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National Labor Relations Board v. Wallick

August 1, 1952

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
SAM WALLICK AND SAM K. SCHWALM, PARTNERS, DOING BUSINESS AS WALLICK AND SCHWALM COMPANY, RITA SCHWALM, ADMINISTRATRIX OF THE ESTATE OF SAM K. SCHWALM, DECEASED, SAM WALLICK, SURVIVING PARTNER, DOING BUSINESS AS WALLICK AND SCHWALM COMPANY, WALLICK AND SCHWALM CORPORATION, AND SPRING MILLS APPAREL, INCORPORATED, RESPONDENTS.



Author: Staley

Before BIGGS, Chief Judge, KALODNER and STALEY, Circuit Judges.

STALEY, C.J.: This case is before us on the petition of the National Labor Relations Board for enforcement of its order issued against respondents on August 23, 1951. Since the unfair labor practices found by the Board occurred in Spring Mills, Pennsylvania, this Court has jurisdiction under Section 10(e) of the National Labor Relations Act as amended (Act), 49 Stat. 453, as amended 61 Stat. 147, 29 U.S.C.A.Section 160(e).

The events which form the basis of the unfair labor practices found by the Board took place in July and August, 1949. A charge was filed on August 26, 1949, by the International Ladies' Garment Workers' Union, Local 108 (Union) and a complaint was issued by the Board on February 14, 1950, against Sam Wallick and Sam K. Schwalm, partners, d.b.a. Wallick and Schwalm Company; Wallick and Schwalm Corp.; and Spring Mills Apparel, Inc. The complaint charges unfair labor practices affecting commerce*fn1 within the meaning of Sections 8(a)(1), (3), and (5), and Sections 2(6) and (7) of the National Labor Relations Act as amended.*fn2

During the period here involved, Sam Wallick and Sam K. Schwalm were the principals in several enterprises engaged in the manufacture of women's garments. The Spring Mills plant, the locus of the unfair practices found by the Board, is owned by Spring Mills Apparel, Inc.; its sole officers and stockholders at that time were Sam Wallick and Sam K. Schwalm. Since several legal entities owned and controlled by Wallick and Schwalm were conducted as a single integrated business enterprise, the Board seeks to hold responsible Wallick and Schwalm Corporation (a corporation also owned and controlled by Wallick and Schwalm during the period involved) and the Wallick and Schwalm partnership. After the occurrence of the unfair practices, Sam K. Schwalm died and the administratrix of his estate was made a party to this action.

The facts are as follows: With the exception of Foreman Osman and Plant Mechanic McCool, all the employees at the Spring Mills plant were women. For several months personal factors had been creating increasing tension, which erupted on the morning of July 5, 1949. The women liked Foreman Osman but were antagonistic toward McCool; events which transpired at the plant had convinced many of them that McCool was attempting to displace Osman as foreman. At the same time, relations between Schwalm and Osman had been degenerating to such a point that on July 1 Osman told the women that he might not be with them when they returned to work on July 5 after the long July 4 week-end.

When the women arrived at the plant on the morning of July 5, they assembled outside but did not go in to work. They wanted to know whether Osman would remain as foreman. When it appeared that Osman was unable to enlighten them, the women asserted that they wished to see Wallick. Osman testified that he called Wallick on the telephone and told him what was happening at the plant.*fn3 The latter urged Osman to persuade the women to go in to work because it was important that the goods at the plant be finished quickly. Wallick promised to try to visit the plant the following day.

When Osman conveyed this message to the women, they agreed to go to work. But Osman suggested that they go home and return the following day because he thought they were too "riled up" to do a fair day's work. As the employees were about to leave the plant, Schwalm arrived; with him were his son, son-in-law, and Spotts, the manager of respondents' Berrysburg plant. Schwalm, upon ascertaining what had happened, asked the women either to go into the plant, or else go home.*fn4 Fourteen of the fifty-six employees responded by reporting for work.

Wallick testified that Schwalm called him at about 8 or 9 o'clock in the morning and informed him what was happening at Spring Mills. Wallick stated to Schwalm, "* * * we will sell the plant and machines as fast as we can."*fn5 This testimony was apparently not credited by the trial examiner or the Board.

The employees who did not go in to work milled around outside and shortly thereafter decided to organize. Kerstetter, the leader of the group, telephoned an official of the International Ladies' Garment Workers' Union, who advised them to prepare signs stating their grievance. Signs were accordingly prepared and displayed by the strikers.

At about 11:30 the fourteen employees who had abandoned the strike were told by Schwalm to stop working because he considered it impossible for the work to be done properly with so few at their machines. Schwalm said he would inform them when to return. He then directed McCool, his son-in-law, and Spotts to bundle up the unfinished material so that it could be removed from the plant and finished elsewhere.While the material was being packed, Osman spoke with Schwalm, informing him that the employees had contracted a union. Osman's testimony, credited by the trial examiner and the Board, is that Schwalm became enraged and exclaimed, "If that's the case, we'll close the plant."

At least some of the women continued milling around the plant the rest of the day and deep into the night. There is evidence that some violence ensued. Metal pins were driven into the ground and planks were placed against one or two doors so as to bar egress; one or two windows were broken; someone directed a flashlight into the plant; and threats of violence were voiced against Schwalm, Spotts, and McCool, who remained in the plant until about midnight. The individual wrongdoers were never identified.

The next morning, July 6, the employees reported at the plant at the usual time. There is substantial evidence from which the Board could conclude that they had abandoned their strike and were ready for work. But the plant was locked. Thereupon the women started to mill around the plant again and carried picket signs similar to those of the previous day. In the afternoon two representatives of the union arrived on the scene. They explained to the women that it was important not to make the Osman-McCool issue the major one, and outlined the union's program with respect to wages and working conditions. The employees decided to accept this advice, and thirty-three of them signed union application cards.

Osman testified that on July 7 he spoke with Wallick on the telephone, informing him that the Spring Mills employees had been organized by a union. Wallick replied that if it was the same organization as that at Mount Carmel and Tower City he "would have nothing to do with it." This is categorically denied by Wallick.

The next day, July 8, the union wrote a letter to respondents advising them that a majority of the employees had designated it as their bargaining agent. A prompt meeting for the purpose of negotiating a collective bargaining contract was requested. The ...


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