Stokely Foods v. National Labor Relations Board

• Decision Date: 11 January 1952
• Docket Number: No. 13443.,13443.
• Citation: 193 F.2d 736
• Parties: STOKELY FOODS, Inc. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

193 F.2d 736 (1952)

STOKELY FOODS, Inc. v. NATIONAL LABOR RELATIONS BOARD.

No. 13443.

United States Court of Appeals Fifth Circuit.

January 11, 1952.

Frederic D. Anderson, Indianapolis, Ind., for petitioner.

Marvin E. Frankel, Atty. NLRB, David P. Findling, Assoc. Gen. Counsel NLRB and A. Norman Somers, Asst. Gen. Counsel NLRB, all of Washington, D. C., for respondent.

Before HOLMES, BORAH, and STRUM, Circuit Judges.

BORAH, Circuit Judge.

This case is before the court on petition of Stokely Foods, Inc., to review and set aside an order of the National Labor Relations Board which directed petitioner to cease and desist from discouraging membership in the American Federation of Labor or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment; from interrogating its employees concerning their union affiliations, activities or sympathies; from threatening to close its Lawrence, Kansas plant in the event that the American Federation of Labor or any other labor organization succeeds in unionizing the plant; and from in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization. The Board's order affirmatively directed petitioner to offer to reinstate and to make whole three employees whom the Board found to have been illegally discriminated against in regard to their hire or tenure of employment. In response to the petition, the Board asks that its order be enforced.

The principal questions presented for our determination are: (1) whether the Board properly included in its complaint allegations that petitioner unlawfully interrogated and threatened its employees; (2) whether the Board properly found that petitioner discriminatorily discharged Willis L. East-land and discriminatorily terminated the employment of Paul J. Niemann and Fred Nightingale by refusing to reinstate them; and (3) whether the Board erred in finding that the petitioner unlawfully interrogated and threatened its employees.

Petitioner's first point concerns a variation between the charges filed by the Union and the complaint issued by the Board. The charge and the amended charge,¹ which were admittedly filed with the Board within six months following the occurrence of the events to which they related, stated in substance that in rehiring after a temporary shutdown of its plant petitioner discriminated against seven named employees because of their membership and activities in behalf of the American Federation of Labor, a labor organization; and that by such acts petitioner interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thus the Union charged violations of Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act as amended.² The complaint issued by the Board alleged in part that petitioner discriminated in regard to hire and tenure of employment, and also alleged that in violation of Section 8(a)(1) petitioner interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7. By way of specification the complaint alleged among other things that petitioner interrogated its employees concerning their union affiliation and activities; and threatened, urged and persuaded its employees to refrain from assisting, becoming members of, or remaining members of the Union. To the extent that the complaint alleged that respondent unlawfully interrogated and threatened its employees in violation of Section 8(a) (1), petitioner contends that the complaint was invalid under Section 10(b)³ of Act for the reason that such violations were not specified in the charge filed by the Union. This question was decided adversely to petitioner's contention in Cathey v. N. L. R. B., 5 Cir., 185 F.2d 1021, affirming 86 N.L.R.B. 157, set aside on other grounds, 5 Cir., 189 F.2d 428, and to that decision we adhere. See also N. L. R. B. v. Atlanta Journal Company, 5 Cir., 187 F.2d 13, affirming 82 N.L.R.B. 832; N. L. R. B. v. Westex Boot & Shoe Co., 5 Cir., 190 F.2d 12, 13-14.

As to petitioner's second point, we are of opinion that the record as a whole fully supports the Board's findings that because of their Union activities petitioner discriminatorily discharged Eastland and discriminatorily terminated the employment of Niemann and Nightingale. Eastland initiated the drive to organize the plant employees. On the advice of Clarence Strunk, a representative of the American Federation of Labor, he solicited and obtained the names of 52 employees that wanted an organization at the plant. Petitioner knew of the organizational activity in the plant from the very outset and Plant Manager Pickett considered the union drive of importance and reported it and discussed it on several occasions with C. LeRoy Eldridge, petitioner's...