National Labor Relations Board v. Colten

Decision Date28 June 1939
Docket NumberNo. 8087.,8087.
Citation105 F.2d 179
CourtU.S. Court of Appeals — Sixth Circuit

Mortimer Wolf, of Washington, D. C. (Charles Fahy, Robert B. Watts, Laurence A. Knapp, and Malcolm S. Mason, all of Washington, D. C., on the brief), for petitioner.

Leo C. Lillie, of Grand Haven, Mich., for respondents.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

The order sought to be enforced is one of March 31, 1938, in response to findings that the respondents had engaged in unfair labor practices in violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. It requires that they cease and desist from discouraging membership in the Amalgamated Clothing Workers of America or other labor organization of its employees, from dominating, interfering with, or financially or otherwise supporting an organization of employees known as Kiddie Kover Employees' Association, from refusing to bargain collectively with Amalgamated as the exclusive representative of its production employees, and from interference with the rights of employees to self organization under § 7 of the Act. Affirmatively the respondents are required to offer reinstatement to one Mary Kule, and to make her whole for losses of pay by reason of discharge, to offer reinstatement upon application to striking employees, and in event of refusal to make them whole for losses of pay by reason of such refusal, to bargain with Amalgamated as the exclusive representative of their employees, to withdraw recognition from Kiddie Kover Association as such representative, and to post the usual notices of compliance.

The respondents were co-partners in Grand Haven, Michigan, doing business as the Kiddie Kover Manufacturing Company. After service upon them of the Board's order Colten died, and Ethel C. Colten was appointed executrix of his estate. Notice has been served upon her of the filing of the present petition, and she has appeared in the proceeding. The Board seeks as against her a decree which will but require her jointly and severally with the surviving partner to compensate employees for back wages directed to be paid under the order. As against Colman, the surviving partner, the Board seeks full compliance with the order on the ground that the business of the partnership is being continued by him and under the partnership name.

The first challenge to the petition is based upon the contention that the respondents were not engaged in interstate commerce and so not within jurisdiction of the Board. It appears, however, that for an eighteen month period ending shortly before the filing of the complaint, approximately 95% of the respondents' total purchases of raw materials and sales of finished products moved to and from its plant in Grand Haven in interstate commerce. In the light of the expanding concept of interstate commerce, and of circumstances under which the impact of industrial strife burdens and obstructs such commerce, it is now idle to renew assault already repeatedly repelled upon the jurisdiction of the Board. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; and associated cases; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir., 97 F.2d 331; National Labor Relations Board v. Kentucky Fire Brick Co., 6 Cir., 99 F.2d 89.

The controversy between the respondents and their employees which led to complaint, hearing before the Board and final order, had its inception on March 18, 1937, when upon a rumor of dissatisfaction among its employees the fear of a sit-down strike caused the respondents to close their plant and to post notices that it was temporarily shut down because of lack of materials. Their employees were at this time unorganized. Upon the closing of the plant, however, the workers solicited the aid of the Amalgamated Clothing Workers of America, and a representative of that union arrived in Grand Haven to see what could be done. A group of forty employees addressed by the union agent voted unanimously for representation by the Amalgamated, and a number of them signed membership cards. A conference with Colman resulted in a tentative agreement for settlement of difficulties and a return to work. A second meeting, attended by over sixty, was informed of satisfactory progress, and a written agreement prepared by respondents' counsel and signed by Colman was entered into recognizing the Amalgamated as the bargaining representative of the workers. The employees agreed to return to work March 22d, appointed a union shop committee, and received assurances from the management that the respondents would not interfere with union activities pending a resumption of negotiations upon Colten's return from Europe April 15th. The union representative thereupon returned to Chicago. The total number of employees in the plant at that time was eighty. Fifty-three of these had signed membership pledges in the union. They were production workers, and it is conceded that this group is an appropriate unit for purposes of collective bargaining.

Shortly thereafter the management launched a campaign of coercion and intimidation designed to influence the majority of employees to withdraw from the union, a campaign accelerated upon Colten's return to Grand Haven. It will serve no purpose to review the record in this respect. There is substantial evidence to support the findings of the Board, including warnings by supervisory employees that workers would lose their jobs and threats by Colman that the respondents would go out of business if there was a union in the shop.

On April 2d the management undertook a poll of its employees on the question whether they preferred to bargain directly with the management or through the union. The tally is asserted to show a majority of 52 to 21 against the union, and on the strength of this vote the...

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61 cases
  • San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd.
    • United States
    • California Court of Appeals Court of Appeals
    • June 27, 1980
    ...2. Development of the Successorship Doctrine The first court case on successorship in the context of NLRA disputes N. L. R. B. v. Colten (6th Cir. 1939) 105 F.2d 179. The change in the employing entity in that case was purely technical: a partner died, dissolving the partnership as a matter......
  • Babbitt Engineering & MacHinery v. Agricultural Labor Relations Bd.
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    ...purchaser of a business to, in some circumstances, assume the statutory obligations of its predecessor. (See National Labor Relations Board v. Colten (6th Cir.1939) 105 F.2d 179.) Since Colten, federal authorities have recognized the fundamental purposes of the NLRB required a new employing......
  • Bethlehem Steel Co. v. National Labor R. Board
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    • May 12, 1941
    ...854, 883. Cf. National Labor Relations Board v. Hopwood Retinning Co., Inc., 2 Cir., 104 F.2d 302, 303. 22 National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179, 183. 23 Cf. Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 119, 58 S.Ct. 113, 82 L.Ed. 141. In Scott v......
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    • May 6, 1942
    ...predecessor and the successor for the redress of their respective but continuous unfair labor practices. In National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179, 183, it was said that "* * * the strife which is sought to be averted is no less an object of legislative solicitude wh......
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