National Labor Relations Board v. Dixie Shirt Co.

• Decision Date: 24 September 1949
• Docket Number: No. 5904.,5904.
• Citation: 176 F.2d 969
• Parties: NATIONAL LABOR RELATIONS BOARD v. DIXIE SHIRT CO., Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

176 F.2d 969 (1949)

NATIONAL LABOR RELATIONS BOARD v. DIXIE SHIRT CO., Inc.

No. 5904.

United States Court of Appeals Fourth Circuit.

Argued July 5, 1949.

Decided September 24, 1949.

Fannie M. Boyls, Attorney, National Labor Relations Board, Washington, D. C. (David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, and Samuel Ross, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

L. W. Perrin, Spartanburg, S.C. (Perrin & Perrin and L. W. Perrin, Jr., Spartanburg, S. C., on the brief), for respondent.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This case is before us upon a petition of the National Labor Relations Board (hereinafter called the Board) for the enforcement of its order issued against the Dixie Shirt Company, Inc. (hereinafter called Dixie), following proceedings under the National Labor Relations Act (hereinafter called the Act), Sections 9 and 10, 29 U.S. C.A. §§ 159, 160.

A charge against Dixie was filed by the United Garment Workers of America, affiliated with the American Federation of Labor (hereinafter called the Union); also objections were filed to an election held on March 20, 1946. The Board issued an order consolidating the complaint case and the representation case.

After the issuance of a complaint against Dixie by the Board, a hearing was held before Trial Examiner Greenberg. After this hearing, but prior to the filing of an intermediate report, the Union filed with the Board a statement alleging bias and prejudice on the part of Greenberg based in part on an allegation that the Examiner had received shirts from the company during the hearing. The Examiner denied the charge but stated that during the hearing, in the presence of all the parties, he asked one of the officials of the company whether the company would sell him one dozen shirts and was later informed, in the presence of all the parties, that the purchase could be arranged. Subsequently the Examiner came to the conclusion that he had done an unwise thing and notified the company that he regretted having made the request in view of the possibility that his motive be misconstrued and withdrew the request. In view of these circumstances, the Examiner, of his own motion, asked to be relieved from further participation in the case because while he was not conscious of any bias for or against any of the parties, he feared that having been the object of unjustified accusation, his state of mind might unconsciously influence his decision one way or the other. His request was granted and the Chief Trial Examiner informed the parties that if it was desired, a new hearing would be granted before another trial examiner, but that if no such new hearing was requested, a new trial examiner would be appointed to prepare an intermediate report upon the record already made.

Neither party requested a new hearing. Trial Examiner Riemer was thereupon designated to prepare an Intermediate Report on the record. This he did and the findings and conclusions of Riemer, with certain modifications and additions, were duly adopted by the Board.

The order of the Board, duly issued upon the basis of its findings, required Dixie to cease and desist from unfair labor practices which interfered with, restrained and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, 29 U.S.C.A. § 157; to post appropriate notices; and to offer reinstatement to Dorothy Gaston and make her whole, after her discharge for Union activity, in violation of Section 8(3) of the Act, 29 U.S.C. A. § 158(3).

Five questions are presented to us for decision in this proceeding:

(1) Whether there was error, prejudicial to Dixie, in the Board's consolidation of the unfair labor practice case and the representation case;

(2) Whether there was error, prejudicial to Dixie, in the appointment of a second Trial Examiner to prepare an Intermediate Report, after the first Trial Examiner (who heard the evidence and saw the witnesses) had been relieved after charges of bias and prejudice were filed against him by the Union;

(3) Whether there was substantial evidence to support the Board's finding of unfair labor practices by Dixie;

(4) Whether there was substantial evidence to support the Board's finding that Dorothy Gaston was discharged because of her activities on behalf of the Union; and

(5) Whether the Board's order was valid and proper.

We have no hesitation in upholding the Board's action in consolidating the two cases here — the complaint case and the representation case. This is a customary and proper procedure that saves time and expense. Nor were any of Dixie's substantial rights thereby prejudiced. The Board's action was in line with its Rules and Regulations, Series 4, Section 203.58, Subsection (c) (2), and Section 203.42(b). See, also, Inland Empire Dist. Council, Lumber & Sawmill Workers Union, Lewiston, Idaho, v. Millis, 325 U.S. 697, 700, 65 S.Ct. 1316, 89 L.Ed. 1877, rehearing denied 326 U.S. 803, 66 S.Ct. 11, 90 L.Ed. 489; National Labor Relations Board v. American Laundry Machinery Co., 2 Cir., 152 F. 2d 400, 401; National Labor Relations Board v. J. L. Brandeis & Sons, 8 Cir., 145 F.2d 556, 558; National Labor Relations Board v. Niles Fire Brick Co., 6 Cir., 124 F.2d 366, 367, 368, certiorari denied 316 U. S. 664, 62 S.Ct. 944, 86 L.Ed. 1740; National Labor Relations Board v. McKesson & Robbins, 74 App.D.C. 28, 121 F.2d 84, 94, certiorari denied 314 U.S. 674, 62 S.Ct. 138, 86 L.Ed. 539; Cupples Company Manufacturers v. National Labor Relations Board, 8 Cir., 103 F.2d 953, 955.

The Board's procedure in relieving the first examiner from further participation in the case and directing a new trial examiner to prepare the intermediate report was not improper under the circumstances of the case and did not constitute prejudicial error. It is, of course, altogether desirable that the trial examiner who conducts the hearing and sees and hears the witnesses shall write the intermediate report; but the change of examiners in this case, based as it was upon the request of Examiner Greenberg on the ground that he deemed himself disqualified, was in accordance with the Administrative Procedure Act, Sections 5(c), 7(a) and 8 (a), 5 U.S.C.A. §§ 1004(c), 1006(a), 1007 (a). See the legislative history of the Administrative Procedure Act containing the reports of the Judiciary Committees of the Senate and House of Representatives, 79 Cong. 1944-6, pp. 203, 206, 207, 209. Prior to the passage of the statute, it had been held that such a change of examiners did not offend the requirements of due process in violation of the Federal Constitution or the National Labor Relations Act¹; but the practice is now settled by the statute which provides in Section 5(c) that the same officers who preside at the reception of evidence, pursuant to Section 7, shall make the recommended decision or initial decision required by Section 8, except where such officers become unavailable to the agency, and in Section 7(a) that "any such officer may at any time withdraw if he deems himself disqualified."

We think, too, that there is substantial evidence to support the Board's finding that Dixie engaged in unfair labor practices, in violation of Section 8(1) of the Act, by acts interfering with, restraining and coercing its employees. A very brief review of some of the most important facts, brought out in the record, would seem in order.

In January, 1946, Harry Abrams (Vice-President and Treasurer of Dixie) announced the promulgation of new piecework rates for the employees, which would become effective February 4, 1946. The employees, with good reason, feared the new rates would result in wage cuts. Dorothy Gaston (an employee of Dixie) sought the aid of Gordon Chastain (an A. F. of L. organizer) in organizing a local of the Union among Dixie's employees.

In late January, 1946, Abrams queried employee Eliza Horton about news of the Union and who was responsible for starting it. When Horton replied that she was unable to give this information, Abrams told her "to find out about it and let him know." When she did not report back to him, Abrams accused her of being more friendly to the Union than to the Company. There was evidence of surveillance of a Union meeting early in February by Foreman Curry.

On February 13, 1946, at a meeting of high officers of Dixie and representatives of the Union, the Union claimed that it represented a majority of Dixie's employees, expressed its desire to bargain and requested that an employee committee, chosen at a previous Union meeting, be permitted to attend the bargaining conference. President Cohen of Dixie disclaimed any knowledge of the Union's presence in the plant, and despite the Union's offer to submit proof of the signing of membership applications by 400 Dixie employees, Cohen refused either to bargain or to permit the Union's employee committee to attend the meeting. On the Union's petition for certification, the Board scheduled an election for March 20, 1946.

There was ample evidence that Dixie started a vigorous campaign to defeat the Union in this election by threats and intimidation of employees on the part of Dixie's supervisory officials. Thus foreman Wilson warned employee Dugan that she would regret Union membership and that she would have difficulty in obtaining other employment. Superintendent Galle told Dorothy Gaston: "Dorothy, you had better think a long time before you take the lead in this Union. If you take the lead * * * you will be fully responsible for all the girls in the plant and whatever happens you will have to take it." Foreman Massa threatened employees under him that Union membership would cause a reduction in their wages and would force them to wash dishes for a living. Similar expressions were voiced by forelady Curry to employees Chapman and Woodruff. Forelady...