National Labor Relations Board v. Mylan-Sparta Co.
166 F.2d 485
6th Cir.
1948
Check Treatment

*1 sonam the strat action. do I charter

egem asserting of belatedly ac permitted defeat

should that, I as condition in rem. think allowing appellee its answer to amend appellants up the trial to set the charter,

should granted amend have been leave to pro libel nunc tunc of the date as filing. if we re We back clock set procedural always ward been “It wiles. has practice,” says Benedict,6 “in Ameri * * * admiralty can courts never party

allow a adversary overcome his

the mantraps spring guns covert

chicanery, surprises and techni practice.” pleading

calities mere Even if the defense to rem action actually asserted on behalf of the States, colleagues United I my would think

were stretching it too far. Thus to stretch it to others, aid cunningly employ it here, is, believe, peculiarly unjustified. I would, therefore,

I order, reverse the so far as it dismissed for juris- lack rem,

diction in and remand for a decision merits.

NATIONAL LABOR BOARD RELATIONS Inc., CO., MYLAN-SPARTA et al.

No. 10458. Appeals, Court Sixth Circuit.

Feb. port contention, appellee For, of this lading signed refers since the bill appellee’s agent letter of March Line the Chilean for the Line, ship’s notifying addressed master, to the Chilean unnatural that appellants’ appellants notify latter of intent to hold it Line. Chilean 6Benedict, Admiralty liable. (6th Ed.1940) § purpose. This letter will not serve that see also 223. *2 Labor Relations seq. ques-

U.S.C.A. et By the order respondents, Mylan-Sparta Com- *3 Inc., Mylan pany, Manufacturing Com- pany, Inc., ordered M. C. Wallace and with, interfering cease desist and restraining coercing companies two in the exercise of join Construction to form or United UMWA, Workers, any labor or- ganization, corporations any pay whole to loss of seven discriminatory suffered their reason of corporations post ap- discharge, that notices, propriate publish and that Wallace newspaper stating that the local a notice coerce interfere with or in the exercise self-organization join organ- and or an ization. Wallace was an officer corporation. either complaint Board’s and a The 23, January mended were issued 7, respectively. February and August The entered Board’s petition 1946. The for enforcement McALLISTER, Judge, Circuit dissent- April Following filed the enact 1947. part. Management ment of Relations the Labor seq., Act 29 U. 141 et S. C. A. § respondents August effective on Court December moved this petition to dismiss for on enforcement ground failed affirm record atively disclose United Construc Workers, tion an affiliate of Mine United America, upon Workers charge whose based, complied 9(f), (g) (h) Manage the Labor and ment alterna Evans, Relations of 1947. In G. Washington, D. C. Jack tive, respondents stated Union (David Weyand, Findling, P. Ruth Fannie comply failed and refused with such re Boyls, Manoli, M. Dominick L. and Samuel quirements asked leave to adduce evi and Kaynard, all C., of Washington, M. D. showing dence before the Board such non brief), petitioner. for compliance, the event such non Sims, Nashville, Cecil (Cecil Tenn. compliance shown is it is contended this Sims, Nashville, Tenn., brief), jurisdiction proceed Court is respondents. further in cause. We believe this mo MARTIN, McALLISTER, Before and tion, purposes assuming of the mo MILLER, Judges. Circuit United Construction Workers complied has not with the MILLER, Judge. (h) 9(f), (g) should be petitioner, provide These sections Relations no overruled. Board, enforcement its seeks investigation order of shall be made pursuant August 10(b) organization Section shall be eligible no labor sale of engaged is manufacture information certain until for certification boy’s principal men’s operation and shirts organization, respecting the town, employing between filed with has been finances of the persons. no 600 The businessmen Labor, and 800 Secretary con- vitally concerned with pursuant complaint shall be issued pos- A operation. unless tinued and successful organization a labor made prevent- organization an sible of a union was supplied and such has been information February In of them in union dis- ed some officers of affidavit expected wage increase for or affiliations when an beliefs claiming Communist *4 materialize, employees The fur- some of the with the Board. has filed been employees start- filing group the a 75 of about 50 to information nishing per- but were precedent plant to walk ed out of the affidavit are conditions of the to re- plant 1947 suaded complaint under a filing to the 1, 1945, two present case turn March complaint to work. in the About Act. The and start- organizers union arrived Act but of the 1947 was not filed under the membership National ed the distribution of union of the under the filed plant. 5, 1935, employees at the application 29 July cards to Relations Act Labor businessmen meeting A of some of seq. The amendment A. 151 et U. S. C. § home. Sparta not Wallace’s Act at the 1947 was held of the 1935 Act part Bassine, manager and plant extinguish any the liabilities Charles release business, E. Know- original owner of the and R. which under had been incurred It les, sheriff, present. were expressly reserved a former liabilities are Such act. the busi- suggested some of 1 A. United States by U. S. 29. See C. 398, 99, Sparta meeting 32 a 128 S.Ct. attend Reisinger, U.S. nessmen of v. Woodman, 480; arranged employees plant. at Bassine Hertz U.S. L.Ed. v. 621, employees plant at 54 L.Ed. 1001. 30 S.Ct. at the address any event, proceed- 9th. Bassine p.m, in about March In this 4:00 issued, understood employees the decision been he told entered, in interested organizers there of the Board had been union, in petition membership be- obtaining the order been to enforce filed union, also they join date the 1947 right fore the effective had the terms, appealed join union. which insofar not to He issue, provides applies merely production, urged “no for continuing to this they employees though shall The even be issued.” not walk out retroactive, prospective, so, in its effect. had and stated to do Co., Cir. might B. National Garment while the plant R. be closed reasons N. January 166 F.2d decided beyond his control it would not close 1948; Whittenburg B. and any N. L. R. act of his. more busi- Some Dougherty, nessmen, d.b.a. South Texas Produce Wallace, including attended Cir.1947, In the Mat- Co. 5 meeting. When Bassine finished talk Company, Marshall & Bruce ter of up and the started to break Wal- N.L.R.B., No. L.R.R.M. 1001. lace for attention and a talk called made to the remaining to listen him. complaint charges respondents The Wallace about mines them told coal engaging practices with unfair nearby having previous located closed meaning 8(3) within years by organization reason Relations In ad- Act. pre- mill union and about the silk that had proceeding against dition to the employing viously been located in the same building respondents industry, it also named having closed on Sparta-White Chamber account of union County of Com- activities, Tennessee, Sparta, should listen merce of and M. C. Tubb, strangers, instead Wallace, to friends Jr., ex- and Robert James pressed organization thát union Snodgrass, three individual residents of J. Mylan plant approximately town would result Sparta. is a ulti- plant. population. closing mate down of The Bassine employing Peace, ordered af- Knowles any statement additional did not make Justice them offered them to of town and On out ter Wallace concluded. protection organ- county yard line. meeting in the held a the union Mylan’s immediately. em- izers left oldest Buigess, one of of Ora elected. ployees, officers were movement, During Fein- organization 19th, the and March 13th Between March stein, repeatedly superintendent, discharged: employees were following boss didn’t want told that his Anderson, Bennett, Della Carrie Pauline the union be better and that Martin, Mary Hardie Fletcher, Nola be. On than union would one discharg- Burgess was Bell. Ora Rebecca Bussell, employee, Myrtle an occasion All seven of April ed these 12th. union, joined Feinstein asked ployees organization active for a raise. at first Feinstein refused the union. employee after talked Bassine organizers arrived first When the union Feinstein a five cent agreed raise and Anderson, Sparta they to Herman her, lady, you told “You one never distribu- who undertook the joined and never walked I out. *5 cards, membership application tion union price. of am giving you top job You have a supporter later union and became active an long here as mill runs.” as this She was 7th, president. its time on March At lunch July later 1945 for al- a attached found memorandum leged Anderson forelady, defective work. A Maud Operator to “Call saying Hale, his “They timecard employees: got told have that Atlanta, Georgia, lunch” “See and again union old in here started and the City Ed Hall.” The custom- Knowles at that oughtn’t one started union that to ary way delivering message of an fired, to they ought to be kicked out.” An- ployee was to attach such memorandum Goodwin, forelady, let it be Della to his Anderson called the At- timecard. known that Feinstein had said that he to operator lanta and talked his brother. see signed would to it those who hadn’t City getting After lunch went to the with the union would work “if he to had Hall urged and Knowles. saw Knowles call a militia.” abandon Anderson the union to to and A reading of the in evidence town; tell organizers out of entirety its amply shows sufficient job Anderson him offered another and told to sustain and against the cease desist order factory wouldn’t run if a union industry. the employing We recognize way Knowles in a came in. similar respondents’ contention that the business Hardie, another Mary active union ad- men of and Chamber of Com herent, plant that afternoon. left the have merce to take interest and Knowles, accompanied That evening position in affecting a matter the welfare sheriff, went Anderson’s He home. community, and that typewritten Mylan’s list of and support in position can not of their be at urged to indicate Anderson of employer in the tributed to an absence employees were leaders of the union. An- proof they inspired by so. derson refused to do Knowles asked employer. American L. R. v. Pearl B. N. meeting Anderson to attend a with Bassine Co., Cir., Button 149 8 F.2d and other businessmen which Anderson recognize employ We also declined The next evening Knowles do. er to his concerning views the ad and Police the Chief of came to the home vantage disadvantages unions, and of Anderson’s father-in-law talked to and plant manager exercised and again, telling stop Anderson him fool- “to Wallace at the meeting employees. ing with union.” Knowles and Cir., N. L. R. B. Ford Motor v. Co. police chief watched close dis- v. L. N. B. meeting 15th, F.2d Brandeis & tance union J. Sons, Cir., 145 F.2d ir 563-566. But following and trailed the two respective phases of the case organizers union of those there arrested support evidence in they driving. After were fined is substantial reckless Co., supra; finding employing industry N. R. B. Brown-Brock L. 542-543; guilty Co., prohib- meyer Cir., the unfair practices Co., 8(3). Kentucky ited activities of Coal L. R. B. West N. §§ staff, Cir., 198, 202; its supervisory in advis- 6 R. B. v. particularly N. L. F.2d opposi- Sons, supra. The record management’s L. Brandeis & J. definitely to the union in a non- what Wallace rewarding fails show very used, joined the evidence having not the said or words exact union, cooperation manag- conclu mostly in dealing generalities This, itself, comply er openly with the businessmen and active- failure to sions. is a in in court by this ly the union with the opposed to the establishment of announced rule Co., Knowles, Kentucky Coal community, action N. L. R. v. West B. speech supra, quotations from manage- partial whose unofficial affiliation established, the burden of actively fighting ment sustain seems are sufficient to proof. disclose prompt record does the formation What history of discharge several union truthful references leaders shows Sparta, real justify cause union movement super- opinion present movement to that effect. The activities of the Prophecy is not visory cause same staff to were result. referred sporadic, repudiated Wallace type, promptly or coercion. isolated itself a threat management company part management, not a as were held not change power authority or chargeable management N. B. no Co., Cir., Mfg. v. Clinton prophecies Woolen into realities. they 757-758. Rather more *6 opinion the that are of We correctly against viewed background of findings sustain the evidence is sufficient to employer hostility unionization where to employees Pauline that the circumstances were such “as to induce Martin Anderson, Nola Fletcher and Della employees ap- in subordinate a reasonable union discharged of their because prehension the acts reflect that condemned the Act. 8(3) of in violation of policy employer” case employees the In the case of these of each employer upon ap- is called more for upon the excuse employing industry relied propriate action than mere declarations work which particular that the kind neutrality though good even made in in ran out. But employee engaged was Consumers faith. Power Co. v. N. L. employee was an ex each instance B., Cir.,

R. 44. worker, perienced capable doing work employing department. The pro in another dismissed Board against pressure from ceedings great wa9 under of Commerce Chamber production on the individuals the Government to maintain Snodgrass, Tubb and employing new who were not its war was company. with the contracts and connected inexperienced employees. Considering opinion We of the are it also should have against dismissed Al these facts in connection the facts Wallace. Herman though acting Anderson finding that Wallace Pauline was wife was employer Anderson, original leader the interest of who was sub so ject movement, Flet Della pro to union thereof, to transfer to supported by willingness vided her is cher indicated evidence, department, that Nola Martin we substantial another are employee speech replaced by employers’ promptly Wallace’s another work, transcend his we believe on the same kind of of free speech. The Board’s three cases these characterization of Board’s However, openly speech” “an we anti-union set aside. is not Bennett, Mary employer discharges sufficient to An Carrie may condemn it. hostility Burgess Hardie, Bell and Ora to a Rebecca union and his in each problems on labor circumstances case. policy, views pro justified viding Rela he does not threaten or It is settled coerce his guarantee furnish a employees. does not N. L. R. B. tions Motor Ford immaterial, merely Company is employer duction against discharge permit- justified policy a mem- was adopting because employees fail Mfg. inexperienced new to ting R. Sands ber of N. L. B. v. union. production discharge Cir., B. v. make while Co., L. 96 F.2d 721. N. insisting experienced employees giving Cir., F.2d on Empire Corp., 6 Furniture Although em- their best efforts their work. The Act does not take from Company’s claim that she rea- she denied the ployer make and enforce yet warnings, individual given several the busi- sonable the conduct of rules for prior dis- forelady her she admits that against disciplinary ness and take action rules, conveyed mes- charge group are of them a violate the either malcontent, sage reasons from the that he inefficient or or for pro- production couldn’t generally getting. efficient take suitable for undisputed justified the These dis- facts duction. The Act does not authorize ciplinary Company. taken Board to substitute its own ideas disci- action Mary pline place em- Hardie leaving admitted management for those her except ployer, barring duty going dis- en- discrimination or to the washroom in an tirely portion membership. building Midland different on union Cir., B., 113 several occasions Steel N. R. where met other Products Co. v. ployees Wyman-Gordon gave applica- F.2d to whom she Co. v. N. B., Cir., 480, 485-487; L. B. tion cards. She admitted it interfered F.2d N. R. production Co., Cir., Mfg. factory. 130 with Al- Williamson-Dickie Bennett, though although most of the not work 267. Carrie Saturday, yet at times experienced some of them employee, thoroughly consist- upon request agree to Rebec- do so. production. ently failed to make After her agreed Saturday, Bell on a ca work reemployment in February her for five changed per- at her home later her mind consecutive weeks before out she being let report re- sonal reasons and did not awith rate, requiring the minimum failed to make disruption sulting in the amount of work weekly deficiency Company up a planned and other for her her She admitted of from to $10.63. $4.14 day. Burgess, working Ora after *7 production make but failure to consistent days week, first three of one left without factories she had worked other claimed excuse in the middle Thurs- day many require production didn’t which day to do washing some her home which production employees didn’t make other usually Saturday. was done on When spent either. She also admitted that she superintendent her assistant instructed talking loudly during to other time her work permission from testified, about him, nobody,” stated see she “I will loud,” plenty mean I “I because She left. testified on cross-examination organizer instructions from the with reference her talk with the assist- doing about it. Such not to be backward “No, ant, go. I didn’t tell him I wanted to only conversation with other workers not him going.” I was In view of I told responsible for partly her own failure was undisputed character the evidence production, with to make but interfered cases, of these we each four employ- obtaining the work other best the Board’s that directed these part of Products Co. v. N. ees. See Midland Steel employees be made four whole was erro- B., Cir., 806. The be neous and set aside. Company’s to the stated answer compari- so will modified production her The order of the Board low so above indicated and as modified will be ability finally obliged in as her it was son with enforced. the situation to terminate order to correct records, It also introduced her services. McALLISTER, Judge (dissent- Circuit denied, showing dis- were not part). employees for of 87 failure ex- opinion required production. foregoing The fact I concur with to make respect require pro- of Carrie companies cept to the matter that other propa- discharged for Bennet. She hindering other

gandizing or disturbing duties, performance of their

workers solely produc- failure to her “make although

tion.” But she admitted she production, comparison such

her with that of other trimmers record than a more efficient

shows that she was far

majority employees, and actu- her fellow

ally produced more most the other than performing

workers similar work. The

company registered first about production day after

her record on the had become ardent and enthusiastic

she am

charter member of union. I Board for union

sustained the evidence.

PROVIDENT & ACC. INS. CO. LIFE

ANDERSON. CO. OF

SAME COCA-COLA BOTTLING GREENVILLE, (two cases). S. C.

Nos. 5689-5691. Appeals, Fourth Court of Circuit.