National Labor Relations Board v. Happ Bros. Co., 13756.

• Decision Date: 15 April 1952
• Docket Number: No. 13756.,13756.
• Citation: 196 F.2d 195
• Parties: NATIONAL LABOR RELATIONS BOARD v. HAPP BROS. CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

196 F.2d 195 (1952)

NATIONAL LABOR RELATIONS BOARD v. HAPP BROS. CO., Inc.

No. 13756.

United States Court of Appeals Fifth Circuit.

April 15, 1952.

Norton J. Come, Attorney, N.L.R.B., A. Norman Somers, Asst. Gen. Cnsl. N.L.R.B., and David P. Findling, Assoc. Gen. Cnsl. N.L.R.B., all of Washington, D. C., for petitioner.

Cubbedge Snow, Macon, Ga., Frank A. Constangy, Atlanta, Ga., for respondent.

Before HOLMES, BORAH, and STRUM, Circuit Judges.

BORAH, Circuit Judge.

This is a conventional proceeding under Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160 (e), in which the National Labor Relations Board seeks enforcement of its order of July 28, 1950, against the respondent, Happ Brothers Company, Inc. The order sought to be enforced required respondent to cease and desist from engaging in the specific forms of conduct found to have violated the Act, and from in any other manner infringing upon the employee's rights to self-organization and collective bargaining. Affirmatively, the order directed respondent to offer immediate and full reinstatement to certain named employees and to make them whole for any loss of pay suffered by reason of respondent's discrimination against them; to withdraw and withhold all recognition from the Shop Committee as the representative of any of its employees, and to post appropriate notices.

The respondent is a Georgia Corporation with its principal office and place of business in Macon, Georgia, where it is engaged in the manufacture, sale and distribution of trousers and jackets. Local 223 of the United Construction Workers, an affiliate of the United Mine Workers of America, is the union here involved. This organization, according to the findings of the Board, was organized under the circumstances hereinafter next set forth.

In February, 1946, the respondent entered into a collective bargaining contract with the United Garment Workers Union, A. F. L. In October, 1947, a month prior to the expiration date of this contract, respondent advised the Union and the employees that it was not going to renew the contract since it was its belief that the Union no longer represented a majority of the employees and because the Union had turned the factory into two armed camps. Thereafter the employees elected a company supported shop committee to deal with management. Upon the lapse of the Garment Workers contract the Amalgamated Clothing Workers, C. I. O., entered upon the scene and sought unsuccessfully to organize respondent's employees. This campaign was discontinued in January, 1948. In the meantime, the Garment Workers had petitioned the Board for an election to determine a bargaining representative and the Amalgamated Clothing Workers intervened in this election. In January, 1948, the United Construction Workers, responding to the invitation of Imogene Crawford, president of the prior incumbent Garment Workers, came in to organize the employees. Imogene Crawford circulated a petition to decertify the Garment Workers Union and thereafter this Union withdrew its petition for an election. During the latter part of January, 1948, the Construction Workers held a meeting at which a number of the employees signed union cards. The Union thereafter intensified its organizational campaign and on February 12, its Regional Director informed respondent that a majority of the employees had joined the Construction Workers and requested a conference. The respondent refused to meet, stating that, "we are confident that our employees do not desire any outside representation." On February 20, 1948, respondent discharged three employees for the assigned reason that they were deficient in their production. The employees reported their discharges to the Union, a meeting was called, and the members voted to go on strike. On February 23, 1948, the strike began with approximately 150 employees participating.

We are met at the outset with a serious jurisdictional question and this question we must decide. Respondent contends that the Board was without jurisdiction to issue the complaint on which this proceeding is based for the reason that in reality the charge was made by a labor organization which had not complied with section 9(h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 61 Stat. 146, 29 U.S.C.A. § 159(h), in that Local 223, United Construction Workers, was affiliated with the United Mine Workers of America and none of its officers had executed the non-Communist affidavits required by the statute. More specifically, respondent contends that although the charge and amended charges purport to have been filed by Imogene Crawford acting as an individual employee, in reality she was acting as "a front" or agent for the union; and that the jurisdictional requirements of the Act may not be defeated by the obvious subterfuge of having the president of the union designate herself "an individual" instead of "president."

The Board, on the other hand, contends that it did not err in denying respondent's motion to dismiss and points out that the charges were signed and filed by "Imogene Crawford (individual)," and that the charge alleged discrimination against the charging party. Under these circumstances it is argued that the further question of whether she was also fronting for the union is irrevelant, insignificant, and too academic to consider. We do not agree.

The statute provides that, "No investigation shall be made by the Board * * *, no petition under subsection (e)(1) of this section shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under sub-section (b) of section 160 of this title, unless there is on file with the Board an affidavit executed * * * by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party. etc.."

It was conceded by the Board that Local 223, United Construction Workers, was affiliated with the United Mine Workers of America, none of the officers of which had executed the non-Communist affidavits required by the statute. It must also be conceded that the Congressional purpose in enacting these provisions was to further its policy of wholly eradicating and barring from leadership in the American labor movement, at each and every level, adherents to the Communist party and believers in the unconstitutional overthrow of our Government. N. L. R. B. v. Highland Park Co., 341 U.S. 322, 325, 71 S.Ct. 758, 95 L.Ed. 969; N. L. R. B. v. Postex Cotton Mills, 5 Cir., 181 F.2d 919, 920; N....