122 F.2d 433 (5th Cir. 1941), 9848, N.L.R.B. v. Tex-O-Kan Flour Mills Co.

Docket Nº:9848.
Citation:122 F.2d 433
Case Date:August 05, 1941
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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122 F.2d 433 (5th Cir. 1941)




No. 9848.

United States Court of Appeals, Fifth Circuit.

August 5, 1941

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[Copyrighted Material Omitted]

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Robert B. Watts, Gen. Counsel, and Laurence A. Knapp, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D.C., and L. N. D. Wells, Jr., Regional Atty., of St. Louis, Mo., for petitioner.

Geo. O. Wilson, of Dallas, Tex., for respondent.

Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

The order of the National Labor Relations Board here sought to be enforced requires the Tex-O-Kan Flour Mills Company to cease and desist from discouraging membership in two named local labor unions, and from in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; and as affirmative action, to offer reinstatement to twenty-nine named former employees, and to make each whole for loss of pay; and post appropriate notices in its Morten and Burrus Mills. The respondent attacks the jurisdiction of the Board, and each item of the order as not supported by evidence.

The question of jurisdiction stands thus. No evidence was taken as to the interstate character of respondent's business, but a stipulation was filed to the effect that during the fiscal year ending May 31, 1938, at the Morten Mill at Dallas, Texas, 3, 395, 232 bushels of grain having a value of $2, 985, 060 were processed, about twenty percent of which came from States other than Texas; and of the resulting product, of a value of about $3, 925, 710 were processed, about twenty percent of which was purchased out of the State; of the products worth $5, 711, 722, about 40.8 percent were shipped out of the State. The Board found those special facts, and made the general finding that the activities of the respondent with respect to the unions and their members in connection with the milling operations above set forth, have a close, intimate and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. The argument is that the stipulation and the Board's findings relate to the year ending May 31, 1938, and not to the period under investigation which extends from Oct. 30, 1938, when the local unions were established, through July, 1939. The stipulation was intended to give exact information for the preceding fiscal year, the last apparently for which the record had been made up. The evidence indicates that each mill continued to run in about the same way. No one contended that the amount and character of their business changed, except that in the spring business fell off some. We think the parties and the Board intended the figures for the preceding year to be taken as typical. Those figures show a substantial interstate business going on, interruption of which by labor troubles would affect commerce within the meaning of the Act, as the Board expressly found. The Board has jurisdiction, and the facts showing it sufficiently appear.

The stipulation states that all grain came to rest in Texas before being

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processed, and that the acts complained of did not in fact burden or obstruct commerce, or the flow of goods therein. Neither fact is of controlling importance. The Act seeks to forestall labor troubles which may affect commerce, not merely to stop or remedy those which have occurred; and commerce may be affected though the laborers are not themselves engaged in commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352.

After the Board made its order, the respondent moved the Board to set it aside on the ground that it did not follow the findings and recommendations of the trial examiner who heard and saw the witnesses; that there existed, unknown to respondent a bitterness, resentment and prejudice between the examiner and the Board which later flamed into a public controversy and that this prejudice had reacted unfavorably on respondent's case, all of which was offered to be proved. A de novo hearing before another examiner was prayed. The Board denied the motion. We do not think any illegality in the order results. The Board is in no case bound to follow the fact-findings or recommendations of an examiner. Even on a question of the credibility of contradictory witnesses, notwithstanding the advantage the examiner has of seeing and hearing them testify, the Board may differ from the conclusion of its examiner. It is not claimed that the examiner or the Board had any prejudice against the respondent. We cannot see that personal feeling between them would be likely to affect a fair consideration of the report on respondent's case. The findings of the Board show no undue criticism of the examiner, but only reasoned differences of opinion. If the Board was in any way prejudiced, the Act provides no remedy before us. We cannot form a new Board, nor even order a reconsideration of the case for any partisanship we might think was apparent. We must assume a conscientious and fair consideration of the evidence by the Board and are bound by all its fact-findings which are supported by substantial evidence, regardless of the opinion of the examiner or ourselves as to the real truth.

It is urged that the proceedings are invalid because the Board, without hearing from respondent, consolidated for complaint and hearing the charges made by separate unions at the two separate mills. The charges are addressed to the Board and are not cases at all. The case between the Board and the employer begins with the complaint prepared by the Board. It may relate to as many mills or employees as the employer may have. It is within the discretion of the Board what and how many matters touching the same employer shall be included. The findings and conclusions in this case are separately made as to each mill, and disconnected occurrences at the two mills do not appear to have been illogically confused.

The two mills, about thirty miles apart, were during the period in question separately managed, though owned by a single foreign corporation. The general manager at the Burrus Mill was J. Paul Smith, and under him was a general superintendent Paul K. Fisher, and under him as superintendent of warehouse and packing A. E. Howse. These all had the power to 'hire and fire' and to control employees. No one else had. At the Morten Mill, Blaine Thompson was general manager. W. H. Chambliss was superintendent till Feb. 13, 1939, when Fisher took over his job also. These only could employ and discharge hands there. There were foremen at both mills, but with no authority to formulate the policy of their mill, and it is positively testified without contradiction that none of them had been authorized or requested or was known to be meddling with the relations between the mill and its employees. Except as Fisher was superintendent at both mills after Feb. 13, 1939, there is no evidence of cooperation between the managements. The occurrences at the two mills ought to be separately considered, though in many respects similar.

Wage cuts at both mills occurred in October, 1938, when the Fair Labor Standards law went into effect. At both mills, about the first of November, unions were started. At each mill it is found that manager, superintendent and foremen were particularly outspoken, and several said the men would lose their jobs, and the mill would be closed down if the union was pushed. After Dec. 15, the union members had received and generally wore while at work their union buttons. At each mill a statement to the management

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was circulated among the employees for signature expressing content with labor conditions, and was presented to the general manager. The unions were not suppressed, but continued. Not all the employees at either mill joined. Some but not all union members were laid off professedly for lack of work, or discharged for cause, and some non-union employees were similarly dealt with. The Board's regional director took up with Morten Mill's manager the first cases of discharge on Nov. 8th, the day after they happened. The other alleged discriminatory acts there occurred afterwards, and were not brought forward for investigation except by amendment of the charges and the complaint in July and August, 1939. The examiner's report was filed Jan. 29, 1940. He found unfair labor practices had occurred at both mills, consisting of interference with union organization; and at Morten Mill discriminatory discharges and refusals to reemploy John Marple, O. H. Kirby, Loys McMurray, F. L. Fielding, Jim Arnold and Billie Hansell; but found against the charges of discrimination for union membership as to E. C. Carey, J. C. Penney, Roy Franks, H. P. Baker, Ed. Short, Robt. Stewart, M. L. Brittain, Jimmie Ervin, Samuel Vodnick, employees at Morten Mill, and against all twenty such charges at the Burrus Mill. The Board upheld the examiner in all his findings against each mill, but found additional discrimination at the Morten Mill as to Carey, Baker, Stewart, Ervin and Vodnick, and at the Burrus Mill found discrimination as to the G. W. Stewart, V. E. Newland, R. H. Tomlin, Jack Burns, H. P. Chisum, L. W. Mitchell, and a group laid off March 29, 1939.

As to interference with union organization we think the evidence justifies the conclusion that there was interference by the employer at both mills. We do not emphasize what mere foremen did and said, who had no power to hire and discharge employees or formulate labor policies, and who are positively testified to...

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