National Labor Relations Board v. Anchor Rome Mills, 15503.

• Decision Date: 08 March 1956
• Docket Number: No. 15503.,15503.
• Citation: 228 F.2d 775
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ANCHOR ROME MILLS, Inc., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

228 F.2d 775 (1956)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ANCHOR ROME MILLS, Inc., Respondent.

No. 15503.

United States Court of Appeals Fifth Circuit.

January 17, 1956.

Rehearing Denied March 8, 1956.

COPYRIGHT MATERIAL OMITTED

Maurice Alexandre, Atty., N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel N.L.R.B., David P. Findling, Assoc. Gen. Counsel N.L.R.B., Washington, D. C., Theophil C. Kammholz, Gen. Counsel, Samuel M. Singer, Washington, D. C., for N.L.R.B.

Frank A. Constangy, Atlanta, Ga., John W. Maddox, Rome, Ga., Mildred McClelland, Atlanta, Ga., Matthews, Maddox, Walton & Smith, Rome, Ga., for respondent.

Before HUTCHESON, Chief Judge, and BORAH and BROWN, Circuit Judges.

BORAH, Circuit Judge.

This case is before the Court on petition of The National Labor Relations Board, seeking enforcement of its order¹ requiring respondent, Anchor Rome Mills, Inc., to cease and desist from certain unfair labor practices and to take specified affirmative action which the Board found would effectuate the policies of the National Labor Relations Act, as amended, 29 U.S.C.A. § 151 et seq.²

The material facts which give rise to the two charges filed against respondent are these: The Textile Workers Union of America, C.I.O., certified bargaining representative of respondent's employees, failed to reach an agreement with respondent on the terms of a new contract and on March 18, 1948, approximately 350 employees went out on strike. The respondent had little difficulty replacing the strikers and plant operations continued.

In another proceeding³ the Board found the strike to be an economic one. Accordingly, the Board held that respondent should not be required to reinstate the strikers to their former positions if to do so would require the discharge of replacements.

The initial charge in this case was filed on November 18, 1949, and served on November 23, 1949; it contains the following allegations: "The Employer, in order to discourage membership in a labor organization, on, before and after May 15, 1949,⁴ discriminated in regard to the hire and tenure of employment and to the terms and conditions of employment" of 346 named strikers, respondent's former employees, and further that by these and other acts and conduct, within the past six months, "the Employer had interfered, restrained and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act." A second charge was served on respondent on May 24, 1950, which, in broad language identical to that in the first charge, set forth respondent's discrimination on and after November 20, 1949, and "within the past six months", against Ellen Langham, a non-striker former employee. On March 31, 1953, the General Counsel issued a consolidated complaint which set forth the days in the year 1949 on which the 346 named strikers applied for reemployment and in which it was alleged that "on or about January 14, 1949, and at all times thereafter, Respondent refused to reemploy" the named persons "because of their membership in and activity on behalf of the Union, and because they engaged in the strike * * *" Further discrimination was alleged in that one Minnie H. Mize, a non-striker former employee "in or around February, 1949, July, 1949, March, 1951, and at various other times," applied for "reinstatement or reemployment" and that respondent refused in "February, 1949, and at all times thereafter," to reemploy her because of her membership in the Union and particularly because her husband and her father engaged in the strike. Similar allegations were made as to Ellen Langham, the person named in the second charge.

On November 25, 1953, the trial examiner issued his intermediate report and his findings of fact, conclusions and recommendations were based solely upon the evidence relating to acts occurring on and after May 23, 1949, the six-months cut-off date preceding the date on which the first charge was served. The Board adopted the trial examiner's report with the additions and modifications to which we shall hereinafter refer. In summary, the examiner's findings were: That there was a surplus of textile labor in the area; that respondent maintained a valid practice of "hiring at the gate" through a personnel office — did not keep a formal application file — that applicants were required to apply in person for interview and no applications by telephone were accepted. That it was respondent's general practice to hire applicants who were under fifty years of age, but it sometimes deviated from that rule. That preference in employment was given to employees in a lay-off status and to relatives of its employees. That the personnel director frequently posted a "No Help Wanted" sign to discourage applicants but more than 100 persons appeared seeking work on each of the three mornings a week scheduled by the personnel office for interviews. That during the period aforementioned, the personnel director made inquiries and statements to at least five striker-applicants which had a tendency to discourage the strikers from applying for reemployment; and that this conduct on his part clearly evinced respondent's intent and policy not to reemploy any former striker.⁵ The examiner further found that the filling of vacancies in respondent's plant were peculiarly within its knowledge and control; that as to non-strikers whom it desired to hire, it frequently tendered vacant jobs to them long after they had applied in person for employment, but that respondent never followed this practice as to striker-applicants. He also found that the refusal to hire Minnie H. Mize and Ellen Langham was based upon their relationship to strikers and because of their sympathies for the Union and the strike. The trial examiner made detailed findings as to the number and classification of vacancies filled after May 23, 1949, and likewise an analysis of the job qualifications of and dates of personal application for unconditional employment by the former employees. Specifically, he found (1) that following the personal applications for employment by sixty-two of the named applicants job openings were available which each was qualified to fill, and (2) that absent a discriminatory policy, respondent would have considered the applications of sixty former strikers and of Minnie Mize and Ellen Langham for present or future employment as it did in the case of numerous non-strikers. The Board, in general agreement with the examiner's analysis and findings, observed: "In our opinion, it was the continued operation of this discriminatory policy and not the lack of vacancies at the time of application that affirmatively prevented the 60 former strikers who applied * * * from receiving employment. Moreover, under the circumstances herein, we believe that, once having made their application for employment * * * it was not necessary for the 60 strikers thereafter to repeat the useless gesture of applying again and again in order to establish the Respondent's responsibility for the discrimination practiced against them." The Board in agreement with the trial examiner found that the respondent had violated the Act with reference to Minnie H. Mize and Ellen Langham, relatives of strikers, by extending "its discriminatory policy against former strikers to such relatives."

On the basis of these findings and conclusions the Board ordered respondent to cease and desist (a) from discouraging membership in the Union by discriminating in regard to hire or tenure of employment of employees; (b) interrogating applicants for employment concerning their union or protected concerted activities in a manner constituting interference, restraint or coercion in violation of Section 8(a) (1) of the Act and informing them that they will be denied employment because of such activities, and (c) in any other manner interfering with, restraining or coercing its employees in the exercise of their rights. Affirmatively, it ordered respondent to offer to the sixty named striker-applicants and to Minnie H. Mize and Ellen Langham, immediate employment with such seniority or other rights and privileges as each would have enjoyed had each been employed on the dates when, absent respondent's discrimination, the respondent would have employed them in accordance with non-discriminatory hiring practice, and to make whole these persons for any loss of pay each may have suffered as a result of respondent's discrimination, from the respective dates of discrimination to the dates when each is offered employment; the date from which back pay should run to be determined (in subsequent proceedings) by fixing the date on which each would have been employed by respondent in accordance with nondiscriminatory hiring practice.

The respondent resists enforcement of the order upon the grounds that the complaint was barred by Section 10(b) of the Act, and that the Board's findings and conclusions upon which its order is based are not supported by substantial evidence.

On the assumption that the Board predicated its order solely upon the finding of respondent's implementation of a discriminatory policy after May 23, 1949, respondent argues that the evidence shows that such policy, if unfair, had actually been announced and implemented by the hiring of non-strikers in preference to striker-applicants, long before this date; and that since such "implementation" should be considered a single and non-continuing offense, the unfair labor practice, if any, had prescribed before the initial charge was served. Respondent further contends that the allegations in the complaint relating to Minnie H. Mize are not supported by a charge, as required by Section 10(b) of the Act, and that the complaint with reference to Ellen Langham was barred because the charge was filed more than six months after the date of the acts complained of in the charge.

Respondent's first contention is clearly without merit. The two charges were...