Eagle-Picher Mining & S. Co. v. National Labor R. Board

• Decision Date: 09 June 1941
• Docket Number: No. 460,460
• Citation: 119 F.2d 903
• Parties: EAGLE-PICHER MINING & SMELTING CO. et al. v. NATIONAL LABOR RELATIONS BOARD (INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCALS NOS. 15, 17, 107, 108, AND III, Intervener).
• Court: U.S. Court of Appeals — Eighth Circuit

119 F.2d 903 (1941)

EAGLE-PICHER MINING & SMELTING CO. et al. v. NATIONAL LABOR RELATIONS BOARD (INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCALS NOS. 15, 17, 107, 108, AND III, Intervener).

No. 460, Original.

Circuit Court of Appeals, Eighth Circuit.

May 21, 1941.

Rehearing Denied June 9, 1941.

COPYRIGHT MATERIAL OMITTED

John G. Madden, of Kansas City, Mo. (A. C. Wallace, of Miami, Okl., H. W. Blair, of Washington, D. C., and Alfred Kuraner and Madden, Freeman & Madden, all of Kansas City, Mo., on the brief), for petitioners.

Gerhard P. Van Arkel, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, National Labor Relations Board, Laurence A. Knapp, Asst. Gen. Counsel, National Labor Relations Board, and Mortimer B. Wolf, Owsley Vose, and Helen F. Humphrey, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Louis N. Wolf, of Joplin, Mo. (Sylvan Bruner, of Pittsburg, Kan., on petition for intervention), for intervener International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108 and 111.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

The order of the National Labor Relations Board, which the petitioners seek to invalidate and the respondent asks to have enforced, requires the petitioners to cease and desist from dominating, supporting or favoring the Tri-State Metal Mine and Smelter Workers Union¹ (hereinafter called Tri-State Union), or the Blue Card Union of Zinc & Lead Mine, Mill and Smelter Workers (hereinafter called Blue Card Union); from encouraging their employees to join those unions or any other union; from discouraging their employees from joining the International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108 and 111 (hereinafter called International Union); from giving effect to any contract with the Tri-State Union; from dealing with the Blue Card Union as exclusive representative of petitioners' employees, unless certified by the Board to be such representative; from recognizing the Blue Card Union as representative of any of their employees unless similar recognition is accorded to the International Union or unless the Blue Card Union is certified by the Board to be the exclusive representative of petitioners' employees; from instigating or encouraging the use of violence against the members of the International Union; and from interfering in any way with the rights of petitioners' employees with respect to self-organization and collective bargaining. The order of the Board, for the purpose of effectuating the policy of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., further requires petitioners to take certain affirmative action, which includes the reinstatement of two discharged employees, with back wages, and also includes the payment of back wages, together with reinstatement or preferential treatment, to more than two hundred other employees who were found by the Board to have been refused reinstatement because of their union activities and affiliations.

This controversy had its inception in a strike called by the International Union on May 8, 1935, prior to the approval of the National Labor Relations Act on July 5, 1935. This strike closed the mines, mills and smelters in a large lead and zinc producing area known as the Tri-State District, being composed of parts of southwestern Missouri, northeastern Oklahoma, and southeastern Kansas and comprising an area approximately forty miles long and ten miles wide. A back-to-work movement followed the strike, and this caused the formation of the Tri-State Union in the latter part of May, 1935, the main purpose of which was to reopen and keep open the mines, mills and smelters in this area. The back-to-work movement succeeded, and the strike of the International Union failed, although it was never formally terminated.

After the National Labor Relations Act became effective (July 5, 1935), the International Union filed charges with the Board accusing the petitioners of unfair labor practices within the meaning of § 8(1), (3), and (5) and § 2(6) and (7) of the Act. The Board issued its complaint upon these charges, alleging that petitioners had violated the Act by: (1) Refusing to accept the International Union as the exclusive representative of their employees for purposes of collective bargaining, although the Union represented a majority of their employees; (2) locking out their employees; (3) dominating and supporting the Tri-State Union; (4) instigating and encouraging the use of violence against members of the International Union; (5) making membership in the Tri-State Union a condition of employment; (6) discriminating against the employees listed in the complaint with respect to employment because of their union activities and affiliations. The petitioners denied these charges and alleged that the Tri-State Union was dissolved in 1937, and that the Blue Card Union had been organized shortly thereafter and had become affiliated with the American Federation of Labor. A hearing was held at Joplin, Missouri, before William R. Ringer, who was appointed Trial Examiner by the Board. His conduct of this hearing, which lasted from December 6, 1937, to April 29, 1938, is deserving of the highest commendation. The Examiner in his Intermediate Report absolved the petitioners from having committed an unfair labor practice in refusing to recognize the International Union as the sole representative of the employees for purposes of collective bargaining. He also found that petitioners had not locked out their employees. He found that petitioners had dominated and supported the Tri-State Union and its successor, the Blue Card Union; that petitioners had made membership in the Tri-State Union and in its successor a condition of employment; that petitioners were in part responsible for the use of violence which occurred during the strike and the back-to-work movement; that there were discriminatory discharges and discriminatory refusals of reinstatement with respect to many of the employees listed in the complaint. He recommended what he considered an appropriate order in the light of his findings and conclusions. The petitioners and the International Union filed exceptions to the Examiner's report, and these were argued before the Board, which thereafter filed its decision and entered the order complained of by petitioners.

The petitioners challenge the order of the Board upon the following grounds: (1) That the findings that the petitioners dominated and supported the Tri-State Union and the Blue Card Union are not within the pleadings and are unsupported by substantial evidence; (2) that the findings that petitioners were responsible for the violence used against members of the International Union are not within the pleadings and are unsupported by substantial evidence; (3) that the Board was without authority to require the reinstatement of any of the employees listed in the complaint (referred to as claimants), because the labor dispute in consequence of which their work had ceased was not current at the time the Board took jurisdiction and the claimants were not then employees within the meaning of the Act; (4) that the findings of the Board with respect to the alleged discriminatory discharge of a claimant named Sheppard are not within the pleadings and are unsupported by substantial evidence, and that the order of the Board requiring the reinstatement of Sheppard with back pay is unsupported by the evidence and unauthorized; (5) that the order of the Board is in all respects arbitrary, unsupported by substantial evidence, and unauthorized by law.

For convenience, the contentions of the petitioners will be considered under two classifications: (1) Those which relate to the alleged unfair labor practices from which petitioners are ordered to cease and desist; and (2) those which relate to the alleged discriminatory discharges and refusals to reinstate.

Without making this opinion unreasonably long, it is not possible to state in detail the facts or the evidence. Many of the facts are not in substantial dispute, and since the only function of this Court is to determine whether the Board, acting within the compass of its power, has held a proper hearing, has made findings based upon substantial evidence, and has ordered an appropriate remedy (National Labor Relations Board v. Bradford Dyeing Ass'n, 310 U.S. 318, 342, 60 S.Ct. 918, 84 L.Ed. 1226), we shall refer to the facts only so far as absolutely necessary for the purpose of this opinion.

The petitioners are large operators in the Tri-State District, are engaged in interstate commerce, and are subject to the National Labor Relations Act. The Eagle-Picher Lead Company (hereinafter called the Lead Company) is an Ohio corporation, having its principal place of business in Cincinnati, Ohio, and is engaged in the mining and smelting of lead and zinc ores, the refining of lead and zinc, and the manufacture of lead and zinc products. It has a large manufacturing plant at Joplin, Missouri, and other plants in other states. The Eagle-Picher Mining & Smelting Company, a Delaware corporation, is a wholly owned subsidiary of the Lead Company, and owns, leases and operates mines in the Tri-State District. It has a lead smelter at Galena, Kansas, a zinc smelter at Henryetta, Oklahoma, and a "Central Mill" at Picher, Oklahoma. There are all together approximately fifty different operators of mills, mines or smelters in the District, who employ in the aggregate about 7,000 men. Wages and employment apparently vary with the market for lead and zinc.

The International Union is a labor organization which in 1935 was affiliated with the American Federation of Labor (A. F. of L.). In 1936 it became affiliated with the Committee for Industrial Organization (C. I. O.). The International Union admits to...