidable showing which we can fully credit concerning its current inventories on both the 2" and 2:!4" products. We can accept also the Employer’s proposed conclusion that there was no real need for the production which these strikers would have achieved had they been re-employed. But the simple fact is that this did not represent any change of condition. This situation was exactly the same as it was the morning before when the men went out on the ill-timed, ill-starred strike.¹¹ It is true, of course, that the added production from these men was not needed. Neither was it on Wednesday. Nevertheless the Employer had for its own good reasons, benevolent or otherwise, made the decision for production to go forward on two shifts. There was only one new factor: the strike. Had not the strike taken place, each of these men would have been working on Thursday, February 1. Had they been working, they would have been producing articles which the Employer’s evidence shows quite strongly were not needed. The only reason, therefore, that these men were not working is that they had gone out on strike.¹²

Whatever might have been the subjective motives of the Employer, it is now clear that an employer may not visit this sort of consequence upon employees who engage in rights protected by the Act. If this conduct is not interference with, restraint, or coercion of employees in the exercise of rights guaranteed by § 7, 29 U.S.C.A. § 157, constituting a violation of § 8(a) (1), then most assuredly it is conduct condemned by § 8(a) (3). The element of anti-union discriminatory motive essential to § 8(a) (3) is sufficiently present when, as it must be, the conduct is judged objectively, not subjectively, in terms of the likely consequences under the facts of this specific setting. N. L. R. B. v. W. L. Rives Co., 5 Cir., 1961, 288 F.2d 511, at 516; and also N. L. R. B. v. Dalton Brick & Tile Corp., 5 Cir., 1962, 301 F.2d 886, at 895-897, discussing at length Local 357, International Brotherhood of Teamster's, Chauffeurs, Warehousemen and Helpers of America v. N. L. R. B., 1961, 365 U.S. 667, 81 S.Ct. 835, 6 L.Ed.2d 11; Radio Officers Union of Commercial Telegraphers Union, AFL v. N. L. R. B., 1954, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455. Neither of the two reasons put forward by the Employer — (1) investigation, (2) no-work — turns out to be well founded as the cause for failure to reinstate. The only change in circumstance resulting in employment versus-non-employment is the fact of the intervening momentary strike. The Board was, therefore, eminently justified in its-conclusion that, viewed objectively, this-was discrimination (a) precipitated because of protected activity, and (b) obviously having a discouraging effect on union membership. Reaching that conclusion, the Board was also entitled to-order back pay during the short period of suspension. N. L. R. B. v. Holcombe, 5 Cir., 1963, 325 F.2d 508. That the result might well have been different¹³ had there been an actual change in economic business conditions resulting in no work, the abolition of a particular job, or the like, does not help the Employer here. There was change, to be sure. But the change was the strike, its commencement and its termination. And that was not enough.

Order enforced.

1 . R. C. Can Company.

2 . United Steelworkers of America, AFL-CIO. No local union was formed.' The Union representative was J. A. Lee, an employee of the International.

3 . Of the three, Scott, its chairman, instigated the walkout strike and was joined by member Brewer. The third member, Huffman, was on a different shift.

4 . The normal, desired, stock of 2” biscuit cans was between 850,000 and 1,000,000. On January 31, it is undisputed that stock was 1,376,008.

5 . In addition to rescheduling the second shift to the day shift, the Employer attained the necessary production force by adding to the duties of a leadman, transferring an office girl and a factory hand into the shipping department, and working approximately six hours overtime. Supervisors had to “help out” but this appears to have been a customary practice whenever occasion required it.

6 . As of February 19, 1962, the inventories were:

Item Quantity

2" biscuit cans . 944,604

2yy roll cans 428,676

7 . As the dissent in that case points up, the decision cannot really rest on the fact that ultimately a majority of the union members voted expressly to support the quickie sit-down because this was precipitated by minority action. See also the dissent of Judge Swygert in N. L. R. B. v. Sunbeam Lighting Co., 7 Cir., 1963, 318 F.2d 661, at 665, in which he expressly rejects the thesis of the two separate concurring opinions that the matter is to be determined by the presence or absence of a majority of the union members in any such conduct.

8 . N. L. R. B. v. American Aggregate Co., 5 Cir., 1962, 305 F.2d 559, 563-565; N. L. R. B. v. American Steel Bldg. Co., 5 Cir., 1960, 278 F.2d 480, 482; N. L. R. B. v. Biscayne Television Corp., 5 Cir., 1961, 289 F.2d 338, 340.

9 . As to Scott, Smith’s remarks indicated that their investigation ivas complete on receipt of the unemployment compensation application showing that Scott “had quit” in a labor dispute.

10 . The Board, with ample basis, fixed the reinstatement application as to employee Gerald Williams as February 8, 1962.

11 . There was, of course, the production of the first shift on Wednesday, January 31, interrupted as it was by the strike, plus that of the afternoon shift. But there is no evidence whatsoever to indicate either what that was in terms of 2" biscuit cans, or that management considered this one-day addition of any significance.

12 . The substitute employees were not really “replacements.” They were regular employees who, had there been no strike, would have been working for the Employer doing substantially the identical or related work. In addition some clerical office workers were shifted to production though their regular jobs were not abolished or filled by others.

13 . See, e. g., the cases cited in note 8, supra.