Elam v. National Labor Relations Board
Elam v. National Labor Relations Board
Opinion of the Court
The National Labor Relations Board found that on May 7, 1966 A. H. Belo Corporation (Company) acted in violation of § 8(a) (1) of the National Labor Relations Act
The Board ordered the Company to cease and desist from the conduct found to be unlawful and from interfering with its employees’ rights under § 7 in any other manner, to post the customary notice, and to offer to the employees unlawfully discharged reinstatement to the same or equivalent jobs, with backpay to run from 10:30 p. m. on May 7, 1966.
The order is before this court on the petitions to review filed by the boys (in No. 21047), and the Company (in No. 21176), and the Board’s cross-petition for enforcement of its order.
On the central question we find there is substantial evidence, related in considerable detail in the Board’s decision,
Unrepresented employees who spontaneously refuse to work, thereby protesting grievances concerning working conditions, are engaged in concerted conduct for “mutual aid and protection” that is protected by § 7 of the Act.
All the boys got from Mr. Wilson, however, was a promise to talk to Mr. Blum “and see what I can do in the next three or four weeks.” When the boys said they wanted something more definite than that and sooner, Mr. Wilson falsely stated he didn’t know how to contact Mr. Blum. Mr. Wilson declined the offer of one of the boys, Melton, to pay for Wilson’s call to Blum and declined permission for Melton himself to phone Blum. When Melton asked if he could “give us something more definite,” Wilson replied: “Well, no, I can’t. Maybe in the next three or four weeks * * *. Now you all can either get back to work or get out.”
The boys withdrew from work at this point and assembled to continue to discuss their grievances and act in concert thereon. Later they sought to return to their jobs. There is substantial evidence that the Company wrongfully treated the action of the boys in walking off their jobs and refusing to abandon their protected activity as constituting “ipso facto a termination of their status as employees.” Collins Baking Co. v. NLRB, 193 F.2d 483, 486 (5th Cir. 1951). The Company treated them as though they had quit, rather than as economic strikers, told them they did not work for the Company any longer, removed their names from the list of mail-room employees to be called on for special mailings, and late that evening denied them reinstatement when they attempted to return to work. Thus the Company discharged them, and this was contrary to the act. NLRB v. Cowles Publishing Co., 214 F.2d 708 (9th Cir.), cert. denied, 348 U.S. 876, 75 S.Ct. 110, 99 L.Ed. 689 (1954).
There is further evidence that the discharge was in reprisal for this protected activity. The Company’s contention that the boys were subject to discharge because they congregated in the Company’s parking lot in violation of orders to disperse is not available on appeal since the Company did not raise the misconduct issue before the Board. Presumably that is why the Company brief is unable to cite any evidence that this was the reason for the discharge — a void which also precludes reversal on this ground.
The culmination of the discharge was found to have come when the Company denied reinstatement late May 7. The Company claims that by this time the boys had been replaced. It had the burden of proof on this issue. Its evidence shows that it made provisional arrangements to maintain operations, including use of the Boy Scouts. But the record supports the Board’s conclusion that the Company failed to show that it had arranged permanent replacements until after the boys were denied reinstatement.
The petitioners in No. 21047 complain that the Board erred in failing to adopt the bargaining order recommended by the Examiner. The Board has wide discretion in fashioning a suit
The petitions to review are denied. The Board’s cross-petition for enforcement of its order is granted.
So ordered.
. 29 U.S.C. § 151 et seq. (1964).
. The decision and order of the Board, including that of the Examiner insofar as adopted by the Board, are reported at 165 NLRB No. 8 (1967).
. NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).
. NLRB v. Fibreboard Paper Products Co., 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964).
. Since the denial of reinstatement at 10:30 p. m. on May 7 was the culmination of the evidence on discharge, the use of that time for computation of backpay is plainly not unreasonable. Golay & Co. v. NLRB, 371 F.2d 259, 263 (7th Cir. 1966), cert. denied, 387 U.S. 944, 87 S.Ct. 2079, 18 L.Ed.2d 1332 (1987).
. See United Steelworkers of America, AFL-CIO (Roanoke Iron & Bridge Works) v. NLRB, 129 U.S.App.D.C.-, 390 F.2d 846 (Nos. 20336, 20514, December 27, 1967).
Reference
- Full Case Name
- Lewis E. ELAM, Jr. v. NATIONAL LABOR RELATIONS BOARD, A. H. Belo Corporation, Intervenor. A. H. BELO CORPORATION, NATIONAL LABOR RELATIONS BOARD, Lewis E. Elam, Jr., Intervenors
- Cited By
- 1 case
- Status
- Published