National Labor Relations Bd. v. Westex Boot & Shoe Co.
| Decision Date | 25 June 1951 |
| Docket Number | No. 13402.,13402. |
| Citation | 190 F.2d 12 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. WESTEX BOOT & SHOE CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Maurice Alexandre, Atty., A. Norman Somers, Asst. Gen. Counsel, and David P. Findling, Associate Gen. Counsel, National Labor Relations Board, Washington, D. C., for petitioner.
Lee Sellers, Otis E. Nelson, Wichita Falls, Tex., for respondent.
Before McCORD, RUSSELL and RIVES, Circuit Judges.
The findings of fact, conclusions of law, and order of the Board are reported at 82 N.L.R.B. 497.
The Company contends that the American Federation of Labor (referred to as A.F.L.) was not a labor organization as that term is defined in section 2(5) of the Labor-Management Relations Act, 29 U.S.C. § 152(5), 29 U.S.C.A. § 152(5). It may well be said of the A.F.L., as was said of the C.I.O. in National Labor Relations Board v. Postex Cotton Mills, 5 Cir., 181 F.2d 919, 921, that so to determine "would require us to overlook the realities and substance of its objectives and operations." See also National Labor Relations Board v. Highland Park Mfg. Co., 341 U.S. 322, 71 S.Ct. 758.
The first charge filed with the Board stated that the Company had violated section 8(a)(1) and (3) of the Act by discharging four named employees on December 4, 1947, because of their membership and activities in behalf of A.F.L. It further stated that by such discharges and "by other acts and conduct" the Company "interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act." The second amended charge was identical with the original charge except that it alleged three additional discriminatory discharges. The Company contends that "the only unfair labor practices ever charged to the Board were the discharges of the seven employees for their Union activities," and that the Board was, therefore, without power to include in its complaint an allegation based on discharges of those employees for concerted activities other than union activity, and further that the Board lacked jurisdiction to charge that the Company has interrogated its employees concerning their Union affiliations and activities, and has urged, persuaded, threatened and warned its employees to refrain from assisting, becoming members of or remaining members of, a Union.
The Company's contention is that the charge is a jurisdictional prerequisite to the complaint and subsequent proceedings and that they are restricted to the specific unfair labor practices alleged in the charge. Sec. 10(b) of the Act, U.S.C. Tit. 29 Sec. 160(b), 29 U.S.C.A. § 160(b), provides in part: "Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing * * *." (Emphasis added.)
For the antecedent of "such" we must go back to the phrase in Section 10(a) "any unfair labor practice (listed in section 158) affecting commerce". "The charges in that respect" mean the charges in respect to any...
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