National Labor Rel. Bd. v. Fulton Bag and Cotton Mills

• Decision Date: 08 July 1949
• Docket Number: No. 12516.,12516.
• Citation: 175 F.2d 675
• Parties: NATIONAL LABOR RELATIONS BOARD v. FULTON BAG AND COTTON MILLS.
• Court: U.S. Court of Appeals — Fifth Circuit

175 F.2d 675 (1949)

NATIONAL LABOR RELATIONS BOARD v. FULTON BAG AND COTTON MILLS.

No. 12516.

United States Court of Appeals Fifth Circuit.

July 8, 1949.

David P. Findling, Assoc. Gen. Counsel N.L.R.B., A. Norman Somers, Asst. Gen. Counsel N.L.R.B. and Ruth Weyand, Asst. Gen. Counsel N.L.R.B., all of Washington, D. C., for petitioner.

Frank A. Constangy, Atlanta Ga. and John M. Slaton, Atlanta, Ga., for respondent.

Before HUTCHESON, SIBLEY and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge:

Here, on petition to enforce its order issued against respondent on January 21, 1948, the Labor Board, by brief and argument, insists that its findings and the provisions¹ of its order are supported by evidence and the order should be enforced.

Here, on its answer in opposition, respondent, by brief and argument, urges upon us that the findings are unsupported and enforcement of the order should be denied.

In addition it attacks findings of examiner and board, not however made the subject of any remedial order, that respondent discriminated against employees Smith, Rose, Longmire, Kelley, and Guthrie, as unsupported by charge or complaint.

Another run of the mill Labor Board case in which, in support of its organizational efforts, the union has filed charges, and the board has adopted them and issued its complaint, this case, as tried before the examiner, presented the usual charges of interference with organizational effort and discrimination against some of the organizers.

Unlike many of these cases, however, where the evidence is in conflict, the record here presents little conflict as to the facts, and the report deals not with resolving conflicts in testimony but with assigning motives and reasons for actions taken on facts as to which there is no substantial conflict.

In short, the respondent's attack upon the findings and order of the board is not predicated upon the usual complaint that examiner and board by "crediting"² testimony of the board's witnesses and "discrediting" that offered by respondent, decided the case against the overwhelming preponderance of the evidence and the truth and right of the case.

In respect of the discharge of Ethridge, it is that the board has, in violation of 10(c) of the National Labor Relations Act, as amended,³ required reinstatement though the evidence establishes without dispute that she was discharged for cause, and in the case of Long that there is no substantial evidence that he was discriminated against.

In respect of the Board's finding that respondent discriminated against Smith, Rose, Longmire, Kelley, and Guthrie, its position is that this finding is contrary to law and particularly to Sec. 5(a) of the Administrative Procedure Act,⁴ in that there was neither charge nor complaint of such discrimination, and respondent has been in effect condemned without a hearing by finding him guilty of charges of which he had no notice and against which he had no opportunity to defend.

As to the cease and desist provisions of the order, respondent's position is not that the statements were not made, the questions not asked as found, but that in view of Sec. 8(c) of the National Labor Board Act, as amended,⁵ and respondent's policy letter of July 11, 1946, the findings are contrary to law.

As to respondent's position on the cease and desist orders, we cannot agree with it. It is true that the company did write a policy letter stating clearly that whether employees did or did not join the union was a matter for their own decision and the company could not, and would not, interfere with that action. We think, though, that when the questions and statements complained of are taken not merely by themselves but in the connection in which they were made, it may not be said that the Board's findings, that there was interference with self-organization are without support in the evidence and the cease and desist provisions of the order are, therefore, contrary to the law.

Upon respondent's other points, however, we are in full agreement with it. As to the Ethridge discharge, this court, before the amendment of the National Labor Relations Act, held⁶ without varying that membership in a union is not a guarantee against discharge and that when real grounds for discharge exist, the management may not be prevented because of union membership from discharging.

The amendment to the act was intended to, and did, give legislative approval to these views and corresponding disapproval to the practices of examiners and board to the contrary.

The evidence leaves in no doubt that this is another case, though not quite as aggravated a one, as in National Labor Relations Board v. Williamson-Dickie Mfg. Co., 5 Cir., 130 F.2d at page 265, of an employee feeling that with the union back of her and the board back of the union, she could not be discharged for cause. In view of...