National Labor Relations Board v. Talladega Cotton Factory, Inc.

The petition for review presents the novel question of whether the Board may lawfully order reinstatement and back pay to supervisors discharged for failing at their employer’s behest to thwart a Union’s organizational efforts within a plant, 1 even though supervisors are expressly excluded from the definition of “employee” under the amended Act', because of the claimed restraint and coercive effect resulting from their discharge on the protected non-supervisory employees, in alleged violation of Section 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1). Incidentally presented are the usual and routine factual issues as to whether the Board’s findings of unlawful interrogation and threats against the employees for their union activity, and respondent’s discriminatory demo *211 tion of one employee and discharge of another for union affiliation, in further violation of Sections 8(a) (1) and (3) of the Act, are supported by substantial evidence on the record considered as a whole. 29 U.S.C.A. § 158(a) (1) and (3). The decision and order of the Board are reported at 106 N.L.R.B. 61.

Respondent, an Alabama corporation, at times here material was engaged in the manufacture and sale of cotton yarn at its Talladega, Alabama plant. When operating at capacity, the plant employed approximately 157 workers, and maintained twisting and spinning departments in three eight hour shifts under the supervision of Marion Shiflett. Another one of respondent’s supervisors, Seybourn Pilkington, was responsible for operations in the plant’s carting room. Respondent’s president, Robert McMillan, and its superintendent, Hunter Murphy, had charge of the overall supervision of manufacturing operations. ^

In early 1949, as a result of time studies made of the various steps involved in its manufacturing operations, respondent made numerous changes in the working conditions and duties of its employees, imposing upon certain employees increased tasks which they regarded as burdensome. This circumstance, together with lay-offs of both the second and third shifts at respondent’s plant and a general wage cut affecting all employees, caused considerable unrest and dissatisfaction among respondent’s employees.

Respondent first discovered the union’s organizational efforts within its plant when, in early June, 1949, one of its employees, Haywood, reported having observed another employee, Chester Magouyrk, in consultation with a union organizer at Magouyrk’s home. Superintendent Murphy, when informed of this fact, immediately held a meeting of certain supervisory and non-supervisory employees of respondent, at which he warned them of the presence of the union representative and directed them to forestall any attempt to organize the employees pending his discussion of the matter with President McMillan. At a subsequent meeting, Superintendent Murphy told the same employees, “to go in the mill and talk to all the help and get them out of the union — that they wasn’t going to have no union down at the mill.” President McMillan later addressed the same employees in a similar vein, informing a number of them that, as supervisory employees, respondent was relying upon them “to get out there and stop” the union. After interrogating Marion Shiflett as to the number of employees who had already joined the union, McMillan directed the group generally to tell the employees “they would make more money by not joining.” According to the credited testimony, McMillan’s parting comment upon that occasion was that “there wasn’t going to be any union there— that he wouldn’t run under a union contract.”

The supervisory employees, Shiflett and Pilkington, though personally anxious to remain neutral, nevertheless attempted to comply with McMillan’s and Murphy’s instructions. On two occasions, acting at the request of Superintendent Murphy, they questioned a number of employees as to their attendance at union meetings and took notes of the information received for respondent’s benefit. Shiflett was found to have questioned employees as to their membership in the union, and Pilkington to have asked an employee how he intended to vote in the election and to have warned another employee that some workers would be discharged for their union activities. A number of other supervisory employees of respondent were also found to have engaged in questioning the employees regarding their union activities and as to how they intended to vote.

President McMillan participated personally in the anti-union campaign. He threatened to close the plant if it were unionized, and that house rents in the *212 “village”, respondent’s employee housing project, would be raised and the employees’ bonus abandoned upon the advent of the union. Though engaging in other specific acts of employee interrogation, McMillan apparently singled out for particular treatment the employee, Chester Magouyrk, of whose leadership in- the union’s organizational efforts 2 respondent had been fully aware since Haywood’s surveillance of Magouyrk in consultation with the union organizer. In July, 1949, McMillan ordered Shiflett to remove Magouyrk from his doffing job, which paid approximately $1.00 per hour, and demote him to the job of roving, which paid only 15f, per hour, and was the lowest paid job in the mill. Shortly thereafter, McMillan called Magouyrk to his office and accused him of being paid by the union to organize the mill, and asked whether he realized he “had caused women and children to suffer — probably caused somebody to be killed because of the union.” A few days later McMillan again called Ma-gouyrk to his office and ordered him, as head of the union, to remove some union leaflets which had been posted on the plant bulletin board. Shortly after this instance, he also forced Magouyrk to pick up and dispose of other union leaflets scattered in the spinning room, telling him, “You are going to cause this mill to shut, down.”

With reference to the alleged discriminatory discharges of the two supervisors, Shiflett. and Pilkington,. the credited testimony further reveals that in July, 1949, McMillan told Shiflett that Shiflett’s son, Harold, had joined the union, and that “He (McMillan) didn’t want him in the union.” Superintendent Murphy asked Shiflett to do something about Harold’s union membership, and when Shiflett protested there was nothing he could do, Murphy replied, “If he belonged to me I could do something * * * I would run him off from home to get him out of the union.” About a- week before the Board conducted election on August 25, 1949, McMillan personally interviewed Shiflett in his office and told him that unless he got the employees out of the union, “He (McMillan) was going to get him another overseer.” Murphy also told Shif-lett that he would be held accountable for the attitude of respondent’s employees and that, if the. union won the election, he would be fired. About two days before the union election, McMillan told Shiflett that another one of his sons, Edwin, had been observed keeping company with the union representative and asked Shiflett what he intended to do about it, to which Shiflett replied that his sons were grown men and they could do as they pleased. McMillan then warned that unionization would cause Shiflett to lose his job and his home, and his son Harold to lose both his job and a Studebaker automobile he was then purchasing. Pilkington received much the same treatment during the union’s organizational campaign as was accorded Shiflett. He had attended the meetings held by Murphy and McMillan in which the supervisors were warned to “break the union up”, had repeatedly questioned the employees as to their union activities at respondent's behest, and had made periodic reports as to the effectiveness of the anti-union campaign to respondent.

Despite the efforts of respondent’s supervisory employees, including Shif-lett and Pilkington, the union prevailed in the election. Shortly thereafter, respondent carried out its pre-election threat by promptly firing Shiflett, with the observation that he already knew the reason for his discharge. Pilking-ton was discharged the following morning for the asserted reason, as stated by Murphy, that he “just didn’t try hard enough” to keep the union out of the plant. Edwin Shiflett was also discharged on October 4, 1949, ostensibly for tangling yarn on the bobbins, but ac *213 tually, as the Trial Examiner and Board found, because of his union activities. 3 This employee had joined the union in August, 1949, and thereafter actively participated in the union’s organizational campaign. As heretofore noted, Murphy and McMillan had openly evidenced their resentment of his union membership, and had tried unsuccessfully to force him to renounce the union through pressure on his father.

Relying mainly on the above testimony, the Board found that respondent engaged in unlawful interrogation and threats against its employees for their union activity, in violation of Section 8(a)(1) of the Act; that it further violated Section 8(a)(3) and (1) of the Act by discriminatorily demoting Chester Magouyrk and discharging Edwin Shiflett because of their union activities; and, finally, that the discharge of Supervisors Shiflett and Pilkington, because of their failure to wage a sufficiently effective pre-election anti-union campaign, constituted unlawful interference, restraint, and coercion of respondent’s non-supervisory employees, in violation of Section 8(a)(1) of the Act. Both the Trial Examiner and the Board rejected respondent’s factual contention that Shiflett and Pilkington were discharged for justifiable cause under the Act because of their pro-union activities, and found instead that their discharges actually resulted from their failure to prevent the unionization of respondent’s non-supervisory employees. However, though the Trial Examiner and Board were in agreement as to the underlying cause of their discharge, they reached divergent views as to whether, under the circumstances, their discharge was violative of the Act, so as to justify their reinstatement and back pay award. 4

*214 Respondent again urges here, as it’ did before the Trial Examiner and Board, its jurisdictional contention that- the allegations concerning the discharges of Shiflett and Pilkington were barred by the limitation provision of Section 10 (b) of the Act, 29 U.S.C.A. § 160(b), which section requires that a charge, in order to support a finding of violation, be filed within six months of the date on which the alleged unfair labor practice was committed. It is argued that the alleged violation with respect to thé discharge-' of these’ two supervisors was not ‘properly co’gnizáble by the Board in is-suing its complaint under the above 'limitation provision, since this alleged violation was not specifically set forth fintil- the fourth amended charge was filed on September 12, 1950, over a year after the discharges were effected on -August 25th and 26th, 1949. The Trial -Examiner and the Board, relying upon the broad allegations of violation of Section 8(a)(1) of the Act contained in the original and first amended charges, 5 *215 both of which were timely filed under Section 10(b), held them sufficient for jurisdictional purposes to embrace and include the additional 8(a)(1) violation as to the two discharged supervisors, as alleged in the Board’s complaint.

On this jurisdictional issue, respondent concedes in brief that “the Board may issue a complaint based upon amendments to charges * * * so long as the additional charges * * are similar in nature and origin to the violations alleged in the original charge.” See Kansas Mill. Co. v. N. L. R. B. 10 Cir., 185 F.2d 413, 415; N. L. R. B. v. Brown & Root, Inc., 8 Cir., 203 F.2d 139, 146. Indeed, this Court has held that the Board may properly allege in its complaint violations not particularized in the charge, even though the charge antedates the unfair labor practice. See N. L. R. B. v. Westex Boot & Shoe Co., 5 Cir., 190 F.2d 12, 13; Stokely Foods v. N. L. R. B., 5 Cir., 193 F.2d 736, 737-738; N. L. R. B. v. United States Gypsum Co., 5 Cir., 206 F.2d 410, 411-412. However, in the light of the language used in the charges and the theory of violations contained therein, respondent insists that the above rule is not here applicable to sustain the Board’s jurisdiction and order in this regard, but urges as here controlling the principle that an amended charge will not be held to relate back to the date of the original charge for jurisdictional purposes where it attempts to set forth a new cause of action. See N. L. R. B. v. I. B. S. Mfg. Co., 5 Cir., 210 F.2d 634, 637; N. L. R. B. v. Vare, 3 Cir., 206 F.2d 543, 546; Joanna Cotton Mills v. N. L. R. B. 4 Cir., 176 F.2d 749, 754. We think that the rule of the I. B. S. Mfg. Co. case, supra, prohibiting an untimely charge from invoking the Board’s jurisdiction over “an entirely new and different cause of action”, is not applicable or controlling in respondent’s favor here, for it seems to us that the theory of indirect interference and restraint involved in the discharge of the two supervisors, as first set forth in the fourth amended charge, is fairly embraced within the general allegation of direct interference and restraint of the same employees contained in the original and first amended charges. See N. L. R. B. v. Westex Boot & Shoe Co., supra. Unlike the situation presented in the I. B. S. Mfg. Co. case, supra, where an alleged violation of the 8(a) (5) refusal to bargain provision was held to constitute a departure from the timely charged 8(a)(1) and (3) violations, the disputed charges here are based upon the same section of the Act, and were brought in both instances on substantially the same theory and for the same purpose, i. e., to preserve and protect the right of respondent’s employees under Section 8(a)(1) to engage in concerted activities, free from respondent’s interference and restraint. Under such circumstances, we conclude that the allegations in the complaint with respect to the discharge of the supervisors do not constitute such a departure from the cause of action alleged in the original and first amended charges as would invalidate the Board’s jurisdiction and order.

On the merits of this issue, respondent first insists that the substantial and credible record evidence compels a finding that the two supervisors were justifiably discharged for their pro-union activities, rather than for their failure effectively to coerce respondent’s employees into renouncing the union. In an attempt to upset this adverse finding of fact by both the Trial Examiner and Board, respondent attacks as inconsistent the Board’s findings in the representation proceeding as to the pro-union sympathies of these same two supervisors, 6 with its findings *216 in tliis unfair labor practice proceeding of their anti-union activities at respondent’s behest. Respondent ingenuously suggests, bó'th • in brief and upon the oral argument, that the Board, though impliedly recognizing in its prior finding respondent’s lawful right to discharge these supervisors for their con-cededly unprotected pro-union activity, has nevertheless unfairly - penalized respondent in this proceeding for exercising that right. However, we think that the Trial Examiner and Board properly rejected this alleged inconsistency as unsupported by the record. 7

Relying mainly upon the decision of the Supreme Court in Republic Steel Corp. v. N. L. R. B., 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6, respondent next insists that, in ordering reinstatement and back pay in favor of these two supervisors, the Board has unlawfully exceeded its statutory discretion and authority because its order is penal ;rather than remedial in nature, and for the additional reason that reinstatement of supervisors, as such, is prohibited by express language of the amended act exempting them from the statutory definition of “employee”. See 29 U.S.C.A. §§ 152(3), 164(a) and 160(c). The discretionary basis for the Board’s order, as set forth in that section of its decision entitled “The Remedy”, reads in part as follows:

“We have found that the Respondent discharged Marion K. Shiflett and Seybourn Pilkington and thereby, in violation of Section 8(a)(1) of the Act, interfered with, restrained, and coerced its non-supervisory employees in the exercise of their rights guaranteed under Section 7 of the Act. In order to restore to the non-supervisory employees their full freedom to exercise these- rights' and thus to effectuaté the policies of the"Act, we find it-necessary to provide for the reinstatement with back pay of Marion K. Shiflett and Seybourn Pilkington. Accordingly, we shall order the Respondent to offer Marion K. Shiflett and Pilkington full and immediate reinstatement to-their former or substantially equivalent positions, without prej'udice to-their seniority or other rights and privileges, and to make them whole for any loss of pay they may have-suffered by reason of their discharge * * *. ”

Under the facts' and circumstances-, of this case, we construe the Board’s; order as remedial rather than penal,, within the rationale of Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, and Republic Steel Corp. v. N. L. R. B. supra, and as a lawful exercise of the Board’s statutory discretion under Section 10(c) to “effectuate the policies” of this Act. See 29 U.S.C.A. § 160(c); Virginia Electric & Power Co. v. N. L. R. B., 319 U.S. 533, 543, 63 S.Ct. 1214, 87 L.Ed. 1568; National Licorice Co. v. N. L. R. B., 309 U.S. 350, 365, 60 S.Ct. 569, 84 L.Ed. 799; N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U.S. 261, 265, 58 S.Ct. 571, 82 L.Ed. 831.

Prior to enactment of the Taft-Hart-ley Act in 1947, 29 U.S.C.A. § 141 et seq., the discharge of a supervisory employee for refusing whole-heartedly to engage in unfair labor practices on behalf of an employer was recognized in this Circuit and elsewhere as unlawful interference and restraint of the statutory rights of ordinary employees, as protected under Section 8(1) of the Act. See N. L. R. B. v. Richter’s Bakery, 5 Cir., 140 F.2d 870, 871, 872; N. L. R. B. *217 v. Vail Mfg. Co., 7 Cir., 158 F.2d 664, 666-667; Eagle-Picher Mining & Smelting Co. v. N. L. R. B., 8 Cir., 119 F.2d 903, 911, 913. The amended Act made no material change in Section 7 or in Section 8(1) of the old Act, though the statutory definition of “employee” under Section 2(3) was revised to exclude “any individual employed, as a supervisor.” Under this revised section, supervisors may be discharged for union activities, and employers are under no obligation to bargain collectively with them. However, the amended Act did not diminish the protection previously accorded ordinary employees under Section 8(a)(1), 8 nor do we construe the amendment excluding supervisors from the term “employee” as prohibiting the Board from ordering their reinstatement and back pay under the circumstances of this case.

In the Phelps Dodge case, supra, 313 U.S. at page 191, 61 S.Ct. 845, in considering the proper relation of the Board’s remedial powers under Section 10(c) to the old statutory definition of “employee” under Section 2(3), the Supreme Court held that the Board’s remedial powers are not expressly limited and restricted under the statutory provision authorizing reinstatement and back pay. 29 U.S.C.A. § 160 (c). Under that decision, it seems to us that the Board still has discretion under the amended Act to dissipate the effects of an unfair labor practice and restore the status quo by directing reinstatement of supervisors and foremen, even though they are not “statutory employees”, where it has been found, as here, that their discharge interferes with, restrains and coerces the rights of ordinary employees in violation of Section 8(a)(1) of the Act. See also, Virginia Electric & Power Co. v. N. L. R. B., supra. Though the Board concededly has no authority, statutory or otherwise, to reinstate supervisors as “employees” to redress their private grievance and penalize respondent, we see no reason why the Board, in the exercise of its statutory discretion, does not have the same remedial power to redress acts of indirect interference and restraint of ordinary employees through discharge of supervisors, as it admittedly has to redress acts of direct interference and restraint with the rights of the same employees to uninhibited self-organization. The contention that the discharge of supervisors for refusal to violate the Act may be effected with impunity because of their supervisory status evinces undue preoccupation with the statutory definition, rather than with the underlying purpose and intent of the Act as a whole. We conclude, therefore, that the discharge of Supervisors Shiflett and Pilkington for their failure to prevent unionization of respondent’s plant by means of unfair labor practices at respondent’s behest, was violative of Section 8(a)(1) of the Act, and that the Board properly ordered them reinstated with back pay. See Eastern Coal Corp. v. N. L. R. B., 4 Cir., 176 F.2d 131, 136-137; N. L. R. B. v. Universal Camera Corp., 2 Cir., 179 F.2d 749, 755, reversed on other grounds, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Richter’s Bakery, supra; Eagle-Picher Mining & Smelting Co. v. N. L. R. B., supra.

We consider it premature on the basis of the present record to consider the effect of respondent’s assertion in brief that the Board’s reinstatement and back pay order can have only punitive, rather than remedial effect, because respondent is no longer engaged '' business. Neither the Trial Exam,ner nor the Board have made any finding that respondent has permanently ceased its manufacturing operations, nor does it appear that they have even considered the materiality of any such proof as affecting the proposed remedy. We assume that respondent is not hereby foreclosed from offering further proof be *218 •fore'the Board that its permanent cessation of operation renders the reinstatement provision of the Board’s order impossible of compliance. See N. L. R. B. v. Vail Mfg. Co., supra, 158 F.2d at page 667.

Pretermitting further discussion of the purely factual issues involved, we conclude that the findings of both the Trial Examiner and the Board of respondent’s unlawful interference and restraint of its employees through interrogation and threats, as well as its discriminatory ' demotion of Chester Magouyrk and discharge of Edwin Shiflett for union activities, in violation of Section 8(a)(1) and (3) of the Act, are clearly supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456; N. L. R. B. v. Calcasieu Paper Co., 5 Cir., 203 F.2d 12; N. L. R. B. v. Jamestown Sterling Corporation, 2 Cir., 211 F.2d 725; cf. N. L. R. B. v. Southeastern Pipe Line Co., 5 Cir., 210 F.2d 643.

The order of the Board is hereby enforced.

Enforced.