decided: March 3, 1976; As Amended May 18, 1976.
Petition by NLRB for enforcement of its order in case #75-4018 against the respondents for violations of §§ 8(a). (1) and (3) of the National Labor Relations Act; for enforcement of its order in case #75-4045, approving a settlement agreement entered into by the General Counsel of the NLRB and the Union, settling charges against the Union, over the objection of charging parties Martin A. Gleason, Inc. and J. N. Garlick Funeral Homes in case 75-4047 who petitioned for a review of the Board's order approving the settlement. In #75-4018 the case is remanded in part for further findings but otherwise the Board's petitions for enforcement are denied; in #75-4045 enforcement is granted; and in #75-4047 the petition for review is denied.
Kaufman, Chief Judge, Anderson and Van Graafeiland, Circuit Judges. Kaufman, Chief Judge (Concurring and Dissenting).
These petitions are from three cases which arose out of the same labor-management dispute, and which, for purposes of review, have been consolidated in this court. In case number 75-4018 the National Labor Relations Board (Board) found that Martin A. Gleason, Inc. (Gleason) and Gutterman Funeral Home, Inc. (Gutterman), New York corporations, had committed violations of §§ 8(a) (1) and 8(a) (3)*fn1 of the National Labor Relations Act (the Act). Pursuant to § 10(e) of the Act,*fn2 the Board seeks enforcement of its decision and order issued December 6, 1974, that each respondent cease and desist from its improper conduct; that they make their respective employees whole for any loss of income suffered as a result of the improper conduct; and that they post the usual notices. In case number 75-4045, the Board, pursuant to § 10(e), seeks enforcement of its order of January 21, 1975, approving a settlement stipulation entered into by the General Counsel and Local 100, Service Employees International Union, AFL-CIO. In case number 75-4047, Gleason and J. N. Garlick Funeral Homes (Garlick), the charging parties in the Board's action against Local 100, petition for review of the settlement order.
Gleason and Gutterman are both members of the Metropolitan Funeral Directors Association, Inc. which, through its Labor Relations Division, has for a number of years bargained with Local 100 on behalf of those of its members requesting it to do so. The collective bargaining agreement between Local 100 and the Association had expired on October 9, 1973. On October 12th, while negotiations over a new contract were at an impasse, Local 100 called a strike against just three (none of which was Gleason or Gutterman) of the thirty-five members of the Association.
The members represented by the Labor Relations Division, in considering possible united action against this "whipsaw" strike, agreed that they did not want to support*fn3 the strike against the three establishments, but that each member would decide whether to lock out its unit employees (licensed funeral directors) as a countermeasure. Eighteen members elected to lock out their employees, while fourteen decided not to do so. The strike and lockouts continued until a new collective bargaining agreement was reached approximately two months later.
Charged violations by Martin A. Gleason, Inc.
On October 13th, Gleason's president, John Gleason, called three of his four unit employees -- Albert Phillips, Robert Gallagher, and Frank Connelly, Sr.*fn4 -- into his office and informed them, by reading from a prepared text, that at the close of business that day all union members (which included all of its licensed funeral directors, as this was a closed shop) would be locked out for the duration of the strike. At that time Gallagher said he did not wish to be out of work and asked Gleason whether there was anything he could do to remain employed at his job.
There was conflicting testimony concerning the reply given by Gleason. Connelly, Sr.'s version was that Gleason said the men were no longer under any obligation to the Union because the contract had expired and, if they resigned, they would be accepted back to work; that they would have to notify the Union of their resignation either by telephone or telegram; that when Connelly asked whether they would be able to rejoin the Union if a contract were subsequently reached, Gleason said the Union would have to readmit them so that at most it would cost them a new initiation fee and they could not be fined or otherwise discriminated against; and that Gleason told them to think it over and let him know their decision which, in any event, would cause no hard feelings.
According to Gleason, Gallagher and Phillips, however, the substance of Gleason's response was that he could not discuss the matter with them.
Phillips telephoned Gleason on the evening of October 13th and stated that he had decided to resign from the Union. He asked what would happen if he showed Gleason a telegram of resignation, and he was told that he would be permitted to return to work. Phillips reported for work on October 14th and was allowed to remain after he gave Gleason a certification from Western Union that the telegraphic message of resignation had, in fact, been sent to the Union.
Gallagher returned to work on October 15th or 16th and was allowed to remain at his regular job when he presented Gleason with proof that he had resigned from the Union.
Frank Connelly, Jr., telephoned Gleason on October 15th and asked what alternatives there were to being locked out; he was told that the only thing he could do was to resign from the Union. In response to other inquiries by Connelly, Jr., concerning possible alternatives, Gleason told him that if he did not resign from the Union he could not return to work, but he did not at any time specifically ask Connelly, Jr., to resign. Gleason also told him that the new contract would have a "no-recrimination" clause.
Connelly, Sr., said Gleason had stated that employees could return to work only if they resigned from the Union. Neither of the two Connellys resigned from Local 100 nor returned to work until the strike ended.
The Administrative Law Judge (A.L.J.) was of the opinion it was not necessary "to resolve testimonial conflicts between . . . witnesses." He concluded that Gleason "conditioned a return to work during the strike upon its employees' resignation from the Union, albeit upon the suggestion of the employees themselves and with the understanding that the employees would rejoin the Union thereafter." He held that Gleason violated both § 8(a) (1) and § 8(a) (3) by "using his control over the employment relationship as the lever for influencing the employee's exercise of his statutory right." He further found that as long as Gleason required its employees to resign from the Union in order to return to work, it was irrelevant "whether the employer expressly and affirmatively solicit[ed] the resignation or merely grasp[ed] the opportunity extended by the employee, who, knowing resignation to be the only possible way of returning to work, himself propose[d] it."
The A.L.J. also held that the conduct of Gleason on February 11, 1974, shortly after the NLRB issued its complaint against Gleason and Gutterman, constituted a violation of § 8(a) (1). On that day, Gleason had called Connelly, Sr., into his office and asked him if he would be willing to obtain for Gleason a copy of the statement Connelly, Sr., had given to the Board. Connelly stated that he had no objection and shortly thereafter wrote a letter to the Regional Director requesting a copy of his statement, adding,
"I am doing this at the request of my employer. I would like to ask you if this will jeopardize my position in this matter. I don't believe that it will but I want to be sure. If you consider this hazardous please advise me."
The Regional Director provided Connelly, Sr., with a copy of his statement but no advice.
Gleason also asked Phillips, Gallagher, and Connelly, Jr., if they would be willing to let him have copies of the statements they had made to the Board. They each indicated that they had no objection and obtained the copies for him.
The findings and conclusions of the A.L.J. relative to each of Gleason's alleged violations of §§ 8(a) (1) and (3) were adopted by the Board, with certain additional comments on the law.
Charged violation by Gutterman Funeral Home, Inc.
At approximately 1:00 a.m. on the morning of October 14th, Gutterman's secretary, Michael Gutterman, called shop steward Frank Marinaro and one August Tolomie, both of whom were strong union adherents, into his office and informed them of Gutterman's decision to lock out its union employees and that "no members of the local [could] continue to work." Marinaro offered to notify the other unit employees and his offer was accepted by Michael Gutterman. None of Gutterman's unit employees resigned from the Union, and none returned to work until after the strike had ended.
Although Gutterman denied that there was any mention by anyone concerning resignation from the Union, Marinaro and Tolomie stated that Gutterman told them that, on advice of counsel, they would have to notify the Union of their resignation, in writing, if they wanted to return to work; that they could rejoin the union after the dispute was settled; and that Marinaro asked if Gutterman would compensate them for any fine imposed by the Union, and Gutterman replied that there would be no fine.
The A.L.J. concluded, and the Board agreed, that the "plain import" of Michael Gutterman's statement, "no members of the local [could] continue to work", was that non-members could work, and, therefore, employees who resigned from the Union would be allowed to return to work.*fn5 He also held that "in view of this message, no credibility determinations [were] needed. . . ." The A.L.J. concluded that Gutterman had violated §§ 8(a) (1) and (3) of the Act, and his findings and conclusions were adopted by the Board.
Both the Board, as petitioner, and each of the respondent employers have based their arguments in these three cases on the holdings in four Supreme Court cases, NLRB v. Truck Drivers Union (Buffalo Linen), 353 U.S. 87, 1 L. Ed. 2d 676, 77 S. Ct. 643 (1957); NLRB v. Brown, 380 U.S. 278, 13 L. Ed. 2d 839, 85 S. Ct. 980 (1965); American Ship Building Co. v. NLRB, 380 U.S. 300, 13 L. Ed. 2d 855, 85 S. Ct. 955 (1965); and NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 18 L. Ed. 2d 1027, 87 S. Ct. 1792 (1967), as they bear upon the strike, the lockout, the refusal by the employers to give jobs to the locked out employees while they were members of the Union, the resignations of two employees and their return to work for Gleason, Inc. during the lockout.
In Buffalo Linen the Supreme Court held that a temporary lockout, conducted by a multiemployer bargaining group, in the absence of specific proof of unlawful motivation, in order to preserve itself against disintegration threatened by a "whipsaw" strike, i.e. a defensive lockout, was lawful. In Brown the Court held that employers engaged in a lawful lockout, like that in Buffalo Linen, may continue their operations during the lockout by hiring temporary, nonunion, replacement employees, if the employers have a valid, business-purpose justification for doing so. In American Ship Building the Court stated that an employer may stage an offensive lockout in order to protect his legitimate bargaining position and to exert economic pressure on the union. The Court left unresolved, however, whether during such a lockout, the employer could replace its employees with permanent or temporary help. In both Brown and American Ship Building, the Court indicated that violations of §§ 8(a) (1) and (3), in such a lockout context, require a showing of unlawful motivation (i.e. some element of anti-union animus) on the part of the employer in addition to findings of discrimination and discouragement of union membership.
The matters of unlawful motivation and employer conduct which are "inherently destructive of employee interests," as they interrelate with "business purpose justifications," are analyzed and discussed in NLRB v. Great Dane Trailers, supra, 388 U.S. at 32-34. At page 34 the Court said,
"From this review of our recent decisions, several principles of controlling importance here can be distilled. First, if it can reasonably be concluded that the employer's discriminatory conduct was 'inherently destructive' of important employee rights, no proof of an antiunion motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is 'comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct ...