National Labor Relations Board v. Mac Smith Garment Co., 14267.

• Decision Date: 17 April 1953
• Docket Number: No. 14267.,14267.
• Citation: 203 F.2d 868
• Parties: NATIONAL LABOR RELATIONS BOARD v. MAC SMITH GARMENT CO., Inc.
• Court: U.S. Court of Appeals — Fifth Circuit

203 F.2d 868 (1953)

NATIONAL LABOR RELATIONS BOARD v. MAC SMITH GARMENT CO., Inc.

No. 14267.

United States Court of Appeals Fifth Circuit.

April 17, 1953.

Andrew P. Carter, New Orleans, La., Attorney, David P. Findling, Assoc. Gen. Cnsl. NLRB, Washington, D. C., A. Norman Somers, Asst. Gen. Cnsl., Washington, D. C., George J. Bott, General Counsel, Frederick U. Reel, Washington, D. C., Julian S. Perlman, Attorneys, National Labor Relations Board, for petitioner.

David Cottrell, Jr., Gulfport, Miss., Daniel G. Ross, New York City, Eaton & Cottrell, Gulfport, Miss., Becker, Ross & Stone, New York City, Albert A. DeStefano, New York City, of counsel, for respondent.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

This petition for enforcement of an order of the National Labor Relations Board does not present for our decision the ordinary situation of a controversy between a single nationally affiliated union and an employer in which it is claimed that the employer is hostile to unionization and has acted so as to prevent its plant from being organized.

It presents, on the contrary, a situation in which an employer who has no record of anti-union activities and whose employees have been organized for years, finds itself caught in the tangled web of a two union controversy between the United Garment Workers, affiliated with A. F. of L., and the C.I.O.'s Amalgamated Clothing Workers of America.

These are the facts of record which underlie and furnish the background for the correct determination of this controversy. For several years preceding June of 1949, and without, as far as this record shows, any serious labor controversies having arisen, the United Garment Workers represented respondent's employees for bargaining purposes. Beginning at about that time the respondent and its employees commenced to be harassed and ground between the upper and the nether mill stones of the two competing union drives, or, to change the figure, blown about by the contrary winds generated in the struggles of the two unions for the position of bargaining representative.

After a whirlwind drive and in a hotly contested election, the C.I.O. received 331 as against 210 votes for the A. F. of L. union and when, on July 26th, an election for authorization of a union shop was conducted, and 419 voted with the C.I.O. for, as against 123 against, a union shop, as might well have been expected under the circumstances, the officers of the A. F. of L. turned up as officers of the C.I.O., and still the vicars of Bray.

Bargaining was then commenced by the company on August 4th, and by October 16th, the parties were close to a contract, the union holding out principally for seniority to be controlling with reference to tenure and layoffs, for contributions to the C.I.O. welfare funds, and its own form of arbitration, the company, on its part, holding out for its position that efficiency, attendance, and versatility should be controlling factors and not mere seniority.

Thereafter, the bottom dropped out of the shirt market, the company found itself stuck with a large unsalable inventory of shirts, suffered the loss of its only large customer, the principal stockholder who had been in charge of the shirt operation for which the Gulfport factory furnished practically all of the products withdrew from the company, and, in the latter part of November, 1949, respondent was forced to close its plant.

In January of 1950, a former business agent of the A. F. of L. presented to the plant manager at Gulfport a petition containing the names of approximately 500 workers. This petition read:

"We, the undersigned petitioners do respectfully petition the management of Mac Smith Garment Company to begin operations as soon as possible. We, the undersigned, are willing to return to work with no union contract. We are also willing to return to work with a union open shop."

The petition could not be, it was not, antiunion. Neither, presented by an ex-union officer, was it fostered by the company. The C.I.O. and the company representatives in New York continued to confer and the C.I.O. was advised that the plant would open on a limited basis the latter part of March, 1950.

On March 3, Smith called Dickason, a high official in the union, and Garner to tell them that the plant would be reopened and a further conference with Dickason was arranged for March 10th, in New York.

On that day Dickason, representing the C.I.O., met with Mr. Ross in the New York office. The economic situation at the plant and the trial basis of reopening were explained to Dickason. She asked how the employees would be recalled. Smith explained the recall plans to her, and Dickason, telling him that she was very pleased to hear that the plant was reopening, stated that she could not say just what her reaction was to his method of calling the workers back, that "We ought to have a meeting and discuss it". Seniority was not mentioned. The company decided to reopen the plant with a small organization instead of the large one to try to keep the business at least alive. This meant that it would hire only one unit of manufacturers instead of two, about 300 instead of 640 which it had formerly employed.

There was employment opportunity therefore for less than one-half of the force when the plant shut down. Hiring was then done without any consideration whatever being given to whether or not employees were A. F. of L. or C.I.O. members or were without any union affiliation.

On April 6, 1950, the C.I.O. began filing unfair labor charges. Among them were charges of...