National Labor Relations Board v. National Garment Co.

Citation166 F.2d 233
Decision Date05 February 1948
Docket NumberNo. 13570.,13570.
PartiesNATIONAL LABOR RELATIONS BOARD v. NATIONAL GARMENT CO. et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Charles K. Hackler, Atty., National Labor Relations Board, of St. Louis, Mo. (David P. Findling, Associate Gen. Counsel, Ruth Weyand, Acting Asst. Gen. Counsel, Fannie M. Boyls and Frederick D. Vincent, Jr., Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Victor Packman, of St. Louis, Mo., for respondent.

Before SANBORN, WOODROUGH, and COLLET, Circuit Judges.

WOODROUGH, Circuit Judge.

This case is before the court on petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondents on August 6, 1946 (69 N.L.R.B. 1208). The petition was filed in this court in May 1947, some three months prior to August 22, 1947, the effective date of the Act to amend the National Labor Relations Act. The answers of respondents to the petition were filed here in June 1947 and the brief of the Board was filed in October, 1947.

The proceedings before the Board culminating in the issuance of the order now before the court were initiated by the filing of charges on March 3, 1945, by the International Ladies Garment Workers Union, AFL, herein called the union, alleging that respondent National Garment Company, herein called National, at its Wellsville, Missouri, plant had engaged in certain acts violative of Section 8(1) and (3) of the Act. On July 12, 1945, National leased this entire plant and equipment to Wells-Wear Company, herein called Wells-Wear, which continued operation of the plant without change in personnel or in manner of doing business. Thereafter, on August 17, 1945, the union filed a first amended charge with the Board alleging that National and Wells-Wear had engaged in unfair labor practices within the meaning of Section 8(1), (3) and (5) of the Act. After the usual proceedings under Section 10 of the Act, in which both National and Wells-Wear fully participated, the Board issued its decision and order, which may be summarized briefly as follows:

1. The applicability of the Act to respondents' operations. The respondent National is a Missouri corporation engaged in the manufacture of wearing apparel, chiefly boys' shirts. At the time of the occurrences hereinafter discussed, it operated plants in St. Louis and Chaffee, as well as in Wellsville, Missouri, where the unfair labor practices occurred. Material cut at National's St. Louis plant was sent to the Wellsville plant for assembly and thence returned to the St. Louis plant where it was commingled with other merchandise for sale and distribution. During 1944, National purchased raw materials of a value greater than $80,000, more than 90 percent of which was received from points outside the State of Missouri. During the same period, National manufactured finished products of a value greater than $100,000, more than 50 per cent of which was shipped through intermediary Missouri wholesale companies to points outside the state. During 1945 up to the date of the hearing in September about 50 per cent of the raw materials purchased by National came from outside the state and a substantial amount of its total sales of about $750,000 was shipped outside the state. As in 1944, the sales were made to Missouri wholesale firms which distributed the merchandise, commingled with merchandise from other sources, to customers both inside and outside the state.

On July 5, 1945, respondent Wells-Wear, also a Missouri corporation, commenced operating National's Wellsville plant. The plant's function in the integrated scheme of production by National did not change. Wells-Wear continued to operate as a processing plant for material received from National's St. Louis plant. At the time of the hearing Wells-Wear had not engaged in production for any concern except National. Upon these facts, which were undisputed, the Board concluded that the operations of both National and Wells-Wear affected commerce within the meaning of the Act.

2. The unfair labor practices. — The Board found that National, by threatening and coercive speeches to its employees, by inquiries into their organizational activities and the procuring of affidavits from them in regard to such activities, and by the lay-off of its Wellsville employees, interfered with, restrained, and coerced its employees and discriminated against them within the meaning of Section 8(1) and (3) of the Act. It found also that by refusing to bargain with the union as the representative of the employees at Wellsville within an appropriate bargaining unit, National violated Section 8(5) and (1) of the Act.

The Board further found that Wells-Wear, which succeeded to and continued to operate the Wellsville plant with the same management and personnel and as a branch or adjunct to National, must necessarily be regarded as identical and inseparable from National for the purpose of safeguarding the statutory rights of the Wellsville employees; and that by refusing to bargain with the union, and by otherwise failing to remedy the unfair labor practices commenced by National, Wells-Wear engaged in unfair labor practices within the meaning of Section 8(1) (3) and (5) of the Act.

3. The Board's order. — The Board ordered National and its officers, agents, successors, and assigns to make whole the employees whom it had discriminatorily laid off for any loss in pay suffered by them as a result of the lay-off; and ordered both National and Wells-Wear and their officers, agents, successors, and assigns to cease and desist from the unfair labor practices found; upon demand, to bargain collectively with the union; upon application of employee Abbie Ruth Cobb, to reinstate her, and if they refuse to reinstate her, to make her whole for loss of wages which she may suffer as the result of such refusal; and to post appropriate notices.

After the Board filed its petition in this court for the enforcement of its order against respondents, respondents petitioned this court for leave to adduce additional evidence for the purpose of showing that the operation of National's Wellsville plant had again changed hands, that this time the plant was leased by National to and was being operated by persons unconnected with respondents and that consequently parts of the Board's order were unenforceable. The Board opposed respondents' motion to adduce such additional evidence and this court, on June 23, 1947, after oral argument of the parties, denied the motion.

The respondents resist the enforcement of the Board's order on the grounds: (1) That the 1947 amendments to the National Labor Relations Act have voided all those orders of the Board, including the order here in question, which were rendered but not enforced prior to the effective date of the amending Act; (2) that the changes in ownership which have occurred in respect to the plant at Wellsville since the occurrence there of unfair labor practices found by the Board render the order moot and compliance impossible; (3) that the finding of violation of Section 8(3) is not supported by evidence; (4) because the order for back pay to be made to the employees (with one exception) was not coupled with an order for the reinstatement of the employees (as to the one exception, Abbie Ruth Cobb, it is contended that there was no evidence to support the Board's order); (5) because the order does not contain findings that it is to effectuate the policies of the Act; (6) because the order is void for vagueness, uncertainty and lack of specificity.

1. Effect of 1947 Amendments.

Section 3(a) of the Act, effective August 22, 1947, 29 U.S.C.A. § 153(a), provides that "the National Labor Relations Board (hereinafter called the `Board') created by this Act prior to its amendment by the Labor Management Relations Act, 1947, is continued as an agency of the United States, except that the Board shall consist of five instead of three members, * * *" and on October 24th of this year the Board, constituted as required by the amending Act, was confronted in the case of Marshall and Bruce Company, etc., No. 10-C-1792, with the question as to the effect if any of the amendatory legislation on the Board's power to adjudicate unfair labor practice controversies which arose prior thereto. The Board stated:

"In our opinion, this question is authoritatively answered in the general savings statute enacted by Congress in 1871, which sets forth `Rules for the Construction' of amendatory and repealing legislation.2 This statute provides as follows:

"`The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.'3

"The general savings statute is now Section 29 of Title I of the United States Code 1 U.S.C.A. § 29, a title promulgating rules applicable to all federal statutes, and is therefore generally applicable to the legislation here under consideration.

"The term `liability' as used in the general savings statute has been broadly construed by the courts to comprehend all obligations arising out of any breach of a statutory duty.4 The obligations of employers arising out of violations of the National Labor Relations Act are clearly `liabilities' within the meaning of the general savings statute, as it has been consistently interpreted. Under that statute such liabilities continue to have binding effect, notwithstanding the passage of the amendment, unless Congress manifested therein an intention to extinguish such liability.5 But clearly ...

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