Lee A. Consaul Co., Inc. v. National Labor Relations Board

Ninth Circuit

Lee A. Consaul Co., Inc. v. National Labor Relations Board

469 F.2d 84, 81 L.R.R.M. (BNA) 2580, 1972 U.S. App. LEXIS 7067

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 24, 1972

Docket71-2520

StatusPublished

Cited by5 cases

This text of 469 F.2d 84 (Lee A. Consaul Co., Inc. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lee A. Consaul Co., Inc. v. National Labor Relations Board, 469 F.2d 84, 81 L.R.R.M. (BNA) 2580, 1972 U.S. App. LEXIS 7067 (9th Cir. 1972).

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Opinion

PER CURIAM:

Without going into factual detail, we conclude that we must deny the order for enforcement, set aside the two orders and decisions, and remand with instructions to dismiss the proceedings against petitioners.

In June, 1965, petitioners, as employers of melon packers, fired a group of workers who had gone on strike. The Board concluded the strike was a protected concerted activity. We disagree, finding it was a five day wildcat strike, viewed as such by both the employers and the union. We decline to follow NLRB v. R. C. Can Co., 328 F.2d 974 (5th Cir. 1964), but instead follow NLRB v. Draper Corp., 145 F.2d 199 (4th Cir. 1944). See: NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir. 1969), where we cited NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967) and the interplay between § 7 and § 9 (a).

We held the Supreme Court “at least” implied that “by joining a union an employee gives up or waives some of his § 7 rights.”

The strike was not a protected concerted. activity. No unfair labor practice was proved. In view of this conclusion we need not discuss petitioners’ other alleged errors.

Enforcement denied. The Decision and Order of the NLRB dated April 24, 1969, and the Supplemental Decision and Order of NLRB dated August 27, 1971, are each set aside, and the matter remanded for dismissal.

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PER CURIAM:

Without going into factual detail, we conclude that we must deny the order for enforcement, set aside the two orders and decisions, and remand with instructions to dismiss the proceedings against petitioners.

In June, 1965, petitioners, as employers of melon packers, fired a group of workers who had gone on strike. The Board concluded the strike was a protected concerted activity. We disagree, finding it was a five day wildcat strike, viewed as such by both the employers and the union. We decline to follow NLRB v. R. C. Can Co., 328 F.2d 974 (5th Cir. 1964), but instead follow NLRB v. Draper Corp., 145 F.2d 199 (4th Cir. 1944). See: NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir. 1969), where we cited NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967) and the interplay between § 7 and § 9 (a).

We held the Supreme Court “at least” implied that “by joining a union an employee gives up or waives some of his § 7 rights.”

The strike was not a protected concerted. activity. No unfair labor practice was proved. In view of this conclusion we need not discuss petitioners’ other alleged errors.

Enforcement denied. The Decision and Order of the NLRB dated April 24, 1969, and the Supplemental Decision and Order of NLRB dated August 27, 1971, are each set aside, and the matter remanded for dismissal.

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469 F.2d 84, 81 L.R.R.M. (BNA) 2580, 1972 U.S. App. LEXIS 7067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-a-consaul-co-inc-v-national-labor-relations-board-ca9-1972.

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