469 F2d 84 Lee Consaul Co Inc v. National Labor Relations Board

469 F.2d 84

81 L.R.R.M. (BNA) 2580, 69 Lab.Cas. P 13,114

LEE A. CONSAUL CO., INC., et al., Petitioners,

No. 71-2520.

United States Court of Appeals,
Ninth Circuit.

Oct. 24, 1972.

Harold H. Brown (argued), George C. Lyon, of Haight, Lyon & Smith, Los Angeles, Cal., John B. Wisely, Jr., Yuma, Ariz., Victor J. Van Bourg, of Levy, Deroy, Geffner & Van Bourg, San Francisco, Cal., for petitioners.

Joseph E. Mayer, Atty. (argued), Stephen J. Solomon, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, NLRB, Washington, D. C., for respondent.

Before BARNES and WALLACE, Circuit Judges, and ENRIGHT,* District Judge.


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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 Sec. 7 and Sec. 9 (a).


We held the Supreme Court "at least" implied that "by joining a union an employee gives up or waives some of his Sec. 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.


The Honorable William B. Enright, United States District Judge, Southern District of California, sitting by designation