Before CASTLE, KILEY and SWYGERT, Circuit Judges.
CASTLE, C. J.: This case is before the Court upon the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended (29 U.S.C.A. § 160(e)), for enforcement of the Board's order issued against Sunbeam Lighting Company, Inc., respondent. The Board's order and decision are reported at 136 NLRB No. 107.
The Board, two members dissenting, found that the respondent Company violated Section 8(a)(3) and (1) of the Act*fn1 by discharging and refusing to reinstate certain employees and ordered the Company to cease and desist from the unfair labor practices found and from in any other manner interfering with employees' rights guaranteed under the Act; to make whole for wages lost the 50 employees who were discharged for engaging in a walkout on May 3, 1960, and were denied reinstatement the following day, but 37 of whom were later reinstated; to offer reinstatement to the 13 employees who had not been reinstated as of the time of the hearing; and to post designated notices.
The employees discharged were employees who on May 3, 1960, failed to return to their work at the conclusion of a 10:00 A.M. work break period in response to demands of Company supervisors that they do so or be considered as voluntarily quitting. These and some thirty other employees had left the plant, taking their lunch pails and coats, at the commencement of the regular 10:00 A.M. work break, in expression of dissatisfaction with what the Company had characterized as its "final offer" made in connection with current contract negotiations.
In February 1960, the International Brotherhood of Electrical Workers, AFL-CIO, was certified as the colective bargaining representative of the Company's approximately 120 production and maintenance employees. The employees in the unit selected five of their number to serve on a Union bargaining committee which participated in the bargaining meetings with the Company's representatives. Kenneth Lee, an International Representative of the Union served as spokesman during the negotiations. During April 1960, Lee and the committee held a series of bargaining sessions with Company representatives. On May 2, 1960, a meeting was held at which the Company presented what it stated to be its "final offer." It was agreed that the proposal be submitted to a vote of the employees at a membership meeting. The committee determined that such meeting be held May 5, 1960. Lee suggested to the committee members that they not reveal the terms of the Company's offer until all the employees were together at the meeting. But information as to the terms of the proposal was given by committee members to a number of employees who made inquiry the following morning (May 3, 1960) and the walkout and resulting discharges followed.
The main contested issue is whether the walkout or strike was a protected concerted activity. The majority of the Board, supporting its Trial Examiner, concluded that it constituted "concerted activities for the purpose of collective bargaining" expressly protected by Section 7 of the Act. The Board's findings are entitled to respect but they are to be measured by whether or not they are supported by substantial evidence on the record considered as a whole. Universal Camera Corporation v. NLRB, 340 U.S. 474.
When the record is considered as a whole it reveals a combination of factors which leads us to the conclusion that under the facts and circumstances presented the action of the minority of the employees in refusing to return to work at the termination of the work break period was not a protected activity but on the contrary constituted interference with bona fide bargaining activity in progress between the Company and the employees' certified representative. We are of the opinion that the rationale of Harnischfeger Corp. v. NLRB, 7 Cir., 207 F.2d 575, and NLRB v. Draper Corporation, 4 Cir., 145 F.2d 199, is applicable here.
The refusal of the minority group of 50 employees to return to their work at the conclusion of the work break occurred while contract negotiations were in progress and prior to the date scheduled for a meeting at which the employer's offer was to be considered by the employees. The Union, the employees' certified bargaining agent, did not call for, authorize or sanction the action. Nor did Union representative Lee, who was spokesman. A majority of the five employee bargaining committee members did not participate in the walkout. The fact that some employees who had learned of the terms of the Company offer were expressing dissatisfaction does not in our opinion support the Board's conclusion that the incident of May 3, 1960, was but an accelerated rejection of the offer. The 50 employees, a minority of the unit, had no authority to reject the offer. And, upon the showing made, we find no substantial basis for an inference that a majority had joined in an actual "rejection" of the offer. Moreover, we are of the opinion that the appraisal of the record made by the dissenting Board members (136 NLRB 1258-1264) serves to more accurately take into account and reflect those factors which fairly detract from the weight of the testimony primarily relied upon by the Board. We see no need to repeat those observations here.
We agree with admonitions in Draper Corporation, supra (pp. 203 and 205) that:
"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.
"* * * there can be no effective bargaining if small groups of employees are at liberty to ignore the bargaining agency thus set up, take particular matters into their own hands and deal independently with the employer.
"No surer way could be found to bring collective bargaining into general disrepute than to hold that 'wildcat' strikes are protected by the collective bargaining statute."
And, whatever may have been the purpose or intent of the employees who participated in the refusal to resume work at the termination of the work break - or of those who instigated such action - we are of the opinion that the inherent effect of such action makes those admonitions applicable here. The record here, as in Harnischfeger, ...