Phelps Dodge Corp. v. National Labor Relations Bd.

• Decision Date: 11 July 1940
• Docket Number: No. 350.,350.
• Parties: PHELPS DODGE CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Second Circuit

113 F.2d 202 (1940)

PHELPS DODGE CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 350.

Circuit Court of Appeals, Second Circuit.

July 11, 1940.

Ellinwood & Ross, of Phoenix, Ariz., and Debevoise, Stevenson, Plimpton & Page, of New York City (Denison Kitchel, of Phoenix, Ariz., and William E. Stevenson, of New York City, of counsel), for petitioner.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Alvin J. Rockwell, Mortimer B. Wolf, and Morris P. Glushien, Attys., all of Washington, D. C., for respondent.

Before L. HAND, CHASE, and PATTERSON, Circuit Judges.

CHASE, Circuit Judge.

This case is before us on the petition of the Phelps Dodge Corporation, a New York corporation doing business in the Southern District of New York, with its principal office in the City of New York, for the review of an order of the National Labor Relations Board requiring the reinstatement of striking employees and two others with back pay. It involves questions as to the scope of the term "employee" within the meaning of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., of which some have already been considered by this court in National Labor Relations Board v. National Casket Co., 2 Cir., 107 F.2d 992.

The Board answered the petition and requested the enforcement of the order with the sole modification that the language of the notice to be posted by the petitioner to the effect that it will cease and desist from conduct prohibited be in accord with the more recent practice of the Board in that respect following the decision Art Metals Construction Co. v. National Labor Relations Board, 2 Cir., 110 F.2d 148. The proposed modification is that the notices state that petitioner "will not engage in conduct from which it is ordered to cease and desist in paragraph (a) and (b) of this Order * * *". This modification is now ordered as requested.

Both our jurisdiction which is based upon Sec. 10 (e) of the above Act and the interstate character of the business of the petitioner are clearly established and unquestioned.

The unfair labor practices found by the Board were based on charges filed by the International Union of Mine, Mill and Smelter Workers, Local No. 30 and were proved to have occurred at a copper mine owned and operated by the petitioner at Bisbee, Arizona, in the summer of 1935. They consisted of refusals, because of their union affiliations or activities, to hire applicants for employment and to reinstate employees who had engaged in a strike. The Board found that the petitioner had violated Sec. 8 (1) and (3) of the Act in one or the other of these respects by discriminating against forty named men; dismissed the allegations as to five men; and ordered the petitioner to offer employment with back pay to thirty-nine of the forty together with back pay to the remaining one up to a time when he became unemployable. As the trial examiner had recommended dismissal of the complaint as to three of the men the Board ordered reinstated, no back pay was allowed them between the date of the intermediate report of the examiner and the date of the order of the Board.

The findings that are supported by substantial evidence show the petitioner's mine at Bisbee, known as the Copper Queen Mine, was an "open-shop camp" until the Union began its attempt at organization there in September, 1933. This attempt was resisted by the petitioner but the union by June 10, 1935, had a membership sufficiently large to be reckoned with, though still a small minority of the approximately 950 employees the petitioner had at work at the mine. On June 6, 1935, the petitioner discharged eight of these union men. The following evening the union voted to strike on June 10th because of such discharges and on the last mentioned date about ten per cent of the petitioner's employees stopped work and established picket lines at mine entrances. Picket lines were maintained until August 24, 1935, when the strike was terminated by the union because of its failure and the picketing was discontinued.

The Board found that by June 28th the petitioner had succeeded in filling the places of all the strikers and had resumed normal operations at the mine. After that and at times before and after the strike was given up by the union on August 24th, the petitioner increased the number of its employees but in doing so consistently refused to reinstate any of the strikers though they applied for reinstatement in August when the petitioner was hiring men for work similar to that for which they applied and the refusal of employment was clearly because of their union membership and activities.

After the labor trouble in June, 1935, above referred to, the National Labor Relations Act became effective on July 5, 1935, but this was after the date on which the Board found that the mine had resumed normal operations with the places of the strikers taken by other employees. From this it is argued by the petitioner that there was no current labor dispute when the Act became effective on July 5th, and consequently that its subsequent refusal to reinstate any of the strikers because they were union men was not unlawful since they were not employees within the meaning of the Act.

Though the union had, before the effective date of the Act, apparently been shown to be too weak to win the strike or even to disrupt seriously the working of the mine, we think it clear that a labor dispute still existed which was then "current" as the Board found. That was a question of fact which we can review only to the extent of determining whether or not there was substantial evidence to support it. That there was such evidence is shown by the proof of the maintenance of the picket lines coupled with several acknowledgements by the petitioner itself after July 5th that it recognized the continued existence of the strike. Reliance is placed by the petitioner upon decisions to the effect that a strike cannot exist unless the employer has notice of definite demands to be met and given an opportunity to meet them but none of them dealt with what is a current labor dispute within the meaning of the statute controlling here and, while interesting, are presently of little help. Nor is it decisive that normal production in the mine had been attained though in Quinlivian v. Dail-Overland Co., 6 Cir., 274 F. 56 it was, indeed, held in deciding a controversy involving the Clayton Act that strikers ceased to be employees after the employer had its plant in full production even though such strikers continued their efforts to maintain the strike. The definition of employee in the National Labor Relations Act is very broad and should not be narrowed to make abortive the remedial purposes of the statute. It includes "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment". 29 U.S.C.A. § 152 (3). Had the Act been effective when the strike began in June there would, of course, be no question about the retention by the strikers of their status, under the statute, as employees. The sufficiently supported finding of the Board, however, carries the labor dispute into July 5th and that is enough to make the strikers employees within the meaning of the Act when they were refused reinstatement. Jefferey-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948; Standard Lime & Stone Co. v. National Labor Relations Board, 4 Cir., 97 F.2d 531. See also, ...