NATIONAL LABOR RELATIONS BOARD v. Montag Bros., 10813.

• Decision Date: 03 February 1944
• Docket Number: No. 10813.,10813.
• Citation: 140 F.2d 730
• Parties: NATIONAL LABOR RELATIONS BOARD v. MONTAG BROS., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

140 F.2d 730 (1944)

NATIONAL LABOR RELATIONS BOARD v. MONTAG BROS., Inc.

No. 10813.

Circuit Court of Appeals, Fifth Circuit.

February 3, 1944.

Robert B. Watts, General Counsel, National Labor Relations Board, and Howard Lichtenstein, Asst. Gen. Counsel, N. L. R. B., both of Washington, D. C., and Dan M. Byrd, Jr., Atty., N. L. R. B., of Atlanta, Ga., for petitioner.

Barry Wright, of Rome, Ga., and Madison Richardson, of Atlanta, Ga., for respondent.

Before HUTCHESON, McCORD, and LEE, Circuit Judges.

McCORD, Circuit Judge.

National Labor Relations Board petitions for enforcement of its order issued against Montag Brothers, Inc., pursuant to Section 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.

Montag Brothers is a Delaware corporation doing business in the State of Georgia. It has its principal place of business in Atlanta, where it is engaged in the manufacture, sale and distribution of social stationery, school tablets, and allied items.

It is without dispute that the Corporation was engaged in interstate commerce, and no question is raised as to jurisdiction.

The important facts are these: United Wholesale, Retail and Warehouse Employees of America, affiliated with the C. I. O. attempted to organize Corporation's employees into a union in April, 1941. On November 7, 1941, an election was held under Board auspices to determine whether or not the employees wanted to be represented by this union. They voted against such representation and thereafter no attempt was made to further organize this union.

An attempt was made to organize the employees of the printing department early in November, 1942, under the American Federation of Labor; this union filed a petition with the Board for investigation and certification of representatives. The unit sought to be organized numbered about twenty-two employees of the printing department. Notice was issued for a hearing on November 10, 1942. On November 9, the pressmen struck without previous warning and picketed the plant. The parties agree that this strike was not authorized by appropriate union authority and did not result from any unfair labor practices on the part of the Corporation. It involved twenty-two of the three hundred fifty employees of Corporation in Atlanta. Picketing continued until about December 23, 1942.

On November 9, 1942, when approximately twenty-four employees of the Corporation appeared for work they found a picket line and refused to enter the plant, and so did not work on that day. Two of that number, McCain and Kuykendall, did not cross the picket line or enter the plant, but remained in the vicinity of the plant on the 9th and 10th of November. These two women had been leaders in the attempted organization of the union in the spring of 1941. They were not interested in the strike directly, but one had a relative who was interested, and after consultation and inquiry they called up an officer of the Corporation and asked to be allowed to return to their positions. A number of the employees who had remained away from work altogether, but who were not employed in the press department, including these two women, were instructed to report at the office on the morning of November 11, 1942. They were each interviewed by one Shulhafer in the presence of two other officers of the Corporation. All of the employees interviewed except McCain and Kuykendall were permitted to return to their positions. Shulhafer asked McCain and Kuykendall why they did not come to work and they gave their reasons, one being that she was afraid to cross...