# Ltv Electrosystems, Inc. v. National Labor Relations Board > Court of Appeals for the Fourth Circuit · March 28, 1969 · 408 F.2d 1122 URL: https://www.frixlaw.com/law-library/cases/9454396 ## Case - **Full name:** LTV ELECTROSYSTEMS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** March 28, 1969 - **Citations:** 408 F.2d 1122; 70 L.R.R.M. (BNA) 3132; 1969 U.S. App. LEXIS 13042 - **Precedential status:** Published - **Opinion:** Concurring in part by Winter - **Judges:** Winter, Bryan, Craven - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454396 ## Opinion text WINTER, Circuit Judge (concurring in part and dissenting in part): I agree that Geuvremont, Henchock, J. B. Miller and Tedford, as champions for Metcalf, Cooper and Turner, “were acting in protected concert and could not be discharged,” but I dissent from the majority’s overturning the Board’s finding that they were, in fact, discharged by the company and from the majority’s refusal to enforce that portion of the order which would reinstate them with back-pay. In all other respects, I join in the majority opinion. Metcalf, Cooper and Turner justifiably were discharged. As the majority opinion correctly states, this discharge precipitated concerted activity by 13 of their co-employees. When the assembled employees, some of whom had tools in hand, confronted Production Manager Henry, the record is clear that their purpose was to remonstrate what they thought (erroneously, we find) was the unjustified discharge of Metcalf, Cooper and Turner. For practical purposes, Henry refused to discuss the matter. He directed those who did not have their tools to get them and he sent the lot to Joe Strange, the Industrial Relations supervisor. When, collectively, they met with Strange in the personnel office, Strange did talk to each, individually, in the presence of Henry. Prior to talking to Strange, the employees were relieved of the company tools in their possession through a checkout by the security officer. As the trial examiner found, Strange told each that there was a job for them and that it was Strange’s understanding that they were voluntarily quitting. Henchock replied that “if that is what it is called, that is what I’m doing.” Gue-vremont and Miller responded that they were walking out in sympathy with the dischargees; and Tedford, that he was walking off in protest of the discharges. In the context in which they were made, these responses fell quite short of a manifestation of any intention permanently to resign employment. They were temporary suspensions of work activity in protest of an alleged grievance. At the conclusion of each interview, Strange tendered the employee a “termination notice” which specified as the ground for dismissal “personal reasons.” Several days later, when they sought to reclaim their jobs, the strikers were denied reinstatement; they had been replaced on the following day. While I agree that the strikers were not unfair labor practice strikers, as the Board found (because Metcalf, Cooper and Turner were justifiably discharged), they were economic strikers, engaged in protected concerted activity, as the trial examiner, correctly, in the view of the majority and in my view, found. As such, they were entitled to protection against discharge because of the exercise of their § 7 rights. Simmit Mining Corp. v. N. L. R. B., 260 F.2d 894, 897 (3 Cir. 1958). See, Northern Virginia Steel Corp. v. N. L. R. B., 300 F.2d 168, 174-175 (4 Cir. 1962) ; N. L. R. B. v. Greensboro Coca Cola Bottling Co., 180 F.2d 840, 843-844 (4 Cir. 1950). Yet the trial examiner and the Board found that the four were discharged for this reason; and on this record, I think that finding is unassailable. The company’s representatives unmistakably knew that these workers were protesting what they thought was an unwarranted company decision and were strikers. What the company offered was a choice of abandoning their protected activity or of being considered as having voluntarily quit their employment. In a similar situation, where the employer told a group of employees who walked out in protest against what they considered to be an unfair discharge that “they *1130 had quit and ordered them off the premises,” we found an unlawful discharge. N. L. R. B. v. Greensboro Coca Cola Bottling Co., supra, at 843-844. See also, Filler Products, Inc. v. N. L. R. B., 376 F.2d 369, 378 (4 Cir. 1967) ; N. L. R. B. v. Comfort, Inc., 365 F.2d 867, 874-881 (8 Cir. 1966). The support in the record as a whole for the correctness of the finding that the strikers were illegally discharged is neither diluted nor overcome by the fact that the employees took their tools with them when they left. In intimating to the contrary, the majority confuses cause and effect. When the employees thereafter left, taking their tools with them, they had been discharged. Such action, rather than “precipitous behavior” evincing “a definitive, unconditional resolve to depart without a present intention to come back” was simply a manifestation of the human reaction to protect one’s own property when the company, on whose premises the incident occurred, had evidenced an unmistakable intention to bar them from future access to the premises. If such action on the part of the strikers did not evince such a resolve, it can have no effect in com-batting the finding as to the company’s action. Since the finding of discharge was supported, it follows that § 8(a) (1) was violated. See, N. L. R. B. v. Mackay Radio and Tel. Co., 304 U.S. 333, 344-348 , 58 S.Ct. 904 , 82 L.Ed. 1381 (1938). The argument that, had they been treated as strikers, they could have been immediately replaced from the abundant supply of other workers simply begs the question. The fact is that they were discharged. The appropriate remedy for unlawfully discharged economic strikers is reinstatement with backpay from the date of their application for reinstatement, N. L. R. B. v. Cowles Pub. Co., 214 F.2d 708 (9 Cir.), cert. den. 348 U.S. 876 , 75 S.Ct. 110 , 99 L.Ed. 689 (1954). Thus, Guevremont, Henchock, Miller and Ted-ford, having sought reinstatement, are entitled to be reinstated as the Board’s order required. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454396. Public record. Not legal advice.