United Merchants and Manufacturers, Inc. v. National Labor Relations Board

ALBERT V. BRYAN, Senior Circuit Judge,

dissenting:

For me the decision of the National Labor Relations Board is unacceptable as wanting in evidence to uphold it and as abrogative of the principles laid down by this court in like instances of strikers’ refusal to leave the employer’s work area.

By way of preface, I mention that the Board itself concluded that the discharge of the two employees — Mendoza and Valbuena — for signing out the other’s time card was not an unfair labor practice. Replying to Mendoza’s charge of a violation by the employer of section 8, NLRA, 29 U.S.C. § 158 , in her termination, the Regional Director wrote her that “further proceedings are [not] warranted” and “[T]here is insufficient evidence ... to controvert the employer’s assertion that you and Zenaida Valbuena were discharged for cause rather than for any protected concerted activity.” General Counsel reviewed his action, and denied her appeal for the same reasons. These facts are not now noticed by the Administrative Law Judge or the Board.

In his letter the Director also observed that his decision did not affect her additional charge “that the 15 employees who walked out of work on the evening of April 8, 1975, to protest the discharge of yourself and Valbuena were themselves illegally discharged in violation of section 8(a)(1) of the Act . . ..” Thus all the protesting employees were protesting a lawful discharge.

Concerted action taken in protest against lawful discharges of fellow employees is nonetheless protected activity under section 7, NLRA, 29 U.S.C. § 157 , and as a general rule the discharge of such protesting employees is an unfair labor practice under section 8 of that Act. Be that as it may, the facts found by the Board disclose to me that the employees who declined to leave the coding section in their protest were permissibly discharged. The protected nature of a protest derives primarily from its purpose. However, employee misconduct —suc test of its protected status despite merit originally in purpose.

The facts here reveal an unwarranted disruption by the defiants. Mendoza refused to recognize her lay-off, and the Supervisor had to remove her things from her desk. When the others in the coding section heard Supervisor Beska release Mendoza, some 40-45 of them congregated in the area and decided to appeal her disemployment, but awaited the result of Mendoza’s submission of their protest to the Manager. In conference with her, he sustained the Supervisor’s order. Upon learning of the Manager’s reaction, all of the coding clerks stopped work and gathered in that space discussing the two dismissals. With this hindrance none of those desiring to do so could resume their work.

The effect was a significantly hurtful retardation of the Company’s operations. The coding consisted of the preparation of an average of 26,000 forms per day for computer use by those with whom the Company had contracts to do so. The forms had to be finished by 11:45 o’clock each night, and any delay during the shift from 5:00 o’clock until the delivery hour seriously hampered the scheduled production and created a substantial impact upon the Company’s economy.

With this in mind, the Supervisor requested that the employees resume their work. They refused, and persisted in standing and talking with each other. Aggravating the confusion was the circumstance that 35 of them were Filipinos speaking in their native tongue.

Next, the Manager instructed the Supervisor to tell them again to go back to work or else to sign out and leave. The Supervisor relayed this message to the employees. For the second time, they ignored these instructions, with unremitting discussions, *1281 and so impeded the dispatch of the tasks of the section. They named one of their number to approach the Supervisor and ask for a hearing by the Manager. Their desire was honored, with the stipulation that he talk to a representative. Meanwhile the Supervisor for a third time told the employees to resume their work or leave, yet commotion prevailed throughout and the assemblage continued. Some stood on their desks, others sat on them.

While the representative conferred with the Manager, she intimated that there would be a walkout. At that time the Supervisor entered the office and reported that the protesters were still congregating in the coding space. Repeated directions to return to their posts did not end the defiant and idle occupancy of the section. The coding area had been taken over and occupied by non-workers, with suspension of all possibility of work for 25 minutes.

The blockage of all functioning of the section was unjustified and warranted the Company in discharging them. Their protests had been received, deliberately weighed and promptly answered. It was their duty then to leave the area. The right of protest conceded, employees cannot disrupt the work area in demonstration of their protestations. This canon of conduct was violated here, for the strikers did not leave the coding section until the Supervisor let them go into the cafeteria.

An almost identical analogue to this case is Cone Mills Corp. v. NLRB, 413 F.2d 445, 450-51 (4 Cir. 1969). There 15 to 20 employees called a work stoppage in protest of the discharge of a fellow-worker., A typical experience of the manager, Wright, with one of the workers was recounted in the opinion in this way:

“Wright then asked, ‘Noah, are you on strike? If you are on strike, you have to leave the plant and if you don't leave the plant or go back to your job, then I’ll have to discharge you.’ Lewis again stated that the men were protesting the discharge of Johnson. Lewis was thereupon discharged by Wright.

“. . . Some of the group then returned to work while others remained standing in the corridor between machines, some of which were stopped and some of which were still running.” (Emphasis supplied.)

Eight employees in all were terminated in' this way; they had remained at their locations in the plant for approximately a half-hour. The parallel of the situation here and the applicable law were squarely laid out in the opinion of Judge Boreman:

“The record is clear that a number of the protesting employees returned to their machines when requested to do so. They were not discharged for participating in the protest. Those who remained away from their work exhibited a defiant and rebellious attitude. Substantial evidence indicates that they were told to return to work or leave the premises and they refused to do either. We think management made a reasonable distinction between protesters who abandoned their work stoppage and returned to their machines and those who defiantly insisted upon carrying on and prolonging the work stoppage on company property during working hours.

“Few rights, including the right to strike in protest, exist without corresponding duties and obligations to those against whom the right is being asserted. When one attempts to exercise a claimed right he cannot, in all fairness, disregard his corresponding duty and obligation with impunity. We conclude that the Company was not in violation of section 8(a)(1) of the Act in discharging the eight employees and we deny enforcement of the board’s order to reinstate them.” (Emphasis supplied.) 413 F.2d at 454 .

Nor was this principle waived presently by the failure of the Company to discharge the remainder of the protesters. This omission was doubtlessly dictated by a business judgment to meet the deadlines of production. In any event the employees can hardly complain of the tolerance. Actually, the Board’s decision faults the Company for its restraint in not discharging all obstructive employees as soon as the Company had the right to do so.

*1282 In NLRB v. Clearfield Cheese Co., 213 F.2d 70 (3 Cir. 1954), a Board order to reinstate discharged striking employees was modified to exclude' compulsory reinstatement of 21 employees guilty of picket line misconduct. The Board had ruled that voluntary reinstatement of some of the guilty waived the company’s right to deny reinstatement to any in that group. The Court, overturning this ruling held:

“[ W]here the employer sees fit to waive its rights to terminate because of misconduct the employment of particular employees it can hardly be assumed to have foreclosed itself from rejecting any other employees in the same category.” 213 F.2d at 75 .

Compulsory reinstatement of the offending 21 was denied.

The present case and Cone Mills are akin, and the outcome here is controlled by our earlier decision. It should not now be abandoned.