Indianapolis Power & Light Co. v. NATIONAL LR BOARD

• Decision Date: 09 October 1941
• Docket Number: No. 7448.,7448.
• Citation: 122 F.2d 757
• Parties: INDIANAPOLIS POWER & LIGHT CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Seventh Circuit

122 F.2d 757 (1941)

INDIANAPOLIS POWER & LIGHT CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 7448.

Circuit Court of Appeals, Seventh Circuit.

September 15, 1941.

Rehearing Denied October 9, 1941.

Arthur L. Gilliom and Elbert R. Gilliom, both of Indianapolis, Ind. (Karl J. Stipher, of Indianapolis, Ind., of counsel), for petitioner.

Robert B. Watts and Wm. F. Guffey, Jr., both of Washington, D. C., I. S. Dorfman, of Chicago, Ill., and Laurence A. Knapp, Assoc. Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, and Lewis M. Gill, Atty., National Labor Relations Board, all of Washington, D. C., for respondent.

Before EVANS, and SPARKS, Circuit Judges, and WOODWARD, District Judge.

SPARKS, Circuit Judge.

Petitioner asks this court to review and set aside an order of the Labor Board, and the Board asks that we enforce it. The complaints upon which the order was based charged, among other things, the commission of the acts referred to in the order, the pertinent parts of which we set forth in the margin.¹ The complaint also charged surveillance, and the discriminatory discharge of three additional employees not included in the order of reinstatement. These charges, however, were dismissed by the Board on recommendation of the Trial Examiner after hearing.²

It was stipulated that petitioner is an Indiana public utility corporation, primarily engaged in the production and distribution of electricity and steam at Indianapolis; that, incidentally, it also conducts in that locality a local retail department for the sale of electrical appliances; that it formerly owned and operated a radio broadcast station, WFBM, at Indianapolis, but this had been sold and transferred to a separate corporation, with the approval of the Federal Communications Commission, as of August 1, 1939, which was prior to the date of completion of hearings on the complaint; that after this transfer petitioner no longer had any employees at that or any radio station.

Two complaints were filed against petitioner, one arising out of its relation to one of its employees in the radio station, and the other to five employees in the generating plants. They were consolidated for hearing and for purposes of this review.

Petitioner challenges the Board's jurisdiction to enter the order against it as to either complaint. With respect to the radio station it urges that it no longer owned or operated that business at the time of the order, and that the one employee it was alleged to have discriminatorily discharged was engaged in other equivalent employment when the order was entered. Hence, it argues that his discharge could not furnish the basis for a valid order for payment of wages lost thereby. With respect to the generating plants, it insists that jurisdiction was lacking because of the local nature of their operations, which it contends did not involve interstate commerce.

Under the issues joined by the complaint and answer it is obvious that the Board had jurisdiction to pass upon those issues, whether its determination of them was right or wrong. The questions here, however, deal with the correctness of the Board's order in the light of the facts, that is to say — did the alleged unfair labor practices actually threaten interstate or foreign commerce in a substantial manner, and was there substantial evidence to support the Board's findings?

It is conceded that the employees at the generating plants are not themselves engaged in interstate or foreign commerce. In Edison Co. v. Labor Board, 305 U.S. 197, at page 223, 59 S.Ct. 206, at page 214, 83 L.Ed. 126, the Court said: "* * * where the employers are not themselves engaged in interstate or foreign commerce, and the authority of the National Labor Relations Board is invoked to protect that commerce from interference or injury arising from the employers' intrastate activities, the question whether the alleged unfair labor practices do actually threaten interstate or foreign commerce in a substantial manner is necessarily presented. And in determining that factual question regard should be had to all the existing circumstances * * *. The justification for the exercise of federal power should clearly appear. Florida v. United States, 282 U.S. 194, 211, 212, 51 S.Ct. 119, 123, 124, 75 L.Ed. 291. But the question in such a case would relate not to the existence of the federal power but to the propriety of its exercise on a given state of facts." (Our italics.)

The facts upon which the Board relied in support of its jurisdiction over petitioner's generating plants engaged in its operations as a public utility are similar in many respects to those described in the Edison Company case, supra. There the Court held that the provisions of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., extended to public utilities engaged in supplying electricity, gas and steam wholly within the state (with the possible exception of that supplied for the operation of the Holland Tunnel), where a part of the service was to railroads, an airport, two telegraph companies, a telephone company and steamships engaged in interstate or foreign commerce, as well as to the various federal buildings in the city. Under the ruling of that case, we feel impelled to hold that the Board had jurisdiction over petitioner's generating plants. We shall discuss later the question of the power of the Board to enter the order with relation to petitioner as owner and operator of the radio station.

Petitioner next contends that even if the Board had jurisdiction to enter the order pertaining to employees other than those employed at station WFBM, there is no substantial evidence to support its findings that petitioner interfered with any rights guaranteed by § 7 of the Act to its generating plant employees, or that it discouraged membership in the C. I. O. union and encouraged membership in the I. P. and L. Employees Protective Association (to which we shall refer as the Association), or that it discharged Elbreg and Collier because of their activity in support of the C. I. O. union.

While the evidence was by no means undisputed, we can not say under the recent rulings of the Supreme Court, that there was none of sufficient substance to support the following facts as found by the Board. In February, 1937, before any union was organized or attempted to be organized, the six condenser pit operators employed at one of the plants had decided to make a collective request relating to working conditions through the chief engineer at that plant. Before they did so, the engineer, Goodrich, learned of their decision and talked to them individually, telling them they were absolutely wrong to try to approach petitioner collectively, and that while it would confer with individual operators about working conditions, it would not meet with them as a group. Thereafter, the C. I. O. undertook to organize workers at the generating plants, and after an organizational meeting, a local was formed, and Collier and Elbreg were elected president and secretary in August, 1937. There is evidence, though disputed, that the management sought by inquiry and admonition to discourage enrollment in that union. Under the many rulings of the Supreme Court relating to the conclusiveness of the Board's findings, we are constrained to hold that there was evidence in support of the finding that petitioner interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by § 7 of the Act.

In December, 1937, petitioner's general manager sent two communications, the first addressed to department heads, and the second to Goodrich, superintendent of plants, calling for a general reduction in operating expenses, necessitated by failing business and the poor outlook for the future. He called for a reduction in personnel by not replacing employees who left, and by laying off employees wherever possible, stating that in such layoffs, the generating system as a whole was to be considered, and employees were to be considered on the basis of merits, efficiency, and length of service with the company. In response to this requirement of reduction in the personnel, about seventy employees were discharged between January 4 and March 30, 1938, including Collier and Elbreg who were discharged on January 5, 1938. Of this number only five were members of C. I. O., and the complaint as to the other three was dismissed on motion of respondent.

The Board found that Collier and Elbreg were discharged because of their activities in the union which by that time had ceased to function. Petitioner introduced what would seem to us convincing evidence to the contrary, were we triers of the facts. However, in view of the fact that the Board is permitted to draw its own inferences from all the facts, and (under the ruling in Labor Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368), may rely upon such inferences in the absence of direct evidence in support of its findings, in opposition to direct evidence to the contrary, we are not permitted to disturb the order based on the finding of the discriminatory discharges.

The pertinent statute provides that "the findings of the Board as to the facts, if supported by evidence, shall be conclusive." 29 U.S.C.A. § 160(e). The Supreme Court has held that the word "evidence" as here used means "substantial evidence," and "* * * is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Edison Co. v. Labor Board, 305 U.S. 197 at page 229, 59 S.Ct. 206, at page 217, 83 L.Ed. 126. The statute further provides that "the rules of evidence prevailing in courts of law or equity shall not be controlling." Section 10(b). The last cited case has this to say on that subject: "The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would...