National Labor Relations Board, Petitioner, v. Associated Wholesale Grocery of Dallas, Inc., Respondent, 262 F.2d 281 (5th Cir. 1959)

The question presented by petitioner's prayer for enforcement of its order of October 18, 1957, is whether respondent violated the National Labor Relations Act¹  by sending its striking employees two letters which, as held by the Board, constituted a discharge based upon the striking activities of the employees. Respondent is a wholesale grocery company in Dallas, Texas. No question is raised as to the applicability of the Act.

Dallas General Drivers, Warehousemen and Helpers, Local No. 745, AFL-CIO was certified as the exclusive bargaining agent of respondent's employees. The Union and respondent were unable to agree on contract terms and the employees went out on strike on August 27, 1956. It is conceded that the strike began as an economic strike.

On the same day that the strike began respondent sent the striking employees a letter.²  The strikers did not return to work by the deadline set out in the letter and respondent, on August 29th, sent a second letter.³ 

August 31, 1956, the Union filed unfair labor practice charges against respondent, alleging that the strikers were unlawfully discharged. The Trial Examiner, on the basis of the two letters involved, concluded that respondent violated § 8(a) (1) and (3) of the National Labor Relations Act by threatening to discharge the strikers, and by thereafter discharging them for participating in the strike. The Board upheld this finding of the Trial Examiner and ordered respondent to cease and desist from violating the Act and to reinstate the strikers with all privileges and rights to which they were entitled before the strike, including back pay. Two members of the Board dissented.

The law is well settled that respondent is free to replace the strikers so long as they are not discharged because of their striking activities. Collins Baking Co. v. N.L.R.B., 5 Cir., 193 F.2d 483; and Bentley Lumber Co. v. N.L.R.B., 5 Cir., 1950, 180 F.2d 641. This is conceded by the majority of the Labor Board, but it found that the two letters constituted a discharge of the striking employees because they were striking and that the strike which was initially economic was, by these two letters, converted into an unfair labor practice strike. The Board wrote a short decision adopting the findings, conclusions and recommendations of the Trial Examiner. The Examiner based his conclusions chiefly on our decision in N.L. R.B. v. United States Cold Storage Corporation, 5 Cir., 1953, 203 F.2d 924, certiorari denied 346 U.S. 818, 74 S. Ct. 30, 98 L. Ed. 344; and the petitioner places its greatest reliance on that case in the argument before us.

The two dissenting members of the five-member Board considered themselves bound by the former decision of the Board in Kerrigan Iron Works, Inc., 108 N.L.R.B. 933, which they thought controlled.⁴  Respondent bases its argument before us chiefly on that case and on our decision in Rubin Bros. Footwear, Inc., v. N.L.R.B., 5 Cir., 1953, 203 F.2d 486. The facts before the Board here were undisputed, and its decision, therefore, involved only the application of legal principles to established facts. Analysis of the facts⁵  leads, in our opinion, inevitably to the conclusion that the Board committed an error of law in entering its order. The Trial Examiner and the Board made two fundamental mistakes: in singling out the word "terminated" in the two communications and permitting it to color the whole of the writings in derogation of the rule requiring that every phrase and word in the writings must be looked to and given effect so that the intent of the parties will be discovered from the writings as a whole; and in divorcing the writings from the actions of the parties construing and implementing them.⁶ 

In committing these two errors we think that the Board rejected the rule generally applied to labor relationships in determining whether there have been unfair labor practices, of looking to the entire transaction, including all of the actions of the parties as well as all of the words they employed.

An examination of United States Cold Storage will illustrate this statement. The employer there sent two communications in which a deadline was fixed for the strikers to return to work, and they were told that, since they did not return to work, "consequently we consider you are no longer an employee of the company." [203 F.2d 926] The words of the communications were supported by the testimony of the company's manager, who stated categorically that the strikers' employment was terminated upon the expiration of the deadline. Moreover, the Union made four separate requests in writing upon the employer for further bargaining sessions, which were refused by the company in derogation of decisions of this Court, pointed out in the opinion.⁷  It is clear that our order enforcing the Board's petition in that case was bottomed upon the entire course of conduct and the testimony of the company's manager and not alone upon the writings.

In Rubin Bros., supra, rendered a few days before that case, we went into the facts detailing the action which followed the sending of a letter by the employer and, based upon the letter and the subsequent actions of the parties we vacated the Board's enforcement order.

The Kerrigan case, as we read it, bears a closer resemblance to the facts of this one than any of the others cited by either side. The language of the notice mailed to the employees in Kerrigan is unequivocal and is stronger than the language with which we are dealing.⁸  The Board held in that case that "the objective conduct of the respondent showed that the respondent did not, by its letter * * * impair the protected status of the striking employees," and the Court of Appeals of the Sixth Circuit approved, 219 F.2d at page 876.⁹ 

Petitioner, standing under the risk of non-persuasion, introduced no evidence tending to prove that the wholesale grocery company did not write and perform in good faith the concluding words of its communications, — "the company will reemploy you to work at your former job upon the same terms and conditions of your former employment." This unequivocal language laid an enforceable obligation upon the employer and tended to give meaning to the residue of the two letters.

In fact, the Trial Examiner found that none of the jobs of the strikers were filled on a permanent basis until forty-five days after the two letters were sent, and that all former employees who applied were given their old jobs or their equivalents. Construing the writings as a whole, therefore, in the light of the actions of the parties under them, we hold that the striking employees were not discharged and that the findings of unfair labor practices were without foundation in the record and that, as a matter of law, from undisputed proof the Board's decision and order were erroneous.

Enforcement is, therefore, denied.