National Labor Rel. Bd. v. Talladega Cotton Factory

• Decision Date: 10 June 1954
• Docket Number: No. 14829.,14829.
• Parties: NATIONAL LABOR RELATIONS BOARD v. TALLADEGA COTTON FACTORY, Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F.2d 209 (1954)

NATIONAL LABOR RELATIONS BOARD v. TALLADEGA COTTON FACTORY, Inc.

No. 14829.

United States Court of Appeals, Fifth Circuit.

May 20, 1954.

Rehearing Denied June 10, 1954.

A. Norman Somers, Asst. Gen. Counsel, N. L. R. B., David P. Findling, Frederick U. Reel, Assoc. Gen. Counsels, George J. Bott, Gen. Counsel, Franklin C. Milliken, N.L.R.B., Washington, D. C., for petitioner.

Frank A. Constangy, Atlanta, Ga., for respondent.

Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge.

RIVES, Circuit Judge.

The petition for review presents the novel question of whether the Board may lawfully order reinstatement and back pay to supervisors discharged for failing at their employer's behest to thwart a Union's organizational efforts within a plant,¹ even though supervisors are expressly excluded from the definition of "employee" under the amended Act, because of the claimed restraint and coercive effect resulting from their discharge on the protected non-supervisory employees, in alleged violation of Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). Incidentally presented are the usual and routine factual issues as to whether the Board's findings of unlawful interrogation and threats against the employees for their union activity, and respondent's discriminatory demotion of one employee and discharge of another for union affiliation, in further violation of Sections 8(a) (1) and (3) of the Act, are supported by substantial evidence on the record considered as a whole. 29 U.S.C.A. § 158(a) (1) and (3). The decision and order of the Board are reported at 106 N.L.R.B. 61.

Respondent, an Alabama corporation, at times here material was engaged in the manufacture and sale of cotton yarn at its Talladega, Alabama plant. When operating at capacity, the plant employed approximately 157 workers, and maintained twisting and spinning departments in three eight hour shifts under the supervision of Marion Shiflett. Another one of respondent's supervisors, Seybourn Pilkington, was responsible for operations in the plant's carting room. Respondent's president, Robert McMillan, and its superintendent, Hunter Murphy, had charge of the overall supervision of manufacturing operations.

In early 1949, as a result of time studies made of the various steps involved in its manufacturing operations, respondent made numerous changes in the working conditions and duties of its employees, imposing upon certain employees increased tasks which they regarded as burdensome. This circumstance, together with lay-offs of both the second and third shifts at respondent's plant and a general wage cut affecting all employees, caused considerable unrest and dissatisfaction among respondent's employees.

Respondent first discovered the union's organizational efforts within its plant when, in early June, 1949, one of its employees, Haywood, reported having observed another employee, Chester Magouyrk, in consultation with a union organizer at Magouyrk's home. Superintendent Murphy, when informed of this fact, immediately held a meeting of certain supervisory and non-supervisory employees of respondent, at which he warned them of the presence of the union representative and directed them to forestall any attempt to organize the employees pending his discussion of the matter with President McMillan. At a subsequent meeting, Superintendent Murphy told the same employees, "to go in the mill and talk to all the help and get them out of the union — that they wasn't going to have no union down at the mill." President McMillan later addressed the same employees in a similar vein, informing a number of them that, as supervisory employees, respondent was relying upon them "to get out there and stop" the union. After interrogating Marion Shiflett as to the number of employees who had already joined the union, McMillan directed the group generally to tell the employees "they would make more money by not joining." According to the credited testimony, McMillan's parting comment upon that occasion was that "there wasn't going to be any union there — that he wouldn't run under a union contract."

The supervisory employees, Shiflett and Pilkington, though personally anxious to remain neutral, nevertheless attempted to comply with McMillan's and Murphy's instructions. On two occasions, acting at the request of Superintendent Murphy, they questioned a number of employees as to their attendance at union meetings and took notes of the information received for respondent's benefit. Shiflett was found to have questioned employees as to their membership in the union, and Pilkington to have asked an employee how he intended to vote in the election and to have warned another employee that some workers would be discharged for their union activities. A number of other supervisory employees of respondent were also found to have engaged in questioning the employees regarding their union activities and as to how they intended to vote.

President McMillan participated personally in the anti-union campaign. He threatened to close the plant if it were unionized, and that house rents in the "village", respondent's employee housing project, would be raised and the employees' bonus abandoned upon the advent of the union. Though engaging in other specific acts of employee interrogation, McMillan apparently singled out for particular treatment the employee, Chester Magouyrk, of whose leadership in the union's organizational efforts² respondent had been fully aware since Haywood's surveillance of Magouyrk in consultation with the union organizer. In July, 1949, McMillan ordered Shiflett to remove Magouyrk from his doffing job, which paid approximately $1.00 per hour, and demote him to the job of roving, which paid only 75¢ per hour, and was the lowest paid job in the mill. Shortly thereafter, McMillan called Magouyrk to his office and accused him of being paid by the union to organize the mill, and asked whether he realized he "had caused women and children to suffer — probably caused somebody to be killed because of the union." A few days later McMillan again called Magouyrk to his office and ordered him, as head of the union, to remove some union leaflets which had been posted on the plant bulletin board. Shortly after this instance, he also forced Magouyrk to pick up and dispose of other union leaflets scattered in the spinning room, telling him, "You are going to cause this mill to shut down."

With reference to the alleged discriminatory discharges of the two supervisors, Shiflett and Pilkington, the credited testimony further reveals that in July, 1949, McMillan told Shiflett that Shiflett's son, Harold, had joined the union, and that "He (McMillan) didn't want him in the union." Superintendent Murphy asked Shiflett to do something about Harold's union membership, and when Shiflett protested there was nothing he could do, Murphy replied, "If he belonged to me I could do something * * * I would run him off from home to get him out of the union." About a week before the Board conducted election on August 25, 1949, McMillan personally interviewed Shiflett in his office and told him that unless he got the employees out of the union, "He (McMillan) was going to get him another overseer." Murphy also told Shiflett that he would be held accountable for the attitude of respondent's employees and that, if the union won the election, he would be fired. About two days before the union election, McMillan told Shiflett that another one of his sons, Edwin, had been observed keeping company with the union representative and asked Shiflett what he intended to do about it, to which Shiflett replied that his sons were grown men and they could do as they pleased. McMillan then warned that unionization would cause Shiflett to lose his job and his home, and his son Harold to lose both his job and a Studebaker automobile he was then purchasing. Pilkington received much the same treatment during the union's organizational campaign as was accorded Shiflett. He had attended the meetings held by Murphy and McMillan in which the supervisors were warned to "break the union up", had repeatedly questioned the employees as to their union activities at respondent's behest, and had made periodic reports as to the effectiveness of the anti-union campaign to respondent.

Despite the efforts of respondent's supervisory employees, including Shiflett and Pilkington, the union prevailed in the election. Shortly thereafter, respondent carried out its pre-election threat by promptly firing Shiflett, with the observation that he already knew the reason for his discharge. Pilkington was discharged the following morning for the asserted reason, as stated by Murphy, that he "just didn't try hard enough" to keep the union out of the plant. Edwin Shiflett was also discharged on October 4, 1949, ostensibly for tangling yarn on the bobbins, but actually, as the Trial Examiner and Board found, because of his union activities.³ This employee had joined the union in August, 1949, and thereafter actively participated in the union's organizational campaign. As heretofore noted, Murphy and McMillan had openly evidenced their resentment of his union membership, and had tried unsuccessfully to force him to renounce the union through pressure on his father.

Relying mainly on the above testimony, the Board found that respondent engaged in unlawful interrogation and threats against its employees for their union activity, in violation of Section 8(a)(1) of the Act; that it further violated Section 8(a)(3) and (1) of the Act by discriminatorily demoting Chester Magouyrk and discharging Edwin Shiflett because of their union activities; and, finally, that the discharge of Supervisors Shiflett and Pilkington, because of their failure to wage a sufficiently effective pre-election anti-union campaign, constituted unlawful interference, restraint, and coercion of respondent's non-supervisory employees, in...