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National Labor Relations Board v. Kennametal


May 24, 1950


Author: Goodrich

Before MARIS, GOODRICH and HASTIE, Circuit Judges.


This petition for enforcement of an order of the National Labor Relations Board presents the question whether a single spontaneous brief work stoppage inspired by wage grievances is an activity protected by the National Labor Relations Act, 29 U.S.C.A. § 141 et seq.*fn1

The facts were found by the Board and are not disputed. The respondent operates a plant at Latrobe, Pennsylvania. At the close of the war it discharged half of its employees and in effect reduced the wages of the remainder by downgrading them to lower paying jobs. The result was general dissatisfaction among the employees, who at the date of the events herein relevant were not unionized or represented by any formal collective bargaining agency. On January 31, 1947, seven or eight employees were gathered around a water fountain during working hours discussing a wage increase which had reportedly been won after a strike at a neighboring plant. Someone suggested that the group should immediately present it wage grievances to Philip McKenna, respondent's president. As the men headed toward the executive offices, their number swelled to approximately 100. In the office area, the men were ordered by the assistant plant superintendent to return to work at once. When they refused, the employees were told to proceed to the company cafeteria, where McKenna would speak to them.

Four days after the meeting in the cafeteria, respondent's officers decided to discharge Walter E. Saxton, Paul Bengel, Evan A. Lloyd and Kelley Hurd. The Board found, and respondent frankly concedes, that it was decided to dismiss the four men because they were the leaders in the work stoppage. The men involved were not told of the decision until a week after it had been made because it was feared that an earlier disclosure would embarrass a pending meeting between management and employee representatives chosen at the cafeteria session. Hurd, one of the four scheduled for discharge, was reinstated.

The Board found that respondent had committed unfair labor practices as defined in Sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C.A. §§ 158(a)(1), 158(a)(3), and ordered reinstatement of the three discharged men with back pay. 80 N.L.R.B. 1481 (1948).

Section 8(a)(3) of the Act proscribes discriminatory discharges whose aim is the discouragement of membership in "any labor organization."*fn2 Respondent says that the group activity described above was not that of a labor organization 8(a)(3). This argument is interesting but it crumbles when put against the broad language used in the statute in defining the term.*fn3 It seems perfectly clear to us that the employees who informally joined together to present their grievances in this case fall well within the statutory definition. We therefore agree with the Board that Section 8(a)(3) of the Act has been violated.

The Board also concluded that Section 8(a)(1)*fn4 of the Act had been violated. The respondent argues that the employees' conduct here was not of the sort protected by the statute. We disagree. What occurred in this case was certainly a concerted activity for the purpose of collective bargaining, the kind of activity which is expressly protected by Section 7 of the Act.*fn5 That the employees suddenly dropped their tools and insisted upon presenting their grievances during working hours does not detract from the lawfulness of their conduct. Certainly the statute would have protected them against interference or coercion if instead of insisting upon immediate discussion of their demands they had then and there left the plant and formed a picket line outside. In fact, what the workmen did was more reasonable and less productive of loss to all concerned than an outright strike.

The language of the Act does not require and its purposes would not be served by holding that dissatisfied workmen may receive its protection only if they exert the maximum economic pressure and call a strike Our conclusion that a spontaneous work stoppage like this one is protected by the Act is in accord with Gullett Gin Co. v. N.L.R.B., 179 F.2d 499 (5th Cir. 1950); Carter Carburetor Corp. v. N.L.R.B., 140 F.2d 714, 717-718 (8th Cir. 1944).

The employer relies upon two decisions to support his contention that the employee activity here is not sanctioned by the Act. We think, however, that neither is apposite One of them, U.A.W. v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949), holds that a union stratagem of calling recurrent or intermittent unannounced stoppages to win unstated ends is not a protected activity and a state may constitutionally legislate against it. Cf. comment in International Union, etc. v. O'Brien, U.S. (May 8, 1950).The U.A.W. decision does not hold that a single spontaneous work stoppage such as we have here is unlawful.

The respondent also relies upon that part of this Court's decision in N.L.R.B. v. Condenser Corp. of America, 128 F.2d 67, 77 (3d Cir. 1942), which deals with the discharge of employee Marion Panzarella. There we held that "Employees cannot insist that their demands be met in the middle of a working day, when the employer has promised to deal with them as a group at the end of the day." The employees in the Condenser case had apparently acquiesced to the arrangement suggested by the employer and then without reason changed their minds. The promissory element is not present here.

This disposes of the legal points raised and further detailed discussion is undesirable. What the Nine Circuit said a decade ago is even clearer now. "* * * the time has come when the fundamentals underlying the Wagner Act need not be the subject of treatises in every opinion * * * for enforcement * * *." N.L.R.B. v. Tovrea Packing Co., 111 F.2d 626, 630 (9th Cir. 1940).

The order will be enforced.

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