National Labor Relations Board v. Planters Mfg. Co., 4463.

Citation105 F.2d 750
Decision Date26 July 1939
Docket NumberNo. 4463.,4463.
PartiesNATIONAL LABOR RELATIONS BOARD v. PLANTERS MFG. CO., Inc.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Ruth Weyand, of Washington, D. C., Atty., National Labor Relations Board (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Mortimer B. Wolf, Bertram Edises, and Ramey Donovan, all of Washington, D. C., Attys., National Labor Relations Board, on the brief), for petitioner.

Gerould M. Rumble, of Norfolk, Va. (Rumble & Rumble, of Norfolk, Va., on the brief), for respondent.

Before PARKER and NORTHCOTT, Circuit Judges, and WYCHE, District Judge.

NORTHCOTT, Circuit Judge.

This is a petition of the National Labor Relations Board, asking for the enforcement of an order issued by the Board against the Planters Manufacturing Company, Incorporated, a Virginia corporation, here referred to as the respondent, having its principal office and plant at Portsmouth, Virginia. The petition was filed pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 160(c). The respondent manufactures and sells wooden baskets, hampers, crates, and other containers used in the packing and shipping chiefly of agricultural products. Its sales are made to farmers, retailers, jobbers, and wholesalers. Respondent's business is highly seasonal and the number of its employees varies from an average of 450 employees during the year 1936 to about 1,000 employees during the second and third quarters of the year 1937. The value of respondent's finished products in the year 1936 was $750,000.

Upon charges filed by United Veneer Box and Barrel Workers Union, C. I. O., later known as Local Industrial Union No. 485, here referred to as the Union, the Board by its Regional Director for the Fifth Region (Baltimore, Maryland) issued a complaint dated November 8, 1937, against the respondent alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(1) and (3) and Section 2(6) and (7) of the N.L.R.A., 49 Stat. 449, 29 U.S.C.A. §§ 152(6, 7), 158(1, 3).

The complaint alleged in substance that the respondent on or about August 20, 1937, discriminated in regard to the hire or tenure of employment of forty of its employees, named in the complaint, because of their union affiliation and organizational activity, thereby discouraging membership in the union; that by these and other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the right to self-organization and to engage in concerted activities for mutual aid or protection. On November 16, 1937, the respondent filed an answer traversing generally the material allegations of the complaint and denying specifically that the respondent was engaged in or that its operations affected, interstate commerce. At the hearing the complaint was amended by the addition thereto of the name of one other employee alleged to have been discriminated against by the respondent.

On September 22, 1937, a petition in behalf of the union was filed with the Regional Director, alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 9(c) of the Act, 29 U.S. C.A. § 159(c). On October 4, 1937, the Board, acting pursuant to Section 9(c) of the Act, and Article III, Section 3 and 10(c) (2) and Article II, Section 37(b) of National Labor Relations Board Rules and Regulations — Series 1, as amended, ordered an investigation and a consolidation of the two cases for purposes of hearing and authorized the Regional Director to conduct the investigation and to provide for an appropriate hearing upon due notice. Thereafter, notice of the hearing in the consolidated cases was duly served upon the respondent and upon the union.

Pursuant to the notice a hearing was held in November and December, 1937, at Portsmouth, Virginia, before a Trial Examiner duly designated by the Board. The Board, the Union, and the respondent were represented by counsel and participated in the hearing.

During the hearing the respondent moved to dismiss the proceedings on the ground that the employees named in the complaint were not at the time of the alleged unfair labor practices members of an existing labor organization. This motion the Trial Examiner denied, holding that the employees in question were members of the union now known as Local Industrial Union No. 485, formerly known as United Veneer Box and Barrel Workers Union.

On March 7, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served on all parties, finding that the respondent had engaged in and was engaging in unfair labor practices affecting commerce and recommending that the respondent cease and desist from its unfair labor practices, reinstate with back pay certain of its employees found to have been discriminatively discharged by the respondent, make whole certain other employees found to have been discriminatively laid off, and take other specified action to remedy the situation brought about by the unfair labor practices.

On March 17, 1938, the respondent filed exceptions to the Intermediate Report. On July 5, 1938, pursuant to notice, a hearing for the purpose of oral argument on the exceptions and record was held before the Board in Washington, D. C. The respondent was represented by counsel and participated in the argument.

The Board made certain findings of fact and announced its conclusions of law, upholding the report of the Trial Examiner, and entered the following order:

"Upon the basis of the findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Planters Manufacturing Company, Inc., and its officers, agents, successors, and assigns shall:

"1. Cease and desist from:

"(a) Discouraging membership in Local Industrial Union No. 485, C. I. O., or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment;

"(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.

"2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act:

"(a) Offer to Willie Jones, Willie Butts, Joseph Wallace, Rudolph Thrower, George Williams, Freddie Sexton, John McCarris, Harvey Ellis, McKinley Simmons, John Harris, Relyus Evans, and Hattie Williams immediate and full reinstatement to their former positions, and to John White immediate and full reinstatement to the position which he held when he was discharged on September 9, 1937, without prejudice to their seniority rights and other rights and privileges; and make each of said persons whole for any loss of wages suffered by reason of his or...

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