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06/18/82 Road Sprinkler Fitters v. National Labor

June 18, 1982






Before WALD, MIKVA and EDWARDS, Circuit Judges.




Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board


Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge: These consolidated petitions for review present a question of apparent first impression in the Courts of Appeals. The case arose out of complaints of employer unfair labor practices during a union organizational campaign in late 1977. Relying on its decision in Drug Package Co., 228 N.L.R.B. 108 (1977), enforced in part, 570 F.2d 1340 (8th Cir. 1978), the National Labor Relations Board ("NLRB" or "Board") ruled that where a majority of employees have participated in a strike for union recognition and where the employer has engaged in contemporaneous and widespread illegal conduct that justifies the imposition of a retroactive bargaining order, the striking employees are entitled to reinstatement as unfair labor practice strikers as of the time when they made unconditional offers to return to work. For the reasons set forth below, we deny the petitions for review and grant enforcement of the Board's order. I. BACKGROUND

A. The Union Organizational Campaign and the Ensuing Strike *fn1

John Cuneo, Inc. (the "Company") is a Tennessee corporation with an office and place of business in Chattanooga, where it designs, manufactures and sells fire protection sprinkler systems. On September 15, 1977, Road Sprinkler Fitters Local Union No. 669 (the "Union") held an organizational meeting at the Chattanooga Ramada Inn. Union representatives met with eight of the Company's fourteen fabrication shop employees and distributed union authorization cards, which the eight employees read, signed and returned to the representatives. Later that day, three night-shift employees who had not attended the Ramada Inn meeting also signed union authorization cards.

The next day, union representatives met with Company President Bob Splawn. They informed him that a majority of the shop employees had selected the Union to represent them for the purposes of collective bargaining. Splawn refused to recognize and bargain with the Union and told the representatives to go to the National Labor Relations Board. Meanwhile, another union representative traveled to Atlanta, Georgia to file a representation petition with the Board's Regional Office.

Immediately after refusing the Union's demand for recognition, splawn contacted the Company's labor counsel. Splawn then called Gerald Hall, the senior shop employee, into his office and questioned him about the organizational drive and Hall's own views of the union activity. Hall declined to discuss the matter. Later that day, President Splawn again summoned Hall into his office, where Splawn and the Company's labor counsel interrogated Hall concerning his knowledge of the Union.The Company attorney also asked Hall a series of questions designed to establish his possible status as a supervisor and asked Hall to sign a statement saying that he was a supervisor. Hall refused to comment on the union or to sign the statement.

Following the second meeting with Hall, Splawn summoned Supervisor Fay Collins and asked him who had signed the authorization cards. When Collins replied that he did not know, Splawn directed him to find out. Shortly thereafter, Collins told Ted Hall, one of the shop employees, that Splawn had ordered him to find out what he could about the Union, including which employees had signed authorization cards.

On Tuesday, September 20, Gerald Hall was called into Splawn's office for a third meeting. President Splawn again attempted to persuade Hall to sign a statement saying that he was a supervisor. When Hall refused, Splawn threatened to discharge him. Hall responded that he would "just have to be fired" and left. After a Company supervisor followed Hall and confided that Splawn did not really wish to fire him, the meeting resumed. Hall eventually agreed to sign the statement after Splawn told Hall that the Company's employees would not benefit from union representation. *fn2

Meanwhile, on September 20, the shop employees met and agreed that if the Company refused to recognize the Union on the following day, they would strike. The next day, union representatives again demanded that Splawn recognize and bargain with the Union. Shortly after Splawn refused, eight of the ten bargaining unit employees working on the day shift walked out and began picketing the Company. Within an hour, President Splawn came to the picket line, counted the striking employees and announced that if they did not return to their jobs in fifteen minutes they would be permanently replaced. The employees ignored Splawn's declaration and continued to picket. Later that evening the strikers were joined by three of the nigh-shift employees and by Gerald Hall and Supervisor Collins.

On September 22, Splawn hired a Pinkerton guard to observe the picket line. The guard and the Company's labor counsel each photographed the employees who were engaged in peaceful picketing on September 23. Subsequently, on October 14, another Company representative photographed a lone picketer at a secondary location.

Also on September 22, Splawn interviewed and hired two striker replacements. As the replacements were leaving the plant, striker Michael Green approached their car and threatened them. The replacements drove away, but Green and another person followed them in another car for about four miles. Green repeatedly drove past the replacements' car and then slowed to a halt in front of them in unsuccessful attempts to stop the replacements. When the replacements arrived at their destination, they called President Splawn and told him what had occurred.

On October 6, while the strike was still in progress, Green contacted Supervisor Izell about returning to work. Izell told Green that no positions were then available, but that he would be contacted when one opened up. On October 20, the Company sent Green a telegram advising him that a position was available and that he could return to work subject to discipline for any picket line misconduct. When Green arrived for work on October 24, two of the striker replacements identified him as one of the individuals who had threatened and followed them on September 22. Green also left work early on October 24 without notifying anyone. The next day Izell confronted Green with the information about the replacements' identification of him and with a query about his early departure from work on October 24. Following their meeting, Izell suspended Green pending investigation of his picket line activity and his asserted reasons for leaving work. Green was later discharged when his explanation for leaving work early was not substantiated. Izell stated that Green's termination was due to his picket line misconduct, his early departure from work and his falsification of a reason for his departure.

The strike continued until November 14, when the Union forwarded to the Company seven strikers' unconditional offers to return to work. *fn3 None of the seven employees was immediately reinstated, however. Despite vacancies, the first two striking employees were not reinstated until February 1, 1978. One more striker was reinstated on February 20, 1978, and another on June 23, 1978. At the time of the hearing before the A.L.J., in September and November 1978, two of the employees still had not been offered reinstatement.3

When the first two striking employees finally returned in February 1978, President Splawn told them that they should not talk about the Union on the job. In addition, these two employees were warned, pursuant to a newly adopted tardiness rule, that they would be discharged if they were late for work three times. After they were late twice, a Company Foreman told them that they had one more chance. The evidence in the case indicated that only the reinstated strikers were made subject to the new tardiness rule.

B. The Proceedings Below

Based on the Union's unfair labor practice charges, the General Counsel of the NLRB issued complaints against John Cuneo, Inc., alleging that the Company had violated sections 8(a) (1), 8(a) (3) and 8(a) (5) of the Labor Management Relations Act (the "Act"), 29 U.S.C. ยง 158(a) (1), (3), (5) (1976), in its response to the union organizational campaign.

After several days of hearings, the A.L.J. found that the Company had violated section 8(a) (1) of the Act by interrogating employee Gerald Hall on three occasions, by threatening Gerald Hall with discharge if he failed to sign a statement saying that he was a supervisor, by creating the impression of surveillance of the employees' union activities through Supervisor Collins' conversation with Ted Hall, by engaging in surveillance through its photographing of employees participating in peaceful picketing, and by promulgating a rule prohibiting employees from engaging in union discussion at any time on Company premises. The A.L.J. also found that the Company had violated sections 8(a) (3) and 8(a) (1) by failing to reinstate economic strikers in a timely manner and by instituting and enforcing a new system of progressive discipline for tardiness in order to discourage Union membership. The A.L.J. further found that the Company had violated sections 8(a) (5) and 8(a) (1) by refusing, since September 16, 1977, to recognize and bargain collectively with the Union. On this point, the A.L.J. concluded that, because the employees were aware of the unfair labor practices that had occurred before September 21, the strike was an unfair ...

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