Clover Fork Coal Co. v. National Labor Relations Bd., 7897.

• Citation: 97 F.2d 331
• Decision Date: 08 June 1938
• Docket Number: No. 7897.,7897.
• Parties: CLOVER FORK COAL CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

97 F.2d 331 (1938)

CLOVER FORK COAL CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 7897.

Circuit Court of Appeals, Sixth Circuit.

June 8, 1938.

Cleon K. Calvert, of Pineville, Ky., and Forney Johnston, of Birmingham, Ala. (Cleon K. Calvert, of Pineville, Ky., on the brief), for petitioner.

D. B. McCalmont, Jr., of Washington, D. C. (Charles Fahy, of Washington, D. C., and Philip G. Phillips and Leonard Shore, both of Cincinnati, Ohio, on the brief), for respondent.

Before HICKS, SIMONS and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

The petitioner, a Kentucky corporation engaged exclusively in coal mining at Kitts, Harlan County, Kentucky, seeks to set aside a cease and desist order of the National Labor Relations Board requiring it to discontinue unfair labor practices and to reinstate with compensation employees discharged for union activities. The Board answered, and, alleging noncompliance with its order, petitioned for its enforcement.

The petitioner has 2,000 acres of land in Harlan County, Kentucky, of which 1,250 acres are coal land. It owns and operates its coal mine and equipment thereon, the tipple which separates coal into different sizes, and the houses in which most of its employees live. It produces about 300,000 tons of coal a year, which it delivers from its mine tracks and tipple to cars of the Louisville & Nashville Railroad, by which the bulk of it is transported in interstate commerce to other states, though some is utilized by the railroad in its Kentucky operations. All of the coal produced by the petitioner is sold to Walter Bledsoe & Company, a national coal sales company, having its principal office at Terre Haute, Indiana, and maintaining branch offices in other states. The petitioner has an oral contract with Bledsoe's Cincinnati office for the exclusive sale to it of its coal. Shipping instructions are received by mail or telephone from the Cincinnati office and settlements are made monthly by Bledsoe on the basis of market price less 8%. The coal is sold to Bledsoe f. o. b. the mine. The petitioner employs in its mining, sorting and loading operations, about 240 men, none of whom are employed in interstate transportation. When the coal is loaded into railroad gondolas at the tipple title thereto passes to Bledsoe, by whom it is shipped to destination at its risk and expense.

Efforts to unionize the petitioner's employees made by a local union affiliated with the United Mine Workers of America met with firm resistance from the petitioner and many of its non-union employees, culminating in the alleged discharge of some sixty men who had joined the union. Upon charges of unfair labor practices made to the Board it issued its complaint against the petitioner, alleging unfair labor practices in violation of § 8, (1), (2) and (3), and § 2, (6) and (7) of the National Labor Relations Act, 29 U.S.C.A. §§ 158 (1-3), 152(6, 7), and upon full hearing before the trial examiner, reviewed by the Board, the cease and desist order issued.

Though denying engaging in unfair labor practices, and discharging employees because of union affiliation, and asserting that the eighteen or twenty of its employees only who had been expelled from its camp by its non-union men because they refused to work with union men had been driven away as a result of a strike that was purely spontaneous and not incited by it, the principal ground upon which we are asked to set aside the Board's order is that the petitioner is not subject in its purely local activity to the jurisdiction of the Board, since the petitioner is not engaged in interstate commerce, its operations do not affect such commerce, and its entire activity is carried on within the State of Kentucky. All of its employees, it asserts, are wholly engaged in an occupation local to and within that state, and neither it nor they have ever been engaged in any activity connected with or affecting commerce or the flow or stream of such commerce.

Following the decisions in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, and Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160, it was thought in this and other circuits that the National Labor Relations Act, 29 U.S. C.A. § 151 et seq., did not extend the jurisdiction of the Board thereby created to activities which were local and affected commerce, if at all, indirectly. National Labor Relations Board v. Jones & Laughlin Steel Corp., 5 Cir., 83 F.2d 998; Fruehauf Trailer Co. v. National Labor Relations Board, 6 Cir., 85 F.2d 391; and National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 2 Cir., 85 F.2d 1. However, in a series of cases, of which 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, contains the dominating argument, the several Courts of Appeals were reversed, and it was held that (page 625) "The close and intimate effect which brings the subject within the reach of Federal power may be due to activities in relation to productive industry although the industry when separately viewed is local," and in the language of the first Coronado Case, United Mine Workers v. Coronado Co., 259 U.S. 344, 408, 42 S.Ct. 570, 582, 66 L.Ed. 975, 27 A.L.R. 762, that "If Congress deems certain recurring practices though not really part of interstate commerce, likely to obstruct, restrain or burden it, it has the power to subject them to national supervision and restraint," and that the Schechter and Carter Cases do not hold otherwise.

The rationale of the Jones & Laughlin, Fruehauf Trailer, and Friedman-Marks Clothing Company Cases was not that there was apparent in each of them a continuous flow of interstate commerce through the state, and that they were thereby to be distinguished from the Schechter Case, where goods transported in interstate commerce had come to rest within the state, and from the Carter Case, where local products had not yet entered the stream of interstate commerce, for as more fully explained in the recent case of Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 58 S.Ct. 656, 82 L. Ed. ___, decided March 28, 1938, the metaphor of a stream of commerce while it may illustrate the protective power which Congress may exercise is not exclusive, and the congressional authority is not limited to...