National Labor Relations Board v. Louisville Refining Co., 7979.

• Decision Date: 13 March 1939
• Docket Number: No. 7979.,7979.
• Citation: 102 F.2d 678
• Parties: NATIONAL LABOR RELATIONS BOARD v. LOUISVILLE REFINING CO.
• Court: U.S. Court of Appeals — Sixth Circuit

102 F.2d 678 (1939)

NATIONAL LABOR RELATIONS BOARD v. LOUISVILLE REFINING CO.

No. 7979.

Circuit Court of Appeals, Sixth Circuit.

March 13, 1939.

Philip G. Phillips, of Cincinnati, Ohio (Charles Fahy and Robert B. Watts, both of Washington, D. C., Philip G. Phillips, of Cincinnati, Ohio, Laurence A. Knapp, of Washington, D. C., and Allen Heald, of Chicago, Ill., on the brief), for petitioner.

A. Shelby Winstead, of Louisville, Ky. (Woodward, Dawson & Hobson and A. Shelby Winstead, all of Louisville, Ky., on the brief), for respondent.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

This case arises out of a petition of the National Labor Relations Board filed under Title 29, Section 151 et seq., U.S.C., 29 U.S.C.A. § 151 et seq., to enforce its order theretofore issued against the respondent, an oil refining company operating in Louisville, Kentucky. A substantial part of the raw materials and the crude oil used originates outside of Kentucky, and much of the gasoline, kerosene and other finished products is distributed to Ohio, Indiana and Kentucky. The operation is plainly interstate. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 11, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir., 97 F.2d 331; National Labor Relations Board v. Kentucky Fire Brick Co., 6 Cir., 99 F.2d 89.

Upon appropriate complaint which was denied in its material allegations by respondent's answer, the Board found that respondent had engaged in unfair labor practices within the meaning of Section 8 (1) (3) (5) of the act in that the respondent (1) had refused to bargain collectively with the designated representative of the employees, the International Association of Oil Field, Gas Well and Refinery Workers of America,¹ and (2) had discouraged membership in the union and discharged nineteen employees because of their union activity. The Board thereupon ordered respondent to cease and desist from such unfair labor practices, to reinstate the discharged employees with back pay, to bargain collectively with the union, and to post certain notices with reference to the order.

The respondent at the outset asserts that it is the duty of this court to exercise its own independent judgment as to facts found by the Board. With this contention we are not in accord. The statute Title 29, § 160(e) provides that "The findings of the Board as to the facts, if supported by evidence, shall be conclusive," and under the plain terms of this provision the question presented is whether there is substantial evidence to support the findings of the Board. In certain cases (Bluefield Water Works & Imp. Co. v. Public Service Commission, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176; State Corp. Commission v. Wichita Gas Co., 290 U.S. 561, 54 S. Ct. 321, 78 L.Ed. 500, Cf. Crowell v. Benson, 285 U.S. 22, 46, 52 S.Ct. 285, 76 L.Ed. 598), the Supreme Court has indicated that parties attacking orders of rate-making bodies are entitled to the independent judgment of the courts both as to law and facts. This, however, is due to the legislative character of a determination of a schedule of future rates. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 289, 40 S.Ct. 527, 64 L.Ed. 908; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51, 52, 56 S. Ct. 720, 80 L.Ed. 1033. Respondent asserts that it is deprived of property without due process, in violation of the Fifth Amendment to the Constitution of the United States, U.S.C.A., when it is ordered to pay back wages. No decision of the Supreme Court is cited to the effect that by a mere allegation of confiscation, the administrative findings of the Board with reference to reinstatement of discharged employees with back wages are converted into a legislative determination such as that made by rate-making bodies. Moreover, similar determinations of reinstatement with back pay have been upheld. As stated in National Labor Relations Board v. Jones and Laughlin Steel Corp., supra, page 48, 57 S. Ct. page 629, "Reinstatement of the employee and payment for time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement." Cf. National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348, 58 S.Ct. 904, 82 L. Ed. 1381; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, supra, page 469, 58 S.Ct. 656. We proceed, therefore, to inquire whether there is substantial evidence to support the findings.

Substantial evidence is more than a mere scintilla. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 59 S.Ct. 206, 217, 83 L.Ed. ___, decided December 5, 1938; National Labor Relations Board v. Thompson Products, Inc., 6 Cir., 97 F.2d 13, 15.

The respondent urges that there is no evidence supporting the Board's findings because there is no proof (1) that the union was designated bargaining agent by a majority of the employees, or (2) that respondent knew of such designation.

The record is clear upon the point that the union was actually so designated. This is shown by the testimony of Lockard and by the fact that signed applications for membership in the union were executed by a majority of the employees. Upon the point as to whether the respondent knew that the union had been so designated we must also rule against the respondent. At the first interview between Brown, the respondent's president, and the representatives of the men, a committee of the local organization visited Brown in company with Stickel, the union agent. Lockard, secretary-treasurer of the local union, stated...