National Labor Relations Board v. Fleetwood Trailer Co., Inc.

This is a petition for the enforcement of an order of the National Labor Relations Board. It had jurisdiction of the unfair labor practice complaint alleged in this case pursuant to 29 U.S.C. § 160 (a) (b). This court has jurisdiction of this petition pursuant to 29 U.S.C. § 160 (e).

Respondent is engaged in the manufacture of house trailers at Riverside, California. Respondent’s employees are represented by the San Bemardino-Riverside Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. At the beginning of August 1964, respondent employed approximately one hundred and ten persons and was producing twenty mobile homes per week.

In late 1964 respondent was engaged in negotiations for a collective bargaining agreement with the union. On August 6, 1964, a number of respondent’s production workers went on strike in support of their contract demands. Approximately one-half of respondent’s employees either did not go on strike, or crossed the picket lines to return to work within a few days. Respondent immediately began to hire replacements for those who did strike and by August 18, 1964 had hired twenty-one new employees.

On…

(concurring):

I concur. I think it helpful to note just what the Board decided in Brown and Root, Inc., etc., 132 NLRB 486 , 493 (1961). It there held that the employer has no obligation to seek out or to prefer economic strikers for vacancies which opened up after their applications. The Board in that ease cited Atlas Storage Division, 112 NLRB 1175 , enforced, 233 F.2d 233 , 237-238 (7th Cir.) which held that a company has no duty to seek out an economic striker when no vacancy existed at the time of his request to return to work, but rather opened up later. The Board in the later case went on to say that the employer’s duty was merely to refrain from discriminating against the striker should he request employment again.

Plainly the holdings in those cases precisely fit the question raised here. When these complaining employees applied for reemployment on August 20th, 1964, there was no vacancy. Some of them reapplied later, but there is no proof that any vacancies existed at those times either. Under the rule of the above cases, the employer owed no duty to seek out or prefer these strikers for the positions that opened between October 8th and October 16th, 1964.

The…

(dissenting):

I do not agree with the result reached in the majority opinion, and I cannot accept the reasoning which produces it.

When a workman chooses to join his fellows in an economic strike he takes certain risks. Among these is the risk that he may be unable to regain his position after the strike if another workman has permanently replaced him. E. g., NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345-346 , 58 S.Ct. 904 , 82 L.Ed. 1381 (1938). There were no permanent replacements in the jobs in question here, but it is said that the striking employees lost their preferential status because their jobs were “abolished” or their work was “absorbed” by other employees. This I cannot see. Before the strike, there were about one-hundred-ten employees. When the strike ended the number had decreased to seventy-one. It is undisputed that the employer always held the intent to resume full production as quickly as possible following the termination of the strike and, with the same haste, to return to the full complement of its prestrike labor force.

When the strike was terminated, the six employees here involved, almost immediately, made applications for reinstatement into their…

366 F.2d 126 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FLEETWOOD TRAILER CO., Inc., Respondent. No. 20511. United States Court of Appeals Ninth Circuit. September 8, 1966. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Daniel Harrington, Attys., N.L.R.B., Washington, D. C., for petitioner. Hugh J. Scallon, Gibson, Dunn & Crutcher, Santa Ana, Cal., for respondent. Before POPE, BARNES and ELY, Circuit Judges. BARNES, Circuit Judge: 1 This is a petition for the enforcement of an order of the National Labor Relations Board. It had jurisdiction of the unfair labor practice complaint alleged in this case pursuant to 29 U.S.C. § 160 (a) (b). This court has jurisdiction of this petition pursuant to 29 U.S.C. § 160 (e). 2 Respondent is engaged in the manufacture of house trailers at Riverside, California. Respondent's employees are represented by the San Bernardino-Riverside Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. At the beginning of August 1964, respondent employed approximately one hundred and ten persons and was producing…