NATIONAL LABOR RELATIONS BOARD v. Newton, 14649.

• Decision Date: 06 July 1954
• Docket Number: No. 14649.,14649.
• Citation: 214 F.2d 472
• Parties: NATIONAL LABOR RELATIONS BOARD v. NEWTON.
• Court: U.S. Court of Appeals — Fifth Circuit

214 F.2d 472 (1954)

NATIONAL LABOR RELATIONS BOARD v. NEWTON.

No. 14649.

United States Court of Appeals Fifth Circuit.

July 6, 1954.

Louis Schwartz, Atty., National Labor Relations Board, A. Norman Somers, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, George J. Bott, Gen. Counsel, David J. Vann, Atty., N.L. R.B., Washington, D. C., for petitioner.

Mark L. Taliaferro, Birmingham, Ala., George A. LeMaistre, Tuscaloosa, Ala. (LeMaistre, Clement & Gewin, Tuscaloosa, Ala., Burr, McKamy, Moore & Tate, Birmingham, Ala., of counsel), for respondent.

Before BORAH, and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

BORAH, Circuit Judge.

This case is before the Court on petition of the National Labor Relations Board, seeking enforcement of its order requiring respondent, D. W. Newton, doing business as Newton Brothers Lumber Company, to cease and desist from discouraging membership in the International Woodworkers of America, C.I.O., or any other labor organization of his employees, by discharging or refusing to reinstate any of his employees or by otherwise discriminating in regard to their hire and tenure of employment; from interrogating or polling his employees concerning their union affiliation, activities, and sympathies; from threatening them with discharge or economic reprisals or threatening to close his business because of their union activities; from participating in, ratifying or condoning physical assaults by his employees upon other employees because of their union affiliation, activities, and sympathies; and from in any other manner interfering with, restraining, or coercing his employees in the exercise of the rights guaranteed by section 7 of the Act, 29 U.S.C.A. § 151 et seq. The order further directed respondent to offer reinstatement to four named employees¹ and to make them whole for any loss of pay suffered by reason of respondent's discrimination against them; to instruct his employees that he will not permit any group of employees to exclude other employees from the plant because of their membership in, or activities on behalf of any labor organization, and that assaults upon or threats of violence to their fellow employees will not be permitted; and to post appropriate notices.

The questions presented for our determination are: (1) whether the Board properly included in its complaint, as amended, allegations that petitioner discharged and thereafter failed and refused to reinstate Annie Belle Colburn; (2) whether the Board found that respondent discriminatorily discharged Buck Carroll, Maudie Booth, Billy Joe Green, and Annie Belle Colburn in violation of section 8(a) (3) and 8(a) (1) of the Act;² and (3) whether the Board erred in finding that respondent violated section 8(a) (1) of the Act by encouraging and condoning physical assaults upon union adherents, by threatening to discharge employees because of their union activities, by threatening to close its plant if the union got in, and by questioning and polling his employees as to their union membership and activities.

The first question raises a serious procedural issue. The original charge in this case was filed on September 5, 1951. It alleged, among other things, that on various dates in July, 1951, respondent discriminated in regard to the hire and tenure of employment and to the terms and conditions of employment of four named individuals. The first amended charge, which was filed on June 19, 1952, added the names of three individuals to the list of employees discriminated against in July, 1951, but otherwise merely reiterated charges contained in the original charge. Thereafter, the complaint was filed by the Board. It alleged in part that on various dates in July, 1951, respondent discharged and thereafter failed and refused to reinstate the seven employees named in the charge and the first amended charge. At the hearing before the Trial Examiner on July 7, 1952, the General Counsel's representative moved to amend the complaint to add to the list of dischargees the name of Annie Belle Colburn and indicated that the date of the discrimination should read "approximately October 1, 1951." Respondent's motion to dismiss the complaint on the ground that the amendment violated section 10(b) of the Act was denied and the motion to amend the complaint was granted.

Respondent now contends that inasmuch as the alleged discriminatory discharge of Annie Belle Colburn occurred after the original charge was filed and more than six months prior to the time when her name was first introduced into the case by way of amendment to the complaint at the hearing, the Board was without power under section 10(b) of the Act to issue a complaint based thereon. We agree with respondent.

Section 10(b) of the Act provides, in part, that whenever it is charged that any person has engaged in an unfair labor practice, the Board shall have power to issue a complaint stating the charge in that respect, provided that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge. It is further provided that any such complaint may be amended by the Board member, agent, or agency, at any time prior to the issuance of an order based thereon. This section of the Act leaves several questions unanswered and, as a result, we have been called upon to consider its provisions on numerous occasions. In Cathey Lumber Company v. N.L.R.B., 5 Cir., 185 F.2d 1021, affirming Per Curiam 86 N.L.R.B. 157, set aside on other grounds 5 Cir., 189 F.2d 428, the charge named three employees as having been discharged in violation of section 8 (a) (3) of the Act fifteen days prior to the filing of the charge. The complaint, which was issued more than six months after the discharges in question, named seventeen additional employees as having been discharged at the same time. We held that section 10(b) did not bar the allegations of the additional instances of discrimination alleged in the complaint, but what is here important is that the Board's decision which we affirmed stated: "As there is no requirement that the charge set forth each unfair labor practice allegation to be litigated, the practice of enlarging upon the charge to include in the complaint allegations of unfair labor practices uncovered during the investigation likewise continues unchanged under the amended Act — but with this important exception made necessary by the purpose of the limitation period imposed by the proviso: that the complaint shall not include allegations of any unfair labor practices occurring more than 6 months prior to the filing and service of the charge initiating the case." (Emphasis supplied.) We reaffirmed our view in N.L.R.B. v. U. S. Gypsum Co., 5 Cir., 206 F.2d 410, and in Stokeley Foods, Inc., v. N.L.R.B., 5 Cir., 193 F.2d 736. And, although respondent has not called the matter to our attention, we have considered whether the Board had power to issue a complaint based on the discriminatory discharges alleged in the first amended charge, which unfair labor practices here did not occur more than six months prior to the filing of the charge initiating the case. We are of the opinion that under the principle enunciated by this Court in the Cathey Lumber Company case the Board did have power to issue that portion of the complaint which was...