National Labor Relations Board v. Mylan-Sparta Co.

• Decision Date: 10 February 1948
• Docket Number: No. 10458.,10458.
• Citation: 166 F.2d 485
• Parties: NATIONAL LABOR RELATIONS BOARD v. MYLAN-SPARTA CO., Inc., et al.
• Court: U.S. Court of Appeals — Sixth Circuit

166 F.2d 485 (1948)

NATIONAL LABOR RELATIONS BOARD v. MYLAN-SPARTA CO., Inc., et al.

No. 10458.

Circuit Court of Appeals, Sixth Circuit.

February 10, 1948.

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Jack G. Evans, of Washington, D. C. (David P. Findling, Ruth Weyand, Fannie M. Boyls, Dominick L. Manoli, and Samuel M. Kaynard, all of Washington, D. C., on the brief), for petitioner.

Cecil Sims, of Nashville, Tenn. (Cecil Sims, of Nashville, Tenn., on the brief), for respondents.

Before MARTIN, McALLISTER, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The petitioner, National Labor Relations Board, seeks enforcement of its order of August 26, 1946, pursuant to Section 10(b) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. By the order in question the respondents, Mylan-Sparta Company, Inc., Mylan Manufacturing Company, Inc., and M. C. Wallace were ordered to cease and desist from interfering with, restraining or coercing the employees of the two companies in the exercise of the right to form or join United Construction Workers, UMWA, or any other labor organization, that the corporations make whole to seven employees any loss of pay suffered by reason of their discriminatory discharge, that the corporations post appropriate notices, and that Wallace publish in the local newspaper a notice stating that he would not interfere with or coerce the employees in the exercise of their right to self-organization and to join a labor organization. Wallace was not an officer or an employee of either corporation.

The Board's complaint and amended complaint were issued January 23, 1946 and February 7, 1946 respectively. The Board's order was entered August 26, 1946. The petition for enforcement was filed April 12, 1947. Following the enactment of the Labor Management Relations Act of 1947, 29 U. S. C. A. § 141 et seq., effective August 22, 1947, the respondents on December 1, 1947 moved in this Court to dismiss the petition for enforcement on the ground that the record failed to affirmatively disclose that the United Construction Workers, an affiliate of United Mine Workers of America, upon whose charge the complaint was based, had complied with § 9(f), (g) and (h) of the Labor Management Relations Act of 1947. In the alternative, respondents stated that the Union had failed and refused to comply with such requirements and asked leave to adduce evidence before the Board showing such noncompliance, and that in the event such noncompliance is shown it is contended this Court is without jurisdiction to proceed further in the cause. We believe this motion, assuming for the purposes of the motion that the United Construction Workers has not complied with the provisions of § 9(f), (g) and (h) of the Act, should be overruled. These sections provide that no investigation shall be made by the Board and no labor organization shall be eligible for certification until certain information respecting the organization, operation and finances of the union has been filed with the Secretary of Labor, and also that no complaint shall be issued pursuant to a charge made by a labor organization unless such information has been supplied and an affidavit by the officers of the union disclaiming Communist beliefs or affiliations has been filed with the Board. The furnishing of the information and the filing of the affidavit are conditions precedent to the filing of a complaint under the 1947 Act. The complaint in the present case was not filed under the 1947 Act but was filed under the provisions of the National Labor Relations Act of July 5, 1935, 29 U. S. C. A. § 151 et seq. The amendment of the 1935 Act by the 1947 Act did not release or extinguish any of the liabilities which had been incurred under the original act. Such liabilities are expressly reserved by 1 U. S. C. A. § 29. See United States v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480; Hertz v. Woodman, 218 U.S. 205, 217, 218, 30 S.Ct. 621, 54 L.Ed. 1001. In any event, the complaint in this proceeding had been issued, the decision and order of the Board had been entered, and the petition to enforce the order been filed before the effective date of the 1947 Act, which by its express terms, insofar as it applies to this issue, merely provides "no complaint shall be issued." The Act is prospective, not retroactive, in its effect. N. L. R. B. v. National Garment Co., 8 Cir. 1948, 166 F.2d 233, decided January 7, 1948; N. L. R. B. v. Whittenburg and Dougherty, d.b.a. South Texas Produce Co. 5 Cir.1947, 165 F.2d 102; In the Matter of Marshall & Bruce Company, 75 N.L.R.B., No. 13, 21 L.R.R.M. 1001.

The complaint charges the respondents with engaging in unfair labor practices within the meaning of § 8(1) and 8(3) of the National Labor Relations Act. In addition to proceeding against the employing industry, it also named as respondents the Sparta-White County Chamber of Commerce of Sparta, Tennessee, and M. C. Wallace, James R. Tubb, Jr., and Robert J. Snodgrass, three individual residents of Sparta. Sparta is a town of approximately 2500 population. The employing industry is engaged in the manufacture and sale of men's and boy's shirts and is the principal industry in the town, employing between 600 and 800 persons. The businessmen of Sparta were vitally concerned with its continued and successful operation. A possible organization of a union was prevented by some of them in 1942. In February 1945, when an expected wage increase for some of the employees did not materialize, a group of about 50 to 75 employees started to walk out of the plant but were persuaded by the plant superintendent to return to work. About March 1, 1945, two organizers of the union arrived and started the distribution of union membership application cards to employees at the plant. A meeting of some of the businessmen of Sparta was held at Wallace's home. Charles Bassine, plant manager and part owner of the business, and R. E. Knowles, a former sheriff, were present. It was suggested that some of the businessmen of Sparta attend a meeting of the employees at the plant. Bassine arranged to address the employees at the plant at about 4:00 p.m. on March 9th. Bassine told the employees that he understood that there were union organizers interested in obtaining their membership in a union, that they had the right to join a union, and also the right not to join a union. He appealed for continuing production, urged that the employees not walk out even though they had the right to do so, and stated that while the plant might be closed for reasons beyond his control it would not close by any act of his. Some 50 or more businessmen, including Wallace, attended the meeting. When Bassine finished his talk and the meeting started to break up Wallace called for attention and made a talk to the employees remaining to listen to him. Wallace told them about the coal mines located nearby having closed in previous years by reason of the organization of a union and about the silk mill that had previously been located in the same building having also closed on account of union activities, that the employees should listen to friends instead of strangers, and expressed the opinion that union organization in the Mylan plant would result in the ultimate closing down of the plant. Bassine did not make any additional statement after Wallace concluded. On March 15, 1945, the union held a meeting in the yard of Ora Burgess, one of Mylan's oldest employees, at which officers were elected. Between March 13th and March 19th, the following employees were discharged: Pauline Anderson, Carrie Bennett, Della Fletcher, Nola Martin, Mary Hardie and Rebecca Bell. Ora Burgess was discharged on April 12th. All seven of these employees were active in the organization of the union.

When the union organizers first arrived in Sparta they talked to Herman Anderson, an employee who undertook the distribution of union membership application cards, became an active union supporter and later its president. At lunch time on March 7th, Anderson found a memorandum attached to his timecard saying "Call Operator 27, Atlanta, Georgia, at lunch" and also "See Ed Knowles at City Hall." The customary way of delivering a message to an employee was to attach such a memorandum to his timecard. Anderson called the Atlanta operator and talked to his brother. After getting lunch he went to the City Hall and saw Knowles. Knowles urged Anderson to abandon the union and to tell the organizers to get out of town; offered Anderson another job and told him that the factory wouldn't run if a union came in. Knowles talked in a similar way to Mary Hardie, another active union adherent, as she left the plant that afternoon. That evening Knowles, accompanied by the sheriff, went to Anderson's home. He had a typewritten list of Mylan's employees and urged Anderson to indicate which of the employees were leaders of the union. Anderson refused to do so. Knowles asked Anderson to attend a meeting with Bassine and other businessmen which Anderson declined to do. The next evening Knowles and the Chief of Police came to the home of Anderson's father-in-law and talked to Anderson again, telling him "to stop fooling with the union." Knowles and the chief of police watched from a close distance the union meeting on March 15th, and following the meeting trailed the two union organizers and arrested them for reckless driving. After they were fined by a Justice of the Peace, Knowles ordered them to get out of town and offered them protection to the county line. The organizers left immediately.

During the organization movement, Feinstein, the plant superintendent, repeatedly told employees that his boss didn't want the union and that he would be better to them than the union would be. On one occasion an employee, Myrtle Bussell, who had not joined the union, asked Feinstein for a raise. Feinstein at first refused but after the employee talked with Bassine Feinstein agreed to a five...