Petition — Decaturville Sportswear Co. v. National Labor Relations Board

Supreme Court brief1978

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t, US

“FIL ED

JUN 27 1978

MICHAEL RODAK, JR., CLERK

|

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

“977-1839

DECATURVILLE SPORTSWEAR CO., INC., et al.,

Petitioners,

V.

NATIONAL LABOR RELATIONS BOARD.

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals for the

Sixth Circuit

W. OVID COLLINS, JR.

CHARLES HAMPTON WHITE

Eighteenth Floor

Third National Bank Building

Nashville, Tennessee 37219

Attorneys for the Petitioners

St Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

INDEX

Page

Ce ee ceves he cb ehbuseeresens 2

A Ee ee ee ee 2

i a ces wees eee bbls tunwseb ees 2

EN A to a ee thee baa on owe ee 3

EN la oe ee eed ha sae ea ee eee 4

A. The Prior Contempt Proceeding .............. 4

B. The Subsequent Unfair Labor Practice Proceeding 8

C. Action of the Court of Appeals .............. 10

ee 12

A. The Court of Appeals erred in concluding that the

September 16, 1977, order of the Board was not a

“final order” within the meaning of Section 10(f)

SE SE Nace keane chased eh de ewae eee - 12

B. The Court of Appeals erred in concluding that the

doctrines of res judicata and collateral estoppel do not

preclude subsequent relitigation of events as di-

rected by the Board’s order of September 16, 1977 15

ches sets h 4a GaN oe tkbeiescesaeueci es 22

CO er rr re ee eer ee ee A-1

EE coun des ee bee upehed eke keth Keucunens A-3

EE UE 6. n a 0d bop aoe a bh 6E SC eOs ARC ROR OES A-4

gadis cus dunpundansumess ay A-14

ul

CS eee A-18

Ce ee A-30

Appendix G ........ cece eee eee e renee eeteeees A-94

Appendix H .........--- cece eer eee teense A-106

Ce en A-112

Appendix J... 1... cece eter e tener enees A-120

Appendix K ..........: cece eect eer tee e tence A-128

CITATIONS

Cases:

Commissioner v. Sunnen, 333 U.S. 593 (1948) ......-. 17

Cromwell v. Sac County, 94 U.S. 351 (1877) .......... 17

Eazor Express, Inc. v. General Teamsters Local 326, 388

F.Supp. 1264 (D. Del. 1975) ..... 0.0.6 eee ee eee 21

ILGWU Local 415-475 v. NLRB, 501 F.2d 823 (DC

i re Se ree ree re 13, 14

International Union v. Eagle-Picher Mining and Smelting

Co., 325 U.S. 335 (1945) ... cece eee ceees 13-14, 22

Leeds & Northrop Co. v. NLRB, 357 F.2d 527 (3rd Cir.

ES Se saat Sere NE pak RROD Kd Meee Cae eR 84 14

Myers v. Bethlehem Ship Building Corp., 303 U.S. 41,

I ota cue Fun SAS 60d Kone ena webhneneans 12

NLRB v. Brown & Root, 203 F.2d 239 (8th Cir. 1953) .. 21

NLRB v. Decaturville Sportswear Co., Inc., 406 F.2d 886

Ss 65h 6620 OSCR STEERER HEPES OOO WO 6

NLRB v. Decaturville Sportswear Co., Inc.. 518 F.2d 788.

cert. denied, 423 U.S. 913 (1975) ........ 2, 3, 9, 12, 19

NLRB v. Walter E. Heyman, 541 F.2d 796 (9th Cir.

1976)

This ahs hd ak de & 6 AC DEKE ole ie bk oes 21

Sears, Roebuck & Co. v. National Labor Relations Board.

433 F.2d 210, 211 (6th Cir. 1970) ................ 12

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 387

ER As Gee St arent G ia SUR sol SR ee 19

Thompson Products v. NLRB, 133 F.2d 637, 640 (6th

EES tie aggre tn i ea EO ee i 12

Waterway Terminals Co. v. NLRB, 467 F.2d 1011 (9th

at thie a RPE alae ine we 13,14

Zdanok v. Glidden Company, 327 F.2d 944 (2d Cir. 1964) 21

Statute:

National Labor Relations Act. as amended (61 Stat. 136.

73 Stat. 519, 29 U.S.C. Sec. 151. et seq.) .......... 3

aw ouk etek bbe Gk ikods 06g Rekae uses 3

Cl Eee

ET odes ceuieus oS vehioes csv lauk seo Caneel 13

Eg is 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

DECATURVILLE SPORTSWEAR CO.. INC.. et al..

Petitioners,

v

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals for the

Sixth Circuit

Decaturville Sportswear Co., Inc., Marlene Industries Corpora-

tion, Trousdale Manufacturing Co., Inc., Westmoreland Manu-

facturing Corp.. Aynor Manufacturing Co.. Inc., and Loris

Manufacturing Company, petition for a writ of certiorari to re-

view the judgment of the United States Court of Appeals for the

Sixth Circuit dismissing their petition to review the decision and

order of the National Labor Relations Board directing that a

hearing be conducted before an Administrative Law Judge on

facts, issues, and events which had already been finally concluded

in a contempt proceeding instituted by the National Labor Rela-

=

tions Board in the United States Court of Appeals culminating in

the decision in NLRB v. Decaturville Sportswear Co., Inc., 518

F.2d 788, cert. denied, 423 U.S. 913 (1975).

OPINIONS BELOW

| The opinion of the Court of Appeals in the instant proceeding

is not yet officially reported (Pet. App. A, pp. A-1-A-2). The

order of the National Labor Relations Board, entered September

16, 1977, reversing its Administrative Law Judge who recom-

mended a dismissal of an unfair labor practice complaint on the

grounds of res judicata and collateral estoppel, is set forth and

reproduced, infra (Pet. App. D, pp. A-14-A-17). The decision

of the Administrative Law Judge, entered April 7, 1977, sus-

taining the defenses of res judicata and collateral estoppel

premised on the prior contempt action in NLRB v. Decaturville

Sportswear Co., Inc., 518 F.2d 788, cert. denied. 423 U.S. 913

(1975), is reproduced, infra (Pet. App. E, pp. A-18-A-29)

The findings and conclusions of the Special Master appointed

by the Court of Appeals to hear the evidence against the peti-

tioners in the petition for contempt filed by the National Labor

Relations Board, which was adopted by the Court of Appeals

are set out in two memoranda and are reproduced, inf

, Infra (Pet.

App. F. pp. A-30-A-93).

JURISDICTION

The order of the Court of Appeals was entered March 30,

he if ha jurisdiction of th

is invoked under 28 USC § 1254(1). is Court

QUESTIONS PRESENTED

1. Whether the order of the National Labor Relations Board

re September 16, 1977. reopening the record and directing

a further hearing on the same identical facts which had been

fully and finally litigated in NLRB v. Decaturville Sportswear

Co., Inc., 518 F.2d 788, cert. denied, 423 US. 913 (1975), is

a final order of the National Labor Relations Board reviewable

by a Court of Appeals pursuant to Section 10(f) of the National

Labor Relations Act, as amended, 29 USC § 160(f).

2. Whether the doctrines of res judicata and collateral estop-

pel preven’ the National Labor Relations Board from conduct-

ing a subsequent unfair labor practice proceeding before an Ad-

ministrative Law Judge on complaints alleging facts, episodes,

and events fully and completely litigated and finally determined

adversely to the Board in a contempt action instituted by the

Board in a Court of Appeals.

STATUTES INVOLVED

The relevant provisions of the National Labor Relations Act,

as amended (61 Stat. 136, 73 Stat. 519, 29 USC § 151, et

seq.), are as follows:

“Sec, 10(b). Whenever it is charged that any person has

engaged in or is engaging in any such unfair labor prac-

tice, the Board, or any agent or agency designated by the

Board for such purposes, shall have the power to issue

and cause to be served upon such person a complaint

stating the charges in that respect, and containing a no-

tice of hearing before the Board or a member thereof, or

before a designated agent or agency at a™place therein

stated, not less than five days after the serving of said

complaint; provided that no complaint shall issue based

on any unfair labor practice occurring more than Six

months prior to the filing of a charge with the Board and

the service of a copy thereof upon the person against

whom such charge is made.

* > s > > > >

“Sec. 10(f). Any person aggrieved by a final order of the

Board granting or denying in whole or in part the relief

ie,

sought may obtain a review of such order in any Circuit

Court of Appeals in the United States in the circuit wherein

the unfair labor practice in question was alleged to have

been engaged in or wherein such person resides or trans-

acts business, or in the United States Court of Appeals

for the District of Columbia, by filing in such court a

written petition praying that the order of the Board be

modified or set aside. A copy of such petition shall be

forthwith transmitted by the clerk of the court to the

Board, and thereupon the aggrieved party shall file in the

court the record in the proceeding, certified by the Board,

as provided in Section 2112 of Title 28, United States

Code. ° *

STATEMENT

A. The Prior Contempt Proceeding.

On June 23, 1970, Nelson Rushing, a presser at the plant

of Decaturville Sportswear Co., Inc., Decaturville, Tennessee.

was discharged for insubordination. The same day, approxi-

mately 54 other pressers, in protest of Rushing’s discharge.

refused to return to work and were in turn themselves dis-

charged. The discharged pressers and other employees acting

in sympathy with them began picketing the plant as Decatur-

ville. About July 15, 1970, the International Ladies’ Garment

Workers’ Union [subsequently called “the Union”) began pick-

eting plants of Trousdale Manufacturing Co., Inc., Hartsville.

Tennessee; Westmoreland Manufacturing Corporation, West-

moreland, Tennessee: Aynor Manufacturing Company, Inc..

Aynor, South Carolina; Loris Manufacturing Company, Inc.,

Loris, South Carolina; and Frisco Sportswear Co., Inc., Frisco

City, Alabama. After the commencement of the picketing, the

petitioners forwarded letters to the striking employees, direct-

ing them to return to work or risk replacement by permanent

es ae

replacements. Peggy Cagle and Judy Scott Maness received

such letters from Decaturville Sportswear Co., Inc. Neither

had advised the company of their reasons for joining the strike.

When they came back, they were denied reinstatement because

of their job having.been filled by replacements (Pet. App. F.

pp. A-62-A-64).

At Loris Manufacturing Co., Inc., three employees, Bryce

Todd, Robert Stephens, and Robert Richardson, left the plant

and joined the pickets after the strike began July 16, 1970.

The plant manager wrote each a letter directing him to return

to work by a specified time or be replaced. None of the three

employees returned by the deadline. In October, 1970, all

three employees quit the strike and submitted an uncondi-

tional offer to return to work. They were advised by the plant

manager that since they had not returned within the time

specified, replacements had been hired and the three would be

returned to work as soon as a job became available (Pet. App.

F, pp. A-82-A-83).

Randy Montgomery walked out of the Frisco Sportswear

Co.. Inc., plant “because a plant guard would not grant per-

mission to Montgomery to cross the picket line to ask his

sister for keys for a car” after the picketing began. On Au-

gust 7, 1970, Sandra Matchett, another Frisco employee,

joined the strike. Like Montgomery, she received a ietter from

the plant manager directing her to return to work by a speci-

fied date or be replaced. She did not return by the appointed

date. On November 28, 1970, Matchett unconditionally of-

fered to return to work. The plant manager advised her that

he had no openings and, relying upon the letter which he had

sent her, stated that she had been given a chance to return and

she had refused. She was accordingly denied reinstatement

(Pet. App. F, pp. A-87-A-90).

All of these events are fully described in the “memoranda

of the Hon. Harry W. Wellford, United States District Judge

a ne

for the Western District of Tennessee, appointed by the Unitea

States Court of Appeals for the Sixth Circuit as Special Master

to hear the evidence on the allegations set forth in the petition

for contempt filed against the petitioners in the United States

Court of Appeals for the Sixth Circuit by the National Labor

Relations Board on September 21, 1971, seeking an adjudication

of contempt against the petitioners for alleged violations of the

previous decree of the Court of Appeals, NLRB v. Decaturville

Sportswear Co., Inc., 406 F.2d 886 (6th Cir. 1969).

On October S. 1973, Judge Wellford issued his first memo-

randum as Special Master. On June 12, 1974, the Special Mas-

ter filed his second memorandum ( Pet. App. F, pp. A-30-A-93),

? The Special Master concluded that Nelson Rushing had been

discharged “for his concerted activity with others in the pressing

department, which activity he initiated, but also for his public

and adamant refusal to meet with the company plant manager to

discuss the problem and complaint. Thus, Rushing was insubor-

dinate and, accordingly, was discharged for just cause, even

though Rushing was protesting what he believed was entale

ss The discharge of Nelson Rushing, therefore, constituted

neither an unfair labor practice nor a violation of the decree

of this Court.” (Pet. App. F. pp. A-53. A-62-A-63)

Regarding the pressers who walked out in sympathy with

Rushing, the Special Master observed: “The remaining pressers

were not justified in their demand that Rushing be reinstated or

rehired by plant manager Anderson on June 23. 1970 before

they would return to work. These pressers were not pura ed

by the company unreasonably under the circumstances, ph

anti-union sentiment on the part ‘ =

F, A-63). € part of the company.” (Pet. App.

; a the right to reinstatement of the other employees

rs wunadtages and elsewhere, who walked out in sympathy with

€ pressers at Decaturville. the Special Master concluded that

—

“there is insufficient clear and convincing proof establishing that

picketing at the Loris plant was solely to protest an unfair labor

practice . . . All ‘concerted activity’ is not protected by Section

7 of the National Labor Relations Act . . . Todd and Stephens

joined the pickets in front of the company’s plant in Loris in an

effort to get a union into the plant, as well as to protest what they

considered an unfair or unjust practice. They assumed a status

of economic strikers who might be subject to permanent replace-

ment under certain conditions.” (Pet App. F, p. A-82). Regard-

ing Randy Montgomery and Sandra Matchett at Frisco City,

the Special Master concluded “Montgomery and Sandra Ann

Matchett walked out without making any effort to advise man-

agement of the nature of their grievance concerning any alleged

unfair labor practice. Since all ‘concerted activity’ is not pro-

tected by Section 7 of the National Labor Relations Act, the

picketing activities of the Frisco employees were not so protected

in this instance. Thus, when Montgomery and Matchett joined

the pickets in front of the company’s plant in Frisco City in

July and August, 1970, they assumed a status of economic

strikers who are subject to replacement . . . They were directed

to return to work within a reasonable time and did not, so they

thereby rendered themselves subject to replacement. Upon their

later reapplication, Frisco did not violate either the National

Labor Relations Board or the Court’s decree when they were

not immmediately reinstated when they applied for work.” (Pet.

App. F. pp. A-89-A-90).

These findings, conclusions, and recommendations of the Spe-

cial Master were assailed by the National Labor Relations Board

before the Sixth Circuit. Yet, those findings, conclusions, and

recommendations were adopted by the Court of Appeals, with-

out modification, because

“A review of the record of this case, including the excep-

tions to the Special Master's report, and the briefs filed in

support of those exceptions fails to convince this Court

po Ye

that the Special Master's findings, which were based on

two years of fact finding were clearly erroneous * * *”

518 F.2d at 790.

On October 20, 1975, this Court denied the Board’s petition

for certiorari to review this decision of the Court of Appeals,

423 U.S. 913 (1975).

B. The Subsequent Unfair Labor Practice Proceeding.

On June 29, 1976, the Regional Director for Region 26 of

the Board at Memphis issued a complaint in Cases Nos. 26-

CA-3642, et al. (Pet. App. G, pp. A-94-A-105). On July 13,

1977, John S. Irving, General Counsel of the National Labor

Relations Board, consolidated for trial the complaints issued by

the Regional Directors for the 9th, 15, and 26th Regions. On

August 17, 1976, the Regional Director for Region 11 issued a

complaint in Cases Nos. 11-CA-5748 and 5749 (Pet. App. I,

pp. A-112-A-119). On September 8, 1976, the Regional Di-

rector for Region 9 issued a complaint in Case No. 9-CA-8610

and 8888 (Pet. App. J, pp. A-120-A-127).

A cursory examination of these complaints will clearly indi-

cate that the events which the National Labor Relations Board

again seeks to litigate are identical in character to those which

were decided in the contempt proceeding. Specifically, in para-

graph 7 of the complaint issued in Case No. 26-CA-3642 ap-

pear the names of the 54 pressers who were involved in the

contempt proceeding at Decaturville. Paragraphs 8 and 9 al-

lege the reasons for the discharges of those pressers, which, as

we have seen, have already been fully covered by Judge Well-

ford and the Court of Appeals (Pet. App. F, pp. A-54-58, 63)

In paragraphs 10, 13, 14, and 15 are allegations concerning the

commencement of the strike on July 23, 1970, at Decaturville

and July 16, 1970, at Westmoreland Manufacturing Corporation

and Trousdale Manufacturing Co., Inc., in Tennessee, and in

=

paragraphs, 13, 14, and 15 are listed the names of individuals

who allegedly applied for reinstatement in 1974 on the same

terms as did Peggy Cagle and Judy Scott Maness at Decatur-

ville, Bryce Todd, Robert Stephens, and Robert Richardson at

Loris; and Randy Montgomery and Sandra Matchett at Frisco

City. The only difference in the allegations in the contempt

petition and those set forth in Case No. 26-CA-3642, et al., is

the interval between the date of the individuals’ applications for

reinstatement, The same strike is alleged to have occurred in

both proceedings.

The petitioners answered the complaint and raised the de-

fenses of res judicata and collateral estoppel, relying upon the

decree of the Court of Appeals for the Sixth Circuit in NLRB

v. Decaturville Sportswear Co., Inc., 518 F.2d 788 (6th Cir.

1975). cert. denied, 423 U.S. 913 (1975). The matters alleged

in the subsequent complaints involve the identical issues, facts,

or events as had been resolved by the Special Master and the

Court of Appeals in the contempt action.

Nevertiteless, a hearing was held at Decaturville, Tennessee,

on September 28, 1976, before Administrative Law Judge Irvin

H. Socoloff. Judge Socoloff directed the parties to file statements

respecting the validity of the affirmative defenses of res judicata

and collateral estoppel raised by the petitioners’ answers which

relied upon the decree of the Court of Appeals.

On April 7, 1977, Judge Socoloff issued his decision and

concluded: “The allegations of the complaint herein charging

violations by respondents of Section 8(a)(3) and (1), are

barred by the applicable res judicata and collateral estoppel

principles.” (Pet. App. E, p. A-28). The full text of Judge

Socoloff’s decision is reproduced, infra (Pet. App. E, pp. A-18-

A-29). On September 16, 1977, the National Labor Relations

Board issued its order, construing the decision of the Court of

Appeals in NLRB v. Decaturville Sportswear Co., Inc., 518 F.

2d 788 (6th Cir. 1975), cert. denied, 423 U.S. 913 (1975),

ie, ee

vt

— ver

and stated: “Under relevant principles of law as enunciated in

numerous decisions the doctrines of res judicata and collateral

estoppel are not applicable where the standard of proof has been

higher in the first action than in the second.” Accordingly, the

Board overruled the petitioners’ defenses of res judicata and

collateral estoppel; ordered the record reopened; and directed

that a further hearing be held before Administrative Law Judge

Socoloff for the purpose of taking evidence with respect to the

allegations of the consolidated complaints (Pet. App. D, pp. A-

14-A-17).

Believing that the September 16, 1977, order of the Board, .

directing a relitigation of events finally and completely liti-

gated, was and is a final order within the meaning of Section

10(f) of the National Labor Relations Act, as amended, 29

USC § 160(f), and that the decision of the Court of Appeals in

the contempt proceedings foreclosed further litigation of the

matters alleged in the complaints, the company petitioned the

Court of Appeals to review the Board's order of September 16,

1977, and to stay further litigation of these matters before the

National Labor Relations Board (Pet. App. C, pp. A-4-A-13).

C. Action of the Court of Appeals.

In the Court of Appeals, the National Labor Relations Board

moved to dismiss the petitioners’ petition for review, and to

deny the stay requested by the petitioners of the unfair labor

practice proceeding, but requested the Court to issue an order

clarifying its decision in the contempt action. The International

Ladies’ Garment Workers’ Union was permitted by the Court of

Appeals to intervene. After having considered the briefs sub-

mitted by the petitioners and the Board, the Court of Appeals

denied all requested relief because:

“Upon consideration of the motions and supporting mem-

orange of the parties, it is the conclusion of the Court that

the September 16, 1977. order of the Board is not a final

order within the meaning of Section 10(f) of the National

Labor Relations Act, 29 USC § 160 (f). The Court further

finds that upon the conclusion of the administrative hearing

and the issuance of the proper order by the Board, the pe-

titioners, if still aggrieved, will be able to seek review in

this Court.

“IT IS THEREFORE ORDERED that the petition for re-

view be, and it hereby is, dismissed. IT IS FURTHER

ORDERED that the motion for a stay be, and it hereby is,

denied and IT IS HEREBY ORDERED that the motion

for an order of clarification be, and it hereby is, denied.”

(Pet. App. A, pp. A-i-A-2).

a ——————————eEEEEeEeEeEeEeEeEeEeEeeEeEeEeEEEEEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeeEeEE—EeEee

— —

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals below not only con-

flicts with the decisions of other Courts of Appeal on the char-

acter of the September 16, 1977, order of the Board as not

being a “final order”, within the meaning of Section 10(f) of the

National Labor Relations Act, as amended, 29 USC § 160(f). If

left standing, the decision of the Court of Appeals also effectively

subverts the doctrines of res judicata and collateral estoppel

applied to Labor Board proceedings as enunciated by this

Court. Thus, the Court of Appeals has approved an order of

the National Labor Relations Board which forces the petitioners

to relitigate, at considerable expense in both time, effort, and

money, events which have been fully and completely litigated

to finality, as we will point out.

A. The Court of Appeals Erred in Concluding That the

September 16, 1977, Order of the Board Was Not a “Final

Order” Within the Meaning of Section 10(f) of the Act.

| As we have seen, the Board by its September 16, 1977, order

directed that the company relitigate matters fully and finally

determined by the Court of Appeals in its May 23, 1975, order

entered in NLRB v. Decaturville Sportswear Co., Inc., 518 F.2d

788, cert. denied, 423 US. 913 (1975). The Court of Appeals

had previously observed that “the appropriate method of review

of the Board's orders in connection with the case pending before

it is Dy petition to review filed in the United States Court of Ap-

peals.” Sears, Roebuck & Co. v. National Labor Relations

Board, 433 F.2d 210, 211 (6th Cir. 1970). This is exactly the

procedure taken by the petitioners here. Unlike Myers v.

Bethlehem Ship Building Corp., 303 U.S. 41, 48 (1938), or

Thompson Products v. NLRB, 133 F. 2d 637, 640 (6th Cir.

1943), the posture of the instant litigation is completely dif-

ferent from the “mere issuance of a complaint and giving notice

of a hearing thereon”. Here. the very facts on which the Board

seeks to conduct a subsequent hearing have been fully and com-

pletely litigated by the Board in the Court of Appeals, both

before the Special Master and before the Court itself. Had the

Board adopted the recommended order of its Administrative

Law Judge and dismissed the complaint in its entirety, that de-

cision would clearly have been reviewable by the union in the

Court of Appeals or in this Court by certiorari. /nternational

Union v. Eagle-Picher Mining and Smelting Co., 325 U.S. 335

(1945). The September 16, 1977, order of the Board directing

a hearing on matters fully, completely, and finally litigated

before the Court of Appeals certainly is a “final ordei” so far

as the petitioners are concerned. There is no effective way that

the petitioners can escape relitigation of the events ordered by

the Board in its September 16, 1977, order other than to

capitulate. We submit that the Court of Appeals’ characteriza- -

tion of the September 16, 1977, order conflicts with decisions of

other Courts of Appeals on this question. In Waterway Termi-

nals Co. v. NLRB, 467 F.2d 1011 (9th Cir. 1972), the Court

of Appeals granted review under Section 10(f) of the Act of a

decision and order of the Board quashing a notice of hearing

issued at the conclusion of a hearing under Section 10(k) of

the Act. Construing Section 10(k) with its corollary, Section

8(b)(4)(B), the Court observed:

“To deny review of a refusal to proceed to award under a

Section 10(k) proceeding is to nullify the effectiveness of

Section 8(b)(4)(B). The only avenue to relief from a

dispute under that Section is by way of a Section 10(k)

proceeding. An order quashing a notice of hearing under

Section 10(k) therefore constitutes a ‘final order’ as to the

underlying charge based on Section 8(b) (4)(B).”

467 F.2d at 1016.

In like manner, the Court of Appeals for the District of Colum-

bia in /LGWU Local 415-475 v. NLRB, 501 F.2d 823 (DC

—" =

Cir. 1974), reviewed under Section 10(f) of the Act the with-

drawal of a complaint as a part of an informal settlement agree-

ment by the General Counsel and concluded that such an agree-

ment does “constitute a final order of the Board reviewable by

this Court under Section 10(f).” 501 F.2d at 826.

Similarly, the Court of Appeals for the Third Circuit in

Leeds & Northrop Co. v. NLRB, 357 F.2d $27 (3rd Cir. 1966),

reviewed, over the objection of the Board, the denial by a

Board Regional Director, affirmed by the Board’s General Coun-

sel, of the refusal to grant an employer an evidentiary hearing on

its objection to an informal settlement agreement with the

Regional Director and the union charged with committing an

unfair labor practice after the complaint had been withdrawn.

Clearly, Waterway Terminals Co., ILGWU Local 415. and

Leeds & Northrop Ce., all indicate that the September 16, 1977,

order of the National Labor Relations Board was a “final order”

within the meaning of Section 10(f) of the Act. By denying

review of the September 16, 1977, order of the Board, the Court

of Appeals has nullified the effectiveness of the legal doctrines

of res judicata and collateral estoppel, as we shall point out, and

has stultified the effect of its own decree entered May 23, 1975,

in the contempt action. Thus, the order of March 30. 1978, of

the Court of Appeals refusing to review the action of the Board

on the ground that it was not a “final order” within the meaning

of Section 10(f) of the Act, is erroneous and in conflict with the

other decisions of the Courts of Appeals which have decided

similar issues. To remove the conflict between the order of the

Court of Appeals of March 30, 1978, with the other decisions of

Courts of Appeal on the character of orders reviewable under

Section 10(f) of the Act, as well as to avoid the injustice to the

petitioners of being forced to litigate, at great time, expense, and

effort, in a ten-week trial, events fully and finally determined

adversely to the Board, the Court should grant the petition.

—

B. The Court of Appeals Erred in Concluding That the

Doctrines of Res Judicata and Collateral Estoppel Do Not Pre-

clude Subsequent Relitigation of Events as Directed by the

Board’s Order of September 16, 1977.

The central question to be determined is whether the employ-

ees, whom the Board alleges to be unfair labor practice strik-

ers in the complaints issued following this Court's denial of the

Board’s petition for certiorari on October 20, 1975, 423 US.

913 (1975), have a right to immediate reinstatement on their

unconditional offer to return to work at petitioners’ plants. This

question was finally and completely adjudicated in the contempt

proceeding and is clearly res judicata as between the parties

now. Hence, Administrative Law Judge Socoloff was correct in

his determination that the doctrines of res judicata and col-

lateral estoppel barred the Board from attempting to relitigate

these matters again (Pet. App. E, pp. A-28-A-29). A cursory

reading of the complaint issued June 29, 1976 (Pet. App. G, PP.

A-94-A-105) will clearly confirm the correctness of the analysis

of the Administrative Law Judge and the error of the Board in

ordering a further hearing and the Court of Appeals in sanc-

tioning it. Paragraph 7 of that Complaint alleges that a number

of pressers at Decaturville engaged in a strike. Paragraph 8 of

the complaint alleges that on or about June 23, those individuals

were discharged. In paragraph 9, the petitioners are accused of

having refused reinstatement to these employees because of their

having participated in a strike. The same substantive allegations

were made in the Board's petition for contempt filed September

21, 1971, in the Court of Appeals for the Sixth Circuit. The

Special Master considered all of these allegations and concluded:

“12. The remaining pressers were not justified in their de-

mand that Rushing be reinstated or rehired by plant man-

ager Anderson on June 23, 1970, before they would re-

turn to work. These pressers were not discharged by the

ee es ee

16 —17—

tion for contempt dealt with the same question and specified

the names of two employees at Decaturville, Judy Scott Maness

and Peggy Cagle, three employees at Loris, Bryce Todd, Robert

Stephens, and Robert Richardson, and two employees at Frisco

City, Randy Montgomery and Sandra Matchett, whom the

Board alleged to have abandoned the strike and sought rein-

company unreasonably under the circumstances, despite

anti-union sentiment on the part of the company.

“13. If, however, the company acted improperly, uniaw-

fully, or unreasonably in discharging the pressers, other

than Nelson Rushing, on June 23, 1970, for engaging

in a concerted work stoppage, they should not now in

equity be entitled to reinstatement since the company

offered to them full reinstatement on June 24, 1970, by

letter which most chose to ignore or decline. The offer

of the company was a bona fide effort to reinstate. If ac-

cepted, the pressers on strike would not have sustained an

diminution of seniority, earnings, or any other privileges

which they enjoyed prior to their termination.”

(Pet. App. F, p. A-6).

In the Court of Appeals, these findings and conclusions were

adopted, without modification, because:

“A review of the record in this case, including the excep-

tions to the Special Master's report, and the briefs filed in

support of those exceptions fails to convince this Court

that the Special Master's findings, which were based on

two years of fact finding were clearly erroneous. * * *”

518 F. 2d at 790.

This Court declined to review the approval by the Court of

Appeals for the Sixth Circuit of the Special Master's findings.

423 U.S. 913 (1975),

The corollary question which the complaints issued after the

conclusion of the contempt proceeding raise is the right of

sympathy strikers at the other plants of the petitioners, in addi-

tion to Decaturville, for immediate reinstatement on their un-

conditional offer to return to work. Again, this issue has been

finally and conclusively determined. The Board's Original peti-

statement. Again, this issue was fully litigated and resolved

by the Special Master:

“7. There is insufficient clear and convincing proof es-

tablishing that picketing at the Loris plant was solely ”

protest an unfair labor practice. Both Todd and Stephens

who joined the picket line admitted they walked out of

the plant, without notice to the company, and without yard

ing any effort to advise management of the nature of their

grievances, if any. All ‘concerted activity is not protected

by Section 7 of the National Labor Relations Act (citing

cases). Todd and Stephens joined the pickets in front of

the company’s plant in Loris in an effort to get a union

into the plant, as well as to protest what they considered

an unfair or unjust practice. They assumed a status of

economic strikers who might be subject to permanent re-

placement under certain conditions (citing cases) . . .

(Pet. App. F. p. A-82)

These two incidents clearly indicate that the issues which the

Board seeks to relitigate have been clearly, finally, and conclu-

sively adjudicated and are no longer open for further litigation.

The Court of Appeals erred in not concluding that the doc-

trines of res judicata and collateral estoppel, as enunciated by

this Court, preclude the Board from proceeding further on the

same issues. In Commissioner v. Sunnen, 333 U.S. 593 ( 1948 ).

the Court elaborately set forth the philosophy and provisions

of the rule of res judicata as it applied to successive litigation

of the same issue. Relying upon the decision of Cromwell v. Sac

County, 94 U.S. 351 (1877), the Court said:

oe =

before an Administrative Law Judge of the Board, is of no

consequence. The parties are the same. This Court said in

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 387 (1940):

“The general rule of res judicata applies to repetitious suits

involving the same cause of action. It rests upon considera-

tions of economy of judicial time and public policy favoring

the establishment of certainty in legal relations. The rule

provides that when a court of competent jurisdiction has

entered a final judgment on the merits of a cause of action

the parties to the suit and their privies are thereafter bound

‘not only as to every matter which was offered and re-

ceived to sustain or defeat the claim or demand, but as to

any other admissible matter which might have been offered

for that purpose’. Cromwell v. Sac County, 94 U.S. 351

352, 24 L.Ed. 195, 197. The judgment puts an end to the

cause of action, which cannot again be brought into litiga-

tion between the parties or any ground whatever, absent

fraud or some other factor invalidating the judgment.”

333 U.S. at 597.

Subsequently, the Court held:

“Occasionally courts have used language to the effect that

res judicata principles do not apply to administrative pro-

ceedings, but such language is certainly too broad. When

an administrative agency is acting in a judicial capacity and

resolved disputed issues of fact properly before it which

the parties have had an adequate opportunity to litigate

the courts have not hesitated to apply res judicata to enforce

repose. United States v. Utah Constructio ini

' n&M

384 U.S. 394, 42] (1966).” ining Co.,

Tr pr. the doctrines of res judicata and its corollary, col-

era estoppel, to the events here, it is clear that the doctrines

of res judicata and collateral estoppel, as enunciated b thi

Court, bar the subsequent proceeding ordered by the Booed a

its September 16, 1977, order. The fact that the first ciation

was a contempt action instituted by the Board itself in a Co ;

of Appeals and the second is an unfair labor practice ailinn

“Where the issues in separate suits are the same, the fact

that the parties are not precisely identical is not necessary

fatal. * * * ‘Identity of parties is not a mere matter of

form, but of substance. Parties nominally the same may

be, in legal effect, different . . . and parties nominally

different may be, in legal effect, the same. A judgment is

res judicata in a second action upon the same claim be-

tween the same parties or those in privity with them . . .

There is privity between officers of the same government

so that a judgment in a suit between a party and a repre-

sentative of the United States is res judicata in litigation

of the same issue between that party and another officer

of the government . . . The crucial point is whether or

not in the earlier litigation the representative of the United

States had authority to represent its interests in a final ad-

judication of the issue in controversy.”

310 US. at 402, 403.

There can be no question but that the Board is again_al-. ——

tempting to relitigate the character and nature of the work stop-

page at Decaturville in the unfair labor practice proceeding and

to seek a contrary finding regarding the rights of picketing em-

ployees and sympathy strikers to reinstatement. Before the Court

of Appeals in NLRB v. Decaturville Sportswear Co., Inc., 518

F.2d 788, cert. denied, 423 U.S. 913 (1975), the Board con-

ceded that it accepted the findings of fact of the Special Master.

Having made that concession, what remains to litigate? Had

the Board prevailed in its contempt action against the petitioners

in the Court of Appeals, it is certainly not doubtful that the

names of all the people listed in the various complaints involved

here (Pet. App. e.g. G. pp. A-94-A-105), would have been pre-

sented at some compliance stage of the contempt proceeding

ie

—

as individuals entitled to reinstatement. Yet, having lost on the

cardinal issue in the case, the Board now attempts to relitigate

the matter on the asserted ground that a different standard of

proof would have produced a different result. Having accepted

the facts as found by the Special Master, the Board is hardly in

a position to complain about the standard of proof imposed.

Especially is this true since the Board itself initiated the con-

tempt action and thereby chose the initial forum to litigate the

issue. The Administrative Law Judge, analyzing the effect of

the decision in the contempt action, and comparing it to the

allegations of the complaint (Pet. App. G, pp. A-94-A-105,

J, pp. A-120-A-127) observed:

“The Court's decisions are the law of the case. The Court

has determined that:

“(1) Rushing was discharged for cause;

*( 2) The Decaturville employees who protested the Rush-

ing discharge were engaged in unprotected activity, and,

thus, were themselves lawfully discharged:

“(3) The strikers at others of Respondents’ plants were not

engaged in protected activity:

“(4) The rights of the sympathy strikers at the Russell plant

are dependent upon the protected nature of the strikes at

Respondents’ other plants.

* 5) The strikes at said other plants were unprotected ac-

tivity.

“I conclude, for the reasons stated below. that the findings

and conclusions of the Court in the Decaturville case must

be accorded a res judicata or collateral estoppel effect in

this case before the Board, and that the General Counsel

may not now relitigate the very issues previously litigated in

that case.”

(Pet. App. E, pp. A-23-A-24)

Since Courts of Appeal have consistently applied the doctrines

of res judicata and collateral estoppel where previous Board de-

terminations or district court decisions have affected subsequent

proceedings before the Board, i.e. NLRB v. Brown & Root, 203

F.2d 239 (8th Cir. 1953); Zdanok v. Glidden Company, 327

F.2d 944 (2d Cir. 1964); NLRB v. Walter E. Heyman, 541

F.2d 796 (9th Cir. 1976); Eazor Express, Inc. v. General

Teamsters Local 326, 388 F.Supp. 1264 (D. Del. 1975), we

know of no reason why the same consideration should not apply

where the Board has instituted an action in the Court of Appeals

and following an adverse result, attempts to present the same

claims before its Administrative Law Judge.

Every individual whose name appears in the complaint in-

volved in the unfair labor practice proceeding (Pet. App. G,

H,.1,J,K, pp. A-94, A-136) stands on exactly the same footing as

Judy Scott Maness, Peggy Cagle, Bryce Todd, Robert Stephens,

Robert Richardson, Sandra Matchett, and Randy Montgomery,

all of whom were considered by the Court of Appeals and

found not to be entitled to reinstatement because they were

not unfair labor practice strikers. A contrary position would

produce ludicrous results. Employees who were alleged by

the Board to have been denied immediate reinstatement in

the contempt action have had their rights finally adjudicated,

adversely to them. Yet, the Board with approval of the Court

of Appeals now is permitted to seek reinstatement and backpay

for the employees listed in the complaint issued after this Court

denied the Board's petition for certiorari on a legal proposition

that is squarely “on all fours” with that which the Court of

Appeals determined in the contempt action.

It is estimated that a trial of these consolidated complaints

would consume ten weeks (Pet. App. C, p. A-11). Over four

thousand pages of testimony were considered by the Court of

Appeals in the contempt action. This Court has said:

—> ,

“Finality to litigation is an end to be desired as well in

proceedings to which an administrative body is a party

as in exclusively private litigation. The party adverse to

the administrative body is entitled to rely on the conclusive-

ness of the decree entered by a court to the same extent

that other litigants may rely on judgments for or against

them.”

International Union v. Eagle-Picher Mining and Smelt-

ing Co., 325 U.S. 336, 340 (1945). ~

To permit further litigation, as the Court of Appeals has

done, destroys finality of judgments; undercuts the doctrines

of res judicata and collateral estoppel: and forces the petitioners

to expend time, effort and money for wich there is no hope of

recoupment, even if successful.

CONCLUSION

The petition for a writ of certiorari should be granted.

June, 1978

Respectfully submitted,

W. OVID COLLINS, JR.

CHARLES HAMPTON WHITE

Third National Bank Building

Nashville, Tennessee 37219

APPENDIX

— *

APPENDIX A

United States Court of Appeals

for the Sixth Circuit

Decaturville Sportswear Co., Inc., >

et al.,

Petitioners, | Nos. 78-1005, 18064,

v. > 18154, 18249, 18250

and 18256.

National Labor Relations Board,

Respondent. 7

ORDER

(Filed March 30, 1978)

Before: Celebrezze, Peck and Lively, Circuit Judges

This cause is before the Court on a petition to review and

stay an order of the respondent Board entered September 16,

1977, directing a reopening of the record and the scheduling of

a further administrative hearing on an unfair labor practice com-

plaint lodged against the petitioning companies, and upon the

motions of the respondent to dismiss the petition to review, deny

the stay, and to issue an order clarifying its opinion in N.L.R.B.

v. Decaturville Sportswear Co., Inc., 518 F.2d 788 (6th Cir.),

cert. denied 423 U.S. 913 (1975). Petitioners have also filed a

request for ora! argument and their brief in support of their

petition.

Petitioners have taken the position that the issues in the up-

coming hearing on the unfair labor practices question have

already been disposed of by the application of the doctrines of

— A-2 —

res judicata and collateral estoppel to the holding of this Court

in the case cited above, wherein we found Decaturville not to be

in contempt of the prior order of this Court in Decaturville

Sportswear Co., Inc. v. N.L.R.B., 406 F.2d 886 (6th Cir. 1969).

Upon consideration of the motions and supporting memo-

randa of the parties, it is the conclusion of the Court that the

September 16, 1977 order of the Board is not a final order within

the meaning of § 10(f) of the National Labor Relations Act,

29 U.S.C. § 160(f). The Court further finds that upon the

conclusion of the administrative hearing and the issuance of a

proper order by the Board, the petitioners, if still aggrieved,

will be able to seek review in this Court.

It is therefore ORDERED that the petition for review be,

and it hereby is, dismissed. It is further ORDERED that the

motion for a stay be, and it hereby is, denied and it is OR-

DERED that the motion for an order of clarification be, and it

hereby is, denied.

ENTERED BY ORDER OF THE COURT

s’ JOHN P. HEHMAN

Clerk

—~.

APPENDIX B

Office of the Clerk

United States Court of Appeals

For the Sixth Circuit

Cincinnati, Ohio 45202

Decaturville Sportswear Co., Inc., }

et al.,

VS. | No. 78-1005

National Labor Relations Board.

Dear Counsel:

Please be advised that pursuant to

Rule 41(a), Federal Rules

of Appellate Procedure, this Court’s mandate has today issued

in the above entitled case.

Costs in the amount of $ -0- have been taxed against the

appellant appellee.

Dated May 15, 1978.

Very truly yours,

JOHN

P. HEHMAN, Clerk

—

APPENDIX C

United States Court of Appeals for the Sixth Circuit

Decaturville Sportswear Co., Inc., -

et al.,

Petitioners, | Nos. 18,064, 18,249,

v. 18,250, 18,256, and

18,154

National Labor Relations Board,

Respondent.

PETITION TO REVIEW ORDER OF NATIONAL LABOR

RELATIONS BOARD AND TO STAY UNFAIR LABOR

PRACTICE HEARING ORDERED THEREBY

To the Honorable Judges of the United States Court of Ap-

peals for the Sixth Circuit:

The petitioners, Decaturville Sportswear Co., Inc., Marlene

Industries Corporation, Trousdale Manufacturing Co., Inc

Westmoreland Manufacturin

Co., Inc., and Loris Manufa

ferred to as the

review,

g Corp., Aynor Manufacturing

cturing Co., Inc. [subsequently re-

“company™] respectfully petition this Court to

vacate, and set aside, pursuant to the provisions of

Section 10(f) of the National Labor Relations Act, as amended,

29 USC § 160(f), the order of the National Labor Relations

Board, entered September 17, 1977, known on the records of

the National Labor Relations Board as Marlene Industries Cor-

poration, Cases No. 26-CA-3642, et al., on the basis that the

order of the National Labor Relations Board is repugnant to

and stultifies the terms and provisions of the decision of this

Court entered May 23, 1975. in this proceeding. Additionally,

the petitioners would show that the order of the National Labor

Relations Board, a photocopy of which is attached hereto and

—

—

made a part hereof as Exhibit “A”, if permitted, will force the

company to litigate exactly the same matters a second time which

have already been considered by this Court in this proceeding,

thereby depriving the company of its property without due

process of law, in contravention of the provisions of the Fifth

Amendment to the Constitution of the United States. The com-

pany thus alleges it is aggrieved by the order of the Board.

In support of this petition, the company alleges as follows:

I. On September 21, 1971, the Board filed a petition seeking

to have the company cited for contempt for failing to abide by

the terms and provisions of a decree of this Court entered in the

case of Decaturville Sportswear Co., Inc. v. NLRB, 406 F.2d

886 (6th Cir. 1969). This Court appointed the Hon. Harry

W. Wellford, United States District Judge, as Special Master to

hear the evidence concerning the allegations set forth in the

Board's petition.

II. On June 29, 1972. the National Labor Relations Board

issued its decision in Russell Sportswear C orporation, 197 NLRB

1116 (1972). This Court on May 13, 1973, denied enforce-

ment of this order of the Board and remanded the proceeding

to the Board for further consideration to determine the rights,

if any, of employees striking against Russell Sportswear C orpora-

tion, Russell Springs, Kentucky, as sympathy strikers with the

Decaturville, Tennessee, employees. NLRB v. Russel! Sportswear

Corporation, — F.2d —. 83 LRRM 2225 (197°

Ill. On September 21, 1973, the Board notified all parties

that it had decided to accept the remand of this Court in Russel!

Sportswear Corporation, and would take the action it deemed

appropriate.

IV. On October 5, 1973, and on June 12, 1974, the Hon.

Harry W. Wellford, Special Master, appointed by this Court

— Y

to hear the evidence concerning the allegations of contempt

against the company, filed his memorandum of law setting forth

his conclusion that the strike which begafi at the plant of De-

caturville Sportswear Co., Inc., Decaturville, Tennessee, in June

of 1970, was not a protected activity and, therefore, the em-

ployees of the company who engaged in sympathy strikes at the

plants of Trousdale Manufacturing Co., Inc., Westmoreland

Manufacturing Corp., Loris Manufacturing Co., Inc., and Ay-

nor Manufacturing Co., Inc., were not engaged in protected

activities. On May 23, 1975, this Court adopted the findings

conclusions, and recommendations of Judge Wellford. NLRB

, ’ l

(

: V. On October 20, 1975, the Supreme Court of the United

tates denied the Board's petition for certiorari to review the

decision of this Court. 423 U.S. 913 (1975).

| VI. On March 18, 1976, the Board issued its order reopen-

ing the record in Russell Sportswear C Orporation, supra, and

remanded the proceeding to the Regio

— nal Direct

9 at Cincinnati, Ohio, for a hearing. . ector for Region

PR. On June 29, 1976, the Regional Director for Region

260 the National Labor Relations Board issued a complaint

in Cases Nos. 26-CA-3642, 3646, 3828. S111, 5112 saa3

5336-1, 5336-2, and 5355, against Decaturville Sportswear Cc

Inc., Trousdale Manufacturing Co., Inc., and wewwsameclneny

Manufacturing Corp., all located in Tennessee.

| bees On July 13, 1976, John S. Irving, Esq., General Coun-

sel of the Board, issued an order consolidating for trial the com-

plaints issued by the Regional Directo

| t for the 9th,

26th Regions against the company. aca

aoe = August 17, 1976, the Regional Director for Region

at Winston-Salem, North Carolina, issued a complaint in

= hia

Case No. 11-CA-5748 and 5749 against Loris Manufacturing

Co., Inc., and Aynor Manufacturing Co., Inc., both located in

South Carolina.

X. On September 8, 1976, the Regional Director for Region

9 of the NLRB issued an additional complaint in Case No. 9-

CA-8610 and 9-CA-8888 against Russell Sportswear Corpora-

tion, Russell Springs, Kentucky.

XI. A hearing was held at Decaturville, Tennessee, on Sep-

tember 28, 1976, before Administrative Law Judge Irwin H.

Socoloff, who directed the parties to file statements with respect

to the validity of the answer of the company raising the issues

of res judicata and collateral estoppel and the finality of this

Court’s decision of May 23, 1975, as a total and complete bar

to the unfair labor practice proceeding.

XII. On April 7, 1977, Administrative Law Judge Socoloff

issued his decision, a photocopy of which is attached as Exhibit

“B” to this petition, in which he concluded “the allegations of

the complaints herein, charging violations by respondents of

Section 8(a)(3) and (1) of the Act, are barred under the ap-

plicable res judicata and collateral estoppel principles.” A com-

parison of the allegations of the Board's petition for contempt

filde in this Court in September, 1971, as amended, with the

allegations of the complaints in the instant proceeding, clearly

reveals that the cardinal issue of the entire controversy is the

character of the strike which began at Decaturville in June,

1970. All of the allegations of the complaints involving Russell

Sportswear Corporation, M. Hoffman & Co., Inc., Landlubber

Alabama, Inc., and other Marlene Industries Corporation sub-

sidiaries, are entirely derivative and presuppose the existence

of an unfair labor practice strike which began at Decaturville,

Tennessee, in June, 1970.

XIII. On September 17, 1977, the National Labor Relations

Board issued the instant order in which it construed the signifi-

— A-8 —

cance of this Court's decision in NLRB y. Decaturville Sports-

py Co., Inc., 518 F.2d 788 (6th Cir. 1975), cert. denied

2: U. S. 913 (1976), and concluded: “Under relevant tie.

ciples of law as enunciated in numerous decisions the Seats

= res judicata and collateral estoppel are not applicable where

peace of proof has been higher in the first action than in

3 ond. Thus a contempt proceeding, such as the Decatur-

ville decision, which involves an application of the ‘clear and

convincing evidence’ standard, cannot bar a subsequent unfair

labor practice proceeding involving a different cause of action

different parties, and ‘a

, preponderance of the evidence’

of proof.” [Exhibit “A”, page 2]. =

Pe The company alleges that the order of the Board of

ape 17, 1977, conflicts with the order of this Court of

i , 1975, because it forces the company to relitigate events

ich have already been completely and finally adjudicated in

“3 contempt action culminating in this Court's order of May

me po To anne the company to relitigate these facts or

r derivative events as required by the September 17, 1977

Board order, violates the doctrines of res judicata and collet

estoppel and deprives the company of its property without pen

Process of law. In su ’

atin pport of this allegation, the company alleges

A. The complaint issued June 29

. 1976.

3642, et al., alleges: 6. in Case No. 26-CA-

“7

bys = ~e June 23, 1970, the below-named employees,

; whom were employed in the pressing department of

espondent Decaturville at its Decaturville, Ten

plant, did engage in a strike (list of names) | es

“g

Respondent Decaturville, on or about June 23, 1970. at

its Decaturville, Tennessee

; . Plant, discharged .

Ployees referred to in Paragraph 7 above ged those em

ie wee

—_

“9

“Respondent Decaturville discharged those employees re-

ferred to in Paragraph 7 above as alleged in Paragraph 8

above and thereafter failed and refused to reinstate or

recall said employees. because said employees engaged in

the strike referred to in Paragraph 7 above or because suid

employees engaged in other activities protected by Section

7 of the Act.”

These allegations are identical to those considered by the Special

Master in the contempt litigation and affirmed by this Court as

follows:

“On June 23, 1970, Nelson Rushing, an employee in the

pressing department of the Decaturville, Tennessee, plant,

was discharged. The Master concluded that he was dis-

charged because of insubordination. The Board contends

that Rushing’s union proclivities were at least part of the

reason for Rushing’s discharge.

“Rushing’s discharge prompted a walk-out of approximately

50 fellow pressers. These employees were then discharged.

However, the company sent each a letter the following day

offering full reinstatement. The Special Master concluded

that the pressers were not justified in demanding that Rush-

ing be reinstated and therefore their discharge was also

not improper. The Special Master noted that in light of

the reinstatement offer equity would not dictate reinstate-

ment even if the employees had been unreasonably dis-

charged. The company’s refusal to hire certain applicants

or to rehire or reinstate various other striking employees

was also found proper by che Special Master.”

518 F.2d at 790.

Thus, the company alleges that the very issue ordered by the

Board by its September 17, 1977, order to be litigated has al-

ready been fully and finally determined by this Court. Under

— A-10 —

the principles of res judicata and collateral estoppel, this issue

is Not open for further litigation.

B. With respect to the reinstatement rights of the employees

who went on strike in sympathy with the pickets at Decatur-

ville, the complaint in Case No. 26-CA-3642 further alleges:

“o>

“On or about April 19, 1974, the below-named employees

of respondent Trousdale, and other employees of respond-

ent Trousdale, who participated in the strike described in

Paragraph 10, made unconditional offers to respondent

Trousdale to return to their former or substantially equiva-

lent positions of employment: (list of names)

“16.

Respondent Decaturville, Westmoreland, and Trousdale

failed and refused, and continue to fail and refuse, to re-

instate their employees referred to in Paragraphs 13, 14

and 15 above, to their former or substantially equivalent

positions of employment.”

In passing on this allegation and other similar allegations re-

specting other plants of the company, the Administrative Law

Judge construed this Court's decision of May 23, 1975, as the

law of the case and determined that this Court decided:

"2. The Decaturville employees who protested the Rush-

ing discharge were engaged in unprotected activity and,

thus, were themselves lawfully discharged.

3. The strikers at others of respondents’ plants were not

engaged in protected activities,

“4. The rights of the sympathy strikers at the Russell plant

are dependent upon the protected nature of the strikes at

respondents’ other plants.

“Ss. Tes strikes at said other plants were unprotected ac-

tivities.” [Exhibit “B”, page 5],

— A-ll —

Again, the company alleges that the September 17, 1977, order

of the Board will force the company to relitigate again entirely

these questions which have been fully and finally resolved by

this Court by its May 23, 1975, order.

C. The company further alleges that if it is forced to re-

litigate the issues raised by the complaints, as directed by the

September 17, 1977, order of the Board, inconsistent results

may follow which will effectively stultify or contradict the force

of this Court's order of May 23, 1975. Thus, the company

alleges that if it is forced to retry the validity of its discharge

of pressers at Decaturville, Tennessee, in 1970, a subsequent

proceeding might well result in an order of the Board directing

the company to reinstate, with backpay, all pressers whom it

discharged where this Court has sanctioned and approved the

company’s action in discharging them. In like manner, a sub-

sequent relitigation of the reinstatement rights of picketing em-

ployees at all plants might well result in a decision of the Board

that they were unfair labor practice strikers, entitled to imme-

diate reinstatement and backpay, whereas this Court has held

that they were engaged in unprotected activities and not en-

titled to the benefits of Section 7 of the National Labor Re-

lations Act.

D. Additionally, the company alleges that the General Coun-

sel of the Board estimates that the proceeding ordered by the

September 17, 1977, order of the Board will require at least

ten weeks’ trial in four different states and even if successful,

there is no effective way that the company can recoup the

time and financial resources expended in defense of these alle-

gations. Thus, the company alleges that to permit a relitigation

of issues fully determined and resolved by this Court in this

case, as ordered by the Board in its September 17, 1977, order,

deprives it of its property without due process of law contrary

to the provisions of the Fifth Amendment to the Constitution

of the United States. Finally, the company alleges that to per-

eT

pe

— A-12 —

mit relitigation of these issues where the Board accepted, with-

out objection, the findings of fact of this Court's Special

Master, violates the doctrines of res judicata and collateral

estoppel and effectively undercuts and stultifies the judginent

of this Court.

E. Trial of this proceeding is scheduled to commence at

Decaturville, Tennessee, on February 6, 1978, and unless this

Court stays the proceeding until it can fully review the record,

the company, having no other legal remedy available, will be

deprived of its property without due process of law.

WHEREFORE, the petitioners respectfully pray as follows:

1. That the Clerk issue an order requiring the Board to file

with the Clerk of this Court a record of the proceedings before

it in Case No. 26-CA-3642, et al., and respond to the allega-

tions of this petition.

2. That the Court issue an order staying any proceeding

ordered by the National Labor Relations Board, its agents,

officers, servants, or employees, in Case No. 26-CA-3642, et

al., pending a determination by this Court of the validity of

the September 17, 1977, order as set forth in this petition.

3. That this Court, after due notice of hearing, enter an

order vacating, setting aside, or voiding the September 17,

1977, order of the National Labor Relations Board in this case

and directing the National Labor Relations Board to conduct

no further proceedings on the issues involved in this matter.

4. That the Court take such other and further action and

grant such other and further relief as may be deemed reason-

able and proper to secure compliance with this Court's judg-

ment of May 23, 1975, to the end that petitioners will not be

deprived of their property without due process of law or forced

to twice litigate facts, situations, episodes and events, com-

pletely and fully adjudicated by this Court.

— A-13 —

Dated at Nashville, Tennessee. this 29th day of December,

1977.

CHARLES HAMPTON WHITE

Eighteenth Floor _!

Third National Bank Building

Nashville, Tennessee 37219

Attorney for the Petitioners

Ss

Certificate of Service

1. Charles Hampton White, certify that I am the posing:

for the petitioners and that I have this day caused a my 4

the foregoing petition to be served upon oe peng edna

1 Counsel, National La

Deputy Associate General “4

oad. 1717 Pennsylvania Avenue, N. W., Washington, noth

20570, by depositing a copy thereof in the United States .

essed to Elliott Moore, Esq., at the above

postage prepaid, addr ee

address which is the last address of such person kn

This 29th day of December. 1977.

s CHARLES HAMPTON WHITE

EO eeeeere_—VOV0O0Vne

ee on AG

APPENDIX D ORDER REOPENING RECORD AND REMANDING

Exhibit “A” PROCEEDINGS TO REGIONAL DIRECTOR

Not Included in Bound Volumes On April 7, 1977, Administrative Law Judge Irwin H. Soco-

FJM loff issued his Decision in this proceeding recommending that

the consolidated complaint be dismissed in its entirety. In so

doing, the Administrative Law Judge concluded that the findings

and conclusions of the United States Court of Appeals for the

Sixth Circuit in N.L.R.B. v. Decaturville Sportswear Co., Inc.,

518 F. 2d (1975); cert. den. 423 U. S. 913 (1976) must be

Decaturville, Tenn.

United States of America

Before the National Labor Relations Board

Marlene Industries Corporation; De-

caturville Sportswear Co., Inc.: i. A-3642 accorded a res judicata or collateral estoppel effect in the instant

Westmoreland Manufacturing Cor- 26-CA-3846 case. In support of this conclusion the Administrative Law

poration; Trousdale Manufacturing 26-CA-3828 Judge noted that in passing on the legal status of employees who

Company, Inc. 26-CA-5111 struck the Decaturville plant in 1970, the Court of Appeals

26-CA-5112 held, inter alia, that Decaturville’s discharge of strikers and its

26-CA-5113 refusal to rehire or reinstate strikers was not improper and was

and 26-CA-5336(1) not a basis for a finding of civil contempt against the Company.

26-CA-5336(2) Inasmuch as the rights of sympathy strikers at Russell and at

26-CA-5355 various other Marlene Industries plants are central to the instant

Marlene Industries Corporation: _— : litigation and are dependent upon the nature of the strike at the

Frisco City Sportswear, Inc.: M. 15-CA-4834 Decaturville plant, and because he concluded that the Decatur-

Hoffman & Company, Inc.; and 7 ville decision definitely resolved the nature of the Decaturville

Landlubber Alabama, Inc. strike, the Administrative Law Judge reasoned that any further

_ litigation of the allegations of the instant complaint is barred.

iid Thereafter, the General Counsel and the Charging Party filed

mune Speen Corporation Cases exceptions to the Administrative Law Judge's Decision and

_ 9-CA-6384 briefs in support of their exceptions. Respondent filed a brief

9-CA-8610 in support of the Decision.

Marlene Industries Corporation: Ay- Ph aes Pursuant to the provisions of Section 3(b) of the National

nor Manufacturing Company, Inc.: 11-CA-5748 Labor Relations Act, as amended, the Board has delegated its

Loris Manufacturing Company, 11-CA-5749 powers in this proceeding to a three-member panel.

i ~ _ In their exceptions and supporting briefs the General Counsel

and the Charging Party! urge, inter alia, that the Administrative

International Ladies’ Garment Work-

ers’ Union, AFL-CIO 1 On June 16, 1977, the Charging Party filed a Motion for Oral

Argument. In view of our decision to remand these proceedings oral

—_s

Law Judge's application of the principles of res judicata and

collateral estoppel to the facts of the instant litigation is errone-

ous. We find merit in this position. The Court of Appeals

emphasized in its Decaturville decision that a very different and

more demanding burden of proof is required in a contempt pro-

ceeding than in a normal proceeding for the enforcement of a

Board order. See 518 F. 2d at 790. Thus in Decaturville, a

contempt proceeding, the Court of Appeals applied a strict evi-

dentiary standard of “clear and convincing evidence” in holding

that the Board had failed to demonstrate that Respondent's con-

duct, vis a vis its striking employees, constituted grounds for a

finding of civil contempt. Under relevant principles of law as

enunciated in numerous decisions* the doctrines of res judicata

or collateral estoppel are not applicable where the standard of

proof has been higher in the first action than in the second. Thus

a contempt proceeding, such as the Decaturville decision, which

involves an application of the “clear and convincing evidence”

standard, cannot bar a subsequent unfair labor practice proceed-

ing involving a different cause of action, different parties, and a

“preponderance of the evidence” burden of proof.

Accordingly, the Board having duly considered the matter,

It Is Hereby Ordered that the record in the proceeding be,

and it hereby is, reopened and that a further hearing be held

before Administrative Law Judge Irwin H. Socoloff for the pur-

pose of taking evidence in accordance with the remand of the

United States Court of Appeals for the Sixth Circuit on July 17,

1973, and the Board’s Order Reopening Record and Remanding

dated March 18, 1976.

argument is not warranted at this time and said Motion is hereby

denied.

* The General Counsel and the Charging Party rely on Helvering

v. Mitchell, 303 U.S. 391, and Neaderland v. Commissioner of In-

ternal Revenue, 424 F. 2d 639 (C.A. 2, 1970) among other cases.

— * ;

It Is Further Ordered that this proceeding be remanded to the

Regional Director for Region 26 for the purpose of arranging

such further hearing, and that said Regional Director be, and

he hereby is, authorized to issue notice thereof.

It Is Further Ordered that upon conclusion of such further

hearing, the Administrative Law Judge shall prepare and serve

upon the parties a Supplemental Decision setting forth the reso-

lution of any necessary credibility issues, and his findings, con-

clusions, and recommendations with respect to the allegations

of the consolidated complaint. Copies of such Supplemental

Decision shall be served on all the parties after which the pro-

visions of Section 102.46 of the Board’s Rules and Regulations.

Series 8, as amended, shall be applicable.

Dated, Washington, D.C., September 16, 1977.

John H. Fanning, Chairman

Howard Jenkins, Jr., Member

Betty Southard Murphy, Member

(Seal) National Labor Relations Board

—s

APPENDIX E

Exhibit “B”

JD-231-77

Decaturville, TN

United States of America

Before the National Labor Relations Board

Division of Judges

Marlene Industries Corporation;

Decaturville Sportswear Co., Inc.;

Westmoreland Manufacturing Corpo-

ration;

Trousdale Manufacturing Company.

Inc.,

and

Marlene Industries Corporation;

Frisco City Sportswear, Inc.:

M. Hoffman & Company, Inc.: and

Landlubber Alabama, Inc.,

and

Russell Sportswear Corporation

and

Marlene Industries Corporation;

Aynor Manufacturing Company, Inc.:

Loris Manufacturing Company, Inc..

and

International Ladies Garment Workers’

Union. AFL-CIO.

Cases 26-CA-3642

26-CA-3646

26-CA-3828

26-CA-5111

26-CA-5112

26-CA-5113

26-CA-5336(1)

26-CA-5336(2)

26-CA-5355

Case 15-CA-4834

Cases 9-CA-6384

9-CA-8610

9-CA-8888

Cases 11-CA-5748

11-CA-5749

— A-19 —

Robert G. Levy II, Esq., Houston, TX, for the General Counsel.

James R. Goldberg, Esq., Atlanta, GA, for the Charging Party.

Charles H. White, Esq., Nashville, TN, for the Respondent.

DECISION

IRWIN H. SOCOLOFF, Administrative Law Judge: Marlene

Industries Corporation, herein called Marlene, its wholly owned

subsidiary manufacturing plants, and certain alleged successors,

Respondents herein, are engaged in the manufacture and sale

of wearing apparel. Respondents, and each of them, are em-

ployers engaged in commerce within the meaning of the Act.

and meet the Board's standards for assertion of jurisdiction.

International Ladies’ Garment Workers’ Union, AFL-CIO,

herein called the Union, is a labor organization within the mean-

ing of the Act.

The Complaints in this consolidated proceeding allege viola-

tions by the Respondents of Section 8(a)(3) and (1) and Section

2(6) and (7) of the Act. Those allegations are denied by Re-

spondents in their Answers. By my Order dated October 28,

1976, trial in this matter was postponed indefinitely, pending

resolution of the res judicata issues raised by Respondents’ af-

tirmative defenses. The parties thereafter filed briefs which have

been duly considered.

Posture of the Case

On January 29, 1969, in Decaturvilie Sportswear Co. vy.

N.L.R.B.,' the Court of Appeals for the Sixth Circuit enforced,

in part, a Board Order’ based upon findings that Marlene and

its subsidiaries had conducted a centrally directed and violent

' 406 F. 2d 886 (6 Cir., 1969).

* Marlene Industries, et al., 166 NLRB 703 (1967).

— A-20 —

campaign of massive and deliberate unfair labor practices at

all seven of their manufacturing plants, including numerous

violations of Section 8(a)(1) and Section 8(a)(3) of the Act.

Respondents’ actions were in response to the Union's organizing

campaign among employees of the subsidiary plants. Subse-

quently, the Board instituted contempt proceedings against

Marlene and certain subsidiaries, based, inter alia, upon the

June 23, 1970 discharge of employee Rushing at the Decatur-

ville plant; the discharge of Decaturville employees who en-

gaged in a protest of the Rushing discharge; the refusal to hire

certain employment applicants, and reinstate certain strikers,

at Decaturville; and the refusal to reinstate sympathy strikers at

other plants. On May 23, 1975, the Sixth Circuit adopted the

findings, conclusions and recommendations of its Special Master

and ruled that Respondents were not in contempt of the Court's

1969 order.* Specifically, the Court approved the Master's

findings that Rushing was discharged for insubordination; that

the protesting Decaturville strikers were not justified in demand-

ing that Rushing be reinstated and, therefore, their discharge

was also not unlawful; that the sympathy strikers at other plants

were striking, at least in part, for their own economic reasons and,

accordingly, their walk-out without notice to Respondents, and

without making any efforts to advise management of the nature

of their grievances, was not protected activity; and that Re-

spondents did not act illegally in refusing to hire certain Decatur-

ville applicants and reinstate others. The Court noted:

“The Special Master's mere mention of impermissible

motives possibly playing some role in the dismissal of Rush-

ing and others employees hardly rises to the level of clear

and convincing evidence of impermissible dismissals jus-

tifying a finding of civil contempt. A contempt proceeding

is a setting very different from a normal proceeding for the

enforcement of a Board order. The burden imposed by the

* N.L.R.B. v. Decaturville Sportswear Co., Inc., 518 F. 2d 788

(6 Cir., 1975); cert. den. 423 U.S. 913 (1976).

— A-21 —

clear and convincing evidence standard is heavy. The Board

has failed to demonstrate that the Special Master erred in

his findings or conclusions.”

The status of the sympathy strikers at Respondents’ Russell

plant was not litigated before the Special Master but, rather, was

the subject of a separate unfair labor practice case. On May 15.

1973, 2 years before the decision in the Decaturville contempt

proceeding, the Sixth Circuit denied enforcement of the Board’s

order,* holding”:

“. . . there is not substantial evidence to support the con-

clusion of the Board that the picketers were engaged in pro-

tected activity. There is no evidence in the record that the

strikes at the other plants of respondent’s parent were pro-

tected activity and thus, no evidence to support the con-

clusion in this case that the strikers at respondent's plant

were entitled to protection as unfair labor practice strikers,

the assumption on which the Board based its determination

that the strikers’ activities were protected. The strikers at

respondent's plant could obtain no greater protection than

that enjoyed by their counterparts with whom they were

Striking in sympathy.”

On July 17, 1973, upon a petition for rehearing, the Court

vacated its earlier order and remanded the matter to the Board

“to determine whether the strike with which the strikers at

respondent's plant were striking in sympathy was activity pro-

tected under the Act; to consider any additional evidence that

may be offered; and to take such other action as it deems ap-

propriate in view of this court’s previous order.”* Thereafter. the

4+ 197 NLRB 1116 (1972).

* N.L.R.B. v. Russell Sportswear Corp., 71 L.C. 13667 (6 Cir..

1973).

* N.L.R.B. v. Russell Sportswear Corp., 72 L.C. 13905 (6 Cir.,

1973).

— A-22 —

Board decided to accept the remand and ordered that the record

in that case (9-CA-6384) be reopened. Subsequently, that mat-

ter was consolidated with the new round of Marlene cases now

pending before me.

Of course, in its subsequent Decaturville decision, the Court

answered the very question underlying the Russell remand,

namely, whether the strike with which the Russell strikers were

acting in sympathy, was protected activ’ty. In Decaturville, the

Sixth Circuit held that the Decaturville strike was an unpro-

tected activity.

In the instant consolidated proceeding, the General Counsel

seeks, not only to offer additional evidence pursuant to the Rus-

sell remand, but to relitigate the status and legal rights of the

strikers at the other Marlene and former Marlene plants, the

very matters tried before the Special Master whose report, as

noted, was adopted by the Court of Appeals.’ In response to

Respondents’ res judicata defenses, the General Counsel asserts

that:

1. “. . . the very Circuit Court of Appeals who heard

through its special master the contempt proceedings, re-

manded a companion case known as Russell Sportswear

Company to the Board for the purpose of taking additional

testimony regarding the nature of the strike at Respondent's

Decaturville Sportswear Co., Inc. location;” and

2. “. .. the findings by the special master in the aura of a

contempt proceeding did not preclude the General Counsel

* While maintaining that the strikers were unfair labor practice

strikers, the General Counsel alleges, alternatively, that the strikers

were economic strikers, entitled to reinstatement rights as such, a

matter necessarily encompassed by the prior litigation. Thus, the Gen-

eral Counsel concedes in its bref to me that the Court viewed the

Decaturville strikers, and the sympathy strikers, as having “engaged

in activity that was something less than ‘protected concerted ac-

tivity)...”

— A-23 —

from litigating the underlying unfair labor practices which

were present and which would be so found by the Board.”

Analysis

The General Counsel and the Charging Party maintain, as a

matter of law, that the findings and conclusions of the Court of

Appeals in the contempt case are not entitled to a res judicata

or collateral estoppel effect in this unfair labor practice proceed-

ing before the Board, and, accordingly, that this matter should

proceed to trial. They also urge that the Board, were it to view

the same evidence and decide the same legal issues previously

before the Court, would reach contrary conclusions. Indeed, the

General Counsel, before the Sixth Circuit, accepted the findings

of fact of the Special Master, excepting only to his conclusions

of law. Finally, as noted, they point to the Court's Russell re-

mand as indicating that the Court did not view its findings in the

Decaturville contempt proceeding as having a res judicata effect

upon retrial of those issues in a subsequent Board case.

The Court’s remand in Russell preceded its decision in De-

caturville. In the latter case, the Court decided the very issue

earlier remanded to the Board and, accordingly, if the Court's

Decaturville decision has a res judicata effect, it is also disposi-

tive of the Russell case. As to the wisdom and correctness of the

Court's decision in Decaturville, that matter is not for me, or

the Board, to decide. The Court’s decisions are the law of the

case. The Court has determined that:

1. Rushing was discharged for cause;

2. The Decaturville employees who protested the Rushing

discharge were engaged in unprotected activity and,

thus, were themselves lawfully discharged.

3. The strikers at others of Respondents’ plants were not

engaged in protected activity.

—_ <<

4. The rights of the sympathy strikers at the Russell plant

are dependent upon the protected nature of the strikes

at Respondents’ other plants.

5. The strikers at said other plants were unprotected ac-

tivities.

I conclude, for the reasons stated below, that the findings and

conclusions of the Court in the Decaturville case must be ac-

corded a res judicata or collateral estoppel effect in this case be-

fore the Board, and that the General Counsel may not now

relitigate the very issues previously litigated in that case.

While the Board has not previously addressed the precise

issue involved herein, its holding in Peyton Packing Company“

~ 129 NLRB 1358 (1961).

is instructive. There, the Board held that the General Counsel

had proceeded improperly in attempting to twice litigate, before

the Board, the withholding of a bonus as violations of different

sections of the Act, and in twice litigating the cause of a subse-

quent strike. It noted:

“Generally speaking, sound administrative practice, as well

as fairness to respondents, requires the consolidation of

all pending charges into one complaint. The same con-

siderations dictate that where practicable, there be but a

single hearing on all outstanding violations of the Act in-

volving the same respondent. To act otherwise results in

the unnecessary harassment of respondent.”

Peyton did not occur in the context of a prior contempt pro-

ceeding, and did not, strictly speaking, involve res judicata prin-

ciples. However, the courts have had occasion to consider those

issues. In Commissioner of Internal Revenue v. Sunnen,* the Su-

preme Court set forth the policy considerations underlying the

* 333 U.S. 591, 68S. Ct. 715 (1948).

—*

res judicata and collateral estoppel principles. Those doctrines,

judicial in origin, are designed to prevent repetitious litigation

and rest “upon considerations of economy of judicial time and

public policy favoring the establishment of certainty in legal

relations.” In United States v. Utah Construction & Mining

Co.,’” the Court applied those principles to the findings of ad-

ministrative agencies when acting in a judicial capacity, hold-

ing:

“When an administrative agency is acting in a judicial ca-

pacity and resolves disputed issues of fact properly before

it which the parties have had an adequate opportunity to

litigate, the courts have not hesitated to apply res judicata

to enforce repose.” (emphasis in original text)!

Relying upon the Supreme Court's decision in Utah, a federal

district court recently held, in Eazor Express, Inc. v. General

Teamsters Local 326,'* that the Board's findings in an unfair

iabor practice case are binding upon the parties in a subsequent

suit under Section 303 of the Act. In a pre-Utah case, a Court

of Appeals held that the Board was precluded from proceeding

against two entities as a single employer since, in. a prior pro-

ceeding, the Board treated those entities as separate employers.

Although the issue “was not squarely presented nor squarely

decided” 1n the first case, the Court ruled that the question was

“necessarily involved,” and stated: !*

1953).

' 384 U.S. 394, 86S. Ct. 1545 (1966).

‘1 Cf. Maxwell Company v. N.L.R.B., 414 F. 2d 477 (6 Cir..

1969), where the court refused to give a res judicata or collateral

estoppel effect to the administrative decision of a Board Regional

Director in a representation case since the Director's decision was

not @ quasi-judicial determination.

‘2 380 F. Supp. 1264 (1975).

'S N.L.R.B. v. Brown & Root, Inc., 203 F. 2d 139 (8 Cir.,

— A-26 —

“The general rule is that ‘any right, fact or matter in issue

and directly adjudicated, or necessarily involved in the

determination of an action before a competent court in

which a judgment or decree has been rendered upon the

merits, is conclusively settled by the judgment therein and

cannot again be litigated between the same parties and

their privies, whether the claim, demand, purpose or sub-

ject matter of the two suits is the same or not.” (citations

omitted)

The Courts of Appeals for the Sixth and Ninth Circuits have

recently addressed this issue, the former in the context of a

contempt proceeding. Thus, in N.L.R.B. v. Murray Ohio Mfg.

Co.,'' the Court was faced with the exact converse of the in-

stant matter. There, the Board sought to prosecute a contempt

case against an employer for alleged violations of a prior court

decree, based upon charges which had been the subject of a

new unfair labor practice proceeding before a Board trial ex-

aminer. The Court held that such duplication of trials was

unwarranted in view of the burdens of litigation facing the

Board and the Courts.'° In N.L.R.B. v. Heyman,'" the Ninth

Circuit concluded that the Board erred when it failed to accord

any weight to the prior decision of a federal district court, in a

Section 301 action, rescinding a collective bargaining contract.

The Board, faced with the same parties and, essentially, the

same contract issue, found violations of the Act based upon

the continued existence of the contract. The Court held:

“We are of the opinion that the jurisdictional grant

within $301 carries with it both the powers necessary to

enforce judgments and to give judgments effect in such

'* 60 LRRM 2257 (6 Cir., 1965).

'® Contra. N.L.R.P. v. Schill Steel Products, Inc., 480 F. 2d 586

(5 Cir., 1973).

16 92 LRRM 3603 (9 Cir., 1976).

— ——

quasi-judicial forums as the NLRB, through the applica-

tion of such doctrines as res judicata or collateral estoppel

The General Counsel and the Charging Party point out that,

in the Decaturville contempt matter, the Court stated that it

had applied a “clear and convincing evidence” test, rather than

the customary evidentiary standards applied in a Board pro-

ceeding. In contending that the difference in burden of proof

warrants a refusal to extend res judicata principles to the mat-

ters decided therein, they point to Helvering v. Mitchell."’

There, the Court declined to give res judicata effect to an ac-

quittal verdict in a criminal case when pleaded as a defense in

a subsequent civil cause, noting that “The acquittal was merely

an adjudication that the proof was not sufficient to overcome

all reasonable doubt of the guilt of the accused.”

While the Court, in Decaturville, applied a strict evidentiary

Standard, it was not nearly as extreme as the “beyond all rea-

sonable doubt” standard considered by the Supreme Court in

Helvering. Moreover, unlike the situation surrounding a jury

verdict of acquittal, we are not, here, left to speculate con-

cerning the underlying findings of the Court. They have been

set forth. In addition, in this case, the party resisting applica-

tion of the res judicata doctrine himself chose the forum for

the initial proceeding, aware of the more stringent burden he

would have to carry in a contempt action.

In light of the case authorities cited above. and the policy

considerations underlying those decisions, and with due regard

for considerations of fundamental fairness and economic ad-

ministration of the law, I conclude that relitigation should not

be permitted here. At the present time, the Board and the

Courts face critical litigation burdens. This matter has once

been the subject of exhaustive trial before the Courts and, the

'¥ 303 U.S. 391, 58 S. Ct. 630 (1938).

— A-28 —

parties estimate, relitigation will require some 50 days of trial.

If retrial were permitted, essentially the same evidence pre-

viously considered by the United States Court of Appeals for

the Sixth Circuit would again be placed before it, contrary to

the General Counsel's previous assurances to the Court that:

“If the Board does not prevail, these proceedings are

at an end and except in unusual circumstances, not present

here and not to be anticipated here, the alleged violations

will not be tried again.”'*

In harmony with those assurances, I conclude that further

proceedings are unwarranted.

Conclusions of Law

1. The Respondents, and each of them, are employers en-

gaged in commerce within the meaning of Section 2(2), (6)

and (7) of the Act.

2. The Union is a labor organization within the meaning

of Section 2(5) of the Act.

3. The allegations of the complaints herein, charging vio-

lations by Respondents of Section 8(a)(3) and (1) of the Act,

are barred under applicable res judicata and collateral estoppel

principles.

Upon the foregoing conclusions of law, and pursuant to

Section 10(c) of the Act, I hereby issue the following recom-

mended:!"

's Opposition of the General Counsel to the Union’s Motion To

Intervene in the Decaturville contempt case.

' In the event no exceptions are filed, as provided by Section

102.46 of the Rules and Regulations of the National Labor Relations

Board, the findings, conclusions, and recommended Order herein

shall, as provided in Section 102.48 of the Rules and Regulations,

be adopted by the Board and become its findings, conclusions and

Order, and all objections thereto shall be deemed waived for all

purposes.

— A-29 —

Order

The complaint is dismissed in its entirety.

Dated, Washington, D.C., April 7, 1977.

‘s IRVIN H. SOCOLOFF

Administrative Law Judge

— A-30 —

APPENDIX F

In the United States Court of Appeals

for the Sixth Circuit

Nos. 18,064

18,154

18,249

18,250

18,256

National Labor Relations Board, Petitioner

VS.

Decaturville Sportswear Co., Inc., et al., Respondents

MEMORANDUM

This is an action instituted by the National Labor Relations

Board, petitioner, (hereinafter referred to as The Board or

NLRB) in which the United States Court of Appeals for the

Sixth Circuit is requested to adjudge Decaturville Sportswear

Co., Inc. and the other respondents to be in civil contempt of

the decree of the United States Court of Appeals for the

Sixth Circuit for failing and refusing to comply with the judg-

ment entered on January 29, 1969,' and for other civil relief.

The International Ladies’ Garment Workers’ Union, AFL-

CIO, sought to intervene in the cause, a motion opposed by

both the parties before the special Master. By an order dated

May 4, 1972, the Master denied the Union the right of inter-

vention for the reasons therein stated. The Master permitted

the Union’s counsel, however. the right of limited participa-

' 406 F.2d 886.

—_<

tion, and the Union counsel cross-examined some witnesses and

offered others in support of the Board’s position and its con-

tentions. This case was tried before Harry W. Wellford, United

States District Judge, sitting as Special Master, on various dates

between May 2 and May 15, 1972, at Jackson, Tennessee,

and the Special Master having considered the pleadings, the

exhibits, the testimony of witnesses, the statements of counsel.

and the entire record in this cause and being fully advised in

the premises, finds the facts and states the conclusions of law

as follows:

I. Decaturville Plant

A. Wage Increases

1. Among other things, this Court's order included a direc-

tion to cease and desist from:

promising or granting to employees benefits, such as paid

holidays, insurance, or vacation or bonus pay, when the

purpose thereof is to interfere with the self-organizational

efforts of employees or to induce employees to reject or

refrain from activities in support of International Ladies’

Garment Workers’ Union, AFL-CIO. or any other labor

organization.

The Company's plant at Decaturville is charged with having

violated the Court's decree by granting wage increases to their

employees in July, 1969, January 1970, and July 1970, “with

the effect of, interfering with, restraining, and coercing em-

ployees in the exercise of their rights of self-organization.”

2. The Company? granted a wage increase to 274 of its

hourly-rated employees at the Decaturville plant effective July

* “The Company” refers here to Decaturville Sportswear Co.,

Inc., but it is a wholly owned subsidiary of defendant Marlene In-

dustries Corporation.

— A-32 —

14. 1969. This wage increase varied in amount from five cents

per hour to ten cents per hour. In the past, the Company had

from time to time at irregular intervals granted wage increases

of substantially similar amounts to employees having the same

or equivalent job classifications. Some wage increases were

necessary to comply with minimum wage statutory increases.

3. On or about December 27, 1969, the Decaturville plant

granted wage increases to 288 of its hourly-rated employees

in accordance with its past practice. The increases granted were

generally in the amount of ten certs per hour. In addition,

in January of 1970, the Company advanced the base rate for

piece-rated employees from $1.75 to $1.85 per hour. The in-

crease in the base rate did not, however, result in a wage in-

crease to all of the employees compensated on a piece-rate

basis. Both the wage increase of ten cents per hour to the

hourly-rated employees and the change in the base rate from

$1.75 to $1.85 per hour were in accord with the Company's

past practice of granting periodic wage increases and ‘or changes

in the base rate and were motivated, in part, by its desire to

retain its competitive position in the labor market in the De-

catur County area.

4. On or about July 13, 1970, the Company granted a sim-

ilar wage increase to 264 hourly-rated employees at the De-

caturville plant and increased the base rate for employees com-

pensated on a piece-rate basis from $1.85 to $2.00 per hour.

5. The effect of the increases in the base rate was to increase

the “potential” for increased earnings to production workers.

Hence, those employees able to make their production quota

would receive an actua! increase in earnings with the increase

of the base rate.

6. During 1969, Plant Manager, Lloyd Anderson, submitted

a proposal to his superiors recommending a progressive in-

crease system be installed so employees would be aware of

how much to expect, but he received no response from his

——

—_—<

superiors relating to his wage proposal. As a new plant man-

ager, he did not participate in the July, 1969, raise but was

consulted on the two subsequent increases. Although increases

have been given since 1970, none were across-the-board. The

increases in which Anderson participated in 1969 and 1970,

were initiated by his superiors.

7. In 1969 and 1970, profits of Marlene Industries were

less than they had been in prior years.

B. Unlawful Restraint or Discrimination

Against Employees

1. The Court's decree has been in full force and effect since

its entry on January 29, 1969, and at all times herein the Com-

pany has had notice and knowledge of its terms.

2. The Court's decree, in pertinent part, specifies that re-

spondent will cease and desist from:

(a) Discharging, laying off, forcing termination of, or

otherwise discriminating against employees, in order to dis-

courage membership in or support of International Ladies’

Garment Workers’ Union, AFL-CIO, [hereinafter referred

to as the Union| or any other labor organization, or en-

couraging or permitting employees to engage in anti-union

activity while prohibiting employees from engaging in ac-

tivity on behalf of the Union.

(b) Engaging in surveillance by photographing empioy-

ees engaged in union organizational activities.

(c) Creating an impression of surveillance of employ-

ees’ union activities by telling employees that the Employer

has lists of employees who engaged in union activities.

(d) Threatening employees with discharge or other re-

prisals if they become or remain members of the Union or

give assistance Or support to it.

an SG an

(e) Interrogating employees concerning their or other

employees’ union organizational activities or their opinions

regarding union organization.

(f) Instructing employees to watch for union activities

and listen *for opinions regarding union organization of

other employees and report findings to us.

(g) Threatening employees with closing or moving the

plant should they engage in activities on behalf of the

Union or select the Union as their collective-bargaining

agent.

(h) Coercing employees by telling them that other em-

ployees had been discharged or would not be recalled be-

cause of their union activities.

(1) In any other manner interfering with, restraining, or

coercing employees in the exercise of their right to self-

organization, to form labor organizations, to join or assist

international Ladies’ Garment Workers’ Union, AFL-CIO.

or any other labor organization, to bargain collectively

through representatives of their own choosing, and to en-

gage in other concerted activities for the purpose of col-

lective bargaining or other mutual aid or protection, and to

refrain from any or all such activities.

3. Maria Stanfill.

(a) The Union has been attempting to organize the Com-

pany’s employees since 1965. In the spring of 1969, the organiz-

ing campaign was intensified as a result of this Court's order

which, among other things, afforded the Union access to Com-

pany’s parking lots and bulletin boards in furtherance of the

Union's organizational efforts. Decaturville complied with these

affirmative requirements fully, and the Union utilized these

privileges actively.

— A-35 —

(b) Maria Stanfill began working for the Company in

1964. She was employed as a “hemmer” under the supervision

of Jo Essary (now Crawford). During June or July, 1969, Stan-

fill signed a union authorization card in the Company parking

area. Assistant Plant Manager David Perrin who was standing

approximately 15 feet away may have observed her sign the

card.

(c) Maria Stanfill claimed that her supervisor queried her

during the summer of 1969 about purported union activities, a

charge the Company and the supervisor involved, denied.

(d) Stanfill began experiencing a change in her working

conditions after the arrival of the new Plant Manager, Anderson,

in 1969. Prior to Anderson, Stanfill would receive, for repair

purposes, only those pairs of slacks which needed to be redone.

Afterward, however, supervisor Essary would bring her an en-

tire bundle of slacks whenever repairs were required, even if the

repairs entailed only several pairs of slacks out of the bundle. As

a result of such procedure, Stanfill was required to take produc-

tion time, to search through entire bundles for specific pairs

which needed repairing, and she was paid on the basis of the

amount of pairs produced.

(ec) On August 14, 1969, Stanfill claimed to be nervous or

ill while working in the plant. At the same time, Stanfill ex-

pressed dislike for the type of material which she was sewing

that day and stated that the work made her nervous. She fe-

ported her problem to Supervisor Essary and requested permis-

sion to leave the plant so that she could obtain medication and

she wanted to change the work then assigned her. Essary stated

that she would have to obtain the approval of Assistant Plant

Manager Perrin before Stanfill could leave the plant under the

circumstances. At that point, Essary left to find Perrin. She

returned shortly thereafter and informed Stanfill that Perrin

would not give permission for her to leave the plant. Stanfill

—_—<

made no request to see Perrin herself before she decided to

leave the plant, nor did she contact the plant that day or the

next. Stanfill, who had visited her doctor in the intervening

period, returned to the plant on August 18, with a note from

the doctor. When Stanfill reached her work station, however,

Essary directed her to report to Plant Manager Anderson's of-

fice. Pursuant to this order, Stanfill reported to the office where

Anderson, Pollard and Perrin participated in a conference with

her. Anderson told her that she no longer worked at the plant,

since she had “voluntarily quit.” Stanfill denied that she had

quit, stating that she had “to go to the doctor” and had claimed

to have been given permission to leave by Essary. which was

denied by said supervisor. Stanfill had a prior somewhat erratic

performance record with the Company.

I find there is insufficient clear and convincing evidence that

Maria Stanfill was discharged because of her activities on behalf

of the Union organizing effort. The Company did not discharge

or involuntarily terminate employee Maria Stanfill on August

18, 1969, if she did not quit, for union activities.

(f) Stanfill also claimed to have been interrogated with

respect to her Union sympathy by her supervisor. The Com-

pany doubtless knew of her Union disposition because others in

her family were also so disposed, and because she may have

made her Union affiliation apparent. While the supervisor de-

nied any such inquiry, I find that Stanfill was queried about her

Union inclination, by a company supervisor, but she was not

coerced, threatened, or discharged because of her pro-union dis-

position.

4. Betty Williams

(a) Williams became a Decaturville plant employee in

1964 or 1965 and worked thereafter at various jobs in the

plant. She apparently enjoyed a special relationship with the

plant superintendent, Raymond Rindone, and under him, ad-

—

vanced to a quasi-supervisory type position in the thread depart-

ment in 1967. She answered directly to Rindone until his dis-

charge by the Company for conduct inimical to its interests.”

(b) After Rindone was replaced by Lloyd Anderson as

plant manager in 1969, Williams’ position changed. Neither

Anderson nor his assistant, Perrin, gave her authority over

others in the thread department or as a supervisor.

(c) Williams reported to Anderson the union sympathies

of others in the thread department. Under Anderson’s direction,

there was obvious signs of “tightening up” in the thread depart-

ment and some reassignments of responsibilities purportedly for

greater operating efficiency. Williams continued to be paid

hourly and she continued, for payroll category purposes, in the

same status as she occupied when Rindone was manager.

(d) Williams was injured in an automobile accident in Au-

gust, 1969, and after recovering returned to work in a different

capacity. Her replacement in the thread room, Ruben Moore,

was carried on employee pay records in July 1970, as super-

visor of the thread room. I find that Betty Williams, during the

year 1969, was not a supervisor within the meaning of Section

2(11) of the Act, although she probably had been considered

in that status by previous plant manager, Rindone, for personal

as well as company purposes.

(e) I find that Betty Williams was not discriminated

against by the Company by reason of any union sympathy or

activities.

5. Benson Rushing

(a) Benson Rushing was known to be a Union supported

in the summer of 1969. Prior to December of 1969, several of

the employees at the Decaturville plant, including Benson Rush-

ing, regularly used the plant's station wagon to run errands.

* Rindone’s role will be discussed hereafter.

— A-38 —

(b) In December 1969, the Company hired an employee

to drive the station wagon on a full-time basis and discontinued

the use of the vehicle on a part-time basis by those employees

who had previously used it to run errands including Rushing.

After December 1969, neither Benson Rushing nor any other

employee was assigned to duties involving the driving of the

Company station wagon on a part-time or casual basis. Nelson

Rushing was reassigned to other duties, including pushing bug-

gies of thread into other departments.

(c) I find that the Company did not unlawfully harass,

intimidate, nor discriminate against Benson Rushing by reason

of his union sympathy or activities. Neither did the employer

unlawfully or in derogation of this Court’s orders assign more

arduous duties under more difficult circumstances in retaliation

for his Union organizational activities, if any. Benson Rushing

did not testify in these hearings.

6. R. C. Brashers

(a) R. C. Brashers began working for the Company in

January, 1966, and worked as a “legger” in the pressing depart-

ment. He served on the Union's in-plant organizing committee

and his name appeared in a telegram the Union sent to the Com-

pany on July 23, 1969, which listed those employees serving on

the committee. Brashers signed a Union authorization card,

solicited fellow employees to sign cards and collected signed

cards from a number of employees. He wore a Union button

in the plant, attended Union meetings and engaged in hand-

billing the plant, when the Union began such activity pursuant

to the Court's order in June, 1969.

I tind from the above activity that the Company became aware

of Brashers’ union activity on or before July 23, 1969.

(b) On or about August 8, 1969, Pressing Supervisor Stevens

told a group of pressers. including Brashers, that because of a

shortage of work they were to be laid off for approximately one

7 eeorererlre eee

— A-39 —

week or 10 days. In response to a question, Stevens stated that

the laid-off pressers were permitted to seek employment during

the week of their layoff so that they could “make some extra

money,” provided that they reported back to work on Monday,

August 18. Presser Oscar Smith, who was present during this

conversation, also testified that Stevens gave the pressers permis-

sion to seek other employment during the layoff. Another presser,

Eldridge Burge, moreover, who had been laid off the week

previous to August 8, stated that Stevens had told the group laid

off at that time that they could obtain other employment during

the layoff.

During the week of his layoff, Brashers found work as a

presser at a nearby plant operated by Salant and Salant, Inc. He

began working at Salant and Salant during the week of his layoff

and worked only a couple of days. Brashers returned to the plant

on August 18, ready to resume his duties as a presser. His im-

mediate supervisor, Joe Kennedy, advised him to report to the

personnel office, and Personnel Manager Pollard informed

Brashers that since he had accepted employment with Salant

and Salant he was deemed to have “quit” the company’s employ-

ment. When Brashers denied that lie had quit, Pollard called

Plant Manager Lloyd Anderson and Stevens to the office. An-

derson reiterated that Brashers had quit. Brashers once again,

denied that he had quit, pointing out, instead that the pressers

had received Stevens’ permission to seek and accept employ-

ment during the layoff. Stevens admitted that he, indeed, had

permitted the pressers to find temporary employment so that

they could have a chance to earn money while they were laid

off. Thereafter, Brashers left the plant and he subsequently

received a termination slip in the mail, which stated that he had

voluntarily quit due to his having taken “other employment.”

I tind that there is substantial evidence that R. C. Brashers

was discharged from Decaturville Sportswear, at least in sub-

stantial part, because of his activity on behalf of the Union or-

ganizing effort.

—_ £49 —

| (c) The Company maintains that it has a firm policy

against permitting a laid off employee to seek permanent em-

ployment elsewhere during the lay-off. There was evidence to

the effect that Brashers applied at Salant and Salant on a perma-

nent status contrary to Decaturville’s rules. In this instance,

however, the action taken by the Company towards Brashers, a

long-time employee, who was seeking understandably to aug-

ment his income in accordance with a supervisor's suggestion,*

appears to be motivated in substantial part by its desire to defeat

the Union in its organizational activities.

7. Martha Thomas

(a) On or about October 14, 1969, employee Martha

Thomas was directed by her supervisor to go to the office of

plant manager Anderson because of Thomas’ poor production.

Present in Anderson's offi.e were personnel director Pollard

and assistant plant manager David Perrin. During the discussion

Anderson advised Thomas to the effect that she could not get by

without making production.

( b) This conference or discussion was recorded by a re-

corder in plain and obvious view during this discussion. Thomas

claimed that Anderson, in substance, warned her about sup-

posed Union sympathies. There is no support for her conten-

tion.

(c) I do not find that employee Martha Thomas was inter-

rogated about nor interfered with concerning her Union sympa-

thies by plant manager Lloyd Anderson under all the circum-

stances.

8. Doris Thorp

* It may be that Stevens’ su i

ggestions about seekin .

where were misunderstood by Brashers and the her pel nga

credit Brashers with the sincere belief that he was encouraged to

seek temporary work elsewhere during the lay-off.

— A-41 —

(a) On or about March 9, 1970, a Monday, employee

Doris Thorp was called into Anderson's office because she had

left work early without permission on Friday of the preceding

week. During the conversation between Thorp and Anderson,

she claims that he asked whether she belonged to the Union.

(b) Thorp was disgruntled because of the work assign-

ment given to her, and because she was given no explanation

satisfactory to her about being assigned to joining work rather

than side-seaming. She was, among other things, warned by

the plant manager about her leaving the plant without permis-

sion, but she was not discharged.

(c) I find there is no clear or convincing evidence taken

as a whole that plant manager Anderson interrogated employee

Doris Thorp concerning her Union sympathies.

9. Ruth Bradley Campbell

(a) Ruth Bradley Campbell began her employment with

Decaturville Sportswear in 1960, as Ruth Bradley, and had

worked on several separate occasions since that time. On each

occasion in the past, Campbell had voluntarily quit her employ-

ment. Her last period of employment before the episodes in

question began in July 1968, when she was placed in the sewing

department “serging flies,” in which department her supervisor

was Ruth Maness. During her employment, Campbell had per-

formed most of the sewing operations available in the plant. She

testified that she signed a Union card in July of 1969, wore a

Union button in the plant, attended Union meetings and passed

out authorization cards to other employees in the plant. In No-

vember or December of 1969, Mrs. Campbel! told Maness, her

supervisor, in response to an observation that the Company had

a right to raise production, that such action was the reason why

the employees needed a good union, and “if we had a good

union they wouldn't raise it when they wanted to.” In addition

to speaking in favor of the Union to employees, Cainpbell also

— A-42 —

for a period of two or three weeks, had Union literature and

handbills laying on her machine.

I find that the Company was or became aware of Campbell's

Union activity in or about November or December 1969, or

perhaps before that time.

(b) On or about March 16, 1970, in the course of her

duties, Campbell twisted her arm at the elbow while lifting a

bundle of clothes. She advised Maness of the injury but con-

tinued working for the remainder of the day. The following day

upon returning to work, Campbell discovered that swelling had

developed in her arm, and after advising Maness of this fact,

she visited the plant nurse in the first aid room. Campbell was

directed by the nurse to see the Company doctor, Dr. Fisher,

who examined and treated her arm on or about March 18,

1970. Fisher recommended that Campbell stay home from work

for a few days and give her arm an opportunity to respond to

treatment. Campbell remained off for two weeks, but then

consulted the doctor about returning to work since she needed the

earnings. Bradley had experienced muscle spasms previously

in her left arm and shoulder during the year 1968. She was

treated by her own doctor at this time, and based upon his ex-

amination, he recommended that she change jobs for a period

of time until the spasms were relieved. During this period

Campbell made a number of visits to Dr. Fisher. On or about

the 28th of March, 1970, she returned to the Company with the

statement prepared by Dr. Fisher which recommended that she

should “avoid heavy lifting”. Upon returning to the plant, Camp-

bell presented Dr. Fisher's slip to Maness who indicated that

she would try to find something light for her to do. She then

met with Pollard and showed him Dr. Fisher’s statement. Pol-

lard told her that he had nothing for her to do unless she was

prepared to return to her old job of serging flies, but suggested

She seek a leave of absence until she was physically able to

handle this job. This was in accord with the employer’s policy

in situations of this kind. After concluding that she could not

' .

—_—.

continue this work and after the refusal of requested lighter

work, Campbell assumed that she had been fired and left the

plant without applying for a leave of absence. She subsequently

received a termination slip dated March 30, 1970.

(c) Campbell did thereafter return to Dr. Fisher because

of a continued problem in her arm. She was, however, advised

that Dr. Fisher had dismissed her from his care and, as a conse-

quence, the Company's insurance no longer covered her condi-

tion. She concluded, apparently, that inasmuch as she would

have to pay for the doctor herself she would stop seeing Dr.

Fisher and go to her own doctor; and then began seeing Dr.

Earl Salhany in Lobelville, Tennessee, who advised her that she

had torn ligaments in her arm. Subsequent to obtaining a state-

ment from Dr. Salhany on April 10, to this effect, Campbell

returned to the plant where she showed the statement to Pol-

lard, the personnel director. She applied for and received work-

man’s compensation, receiving the last check on approximately

June 29. Although she continued to remain under Dr. Sal-

hany’s care, she was, at the request of the Company, directed

to go to Nashville for an evaluation by an independent physi-

cian, Dr. Davis, who concluded that her arm had healed satis-

factorily and that she was able to return to work on a regular

basis.

(d) Campbell then returned to the Decaturville plant and

spoke with Anderson, the plant manager, after filling out an ap-

plication for employment. She told Anderson that she had three

children to support and needed work. After inspecting Camp-

bell’s personnel file with Pollard, she was refused an opportunity

for reemployment.

(e) Campbell testified that after the period of receiving

workmen’s compensation benefits had expired when she sought

reemployment unsuccessfully, Anderson observed that if he

hired her, she would probably soon quit to join the picket line.

«o ht <a

At this time, however, the Company was advertising for skilled

employees, such as Campbell in the sewing department.

(f) I find there is insufficient evidence te establish that

Ruth Bradley Campbell was discharged from the Company be-

cause of her activity by and on behalf of the employees’ Union

organizing campaign. I further find, however, that there is a

substantial basis to determine that she was refused reemployment

on or about June 30, 1970, because of the Company's fear that

she would engage in Union activities, if re-hired. This was

coupled with a reluctance to rehire an employee who had a

history of physical complaints in the past; quitting, and work-

men’s compensation problems.

10. Bennie Hamm

(a) Bennie L. Hamm began working for the Company

in January, 1966, as a floor helper in the pressing department.

He served on the Union's organizing committee and his name

appeared on a telegram the Union sent to the Company on

July 23, 1969, which named those employees who served on

the committee. Hamm was active in a Union organization

effort throughout 1969. Additionally, during this time Hamm

appeared on a Union-sponsored radio program, heard in the

Decaturville area, on which he spoke on behalf of the Union.

I find from the above evidence that the Company was or be-

came aware of Hamm’s Union activity on or before July 23,

1969.

(b) After Anderson became plant manager, room super-

visor Stevens began treating Hamm differently as there was a

tightening of procedures in the pressing department, and he

would warn him to stop talking on the job. Additionally,

Stevens warned Hamm that he was using the restroom facilities

too frequently. Hamm was illiterate, but this problem had not

been mentioned as a difficulty attendant to his continued em-

ployment. The Company witnesses gave a variety of reasons

— A-45 —

attesting to the importance of employee ability to read and

write. Initially it should be noted, however, that the Company

has no policy barring the hiring of illiterates.

(c) On April 23, 1970, Hamm sustained an injury in the

plant while lifting some boxes. Shortly thereafter, he was ex-

amined by a physician who advised him that an operation was

necessary. Hamm was granted an extended leave of absence

on April 30, 1970, for surgery. Approximately eight weeks

later, Hamm returned to the plant at the expiration of his leave

of absence with a note from his doctor releasing him from fur-

ther medical care. At that time, Hamm met with Personnel

Manager Pollard. Pollard informed Hamm that, while he would

place Hamm's name on the active list of employees, he was

simultaneously laying him off by reason of lack of work. Hamm's

particular job during the interim, had, in fact, been abolished.

(d) During the time Hamm was away from work recuper-

ating from his injury, the Company phased out certain of its

pressing operations so that when Hamm returned for work, his

particular job no longer existed. Hamm was not qualified, ac-

cording to the employer's testimony, for any alternate jobs as

may have been available. As a consequence, on or about June

15, 1970, Hamm was laid off ostensibly for lack of work. After

having drawn six weeks’ unemployment compensation at the

plant, Hamm was terminated in August 1970.

(e) I find there is substantial basis to determine that em-

ployee Bennie L. Hamm was discharged at the Decaturville

Sportswear Plant because of his support and assistance in behalf

of the employees’ Union organizing effort. No doubt he was

handicapped by his inability to read and write, but the Company

at the time was seeking experienced help, and Hamm had been

able to do his job for a number of years before his injury.

11. Nellie Mills and Paulette Rushing

(~) Nellie Mills was a long-time employee at the Decatur-

ville plant in supervisor Carolyn Pratt's serving department. She

— Ath

and a co-employee, Paulette Rushing, engaged in a conversation

together on or about June 24, 1970, just before joining the

strike, about being laid off, insufficient work, and production.

The supervisor observed to them both that she hated to see

everyone walk out because she feared for her own and her hus-

band’s jobs.

(b) Paulette Rushing was the sister-in-law of Nelson Rush-

ing, (who will be discussed hereinafter) discharged by the Com-

pany the day before, and was also a long-time employee at the

Decaturville plant.

(c) I find that the statement was made by reason of a

natural and normal apprehension of the supervisor under the

circumstances, and did not constitute a threat of plant closure.

12. Donald Pettigrew

(a) On June 23, 1970, the day when the strike com-

menced at Decaturville, Donald Pettigrew, whose mother was

already an employee of the Company, appeared at the plant and

completed an application for employment. Later that day, he

received a phone call at his home from someone whom he be-

lieved was a secretary at the plant, advising him to report for

work the following morning.

That next morning, Pettigrew reported to the plant, and with

four other applicants, met with Personnel Director Pollard, who

indicated they had been hired. Pollard outlined various plant

rules and inquired if any of them could perform work as

pressers.

(b) At that point, the meeting was interrupted by one of

the personnel staff, who informed Pollard that some of the em-

ployees had just walked out. Pollard then left his office; returned

shortly thereafter, and then asked all of the prospective new

employees, except Pettigrew, to leave the office. Pollard then

told Pettigrew that he was not going to hire him. When pressed

an (68 an

by Pettigrew as to the reason, Pollard indicated that it was be-

cause his mother walked out with the others. In response, Petti-

grew stated that “just because [my mother] walked out [doesn’t]

mean I'm going to walk out”. Pettigrew then left the plant with-

out being hired.

(c) Pettigrew had previously unsuccessfully applied for

work at the Decaturville plant while in school, and he had also

applied for work unsuccessfully a number of times before at

nearby Salant & Salant. Other persons were hired in the press-

ing department as needed on June 24, 1970, because of the

walkout.

(d) I find that Donald Pettigrew was refused employment

because the Company feared that he would engage in Union

activity.

13. Linda Williams

(a) Employee Linda Williams joined the strike on June

26, 1970, and appeared on the picket line. Upon arriving home

in the afternoon on that day she received a telephone call pur-

portedly from her supervisor (or former supervisor), Edna

Hendon, a good friend. Hendon asked Williams if she thought

that the employees were going to do any good by going out

on strike and was she doing the right thing by going out and

losing her job. Hendon confirmed the fact that she did call

Williams the day she walked out and asked her to think it

over and come back to work.

(b) Hendon was later in early 1971, demoted and quit

rather than accept a new job assignment. She obviously har-

bored some resentment against the Company for what she con-

sidered mistreatment in denying that she had received warn-

ings about the quality of her work as a supervisor. The

Company was, however, dissatisfied with Hendon’s job per-

formance.

— A-48 —

(c) I find supervisor Edna Hendon interrogated employee

Linda Williams about her Union activities.

14. Lois T. Page

(a) Employee Lois T. Page joined the strike sometime

after a July 4, 1970 vacation. Shortly before that vacation,

she testified that a supervisor, Parker Maness, approached her

at her sewing machine and asked if she were going to join the

strike; Maness then purportedly indicated that he supposed

some of the people that walked out would probably be fired.

(b) Maness denied this conversation in its entirety. I find

a lack of clear and convincing evidence that supervisor Parker

Maness did anything more than interrogate employee Page

about her Union activitics, if he did even this. I find no threat

or coercion on the part of supervisor Maness.

15. Evelyn Phillips

(a) Evelyn Phillips had worked off and on for Decatur-

ville from 1964 until 1969. She had previously twice been

fired and had consistently been a low production worker at

the plant. In 1969, she had quit after previous leaves of ab-

sences. Altogether, her record prior to 1970 was an unsatis-

factory one.

(b) On or about July 24, 1970, Evelyn Phillips appeared

at the plant, filled out an employment application and was

interviewed by Personnel Director Pollard. Phillips expressed

a preference for a position as a “tacker,” a job she had per-

formed when she worked for the Company on prior occasions.

Pollard then contacted Phillips’ former supervisor in the tack-

ing department and inquired if she needed another tacker, and

Pollard advised Phillips that a tacking position was available.

(c) Phillips’ husband was a relative of Nelson Rushing,

a leader in the strike. On July 27, Phillips returned to the

— A-49 —

plant and reported to Pollard’s office. At that time, Pollard

informed Phillips that he was sorry that he could not use her,

apparently fearing that she, too, would join the strike. She

then left the plant and did, in fact, join the picket line.

(d) I find that job applicant Evelyn Phillips was denied

employment by the Company on July 24, 1970, in part because

of the Company's fear that she might engage in Union activities,

but also because she had a poor previous record.

16. Judy Scott Maness.

(a) Before her marriage, as Judy Scott, Mrs. Maness had

worked at Decaturville for about a year. After moving away,

she returned in late 1969 to work and joined the strike on or

about June 26, 1970. During September of 1970, she aban-

doned the strike and asked to be re-employed. The Company

had on June 26, 1970, sent her a letter directing her to return

to work by the following Monday or she would be replaced.

(b) She was questioned when she returned as to her com-

plaint and the basis for her walking out. Her complaint was

related to frequent changes in production procedures and quota

which she termed an “uniair labor practice” and had nothing

to do with the Nelson Rushing-pressers situation. She was told

that she would be called if a place became available but that

her position had been filled. Later, in October of 1970, she

returned to the plant and signed a termination notice “volun-

tarily quit as of June 26, 1970” after having been requested to

do so. She felt this was necessary to get a separation slip in

order to get another job if Decaturville had nothing for her.

(c) Maness made an unconditional application for re-em-

ployment in September 1970.

17. Peggy Cagle.

(a) Cagle had been a seven year employee of Decaturville

when she walked out June 24, 1970, to support Nelson Rush-

— A-50 —

ing, another long-time employee, who had been fired. She

was also dissatisfied at the time about her job assignment. She

abandoned the strike to seek to return to work in September of

1970. As in the case of Judy Maness, she was asked to fill out

a new employment application, and her reasons for joining

the strike were inquired into.

(b) She also was sent a letter on or about June 24, 1970,

by the Company directing her to report in a few days or she

would be replaced. She received this letter, and like Maness,

did not return as directed. She was told in September that her

tagging job had been filled but they would call her in a few

days if there were an opening. On or about October 8, 1970,

Cagle returned to the plant and signed a termination notice,

“voluntarily quit as of June 24, 1970.” She felt this would

assist her to get a job elsewhere and in obtaining a separation

slip.

(c) Cagle made an unconditional application for re-em-

ployment in September 1970.

18. Nelson Rushing

(a) Nelson Rushing was the senior man in the pressing de-

partment, having been with the Company at Decaturville since

the plant cpened in 1960. When Lloyd Anderson became plant

manager in 1969, inspection began to be tightened up and

quality control procedures were made more stringent. Rush-

ing was in the hot head pressing section with some 12 or 13

other pressers. After Anderson took over, Rushing also ob-

served that there were changes in rates effectuated, and more

pants were being returned out of bundles completed for re-

pressing. Rushing had performed just about every function at

one time or another in the pressing department.

(b) Because of the changes being effectuated and general

dissatisfaction with them, Rushing became involved in Union

— A-51 —

activities, and there was considerable discussion taking place

in the pressing department during the break and lunch periods

about unionization, during 1969 and in 1970.

(c) Rushing was unhappy, because he was a production

worker, when in 1969, pants that needed re-pressing were re-

turned marked in bundles and had to be separated or pulled

out of the bundles by the presser. Complaints were made to

supervisors but Rushing felt little was being accomplished about

these grievances, although at one time he and other pressers

had a discussion with Anderson about the situation. The effect

of these practices, according to Rushing, was to lower his pro-

duction pay, and he did not like the changes. He felt that the

former plant manager, Rindone, had been more understanding,

easier to get along with.

(d) In 1969, Rushing and other pressers initiated a work

stoppage, which apparently called attention to their complaints

and brought Rindone’s attention to their grievances. Shortly

thereafter in 1969, after Anderson became manager, however,

another work stoppage resulted in a warning from Anderson

that if it occurred again, the participants would be discharged.

(e) In 1970, inspection became tighter, and some pants

approved by Henley, the pressing supervisor, were returned by

quality control inspectors down the line for re-pressing. The

Company adopted a policy of requiring all bundles which con-

tained three improperly pressed garments out of any ten selected

at random to be returned to the employee who had pressed the

defective garments. Such employee was then required to in-

spect the bundle and make such corrections or repairs as were

necessary. After Lloyd Anderson became plant manager, this

policy was applied more consistently and uniformly to all

pressers under more stringent quality control requirements.

(f) During the morning of June 23, 1970, supervisor Hen-

ley inspected a bundle of 60 to 80 slacks which were recently

— A-52 —

pressed by Nelson Rushing, a topper, and his legger, Milton

Moore. Henley returned several pairs to Rushing for repressing.

Henley returned to Rushing’s station shortly before the pressers’

morning break and indicated that there was a policy change

so that if there were as many as three pairs of pants returned

out of any bundle the presser would have to go and inspect

through the entire bundle. Henley stated that he was advised

of this rule by Ed Stevens, his supervisor. Rushing immedi-

ately protested, stating that the pressers were inspectors. Rush-

ing then demanded that Henley check with other officials con-

cerning this policy which would, he felt, reduce his production,

and refused to do this work. Henley then turned to Moore,

the legger, and asked him to inspect the bundle. Moore replied

that he agreed with Rushing. Other pressers, Hancock and

Cressing, objected also to this new procedure.

(g) Stevens, accompanied by Henley, came by Rushing’s

work area shortly thereafter inquiring about the trouble and

Rushing advised that the situation needed to be straightened

out since the pressers were now being asked to “inspect” bundles

and they weren't going to do this. When Stevens stated that

he could do nothing about the problem, Rushing responded

that he “go discuss it with Anderson [and] find out what can

be done.” Pressers Hancock and Cressing approached Stevens

and stated they agreed with Rushing. Stevens then advised

the pressers that he would “go take it up with Anderson.”

Shortly thereafter, Stevens returned and informed Rushing

and the other pressers that Anderson wanted to see them in his

office. Hancock stated that he did not want to go to the office

since he had been there before and had accomplished nothing.

However, Hancock added that Anderson should come discuss

it with the pressers. Stevens then left and most of the pressers

went to the lunch room.

(h) Shortly after the break period began, Anderson ap-

peared in the cafeteria accompanied by Stevens and Pollard,

— A-53 —

personnel director, and asked to see Rushing in his office. Rush-

ing refused to go to the office because he said it concerned all

of the pressers, and because he feared being discharged in pri-

vate. Rushing persisted in his refusal to go to the office.

(i) I find that Nelson Rushing was discharged both for his

concerted activity with others in the pressing department, which

activity he initiated, but also for his public and adamant refusal

to meet with the company plant manager to discuss the problem

and complaint.

19. Other Pressers

(a) The findings with respect to Nelson Rushing are re-

iterated insofar as they involve and affect other pressers who

were subsequently (or concurrently) involved.

(b) Prior to the beginning of the Union campaign in 1969

and 1970, the pressing department was composed of approxi-

mately 54 pressers and bundle boys under the supervision of

Edward Stevens. The pressers, who worked in pairs, a “topper”

and a “legger,” had their work inspected to determine if any

defects existed in the pressed garments. The inspection func-

tion, until on or about June 23, 1970, was performed by quality

control inspectors and pressing department supervisors. If any

pair of slacks were found by a supervisor to be incorrectly

pressed, he would return that pair to the presser involved for

correction. If the quality control inspectors subsequently re-

jected certain pairs of pants the supervisor would bring those

pairs back to the presser for re-pressing. Occasionally, the su-

pervisor would return an entire bundle of slacks that the presser

had worked on, which bundle would contain red tags or some

other indicator, on those specific garments which needed re-

pressing.

Subsequent to the commencement of the Union campaign

on the Company’s premises, some pressers became an active

— A-54 —

intra-plant force on behalf of the Union, a fact which was known

or should have been known to management. Additionally, the

pressers openly discussed the issue of unionization in the plant

and had discussions on the subject during lunch time and break

periods.

(c) Plant Manager Anderson, who assumed his position

at approximately the same time the Union obtained access to

Company premises, immediately began imposing changes in

the working conditions and enforced prior procedures in this

department not previously uniformly observed. One change

involved the use of “snap hangers” rather than the ordinary

clothes hangers they had been using. The pressers who were

paid on the basis of a production rate were formed to adopt

themselves to this change and their wages may have suffered

as a consequence. Additionally, the pressers began receiving

more slacks back for repressing from quality control. The

pressers were not paid On a production basis for any repressing

work they would be called upon to perform. Some pressers

determined they were unhappy about their working conditions,

since they were suffering losses in their pay and as a result,

the pressers began voicing their grievances to their immediate su-

pervisors and to Anderson, including a complaint about too

stringent inspections.

(d) I find that there was a history of tighter controls im-

posed and enforced by Anderson and consequent employee

complaints in the pressing department stemming from approxi-

mately the time that Anderson assumed his duties as plant

manager.

(e) After the episode on June 23, 1970, in which Nelson

Rushing refused to do certain repressing and ‘or inspection work,

and also refused to meet with Mr. Anderson privately, most

of the pressers then and there expressed support of Rushing

and dissatisfaction with the decision to fire him.

— A-55 —

(f) One presser, Hancock, then asked Anderson if he

really meant “to fire him [Rushing] over this?” Anderson re-

iterated that Rushing was indeed discharged. Hancock offered

that “we could work out something about [this incident and|

get back [to the department] and make some kind of produc-

tion.” Anderson, however, rejected the offer stating, “I’m not

making any deals.” Hancock and the others responded to the

effect that if Rushing were fired, then “the whole bunch” might

as well be fired.

(g) All of the pressers then followed Anderson to the

office and were given their final checks and their termination

slips which reflected that they were being discharged for in-

subordination. I find that the Company discharged approxi-

mately 54 other employees besides Rushing working in the

pressing department on June 23, 1970, because they collectively

protested the discharge of Nelson Rushing and refused to receive

work under the conditions in existence in the pressing depart-

ment.

C. General Findings of Fact—Background

and Supplementary

1. Marlene Industries has strenuously resisted 1.L.G.W.

Union efforts to unionize its employees, particularly at the De-

caturville, Tennessee plant since 1965. Some of the zealous steps

taken to effect this purpose were contrary to the requirements of

the N.L.R.A. and were found both by the National Labor Rela-

tions Board and this Court to have overstepped the bounds of

both propriety and legality. In 1969, this resulted in the Union’s

being given broad access to Company parking lots, bulletin

boards, and resulted in other affirmative relief in favor of the

Union and its organizational activities. Albeit under protest and

reluctantly, the Company has not interfered with the Union or

the employees in connection with Union access and availability

on Company premises under these orders.

— A-56 —

2. Prior to 1969, Raymond Rindone had been plant manager

at Decaturville. He was discharged in mid-1969 for activities

that involved embezzling Company funds, maintaining false pay-

roll records, and other related activities. These and other illegal

activities of Rindone came to the attention of this Court upon

an indictment of Rindone charging federal tax violations, to

which Rindone plead “nolo contendere.”® The pre-sentence re-

port indicated, among other things, without being specific, evi-

dence of Mr. Rindone’s “special relationship” with a number of

females in the Decaturville community.

3. Mr. Rindone’s administration of the Decaturville plant was

not marked by uniform supervision and control with regard to

policies and procedures enforcing quality control and plant dis-

cipline. His successor, Lloyd Anderson, imposed Company-wide

procedures, unpopular with production employees, designed to

increase both quality and quantity of production and plant

efficiency. Employees in a number of departments complained

about these new procedures, rates and scales of production pay,

and enforcement of disciplinary policies, some of which had not

been previously enforced, or at least, not uniformly enforced

prior to 1969.

4. During 1966 and subsequent years, Marlene Industries

was again charged with unfair labor practices in connection

with its activities at another plant, but the charges were not

sustained.® At this time it was evident that the Union was con-

tinuing its organizational activities. Until June 23, 1970, in any

event, the Union was actively and continuously, with the as-

sistance of its professional organizers, attempting to organize

the Decaturville plant.

* See cause No. 9276, United States District Court, Western Dis-

trict of Tennessee ( Eastern Division).

® 171 N.L.R.B. No. 118 (1968). See also 183 N.L.R.B. No. 127

(1970) and 184 N.L.R.B. No. 82 (1970).

on et me

5. Immediately after Nelson Rushing and the other pressers

walked out of the Decaturville plant on June 23, 1970, picketing

began at this plant with active assistance of Union agent D. O.

Warren, who was then in the Company parking lot. The pressers

informed Warren that they had all been discharged due to their

adherence with Nelson Rushing’s position. Warren stated that

they would receive the Union's support if they wanted it, how-

ever, he asked them to be patient, as far as a course of action

was concerned, since he would have to check with Union head-

quarters. Warren then met with Mary Cameron, the Union's

Tennessee State Director, and informed her of what had taken

place.

Cameron in turn contacted her superior, Nickolas $. Banano,

the Union’s Southeast Regional Director for organizing. Cam-

eron advised Banano, that one of the pressers, Union adherent

(Rushing) had been fired and that the other pressers in the de-

partment had walked out in sympathy with him. Based upon

Cameron's report, Banano directed her to offer the Union’s as-

sistance to the employees and to indicate that the walk-out was

in the nature of an unfair labor practice strike. After conferring

with the Union’s legal staff, Banano placed another call to

Cameron with respect to ceasing organizational activities among

the Company's employees.

6. Based on the instructions of his superiors, Warren, on the

afternoon of June 23, established a picket line at the Decaturville

plant and distributed picket signs which contained the following

wording:

“On Strike Against Marlene Industries, for Unfair Labor

Practices, Workers of Marlene International Ladies’ Gar-

ment Workers’ Union.”

“We Support the Workers at Marlene Industries Workers

Against Unfair Labor Practices, International Ladies Gar-

ment Workers Union.”

— A-58 —

Later the same day, a meeting of approximately 50 to 60 strik-

ing employees was held at which time Warren outlined the

Union's strike benefits and discussed picketing and strike pro-

cedures and violence on the picket line was sought to be avoided.

On or about June 30, Banano met with approximately 60 to

70 striking employees and explained the Union's position in

support of the strike. He outlined strike benefits and advised

that organizational activities were not to continue as performed

previously. Banano explained that the Union was claiming that

the reason for the strike was the Company’s unfair labor prac-

tice in discharging Rushing and the other pressers on June 23.

Subsequently, during the second week of July, Union attorney

David Goodman met with the striking employees and also dis-

cussed the reasons for the strike with them. Some handbills were

distributed thereafter advising employees of the status of the

strike, and some solicitation of cards and other organizing efforts

continued, but the emphasis after June 23, 1970, was on the

strike and picketing. The wording of the picket signs remained

the same throughout the course of the strike.

7. On June 24, 1970, the Company addressed a letter to

each of the pressers and bundle boys, except Nelson Rushing,

who had been discharged on June 23, 1970, and offered them

full and immediate reinstatement of their position, without loss

of seniority or any other privileges provided they reported for

work by a specified time. Some of the pressers returned to work;

others did not and continued to picket outside the Decaturville

plant. Similar letters were sent to other employees who subse-

quently quit to join the picket line.

8. Although the Union hierarchy made efforts to characterize

and to confine the strike at Decaturville as one for alleged unfair

labor practices, there were continued, although somewhat spas-

modic, attempts to organize and to recruit further workers into

the I.L.G.W. Union. Some Decaturville strikers were sent to

=

— A-59 —

other Marlene plants by the Union in support of picketing at

these other plants.

9. Those striking employees who left work and joined the

strike on or after June 26, 1970, were written a letter by Ander-

son directing them to return to work by a deadline date. Ander-

son testified that those employees who returned after the dead-

line specified in the letter were required to fill out new

employment applications, and return as new employees at the

bottom of the seniority list. Anderson further testified that se-

niority play a part in layoffs, holiday and vacation pay.

I find that these employees who failed to return to work prior

to the deadline specified in the Company’s letter to striking em-

ployees were required to file new applications for employment

and were treated as new hires.

10. Approximately July 15, 1970, Banano issued instructions

to his subordinates who, at the time, were organizing employees

at the Company's other Tennessee, South Carolina and Ala-

bama plants, to establish picket lines at those plants in support

of the strike of employees at the Decaturville plant. Some or most

organizational activities, as such, as those plants were also dis-

continued and picket lines were displayed at those locations with

the same wording as displayed on the signs in Decaturville. No

demands for recognition as employee bargaining representative

have been made upon the Company at any time during the entire

course of the Union organizing effort. I find that most of the

Company's employees at Decaturville Sportswear Co., Inc., did

on June 23, 1970, and thereafter strike in protest of the dis-

charges of the employees of the pressing department at Decatur-

ville Sportswear Company, Inc., and also in support of the

Union's organizational efforts there.

—~

D. Conclusions—Decaturville

1. This Court has jurisdiction over the subject matter and

the parties in this action.

2. Regarding all of the wage increases alleged in the petition,

as amended, the Petitioner failed to sustain its burden of proof

that these wage increases violated either the National Labor

Relations Act or the decree of this Court. See N.L.R.B. v.

Cleveland Trust Co., 214 F.2d 95 (6th Cir. 1954). See Hago-

pian v. N.L.R.B., 395 F.2d 947 (6th Cir. 1968), wherein it

was held that it must te shown that the benefits were granted

to discourage a union organization effort. It was established

that the granting of the wage increases was part of an established

practice, grounded upon legitimate and substantial economic

justifications that were essentially uniform in character. There

was insufficient evidence establishing in a clear and convincing

manner that the granting of these wage increases had any ad-

verse effect upon the Section 7 rights of the employees of the

Company or that the wage increases were granted primarily as

a result of anti-union motivation by the Company. A part of

the increases granted were as a result of minimum wage require-

ments. I conclude that the Company violated neither the Na-

tional Labor Relations Act nor the decree of this Court in grant-

ing these wage increases. Louisburg Sportswear Co. v. N.L.R.B.,

462 F.2d 380 (4th Cir. 1972); Hagopian & Sons, Inc. v. N.L.

R.B., supra; and Jervis Corp. v. N.L.R.B., 387 F.2d 107 (6th

Cir. 1967). I further conclude that the raises did not interfere

with employees in the exercise of their rights to self-organization.

3. Company policies regarding increased quality contro! and

inspection requirements in the pressing department, as well as

in other departments, coincided with the administration of the

Decaturville plant under its new manager, Lloyd Anderson, be-

ginning in 1969. Profits were not as good as in prior years;

problems had been encountered with the previous plant man-

— A-61 —

ager, Rindone. This policy was grounded upon legitimate and

substantial economic justifications, and resulted in an increase

in the quality of the work at the Decaturville plant. There was

insufficient evidence that this policy constituted an unfair labor

practice; they were not “inherently destructive,” and did not

violate the Court's decree. N.L.R.B. v. Great Dane Trailers,

Inc., 388 U.S. 26, 32 (1967). (See particularly, Judge Harlan’s

dissent).

4. The Company did not discourage Union membership nor

engage in an unfair labor practice within the meaning of Section

8(a)(1) and (3) of the National Labor Relations Act, nor

violate this Court's decree, by discriminating against, intmidat-

ing, or discharging Maria Stanfill, Betty Williams, Benson Rush-

ing, Martha Thomas, Ruth Bradley Campbell, Lois T. Page. or

Evelyn Phillips.

5. The Company did not unlawfully nor in violation of this

Court's decree interrogate as to union activity or sympathy, or

put under surveillance, Maria Stanfill, Betty Williams, Martha

Thomas. Doris Thorp, Ruth Bradley Campbeil, Nellie Mills,

Paulette Rushing, Lois T. Page. or Evelyn Phillips. Jervis Corp.

v. N.L.R.B., supra, and N.L.R.B. v. Dale Industries, 355 F.2d

851 (6th Cir. 1966).

6. R. C. Brashers was discharged, at least in substantial part.

by reason of his union activity and this conduct constituted an

unfair labor practice. Under the circumstances, I also find that

it violated (a) of the Court’s decree in respect to Brashers.

7. Maria Stanfill, Betty Williams, and Linda Williams were

interrogated concerning their or other employees’ union organi-

zational activities and or their union opinions contrary to Sec-

tion (j) of the Court's decree. The nature of the interrogation,

however, was not such conduct that also amounted to a viola-

tion of other portions of the Court's decree with respect to

threatening employees, warning or coercing them. Southwire

— A-62 —

Co. v. N.L.R.B., 383 F.2d 235 (Sth Cir. 1967), Suprenant Mfg.

Co. v. N.L.R.B., 341 F.2d 756 (6th Cir. 1965).

8. The Company did discriminate against and refuse to re-hire

Benny Hamm and R. C. Brashers because of their Union activity

and adherence, and the fear that they would continue such

activity while on the Company payroll.

9. The Company did refuse to hire Donald Pettigrew pri-

marily because of a fear that he would join the picketing and

the strike then in progress at the plant.

10. While there was substantial evidence to show that the

Company refused to re-hire Ruth Bradley Campbell, Evelyn

Phillips, Judy Scott Maness and Peggy Cagle because of their

Union proclivities, there was also substantial evidence to show

other sound and justifiable business reasons for the decision

not to take these employees back. Both Campbell and Phillips

had poor previous records and were serious employment risks

either from a health standpoint or for production or attitude

reasons. Both Maness and Cagle had quit to join the strike (for

differing reasons) and refused immediate reinstatement or to

communicate with the Company within a prescribed period in

which replacements were sought and accepted. I would con-

clude that appropriate relief, if any, should be limited to re-

hiring as and when a next available opening were determined

to exist at a comparable position to that held at the time of

termination. I do not constitute such refusal to re-hire these

four employees as an intentional or deliberate violation of the

Court's decree as to these employees. N.L.R.B. v. Ogle Protec-

tion Service, 375 F.2d 497, SOS (6th Cir. 1967), and Tompkins

Motor Lines v. N.L.R.B., 337 F.2d 325, 330 (6th Cir. 1964).

11. Because of the circumstances of his conduct on June 23,

1970, employee Nelson Rushing was insubordinate and, accord-

ingly, was discharged for just cause, even though Rushing was

also protesting what he believed was unfair. The Company's

Eee

— A-63 —

actions surrounding his discharge were not shown to have been

prompted essentially by any anti-union considerations. The dis-

charge of Nelson Rushing, therefore, constituted neither an un-

fair labor practice nor a violation of the decree of this Court.

12. The remaining pressers were not justified in their de-

mands that Rushing be reinstated or rehired by plant manager

Anderson on June 23, 1970, before they would return to work.

These pressers were not discharged by the Company unreason-

ably under the circumstances, despite anti-union sentiment on

the part of the Company.

13. If, however, the Company acted improperly, unlawfully

or unreasonably in discharging the pressers other than Nelson

Rushing on June 23, 1970, for engaging in a concerted work

stoppage, they should not now in equity be entitled to reinstate-

ment since the Company offered to them full reinstatement on

June 24, 1970, by letter which most chose to ignore or to de-

cline. The offer of the Company was a bona fide effort to

reinstate. If accepted, the pressers on strike would not have

sustained any diminution in seniority, earnings, or any other

privileges which they enjoyed prior to their termination. All

employees who went out on strike in protest of Rushing’s dis-

charge, claiming such to be an unfair labor practice, were in

fact economic strikers as well as unfair labor practice strikers.

AHI Machine Tool & Die, Inc. v. N.L.R.B., 432 F.2d 190 (6th

Cir. 1970); LTV Electrical Systems, Inc. v. N.L.R.B., 408 F.2d

1122 (4th Cir. 1969). It has been concludied that Nelson

Rushing’s discharge was not an unlawful or unfair labor practice

under the circumstances of insubordination. His actions were

disruptive of order and discipline. Hagopian & Sons, v. N.L.

R.B., supra. Although the other pressers were upset about the

new and changed procedures in their department, they walked

off their jobs primarily in sympathy with Rushing. Theirs was

a concerted protest as well, however, involving working condi-

tions, but it was not because the Company had illegally dis-

charged Rushing but, rather because Rushing was fired regard-

—

less of its illegality, and because of their frustration over working

conditions. The Union attempted to make the strike an unfair

labor practice strike rather than an economic one. This strike

instigated by the pressers has connotations of concerted activity

protected by the National Labor Relations Act, and was activity

within the broad purview of the National Labor Relations Act,

though the strike also was essentially economic in its nature,

because the imposition of stricter quality control procedures has

also been concluded not to have been an unfair labor practice.

14. In summary, with respect to the pressers, it is concluded:

(a) the imposition of tighter quality control procedures was

not an unfair labor practice nor violative of this Court's decree.

(b) Nelson Rushing’s actions in protesting the new quality

control procedures also amounted to insubordination in his

public and adamant refusal to discuss his grievance privately

with or to obey reasonable orders of the plant manager; there-

fore, discharging him was not an unfair labor practice nor

violative of this Court's decree.

(c) the quality control procedures involved did involve

working conditions in the plant.

(d) the action of the other pressers in walking off in support

of Rushing was concerted activity involving both working con-

ditions and protest over a lawful firing. N.L.R.B. v. MacKay

Radio Co., 304 U.S. 333 (1938), N.L.R.B. v. Phaostron In-

strument Co., 344 F.2d 855 (9th Cir. 1965), and Hagopian &

Sons v. N.L.R.B., supra.

15. It was not an unlawful or unfair labor practice, nor one

violative of this Court’s Orders for the Company to replace

striking employees with others in an effort to carry on its busi-

ness. Nor is the Company bound to discharge those hired to

fill the places cf strikers upon their subsequent election to

resume their employment. The Company should therefore only

x

ee eee

— A-65 —

be required to replace those unconditionally seeking reemploy-

ment having abandoned the strike as and when there were vacan-

cies. This, I conclude, is all that the Company should be re-

quired to do with those strikers (pressers and others) who had

not otherwise been terminated for just cause (such as Ruth

Campbell) and who did seek re-employment (as Cagle and

Maness). N.L.R.B. v. MacKay Radio Co. 304 U.S. 333, 345-6

(1938), and Kellog Co. v. N.L.R.B., 457 F.2d 519 (6th Cir.

1972).

16. Liability in civil contempt proceedings. such as this one,

should be established only upon a showing of “clear and con-

vincing evidence,” that respondent has engaged in contemptuous

conduct violative of the Court's decree. N.L.R.B. v. Local 588]

UMW, 323 F.2d 853 (6th Cir. 1963). and N.L.R.B. v. Lynair,

Inc., 380 F.2d 286 (6th Cir. 1967).

17. We have found “clear and convincing evidence” of viola-

tion of the Court's order by respondent with respect only to

discrimination or misconduct in the particulars specified. The

Board has failed to sustain its contentions, except as indicated,

as to Maria Stanfill, Betty Williams, Benson Rushing, Martha

Thomas, Doris Thorp, Ruth Bradley Campbell, Nellie Mills,

Paulette Rushing, Lois T. Page and Evelyin Phillips. It has

sustained only those portions of its charges of civil contempt

with respect to R. C. Brashers, Bennie Hamm. Donald Petti-

grew, Linda Williams, Judy Maness (in part), and Peggy Cagle

(in part). The Nelson Rushing episode and the pressers walkout

have been discussed separately.

Il. Trousdale, Tennessee Plant

A. Wage Increases

1. Marlene’s plant at Trousdale was charged by the Board

with granting wace increases in violation of Section (d) of this

— A-66 —

Court's cease and desist order, the pertinent language of which

has heretofore been set out at page two.

2. The Company’ granted a wage increase to hourly rated

employees on or about July 14, 1969, January 12, 1970 and

July 1, 1970. The base rate for production or time workers

was increased also from $1.75 to $1.85 per hour in January

1970, and again to $2.00 per hour in July, 1970. From time

to time, the Company at somewhat regular intervals had pre-

viously granted similar wage increases, some of which were

necessary to comply with minimum wage statutory increases.

Base rates were attempted to be maintained at higher than

minimum wage scales as was the case at Decaturville. Ap-

proximately 75% of the employees were maintained at rates

higher than minimum wage by reason of the periodic increases

and adjustments.

3. At the Company’s Trousdale Manufacturing Co., Inc.

plant in Hartsville, Tennessee, a wage increase was granted

effective July 14, 1969, to 104 hourly-rated employees, nor-

mally in a ten cent increment in accordance with general past

practices of the Company.

4. On July 13, 1970, 155 hourly-rated employees at the

Trousdale plant were granted wage increases in amounts vary-

ing from five cents to fifteen cents per hour, and the base rate

for piece-rated employees was increased from $1.75 to $1.85

per hour.

5. On or about July 25, 1970, at its Trousdale plant, the

Company granted twenty-six of its employees wage increases

in increments ranging from five cents per hour to twenty-five

cents per hour and, in addition, increased the base rate for

piece-rated employees from $1.85 to $2.00 per hour.

* “The Company” refers here to Trousdale Manufacturing Com-

pany, a wholly owned subsidiary of Marlene Industries Corporation.

om Mb? a

6. The plant manager of Trousdale during the period of

these increases was Dan Miller who terminated his employment

with Trousdale in 1971. He was not available to testify, but

he approved the three increases made, and furnished the list

by which the payroll clerk effectuated these increases.

7. The Union was actively attempting to organize the Trous-

dale facility during 1969 and 1970, and Union organizers were

present to assist in this activity. In 1969 and 1970, Marlene’s

profits were down from pric years.

8. I find that there is not sufficient evidence upon which to

infer or to determine that these wage increases were granted

to defeat the organizing efforts of the Union rather than to

conform to past practice and experience.

B. Cole-Robinson Incident

1. Robert Cole was general manager for Marlene, being

general supervisor and superior over Dan Miller, the plant

manager at Trousdale. The I.L.G.W. Union began to picket

this plant in July 1970, purportedly as a follow through and

in broad protest to alleged unfair labor practices in Decatur-

ville.

2. Burle Robinson was an experienced Union organizer for

I.L.G.W. Union assisting in the picketing and the strike at the

Trousdale plant. He had been at Trousdale since January

1969, trying to organize there.

3. During the last afternoon on or about August 19, 1970,

Robinson was on the picket line nearby where Cole was sitting

in an automobile photographing the activity. Mutual recrim-

inations for a few moments passed between the two wherein

Cole accused Robinson of threatening employees about what

the Union was going to do. At the same time Cole appeared

to threaten Robinson about his role in the ongoing strike. No

—_y

blows were struck, and Cole denied that he was “threatening”

Robinson in the encounter, according to a witness who was

asked by Robinson to take a note of what Cole was doing.

Cole is no longer with Marlene and was not present to testify.

4. Both Cole and Robinson paid mino: fines in a civil pro-

ceeding resulting from this episode.

5. I find that there is insufficient evidence to support the

Board's charge that this conduct of Mr. Cole amounted to any

such threat, coercion, or intimidation as prohibited by the

Court’s Order or by the National Labor Relations Act under

the meager circumstances adduced in proof.

C. Conclusions

1. This Court has jurisdiction over the subject matter and

the parties in this action.

2. The Court's conclusion is that none of the Company's

acts

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Petition — Decaturville Sportswear Co. v. National Labor Relations Board · 439 U.S. 836 | Frix