National Labor Relations Board v. Alco Feed Mills

Citation133 F.2d 419
Decision Date15 February 1943
Docket NumberNo. 10463.,10463.
PartiesNATIONAL LABOR RELATIONS BOARD v. ALCO FEED MILLS.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert B. Watts, Gen. Counsel, and Ernest A. Gross, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D. C., and Dan M. Byrd, Jr., Atty., National Labor Relations Board, of Atlanta, Ga., for petitioner.

John L. Westmoreland, of Atlanta, Ga., for respondent.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The National Labor Relations Board asks a decree enforcing its order dated June 26, 1942, that Alco Feed Mills cease and desist from interfering with its employees in organizing for collective bargaining and reinstate with back pay Leavy Clay, an employee found to have been laid off discriminatorily because of union activity. Alco Feed Mills contends that both branches of the order are unsupported by evidence.

There is no substantial conflict. The facts briefly are that during October, 1941, Clay obtained from C. I. O. headquarters in Atlanta application cards for union membership, signed one himself, and got sixteen other of the twenty-four persons employed in the mill to sign. The employees were all negroes. On Nov. 8, 1941, he was laid off for the assigned reason of slack business in the chicken feed department where he worked. Two others not shown to be union men were laid off in that department the week following. On Nov. 12 one Sirmans for C. I. O. wrote a letter to the president of the mill, asking that C. I. O. be treated with as bargaining agent, having been selected by a majority of the employees. The president was ill and the letter was read by the manager, R. C. Avrett, and the mill foreman Clark Frazier, who are white men. The foreman took his timebook and asked each millhand whether he was signed up with the union, noting by a mark on the book the answer, but making no threat or comment. He says he did this because he thought the manager would wish the information. The following day, Nov. 13, the Board's Regional Director sent a notice to the mill to be posted, which was to the effect that the employees had a right to organize and select bargaining representatives of their choice without interference by the employer. This notice was posted in the bulletin board at once, and was still there at the time of the examiner's hearing Jan. 15, 1942. No other union men appear to have been discharged and no further interference is shown. Clay did not apply to be reemployed, he stating that he lived nearby and supposed Mr. Frazier would send for him if he needed him. It is stated in argument that he was reemployed in May, some weeks before the Board's order was made.

There was also evidence that one Walter Willis was the oldest employee, could read and write, and was given the written orders for mixing the horse feed in that department, and was a sort of foreman over eight or nine others engaged in the mixing. He was paid five cents per hour more than the others. He had no power to "hire or fire" men, or discipline them, or make recommendations about the labor and never made any about Clay or anyone else. Willis attended a union meeting in October but did not join. On Nov. 6 he expressed to a fellow worker his disapproval of the union, and said that if "Mr. Frazier finds out about it they (those concerned) are going to lose their job; Mr. Fraizer was going to have to let Leavy Clay go because he was getting too smart trying to organize a union in the mill." Two days after Clay's layoff Willis called attention to his words having come true. Willis himself was not called as a witness, though available. There was no proof that the conduct of Willis was known to any official of the company, but on the contrary that Willis had never been conferred with about labor matters.

We do not think Willis is shown to have been acting for...

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16 cases
  • National Labor Relations Board v. Walton Manufacturing Company National Labor Relations Board v. Florida Citrus Canners Cooperative
    • United States
    • U.S. Supreme Court
    • 9 Abril 1962
    ...that particular type of order. See National Labor Relations Board v. Williamson-Dickie Mfg. Co., 130 F.2d 260; National Labor Relations Board v. Alco Feed Mills, 133 F.2d 419; National Labor Relations Board v. Ingram, 273 F.2d 670; National Labor Relations Board v. Allure Shoe Corp., 277 F.......
  • Georgia-Pacific Corporation v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 27 Febrero 1959
    ...5 Cir., 82 F.2d 321; National Labor Relations Board v. Tax-O-Kan Flour Mills Co., 5 Cir., 122 F.2d 433; National Labor Relations Board v. Alco Feed Mills, 5 Cir., 133 F.2d 419; Howell Turpentine Co. v. Commissioner, 5 Cir., 162 F.2d 319; Foran v. Commissioner, 5 Cir., 165 F.2d 705; National......
  • National Labor Relations Board v. McGahey
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 18 Mayo 1956
    ...R. B. v. Miami Coca-Cola Bottling Co., 5 Cir., 222 F.2d 431; N. L. R. B. v. Brady Aviation Corp., 5 Cir., 224 F.2d 23; N. L. R. B. v. Alco Feed Mills, 5 Cir., 133 F.2d 419; N. L. R. B. v. Tex-O-Kan Flour Mills, 5 Cir., 122 F.2d 433; N. L. R. B. v. Ray Smith Transport Co., 5 Cir., 193 F.2d 1......
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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 10 Enero 1966
    ...No. 12. 2 N.L.R.B. v. Tex-O-Kan Flour Mills Co., 122 F.2d 433; N.L.R.B. v. Williamson-Dickie Mfg. Co., 130 F.2d 260; N.L.R.B. v. Alco Feed Mills, 133 F.2d 419; N.L. R.B. v. Ingram, 273 F.2d 670; N.L.R.B. v. Allure Shoe Co., 277 F.2d 231; Frosty Morn Meats, Inc. v. N. L. R. B., 296 F. 2d 617......
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