National Labor Relations Board, Petitioner, v. Washington Aluminum Company, Inc., Respondent, 291 F.2d 869 (4th Cir. 1961)

This case is here on petition of the National Labor Relations Board for enforcement of two orders against the Washington Aluminum Company directing it to reinstate certain discharged employees (126 NLRB No. 162) and to bargain in good faith with a union which was chosen as the collective bargaining representative only by counting the challenged ballots cast by the discharged workers in a representation election (128 NLRB No. 79). Upon a review of the whole record in this case, for the reasons hereinafter discussed, we conclude that enforcement of both orders should be denied.

The Washington Aluminum Company is engaged in the fabrication of aluminum products at a plant in Baltimore, Maryland. As a part of its plant facilities, the company maintains a machine shop employing nine men, including a foreman and a shop leader. The machine shop is a rectangular structure with floor space measuring approximately forty by seventy-five feet. The shop contains two gas space heaters with a capacity of 85,000 B.T.U., one located in the aisle of the shop and the other at one end of the building. The opposite end of the shop is heated by an oil fired furnace with a capacity of 1,500,000 B.T.U. situated in an adjacent shop building designated as the "A" shop, which is equipped with ducts one of which carries heated air directly into the machine shop area. In November of 1958, an additional furnace with a capacity of 500,000 B.T.U. was installed in the "A" shop, and the two top rows of windows in the partition separating this shop from the machine shop were removed to allow additional heat from this new furnace to flow into the machine shop building.

Customarily on nights and weekends, these heating units are turned off when the plant is closed, not to be turned on again until 5:00 A.M. on the morning the work force is to return. However, on cold nights and weekends, the plant watchman, one Battaglia, who is charged with the responsibility of maintaining proper heating conditions in the plant during these times, is under standing orders to turn on all furnaces and heaters at such regular intervals as may be necessary to the maintenance of suitable temperatures throughout the plant.

On Monday, January 5, 1959, Battaglia turned on all the heaters and furnaces at approximately 1:00 A.M. and left them on for about one and one-half hours. At 5:00 A.M., he again started up the two gas space heaters in the machine shop and the smaller and newer of the furnaces in the "A" shop. He was unable, however, after several attempts, to put in operation the larger furnace in the "A" shop. When the machine shop foreman, one Jarvis, arrived for work he found the larger furnace in the "A" shop not functioning and he and Battaglia informed the plant electrician, Rose, upon his arrival at work sometime between 7:00 and 7:15 A.M., that the furnace was for some reason mechanically inoperative. This particular furnace had ceased functioning temporarily several times since its installation although it had always been easily and quickly repaired. Rose discovered on this occasion that a control switch in the back of the furnace was in a certain position which, though it would permit the blower fans to function, would keep the electrodes from igniting the furnace fire. He immediately manipulated the control to its automatic position and the furnace shortly thereafter commenced to heat up in its normal manner. This mechanical adjustment had been made by approximately 7:30 A.M. and by the time the work whistle first sounded calling the employees to work.

The diminished heat output in the machine shop, due to the temporary functional failure of the large "A" shop furnace, was accentuated by the unusual weather conditions then prevailing in the Baltimore area. The temperature at 8:00 A.M. was but 15°, the high reading for the entire day was only 22° and the low reached 11° for an average reading of 17°, which was a minus 18° deviation from normal readings for the month. The low temperatures were additionally accentuated by the highest wind velocities recorded for the whole month.

Due to the extremely cold weather, the company president, one Rushton, had gone to the plant at ten o'clock on Sunday evening, January 4, to direct Battaglia to make certain that the plant's heaters and furnaces were turned on frequently during the night so as to insure proper working conditions when the employees came to work the following morning.

When the machine shop employees did report for work Monday morning between the approximate times of 7:10 and 7:30, they found the machine shop to be noticeably and uncomfortably cold. The condition of the shop was variously described by the employees as "cold," "colder than other days," "colder than usual," "very cold," "real cold" and "extremely cold." When the first of the workmen to arrive, one Caron, the shop leader,¹  reached the machine shop he went directly to the foreman's office. During the course of an ensuing conversation, the cold condition of the shop was mentioned and foreman Jarvis remarked to Caron, at some point after the other shop employees had arrived, that "if those fellows had any guts at all, they would go home." Although there was some question as to the import intended by Jarvis,²  and as to the exact phrasing, there was no dispute that this statement, or one similar thereto, was in fact made. Shortly thereafter Caron went back to the machine shop work area and repeated Jarvis's remark in the presence of the other workers, none of whom had then started work. Caron thereupon told the other employees he was leaving and asked what they intended to do. He then left the machine shop alone but was closely followed by six of the other employees. Although there was an unwritten but well-known and long established company rule requiring that any employee leaving work first obtain permission from his foreman, and though the seven employees who walked out were admittedly familiar with this rule, none sought the permission of Jarvis before leaving.³ 

Immediately after his conversation with Caron and shortly before the subsequent walkout, Jarvis left the machine shop to go to the plant shipping department, returning only a "few minutes after the whistle had blown" or a little past 7:30 A.M. As he entered the shop, Jarvis saw several of the men heading toward the exit. Before he had reached the departing workmen, Jarvis passed by one Tafelmaier, another machine shop employee, and requested that Tafelmaier stay at his machine, which he did. Jarvis testified that during the time of his brief remarks to Tafelmaier the seven other men had gone out of the shop and, consequently, he had no opportunity to inquire as to their reasons for leaving or to request them also to remain.⁴ 

The immediate result of the walkout was to leave only Tafelmaier and Jarvis himself in the machine shop. In order to complete what general plant foreman Wampler termed "critical" jobs that were at the time being processed in the machine shop, Wampler supplied Jarvis with two temporary workers who had to be taken from their normal assignments in other departments of the plant. At approximately 8:20 A.M., company president Rushton arrived at the plant and, noticing these men and the absence of the seven regular workmen as he passed through the machine shop, asked Jarvis what had occurred. When he was told the men had walked out before starting work, he said to Jarvis, "We are going to terminate them." Rushton then called Jarvis and plant manager Tarrant to an office, discussed the situation with them and told them of the final decision to discharge all of those who had walked out. Four of the men, Adams, George, Hovis and Olshinsky, were sent telegraphic notices of dismissal by the company personnel officer. When employee Affayroux returned to the machine shop at 9:00 o'clock that same morning from a nearby restaurant where he had gone for a cup of coffee, Jarvis personally informed him of his discharge. The remaining employees, Heinlein and Caron, were then contacted and notified by telephone.

Although there was some question as to the actual time at which a final and effective decision to terminate the men had been reached,⁵  they were undeniably discharged within a short time after the walkout and before replacements had been hired. Although there was further dispute as to the company's real motivation for the discharges,⁶  the Trial Examiner concluded that the employees participating in the walkout had been engaged in a "concerted refusal in the course of their employment to perform any services for Respondent [the company] in protest of certain working conditions, to wit, the failure of Respondent to supply adequate heat in their place of employment." Since the men were thus determined to have been "economic strikers," the Trial Examiner then held the discharges made before replacements were hired unlawful under section 8(a) (1) of the act, 29 U.S.C.A. § 158(a) (1), and that the employees therefore retained their employee status and were entitled to reinstatement with back pay.

The Board affirmed the Trial Examiner's report, modifying it only by adding particular emphasis to the testimony of employee Hovis to the effect that " [w]e all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way;" the testimony of three of the discharged employees as to prior complaints about cold conditions in the machine shop; and the circumstance of the men leaving in a body, all at about the same time. There was one element in the intermediate report, however, not touched upon or developed by the Board in its opinion, which we believe points up the crucial factor precluding enforcement of the Board's orders in this proceeding.

In the text of his report, the Trial Examiner alluded only briefly to the presentation or specification of a demand or grievance by the employees by noting "the fact that they [the employees] were discharged before they had an opportunity to formally elect a committee to deal with the Respondent [the company] with respect to the adjustment of their grievance (as argued by the Respondent) is of no moment." While we do not intimate that it should ever be thought that employees not represented by a union are required to effect some sort of formal organization of a grievance committee of their fellows to submit their claims to management prior to a concerted protest of employer practices thought to be unfair, the record here before us manifests a conspicuous and total absence of any action on the part of the employees to attempt to make inquiry concerning the causes of their physical discomfort or to present their claims or demands to the company prior to the walkout.

There is little question that working conditions in the company's machine shop were less than comfortable on the morning of the walkout. The employees all testified that the shop on this morning was "cold" if not "extremely cold"; employee George testified that when he arrived at work that day he found a small icicle on one of the pipes of the water cooling system of a welding machine; employee Tafelmaier, the one worker not joining in the walkout, worked that morning until about 10:30 wearing his overcoat; foreman Jarvis testified that the shop was "a bit uncomfortable" until around 10:00 A.M. and that it was not until lunch time or shortly thereafter that the men then working in the shop removed extra coats or sweaters they had worn during the morning. In addition, Caron testified that shortly before the walkout he had observed his fellow workers "huddled" together and "shivering" in the cold.

It is apparently undisputed that the coldness was in great part attributable to inclement weather on one of the coldest days experienced during the winter of 1958-59, and that the abnormal freezing temperatures were intensified by the most severe winds of the entire month. Moreover, it is clear the company was fully aware of its responsibilities to combat these conditions for, although the plant watchman was under standing instructions as stated, the company president himself visited the plant the evening before the walkout to insure that adequate heat would be provided the employees the following morning. While the watchman was unable to fully carry out these orders, this was undeniably due to the unexpected mechanical failure of one of the plant furnaces, a condition beyond the control of the company and one quickly and effectively remedied. The plant electrician attended to the matter immediately after his arrival at work, the furnace was operative by the time the men were to have started work at 7:30 A.M., it was heating to its full capacity within five to eight minutes thereafter, within twenty minutes heat from its directional ducts was being forced forty or fifty feet into the machine shop, and before lunch time this area had been heated to normal working temperature.

There was some variation in the testimony of the employees as to the real reason for the walkout.⁷  But even if it be assumed their sole purpose was to protest the low temperature of their place of employment, we do not believe their actions should be considered a protected activity under the facts and circumstances here presented. One of the fundamental policies of the National Labor Relations Act, 29 U.S.C.A. § 151 (1958), is to secure industrial peace and prevent strife and disruption by encouraging negotiation and peaceful procedure for the attempted settlement of the demands of a party. That is not to say that employees may not, under any circumstances, exert concerted pressure on their employer in their efforts to gain compliance with their demands. However, the office of a demand as a condition upon the use of concerted pressures is well recognized. As this court stated in Jeffery-De Witt Insulator Co. v. N. L. R. B., 4 Cir., 1937, 91 F.2d 134, 138, 112 A. L.R. 948:

"`* * * A "strike," in such common acceptation, is the act of quitting work by a body of workmen for the purpose of coercing their employer to accede to some demand they have made upon him, and which he has refused.'"⁸ 

An important and necessary qualification of the right to exert pressure on an employer through work stoppages is that such pressure be exerted in support of a demand or request made to the employer.

In the instant case, none of the concerned employees made any statement before, during or subsequent to the walkout which alluded in any way to a demand that measures be taken to investigate or alleviate the cold in the machine shop.⁹  Each of the employees admitted he had made no attempt to ascertain the cause of the condition, and all testified they were unaware of the temporary failure of the larger "A" shop oil furnace and did not know it had been effectively repaired by the time they were to have started work. Had they made some effort to request improvement of the condition in the machine shop prior to abandoning work, it is evident from the record their efforts would have been rewarded. While the shop was undeniably cold at the time the men left, conditions in the shop gradually improved, as a result of the furnace repair, to the point where those then in the shop were working in normal comfort. Not only had the company, on its own initiative, done all that it could to relieve the cold before the walkout, there is nothing in the record to indicate that a requested adjustment of the problem could not otherwise have been effected. Indeed, the refusal of the employees to seek explanation of the cause of the condition and a correction is heightened by the unquestioned privilege they all possessed, that is, to simply request the plant maintenance man to turn up the thermostats on any or all of the various heaters and furnaces the men knew to be functioning at the time of their walkout.

In none of the cases cited by the Board in this proceeding was there the total absence of a demand by the protesting employees as is here apparent.¹⁰  In the instant case, without any sort of demand on the company, the involved employees summarily left their place of employment. Under such circumstances, it would be to disregard the obligation to present a demand for peaceful settlement, and contrary to the fundamental purposes of collective bargaining, to hold the employees' unilateral action a protected concerted activity. Where certain employees had refused to enter their place of employment without first making known the reason for such refusal or requesting any concession of their employer, in N. L. R. B. v. Ford Radio & Mica Corp., 2 Cir., 1958, 258 F.2d 457, 465, the court said:

"The duty to bargain collectively is but a facet of the underlying purpose of the entire Act in promoting and encouraging the peaceful settlement of labor disputes. Placing the activity here under the broad protection of section 7 would clearly frustrate that purpose. To hold that those engaging in a strike had an unfettered right to refuse not only to discuss their grievances but even to name them would, far from promoting the peaceful settlement of labor disputes, inject a judicially fashioned element of chaos into the field of labor relations. `The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace. * * *.'

"We do not hold as a matter of law that employees engaging in concerted activities must give formal or even informal notice of their purpose. However, where the employer from the facts in its possession could reasonably infer that the employees in question are engaging in unprotected activity, justice and equity require that the employees, if they choose to remain silent, bear the risk of being discharged."

We believe this principle particularly applicable where, as here, the cause of the objectionable condition was largely fortuitous and substantially beyond the control of the employer and was of but brief duration, and where, even beyond the neglected opportunity for inquiry, negotiation and settlement, effective measures had been taken by the employer before the protest was even staged. The company was afforded no opportunity to avoid the work stoppage by granting a concession to a demand of the employees.

The National Labor Relations Act has for one of its objectives the protection of employees in freely negotiating concerning unsatisfactory plant conditions and other conditions of employment without fear of reprisal, but the purpose of the act was not to guarantee to the employees the right to do as they please under any given set of circumstances and in total disregard of the obligations of their employment. In the instant case, regular production schedules involving "critical" purchase orders were disrupted; to do the work of those who absented themselves, employees were transferred from their regular jobs in other departments and there is no evidence that any of those so substituting suffered any ill effects other than temporary discomfort. With no reasonable justification, the employees left their jobs without first having obtained the necessary permission. In a situation where several employees, unprotected against the elements, left work early with the permission of the foreman and were later discharged by higher management on the basis of the foreman's report that they had left without permission, the Board held that since the basis for the discharges was a good faith belief that permission to leave had not been obtained, the discharges could not be said to have been discriminatory or an unfair labor practice in violation of the act. Scott Lumber Co., 109 N.L.R.B. 1373 (1954). In the instant case, the company is not to be held guilty of an unfair labor practice for having discharged employees who had in fact left their jobs without permission in violation of a well known company rule. Under these circumstances, we conclude that the discharges were not, in any sense, discriminatory and were not without justification; also, by reason of their failure to present a grievance to the company, the employees were not engaging in a protected activity since they were not acting in concert for their mutual aid or protection in withholding their services.

The final issue presented is the Board's finding that the company had refused to bargain in good faith with a union elected by the determinative counting of challenged ballots cast by four of the employees previously discharged for having participated in the January 5, 1959, walkout in violation of sections 8(a) (1) and 8(a) (5) of the act.¹¹  Having previously concluded the men casting these determinative ballots were properly discharged for cause on January 5, 1959, prior to the eligibility period for the representation election, the week ending February 2, 1959, it necessarily follows that the union's status as the certified representative of the employees, dependent as it is upon the validity of these ballots, must fail. Since the union has thus failed to carry the representation election, the Board's order directing the company to bargain in good faith with that union will be denied enforcement, and the Board's certification of that union will be vacated and set aside. Ohio Power Co. v. N. L. R. B., 6 Cir., 1949, 176 F.2d 385, 388, 11 A.L.R.2d 243.

Enforcement denied.

SOBELOFF, Chief Judge (dissenting).

The Labor Board's position is neither unsupported by the record nor unreasonable, and I find no warrant for refusing enforcement of its order. The evidence at the hearing clearly furnishes a foundation for the Board's conclusion that the walkout of the seven employees constituted concerted activity protesting the unsatisfactory working conditions in the machine shop. Whatever notice or demand upon the employer might be required in other circumstances need not be decided, for no additional notice or demand was necessary under the well supported findings of this case.

The employer's contention that the activities of these men did not amount to concerted activity is refuted by the findings of the Examiner and the Board, based upon testimony of the employees. The Board states:

"The Trial Examiner found, and we agree, that the Respondent violated Section 8(a) (1) in terminating the employment of the 7 complainants who were engaged in protected concerted activity under the Act. We rely, inter alia, upon the following: the credited testimony of employee Hovis that `We all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way;' the credited testimony of employees Heinlein, Caron and George as to previous complaints made to the Respondent's foreman over the cold working conditions, and to the effect that the men left on the morning of January 5 in protest of the coldness at the plant; and the evidence that the 7 complainants left the shop at approximately the same time."

My brethren apparently agree that if there had been a notice or demand, the walkout would be concerted activity protected by the Act. However, the court denies enforcement because, it is said, "An important and necessary qualification of the right to exert pressure on an employer through work stoppages is that such pressure be exerted in support of a demand or request made to the employer." There was, however, such notice to the employer in the instant case.¹  On a number of earlier occasions complaints had been made about the lack of heat in the shop. On the morning of the walkout, employee Caron discussed the coldness with the foreman, Jarvis. Also, as the men were walking out, they told Jarvis that it was too cold to remain and work.

Furthermore, the employer, through its foreman, indicated that the men should go home. Jarvis told Caron: "If those fellows had any guts at all, they would go home." When Caron reported back to the men, he told them that the foreman had suggested that they leave. Under these circumstances it is plainly improper to upset the Board's decision.

Note: So that the pertinent facts and circumstances may be fairly presented, we shall resort, at least in part, to copious footnotes.