# National Labor Relations Board v. Fleetwood Trailer Co., Inc. > Court of Appeals for the Ninth Circuit · September 8, 1966 · 366 F.2d 126 URL: https://www.frixlaw.com/law-library/cases/9452180 ## Case - **Full name:** NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLEETWOOD TRAILER CO., Inc., Respondent - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 8, 1966 - **Citations:** 366 F.2d 126; 63 L.R.R.M. (BNA) 2155; 1966 U.S. App. LEXIS 5026 - **Precedential status:** Published - **Opinion:** Dissent by Ely - **Judges:** Ely, Pope, Barnes - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed by National Labor Relations Board v. Fleetwood Trailer Co., 389 U.S. 375 (1967). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9452180 ## Opinion text ELY, Circuit Judge (dissenting): I do not agree with the result reached in the majority opinion, and I cannot accept the reasoning which produces it. When a workman chooses to join his fellows in an economic strike he takes certain risks. Among these is the risk that he may be unable to regain his position after the strike if another workman has permanently replaced him. E. g., NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-346 , 58 S.Ct. 904 , 82 L.Ed. 1381 (1938). There were no permanent replacements in the jobs in question here, but it is said that the striking employees lost their preferential status because their jobs were “abolished” or their work was “absorbed” by other employees. This I cannot see. Before the strike, there were about one-hundred-ten employees. When the strike ended the number had decreased to seventy-one. It is undisputed that the employer always held the intent to resume full production as quickly as possible following the termination of the strike and, with the same haste, to return to the full complement of its prestrike labor force. When the strike was terminated, the six employees here involved, almost immediately, made applications for reinstatement into their positions. The majority holds that these applications were ineffective because the employer did not yet, at the very time the applications were received, have the jobs available. In the light of the employer’s expressed intention to fill the positions “as quickly as possible”, this holding cannot, I submit, be justified. I would hold that reinstatement applications of economic strikers should continue in operative effect until the time when the normal course of resumed production creates the necessity to accomplish the intended reopening of jobs which have remained unabolished and not permanently absorbed and in which there have not been permanent replacements. ' No other persons had replaced the striking workmen in the jobs which they had held before the strike and which they resought after the economic differences had been adjusted. Their jobs had not been “abolished”, for “abolish” means “to do away with wholly” or “to destroy completely”. The fact that the challenged hirings were made within about six weeks after the strike had terminated should conclusively establish that the work of at least three jobs 1 had not been permanently “absorbed” by others. If a striking workman should not be denied his preferential rights unless there has been a permanent replacement, then he should not be denied those rights unless there has been complete abolition of his job or permanent absorption of his work by others. There was no such permanence here. The Board has made factual determinations, which, if supported by substantial evidence, we are obliged to uphold. 29 U.S.C. § 160 (e); NLRB v. Mrs. Fay’s Pies, 341 F.2d 489, 492 (9th Cir. 1965). As I see the evidence, it is so substantial in its support that the Board’s decision, in its principal thrust, was compelled. I believe that my Brothers misapply the decisions in two cases, the facts in neither of which I can see as being analogous to those before us. One, Chauffeurs, Teamsters and Helpers General Local No. 200 v. NLRB, 233 F.2d 233 (7th Cir. 1956), enforcing the order in Atlas Storage Division, 112 N.L.R.B. 1175 (1955), dealt with a job wherein the work of the economic striker who formerly occupied it had been permanently absorbed. It was held that the striker was not entitled to reinstatement in a job which the employer, for economic rea *132 sons, had abolished or the work of which had been absorbed. The court held that so long as the employer did not discriminate against the striker in rehiring, it had no obligation to seek him out. The striker sought to replace an employee who had been injured. The job was not, as were those here, one which had become available as the employer followed the course of expressed intention to rebuild its labor force and production to the prestrike level. There is no indication in the cited opinion that the employer intended to or actually did resume its prestrike labor force, and the court in no way indicated that it would approach the two situations in a similar manner. The second case involved economic strikers who had been permanently replaced during a strike. Brown and Root, Inc., 132 N.L.R.B. 486 , 493 (1961). The number of the replacements exceeded the number of striking workers. These are significant facts, and they are contrary to the facts in the ease at bar. When, in Brown and Root, the Board wrote, “In the circumstances of this case, we hold that [the employers] had no obligation to seek out or prefer the [economic] strikers for vacancies which opened up after their application. * * * ”, its remarks were clearly directed to the facts before it. Inasmuch as the labor force in Brown and Root, Inc. exceeded the prestrike number at the time of the strikers’ applications for reinstatement, it seems undeniable that the vacancies occurred because of the need to replace workmen who had already permanently replaced the striking workmen. If I have properly distinguished the cited cases from the present case, as I believe I have, the majority’s direct and rather severe criticism of the Board is unjustified. The right to strike is a precious right. It is, too often, the workman’s only weapon and his only shield against oppression. The majority opinion can have no other effect than to intimidate those who believe themselves to be economically aggrieved, especially those who, for long tenure, have earned valuable benefits which they should not be required to expose to new risks, judicially created or enlarged by an inferior tribunal. It seems to me that our court now imposes an unnecessarily restrictive impairment upon the free and lawful exercise of a laborer’s will. I would enforce the order of the Board. 2 . See footnote 2, infra. . The majority opinion reveals that when the reinstatement applications were made, there was a labor force of seventy-one and that when the October hirings occurred the number had decreased to sixty-eight. Therefore, as to the six hirings of that time, three of the available jobs might be found to be of the same nature as those in Brown and Root, Inc., supra, i. e., jobs vacated by three permanent replacements. If this were true, then I would not, of course, enforce the order, as written, in its entirety. If the views expressed in my dissenting opinion had been shared by one of my Brothers it would then have been necessary to face, four-square, the effect of the nonpreferential hiring agreement between the union and the employer. No present purpose could .be served by an indication of my opinion on this question. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9452180. Public record. Not legal advice.