circumstances inferred loss of employee status in requirement to file “new” application
How later courts described this case
- circumstances inferred loss of employee status in requirement to file “new” application
Written by the judges who cited it.
The opinion
McALLISTER, Circuit Judge
(dissenting).
I am of the view that the respondent was not guilty of an unfair labor practice in presenting application blanks to the workers when they applied for work after the strike terminated. The circumstance that they were told that it was a new application does not, in itself, mean, or imply, that the workers were to lose their seniority upon signing applications and accepting re-employment. As to the statement by respondent that it was a new application, it was, in fact, a new application, in that the Interstate Commerce Commission had previously instructed respondent to secure written applications for employment in the future. The fact that such applications had, up to that time, only been tendered to new employees, does not indicate that old employees signing them, would lose any of their previously acquired rights. If there was any question in the minds of the employees to whom such application blanks were submitted for signature as to whether their signature would result in loss of seniority, or more onerous conditions of employment, the natural thing for them to have done would be to ask whether the signing of such an application meant loss of seniority or any disadvantage. For an employee to refuse to sign and to walk away without giving any reason for such action does not convict the respondent of an unfair labor practice. There was no> reason for any employees to conclude that the presentation of such an application for signature was made with the purpose of stripping them of any of their seniority rights. Respondent’s record with his employees had been unusually generous. He had repeatedly loaned them money while they were on strike against him. If they were going to claim that the mere presentation of the application forms was unfair to them, they should have so stated at the time, and given the reasons, rather than walking away in silence. I am, therefore, of the opinion that the order of the Board should not be enforced.