National Labor Relations Board v. Riverside Mfg. Co.

• Decision Date: 31 May 1941
• Docket Number: No. 9643.,9643.
• Citation: 119 F.2d 302
• Parties: NATIONAL LABOR RELATIONS BOARD v. RIVERSIDE MFG. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

119 F.2d 302 (1941)

NATIONAL LABOR RELATIONS BOARD v. RIVERSIDE MFG. CO.

No. 9643.

Circuit Court of Appeals, Fifth Circuit.

April 23, 1941.

Rehearing Denied May 31, 1941.

Robert B. Watts, Gen. Counsel, and Laurence A. Knapp, Associate Gen. Counsel, both of Washington, D. C., and Warren Woods, Regional Atty., of New Orleans, La., for National Labor Relations Board.

Waldo DeLoache, of Moultrie, Ga., W. Gordon McKelvey, of Nashville, Tenn., and J. O. Gibson, of Moultrie, Ga., for respondent.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

The Board proceeding, out of which this petition comes, involves a small cotton mill located in Moultrie, Georgia, employing approximately 112 people, mostly women. It grew out of the efforts of the Amalgamated Clothing Workers of America, affiliated with the Textile Workers Organizing Committee, and the Committee for Industrial Organization (referred to throughout the proceedings, as the union or the T. W. O. C.), to organize the plant, represent the workers therein as exclusive bargaining agent, and obtain a closed shop agreement. It began with a charge filed September 2, 1937, that Riverside Manufacturing Company, through Hutchins, its plant superintendent, was using coercive methods to prevent organization of the plant. By amendments, filed respectively October 13, 1937, March 24th, April 28th, and June 29th, 1938, additional acts of Hutchins, hostile to the union, the discriminatory transfer or discharge of, first, Mrs. Page, and Miss Tuttle, second C. B. Bradley and Frank Mercer, and later Lois and Mary Renfrow and Winona Hooks, and that the union had obtained a majority of the employees, and the company had refused to bargain, were added to the charge.

These charges along with a petition for investigation and certification of representatives were by order of June 29, 1938, consolidated for hearing, upon a complaint elaborating the charges, except that as to the discharge of the Renfrows, which was dropped.

The examiner's intermediate report filed October 19, 1938, sustained the complaint in full, except as to the Page and Tuttle discharges. On December 16, 1938, the union filed a fifth amended charge, carrying forward all of the old charges, and adding to it the charge that the company on or about October 26th, had permitted a group of its employees to stop the operations of its plant, and physically drive from it, nine employees, all or practically all of the remaining members of the union, and did on that day discharge or otherwise discriminate against them. Thereupon the proceeding was reopened and remanded, the complaint was amended to embody and elaborate upon this additional charge that the nine employees named had been ejected from the plant by the respondent and had been discharged and reinstatement refused by it for the purpose of discriminating against them, by reason of their membership in the union. The welter of charges and complaints having come to an end, and the respondent having joined issue; there was a hearing, an intermediate report sustaining the additional charge; and findings of the Board sustaining the complaint as to the unfair labor practices, the discharges of Bradley and Mercer, and the eviction of the other nine named employees, but not as to the discharges of Page, Tuttle and Hooks, and an order,¹ to cease and desist, and to take affirmative action.

Petitioner insisting that its findings are supported by substantial evidence, and that its order is within the scope of its findings, and appropriate, sues for its enforcement. Respondent as vigorously insisting, that the findings are without support, and that the order is not responsive to or appropriate under the findings, resists enforcement and prays that the order be vacated and the proceeding dismissed. Particularly it insists that the case is one in which the Board in its administrative capacity, in collaboration with a nationally affiliated union, is endeavoring to seat the union, as representative of the employees, against their will and wish to have it represent them, and that the findings and order are responsive to and colored by this endeavor. It insists therefore that the whole order is invalid and must fall, and if not, that at least that part of it requiring affirmative action must.

We have had recent occasion to point to the unfortunate plight of the ordinary unorganized employee, the forgotten man, in these controversies between nationally affiliated unions and employers. Caught between the upper and the nether millstone of the efforts of the national union, assisted by the Board in its administrative capacity, to organize and represent him willynilly, and that of his employer to prevent its doing so, the state of the ordinary employee is indeed a parlous one. We have carefully pointed out, as other courts have, that the act does not provide that employees must affiliate themselves with national unions, N. L. R. B. v. Brown Paper Mill Co., 5 Cir., 108 F.2d 867, that on the contrary, the act was designed to and does protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing". Sec. 151, Title 29 U.S.C.A. We have also taken pains to point out that, in this situation, with the employer forbidden to aid him in any way, with the Board, as administrator and litigant against the employer, sponsoring the efforts of the national union to organize and represent him, and as trier, determining the truth of its own charges, the only protection afforded the unorganized employee, without resources or leadership to resist, is in the courts.² They alone, under the act, have the power to make coercively effective, the orders of the Board entered in these bitterly partisan contests, to which, under the decisions as they now stand, the unorganized employee, though he may be bitterly opposed to the union, is not, and cannot demand to be made, a party.

This case, from the standpoint of the unorganized and unwilling employees, is a peculiarly oppressive one. For the record, while leaving no doubt that the great majority, indeed nearly all of the employees of the mill, do not now wish to be represented by the union, and are personally bitterly hostile to it, shows also that the employer is hostile to the union, has by words and conduct coming within the prohibitions of the act, evidenced its hostility thereto, and must be not only restrained from continuing that hostility, but also compelled to undo the harm its actions have caused the employees who desired representation by the union.

In this situation, though nothing in the act forbids anything that they have done or is directed at all against them, the other employees, without being afforded a hearing, and unrepresented and undefended, find themselves in the position of having their rights to refuse to be represented by the union greatly jeopardized, if not completely taken from them, by an order of the Board, entered against their employer, because of acts of the employer in violation of a statute, drawn and worded to protect them from the consequences of such acts. For, if anything stands out in the record so clearly that no reasonable mind could reach any different conclusion about it, it is that the union and its members are now "personae non gratae" with the great majority of the employees, and that moved by their own feelings of opposition and resentment, and not by any threat or promise from the management, these employees took the action they did because they felt that the union with the assistance of the Board was trying to force upon them the representation they did not want.

While, therefore, it is the duty of this court to enforce the orders of the Board against the employer, if supported by evidence, and appropriate, it is also the duty of this court to countenance and make no order which will, under the guise of disciplining the employer under the act, charge him with responsibility for independent acts of the employees, or unjustly take away from the employees, rights accorded to them under the act. Examining the order of the Board in the light of its findings, and the findings in the light of the record, we think it plain that, as to the employer's refusal to bargain with the union and its acts of hostility to it, the order and the findings are sustained, and must be enforced. Because, however, of the peculiar situation shown by the record; that many of the employees complain that they were originally induced to enter the union by threats on its part that it had a majority and unless they joined immediately they would be forced out of employment or they would have their dues and initiation fees raised; that most of those who joined, formally, withdrew from membership; that none of the employees are now members; and that most of them are personally hostile to the union; this court should, as was done in the Clerk's case, in order that the purpose of the statute be not defeated, make sure by its order that the union is the representative of the employees by the free will and choice of the majority. The order will therefore be amended by adding to Clause (a) in Section (1) and to Clause (a) in Section 2 of the order, a clause in the nature of that in that decree.³

We...