Canyon Corporation v. National Labor Rel. Board

• Decision Date: 30 June 1942
• Docket Number: No. 12165.,12165.
• Parties: CANYON CORPORATION v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Eighth Circuit

128 F.2d 953 (1942)

CANYON CORPORATION v. NATIONAL LABOR RELATIONS BOARD.

No. 12165.

Circuit Court of Appeals, Eighth Circuit.

June 30, 1942.

Alex Rentto, of Deadwood, S. D. (Robert C. Hayes, of Deadwood, S. D., on the brief), for petitioner.

L. N. D. Wells, Jr., of St. Louis, Mo., Atty., National Labor Relations Board (Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, Gerhard P. Van Arkel, Asst. Gen. Counsel, Roman Beck and William J. Avrutis, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

Petitioner seeks review of an order entered against it under the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., and the Board requests enforcement of the order.

One of petitioner's contentions is that its activities are not a part of, nor do they affect, interstate commerce, and that it therefore is not subject to the Act. Petitioner's business is that of mining, refining, and selling gold bullion. Its properties, plant, and office are located at Maitland, in the Black Hills, near Deadwood, South Dakota. It produces approximately $500,000 worth of bullion annually, which it ships by railway express from Deadwood, South Dakota, and sells to the United States mint at Denver, Colorado. The argument made here is that, under the Gold Reserve Act of 1934, 48 Stat. 337, 31 U.S.C.A. § 440 et seq., gold is no longer actually an article of trade or commerce,¹ and that its production and interstate shipment cannot therefore legitimately be regarded as "affecting commerce", within the meaning of the National Labor Relations Act.

Such a construction of the Act would be a strained one and out of harmony with the fundamental policy which Congress was attempting to achieve in the general field of industrial relations. The production and shipment of gold bullion by a mine and refinery in one state, for the purpose of selling it to a United States mint in another state, is, in our opinion, plainly and literally "commerce" within the definition of section 2(6) of the Act,² even though the United States may be the only customer to which such bullion can legally be sold.³ As a matter of fact, however, the Treasury Department has, by appropriate regulations, authorized the sale of refined gold on the part of producers, under proper licenses, to certain private users throughout the country for industrial, professional and artistic purposes.⁴ In addition to all of the foregoing, the record shows also that petitioner annually sells and ships approximately $5,000 worth of slag from its plant to a smelting company at East Helena, Montana, and further that, out of a total of $134,000 worth of materials and supplies purchased annually for use in petitioner's operations, $64,000 worth are transported to its plant from outside the state. The Board considered all of these facts together, as it had a right to do, and from the whole concluded that petitioner's operations clearly affected commerce within the meaning of the Act, and that a labor dispute at its plant, interrupting its operations, would tend to hinder and obstruct commerce and the free flow thereof. This finding and conclusion were not only warranted, but we think compelled, on the facts and under the law.⁵

Petitioner's next contention is that there is no substantial evidence to support the Board's findings that it had interfered with, restrained and coerced its employees in the exercise of the rights guaranteed to them under the Act, and that it had discriminatorily discharged two employees, whom the Board ordered reinstated with back pay. On the first point, there was evidence from which the Board could infer, and find as a fact, general hostility on the part of petitioner to union organization; efforts to discourage such organization in the plant; attempts by a foreman to persuade men under him to withdraw from the union; threats to shut down the mine if it was unionized; efforts to circumvent and neutralize union organization by "hand-picking" and dealing with a selected group of employees on the question that had prompted union entry into the plant; attempts to influence the result of the election which was to be held at the plant, by offers on the part of the mine superintendent to bet with employees that the union would lose the election; surveillance of and report to the employer on a union meeting by a chief clerk in the vice-president's office, with no attempt on the part of such employee at the hearing to explain the incident; and other significant events and circumstances also which are set out in the Board's decision and order, 33 N.L.R.B. 163, but which need not be detailed here. Petitioner attempts to discuss these incidents individually and in isolation, in order to minimize the force of their implication, but the Board was not thus required to weigh the situation. It had a right to consider the facts and incidents shown by the testimony, not simply in isolation, but cumulatively and compositely as well, in arriving at its inferences and conclusions. Thus considered, the Board was privileged to hold, as it did, that petitioner had interfered with, restrained and coerced its employees in the exercise of their right of self-organization, in violation of section 8(1) of the Act.⁶

Petitioner argues that the Board could not properly give consideration to evidence of violations occurring prior to July 22, 1940, because the agreement which it had entered into with the Board on that date recognized the right of its employees to organize and agreed not to interfere with that right and so had wiped the slate clean up to that time. An agreement by an employer to refrain from certain unfair labor practices, which has not been observed, does not preclude consideration by the Board of the employer's conduct prior to the agreement, in connection with subsequent unfair practices, in determining whether the employer has been guilty of violating the provisions of the Act.⁷ Here, the Board was justified in finding that petitioner had "continued its unfair labor practices since the settlement (of July 22, 1940), and in disregard of its specific terms", and these previous unfair practices were therefore entitled to be considered in connection with petitioner's subsequent conduct on the question of the Board's right to enter a cease and desist order against further violations of the Act.

As to the two employees whom the Board ordered reinstated with back pay, petitioner argues that the evidence shows conclusively that these employees were discharged for neglect of duty in the one case and for insubordination and refusal to do assigned work in the other. Doubtless the Board might have found the facts to be as petitioner contends, but on the whole record it was also at liberty to find that the discharges were made because of union affiliation and activity. It can serve no useful purpose to review the evidence here. The situation is clearly within the scope of the recent decision in N. L. R. B. v. Nevada Consolidated Copper Corporation, 62 S.Ct. 960, 961, 86 L.Ed. ___, where the Supreme Court, in reversing 10 Cir., 122 F.2d 587, took occasion to re-emphasize: "We have repeatedly held that Congress, by providing, § 10(c), (e) and (f), of the National Labor Relations Act, that the Board's findings `as to the facts, if supported by evidence, shall be conclusive', precludes the courts from weighing evidence in reviewing the Board's orders, and if the findings of the Board are supported by evidence the courts are not free to set them aside even...