National Labor Relations Bd. v. The Newton Company

• Decision Date: 06 September 1956
• Docket Number: No. 15815.,15815.
• Citation: 236 F.2d 438
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THE NEWTON COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

236 F.2d 438 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. THE NEWTON COMPANY, Respondent.

No. 15815.

United States Court of Appeals Fifth Circuit.

September 6, 1956.

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COPYRIGHT MATERIAL OMITTED

Bernard Marcus, Atty., Buffalo, N. Y., Marcel Mallet-Prevost, Asst. Gen. Counsel, David P. Findling, Associate Gen. Counsel, N. L. R. B., Washington, D. C., Theophil C. Kammholz, Gen. Counsel, Fannie M. Boyls, Franklin C. Milliken, Attys., National Labor Relations Board, Washington, D. C., for petitioner.

James L. Spencer, Jackson, Miss., Andrew P. Carter, New Orleans, La., H. V. Watkins, Jackson, Miss., W. Gordon McKelvey, Nashville, Tenn., Watkins, Edwards & Ludlam, Jackson, Miss., for respondent.

Before RIVES, TUTTLE and JONES, Circuit Judges.

JONES, Circuit Judge.

Before us is a Petition of the National Labor Relations Board filed pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq. By the petition the Board seeks enforcement of its order issued on April 27, 1955, against the respondent, The Newton Company, following the usual procedures under Section 10 of the Act. The decision and order of the Board are reported in 112 N.L.R.B. No. 64.

The respondent corporation makes ladies' and men's slacks at Newton, Mississippi, a city of 3500 population, under contract with I. C. Isaacs & Company, Inc., of Baltimore, Maryland. Two other companies located elsewhere in Mississippi bear the same relation to the Isaacs Company as does the Newton Company. The four companies seem to have had a common management. During the summer of 1953 sales of the Newton Company were declining and the inventory of finished goods was increasing. The market price of respondent's products was moving downward. During the last week in July a rumor, apparently unfounded, reached the men engaged in the pressing department of the respondent's plant, that these employees might be replaced by women. Fear of the loss of employment induced much discussion among those of this group and some by other plant employees. One of the pressers was Johnny Dansby. He was talking with "a couple of the boys" in the rest room, so he testified, and they said they needed a union. On Sunday, July 26th, Dansby went to Laurel, Mississippi, and discussed the matter with a Mr. Fairchild, brother-in-law of Dansby, and Vice President of the State Federation of Labor of Mississippi. Through Fairchild a meeting was arranged and held on Wednesday, July 29th, at Decatur, Mississippi, about eight miles from Newton. Conducting or participating in this meeting was W. L. Hines, of Hattiesburg, Mississippi, President of the State Federation of Labor in Mississippi and general organizer in that state for the A. F. of L. About 35 union authorization cards were signed that night. Johnny Dansby was elected temporary chairman for the purpose of getting further cards signed by the employees. The two days following commenced with confusion and proceeded to pandemonium.

During the morning of Thursday, July 30th, groups congregated in the rest rooms and on the sewing floor discussing the union. The foreladies were called to the manager's office and instructed to try to keep the employees at their machines and at work. On several occasions employees were requested to break up their discussions and return to work. Henry Mack, production supervisor of the Isaacs Company in Baltimore, was in Newton to supervise the change over of a production line. S. M. Magee, a building contractor, was engaged in installing air conditioning equipment. The contractor asked Mack to have some finished garments moved so that he could have access to a wall against which they were stacked. On the following morning Mack told the employees of the order department to stop what they were doing and get finished garments ready to be moved. A truck and trailer were at the shipping dock waiting to be loaded with piece goods. Additional employees were taken from the cutting floor to help in this work. The finished garments were packed for shipment to Baltimore, and piece goods were packed for delivery to another of the affiliated companies. All of this was directed by Mack with an air of urgency. The deliveries were being arranged, it seemed, in the normal operations but the haste in getting the goods ready for removal from the plant was prompted by the need to get the space ready for the contractor to work in over the coming week-end. Mack did not explain to the employees the reasons for the packing and shipping. Feltenstein, a supervisory employee who was no longer employed by the company at the time of the Board hearing, said he asked why the goods were being moved and that, to the best of his knowledge, he was told that "there was a rumor that the plant might be picketed and they didn't want to get the piece goods tied up in that plant". Feltenstein could not remember which of three persons, named by him, had made the remark which he recalled to the best of his knowledge. Neither did Mack give any reasons to the plant manager, the cutting room foreman nor, until the movement was under way, to the production manager. Some of the employees, adding two and two together and getting a sum considerably in excess of four, concluded that the packing and moving of goods and materials was in preparation of a plant closing. With the hope that the closing of the plant might be avoided if the union movement was repudiated, three employees, Walters, Ware and Billy Cleveland, decided to go on the sewing room floor and get anti-union signatures. This undertaking was later extended to other departments of the plant. In this enterprise, initiated without any prompting by management, they were joined by Melton Magee, a shipping department foreman, and Lee Turner, in charge of the order department. Jimmy Nelson, head mechanic (there was one other mechanic and two helpers) interrogated other employees regarding their union sympathies. The Board urges that Magee, Turner and Nelson, as "supervisory staff" "interfered with, restrained and coerced" the employees in the exercise of their organizational rights. Neither Magee nor Turner attended supervisors' meetings except when necessary for discussing their own work; they had no right to hire, fire, discipline or promote other employees. Each carried the title of foreman but we do not regard them, as did the Board, as supervisors. On the contrary, each of these men was in the nature of a strawboss, not exercising any independent judgment and not a part of or representing management. Nelson, as chief mechanic, did the same work as his colleague, and was unlike him only in that it was usually to Nelson that directions were given by management. Supervisor is no doubt an elastic term but we cannot stretch it so as to cover Nelson. The activities of persons acting in capacities such as those of Magee, Turner or Nelson are not to be imputed to the company. N. L. R. B. v. Cleveland Trust Co., 6 Cir., 1954, 214 F.2d 95.

The foreladies did not interfere with, and in some instances facilitated the circulation of the petitions, if such they could be called. Some of the foreladies, ignoring management's direction to "stay out of it" actively urged the signing by the girls under them and threatened a closing of the plant. Of the top level management, Henry Mack ordered three of the petition circulators back to work, telling them the circulation was prohibited by company rules. The production manager was credited with telling one of the employees that she had better sign. The papers, when gathered in, were turned over to the plant manager who expressed to those making the delivery his thanks for their interest.

During this hectic Friday two employees, Edith Faye Dansby, the wife of John Dansby, and Violet Prior, were discharged. The circumstances of these events are hereafter related. Henry Mack, in conversation with one employee, threatened to move the plant unless the employees settled down.

On Saturday, August 1st, the plant being closed, two of the employees called on the plant manager at his home and requested information as to how they might get back the union cards they had signed. The manager said he didn't know but would try to find out. On August 4th the manager gave to the supervisors the addresses of the union and the Labor Board. Some of the supervisors exhibited some zeal in making it known that the addresses were available. A number of requests were made for the return of the cards. None were returned. On August 4th Johnny Dansby quit his job with the Newton Company, stating that all of his buddies were falling out with him and going against him, and to keep from losing any more friends he was quitting and taking another job. August 4th was the last day on which any union cards were turned in.

For some time the excess of production over sales and the increasing of inventory of finished garments were causes of concern to management. Late in August, in anticipation of a reduction of personnel, the company officials asked the foreladies to grade the employees working under them. No prior grading had ever been attempted. Rating sheets were prepared. These had columns for evaluating both the production rating and the job rating, the latter covering attendance, adaptability, attitude and quality. On September 17th the company laid off 33 employees. It used the rating sheets as a basis for the selection of those to be laid off, adhering generally but not rigidly to the gradings in separating those retained from those laid off. General Counsel contended that the layoff was a discharge of employees for union activity in violation of Section 8(a) (3) of the Act. The Trial Examiner found that the layoff was justified by economic conditions and was not per se discriminatory. But, he believed and based findings upon his belief, that the grading system was "a far from reliable or impartial instrument for selecting...