Burlington Dyeing & F. Co. v. National Labor R. Board

• Decision Date: 13 June 1939
• Docket Number: No. 4436.,4436.
• Citation: 104 F.2d 736
• Parties: BURLINGTON DYEING & FINISHING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fourth Circuit

104 F.2d 736 (1939)

BURLINGTON DYEING & FINISHING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 4436.

Circuit Court of Appeals, Fourth Circuit.

June 13, 1939.

Thomas D. Cooper, of Burlington, N. C. (Cooper, Curlee & Sanders, of Burlington, N. C., on the brief), for petitioner.

Charles A. Horsky, Sp. Atty., Department of Justice, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Mortimer B. Wolf and Mary Lemon Schleifer, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

NORTHCOTT, Circuit Judge.

This case comes before the court upon petition of the Burlington Dyeing & Finishing Company, a North Carolina corporation, here referred to as the petitioner, filed under Section 10(f) of the National Labor Relations Act (49 Stat. 453, 29 U.S.C.A. § 151 et seq.) to review and set aside an order issued by the National Labor Relations Board pursuant to Section 10(c) of that Act and for leave to adduce additional evidence pursuant to Section 10 (e) of the Act. In its answer to the petition the Board requested the enforcement of its order in full without the taking of additional evidence.

The proceedings before the Board were taken pursuant to an amended charge filed by a representative of Textile Workers Organizing Committee, here called T. W. O. C., a labor organization affiliated with the C. I. O. Complaint and notice of hearing were issued and served upon petitioner. The substance of the complaint was that the petitioner 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 Act by discharging and refusing to reinstate four employees, W. J. Johnson, O. W. Porter, H. C. Brooks, and Ely Thomey, for the reason that the said four employees had joined and assisted the T. W. O. C., and had been active in promoting said union. In its answer to the complaint petitioner reserved its right to enter a special appearance and move to dismiss for lack of jurisdiction, denied that it was engaged in interstate commerce or that it had engaged in any of the unfair labor practices charged in the complaint.

A hearing was held at Graham, North Carolina, in March, 1938, before a Trial Examiner duly designated by the Board. Counsel for petitioner entered a special appearance and moved to dismiss for lack of jurisdiction. The Trial Examiner denied the motion and proceeded to hear the evidence, petitioner being represented by counsel throughout the hearing. At the conclusion of the evidence offered by the Board, and again at the conclusion of petitioner's evidence, counsel for petitioner moved to dismiss the complaint on the ground that the evidence failed to sustain the allegations of the complaint. During the course of the hearing the Examiner granted motions to conform the complaint and answer to the proof.

On July 5, 1938, the Trial Examiner filed with the Board his Intermediate Report denying petitioner's motions to dismiss, and finding that petitioner had engaged in unfair labor practices within the meaning of Section 8(1) and (3) and Section 2(6) and (7) of the Act in discharging and refusing to reinstate H. C. Brooks, but recommending that the complaint be dismissed in so far as it alleged that petitioner had engaged in unfair labor practices by discharging and refusing to reinstate W. J. Johnson, O. W. Porter, and Ely Thomey, the other three employees named in the complaint. On July 28, 1938, T. W. O. C., filed exceptions to the Intermediate Report and on August 25, 1938, pursuant to notice served upon the parties, a hearing for the purpose of oral argument was held before the Board. Petitioner did not appear at this hearing.

On December 1, 1938, the Board issued its decision finding that it had jurisdiction of the case and that the petitioner had been guilty of unfair labor practices in discharging and refusing to reinstate two employees, W. J. Johnson and H. C. Brooks, but holding that the discharging of O. W. Porter and Ely Thomey was justified. An order was entered directing the reinstatement, with pay for part of the time from his discharge until his reinstatement, of W. J. Johnson and directing the reinstatement and pay for all the time from his discharge until his reinstatement of H. C. Brooks, less his net earnings during such period. The order further directed that the petitioner post notices in conspicuous places throughout its plant stating that the petitioner would cease and desist from the unfair labor practices, of which it had been found guilty. The order also contained other provisions which are not at issue here.

Petitioner is engaged in dyeing and finishing acetate, rayon, and silk fabrics at a plant near Burlington, North Carolina. Petitioner does not own the fabrics which it dies and finishes. A large percent of the fabrics treated in petitioner's plant is caused to be shipped to it from points within the State of North Carolina and a large percentage of the fabrics processed is shipped to destinations outside the State of North Carolina. Among the raw materials used by petitioner, sixty-five percent of the chemicals, fifty percent of the paper, five percent of the dyestuffs, and eighty-five percent of the salt is received from sources outside the State of North Carolina. During 1937 petitioner's business totaled between $300,000 and $400,000. The petitioner ordered all raw materials from North Carolina resident agents of the sellers. During normal seasons the petitioner had approximately 225 employees with a weekly payroll of about $3,500.00.

On July 8, 1937, the petitioner discharged one of its employees, W. J. Johnson, and had refused to further employ...