245 F.2d 599
NATIONAL LABOR RELATIONS BOARD, Petitioner,
RELIANCE CLAY PRODUCTS COMPANY, Respondent.
United States Court of Appeals Fifth Circuit.
June 10, 1957.
Samuel M. Singer, Atty., N. L. R. B., Stephen Leonard, Associate Gen. Counsel, N. L. R. B., Washington, D. C., Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., for petitioner.
James R. Rodgers, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, Tex., for respondent.
Before BORAH, RIVES and BROWN, Circuit Judges.
In this petition for enforcement of the Board's order, 115 N.L.R.B. 1736, finding the Employer in violation of Section 8(a) (1) and 8(a) (5), 29 U.S.C.A. § 158(a) (1), (5), the issue here is narrow. The Union was certified as the exclusive bargaining representative July 5, 1955. The Union, for added pressure in lagging negotiations, on September 7, 1955, commenced what Examiner and Board found to have been an economic strike. The Employer began, as it rightfully could, to employ replacements. But on October 15, 1955, it rejected the Union's formal demand to resume bargaining on the ground that the Union no longer represented a majority of its employees. Replacement of all or a part of the strikers with no proof that such employees no longer desired the Union to represent them did not, within the twelve months following certification, Section 9(a), 9(c) (3), 29 U.S.C.A. § 159(a), 159(c) (3); Brooks v. N. L. R. B., 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125; N. L. R. B. v. Sam'l Bingham's Son Mfg. Co., 6 Cir., 227 F.2d 751; Parks v. Atlanta Printing Pressmen & Assistant's Union #8, 5 Cir., 243 F.2d 284, terminate the Union's authority or the obligation of the Employer to bargain with it as the exclusive representative. Consequently, the Board held, and the Employer accepts the finding, that this converted it from an economic to an unfair labor practice strike. N. L. R. B. v. Crosby Chemicals Inc., 5 Cir., 188 F.2d 91, 95. The Employer concedes as well that consequently all persons hired on and after October 15, 1955, are subject to displacement by those strikers who request reinstatement. N. L. R. B. v. Pecheur Lozenge Co., 2 Cir., 209 F.2d 393, certiorari denied 347 U.S. 953, 74 S.Ct. 678, 98 L.Ed. 1099; Mastro Plastics Corp. v. N. L. R. B., 350 U.S. 270, 278, 76 S.Ct. 349, 100 L.Ed. 309. The Employer's only substantial complaint is then reduced to the contention that in the proceedings beginning with the hearings December 12, 1955, followed by the Examiner's Report of February 29, 1956, and ending in the Board's order of June 27, 1956, requiring reinstatement, the Board could not lawfully find the violations and order reinstatement of the strikers generally, but had to pass upon the rights of each striker in that proceeding. The questions incident to reinstatement, such as whether, as claimed by the Employer, all employees had been permanently replaced before October 15, 1955, may be, and frequently are, handled in subsequent administrative proceedings by and through the Board or in direct proceedings, where sought, for contempt. In such proceedings, the Employer's rights are fully preserved. N. L. R. B. v. Rutter-Rex Mfg. Co., 5 Cir., 245 F.2d 594.