Cudahy Packing Co. v. National Labor Relations Bd., 2009.

• Decision Date: 21 March 1941
• Docket Number: No. 2009.,2009.
• Citation: 118 F.2d 295
• Parties: CUDAHY PACKING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Tenth Circuit

118 F.2d 295 (1941)

CUDAHY PACKING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 2009.

Circuit Court of Appeals, Tenth Circuit.

January 30, 1941.

Rehearing Denied March 21, 1941.

J. O. Emerson, of Kansas City, Kan. (Thomas Creigh, of Chicago, Ill., and Fred Robertson and Edward M. Boddington, both of Kansas City, Kan., on the brief) for petitioner.

Chas. A. Graham, of Denver, Colo. (Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Joseph Friedman and Edward J. Creswell, all of Washington, D. C., Attys. for National Labor Relations Board, on the brief), for respondent.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

This proceeding comes here upon the petition of the Cudahy Packing Company¹ to review and set aside an order of the National Labor Relations Board² issued against the Company pursuant to § 10 (c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. In its answer to the petition the Board has requested enforcement of its order.

The Company is a Maine corporation, having its principal place of business and its executive offices in Chicago. It is engaged in the purchase and slaughter of livestock and the processing and marketing of meat and its by-products. One of its slaughtering and meat packing plants is located in Kansas City, Kansas.

On June 7, 1937, a petition was filed with the Regional Director of the Board by the United Packing House Workers, Local Industrial Union No. 194,³ alleging that a question affecting interstate commerce had arisen concerning the representation of employees of the Company at its Kansas City plant, and requesting an investigation and certification of representatives pursuant to § 9(c) of the National Labor Relations Act. On June 23, 1937, the Board ordered an investigation and directed the Regional Director to conduct such an investigation and to provide for an appropriate hearing upon due notice. Hearings were held at Kansas City, Missouri, on July 19, 20, 21 and 22, 1937. Leave was granted to the Packing House Workers Union⁴ of Kansas City to intervene. The Company filed its answer denying the jurisdiction of the Board asserting that interstate commerce was not affected.

On January 11, 1938, a charge of unfair labor practices was filed on behalf of the United. The Board, through its Regional Director, issued its complaint January 15, 1938, against the Company, alleging that it had and was engaged in unfair labor practices affecting commerce within the meaning of the act. The charges of unfair labor practices were that the Company had dominated and interfered with the formation and administration of PHWU and had contributed support thereto; that the Company by intimidation had prevented its employees from joining and continuing membership in United, and had coerced, urged and influenced them to join PHWU, in violation of their rights guaranteed by §§ 7 and 8 of the act.

The Company filed its answer denying the jurisdiction of the Board and the averments of unfair labor practices. PHWU intervened and filed its answer denying the allegations of the complaint of unfair labor practices with respect to its formation and administration. On February 1, 1938, the Board issued an order consolidating the two cases. Hearings were held on February 3, 4, 5, 7, 8, 9, 10, 11, 14, 15, and 17, 1938, before a trial examiner appointed by the Board. The Board, the Company, and PHWU were represented at these hearings by counsel and participated in the hearings. On February 8, 1938, permission was granted counsel for the Board to amend the complaint so as to charge the Company with unfair labor practices in the discharge of three employees.

The trial examiner filed an intermediate report May 13, 1938. He absolved the Company from the charge of unfair labor practices in the discharge of the three employees, but found that it had been engaged in unfair labor practices affecting commerce, and recommended that the Company cease and desist therefrom and take certain affirmative action to remedy the situation brought about by such practices. Objections were filed to the intermediate report by the Company and by PHWU. Oral argument was had before two members of the Board, and on August 3, 1939, further argument was heard by the Board upon the request of the Company.

The Board approved the intermediary findings of fact of the trial examiner and made findings of fact and conclusions of law. It found that the Company had dominated and interfered with the formation and administration of PHWU and had contributed support to it; that it had interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in § 7 of the act, and was therefore engaged in unfair labor practices within in the meaning of § 8 (1) of the act; that because of the domination exercised by the Company over it, PHWU could not serve the Company's employees as an effective bargaining agency. Based on these findings and conclusions, the Board issued its order directing the Company to:

1. Cease and Desist from:

(a) Dominating or interfering with the administration of PHWU or with the formation or administration of any other labor organization and from contributing support thereto;

(b) Recognizing PHWU as the representative and bargaining agency of the employees;

(c) Giving effect to any contract or arrangement with PHWU concerning wages, hours and working conditions;

(d) Interfering or coercing its employees in the exercise of their rights to self-organization into any labor organization.

2. Take the following affirmative action:

(a) Withdraw all recognition from PHWU as a representative or bargaining agency of any of its employees;

(b) Post notices in conspicuous places throughout the Kansas City, Kansas, plant and maintain such notices for a period of at least sixty days that it will cease and desist as required by the Board;

(c) Notify the Regional Director for the Seventeenth Region, in writing, within ten days from the date of this order, of the steps the respondent has taken to comply herewith.

The order dismissed the amended complaint insofar as it charged the Company with unfair labor practices in the discharge of the three employees. It further provided for an election to determine the bargaining agency of the Company's Kansas City plant to be taken by secret ballot and to be held at such time as the Board should in the future direct.

On November 10, 1939, Local Union No. 10 of the Packing House Workers Organization,⁵ affiliated with the Congress of Industrial Organization, asked to intervene and have its name substituted in place of United. The basis for this application was that the two were the same organization, United having changed its name to Local No. 10. The Company resisted the application and demanded a hearing thereon. No hearing was held by the Board, but after considering the application the Board granted it and the substitution was made.

Substitution of Local No. 10: It is urged that the Board was in error in permitting the intervention of Local No. 10 and the substitution of its name in the place of United in the proceedings, without granting the Company a hearing on such application. Local No. 10 filed a motion for intervention and substitution of name, supported by the affidavit of Elmer G. Williamson. The affidavit recited that in May, 1937, there was an organization of the employees in the Company's plant at Kansas City, known as United Packing House Workers; that on receipt of a charter from the Congress of Industrial Organization on June 21, 1937, its name was changed to the United Packing House Workers, Local Industrial Union No. 194; that on February 7, 1939, the name of the organization was changed to United Packing House Workers of America, Local Union No. 10, of the Packing House Workers Organization Committee, affiliated with the Congress of Industrial Organization, by which name it was then known; that the three named organizations were one and the same; that each was the successor to the other, the change being in name only. The affidavit recited that the affiant had been the president of each of the three organizations when the several changes were made.

The Company filed a written protest to the application for change of name; it filed no verified denial of the facts set out in the affidavit in support of the application. In fact, no positive, direct denial was made of the facts as set out in the affidavit. All that the Company's unverified written protest stated was that: "Said the Cudahy Packing Company represents in support of said protest and challenge that said movant is not even a labor organization, and if it should be found to bear any of the aspects of such an organization that it is an entirely different entity and organization from the one that has been connected and identified with the above entitled matters in said cases Nos. C-650 and R-208."

The only conclusion that can be reached from the record is that Local No. 10 was the same union as United. We fail to see wherein the Company was injured by the refusal of the Board to grant a hearing on the application for a substitution of the new name of the union.

Jurisdiction: It is urged that the Board is without jurisdiction because a labor dispute in the Company's Kansas City plant would not affect interstate commerce. The facts establish that the Company is engaged in the purchase and slaughter of livestock and the processing and marketing of meat products. Its activities include the refining of vegetable oils and the production and sale of shortening and cooking and salad oils; the manufacture and marketing of soaps and cleaning powders; the marketing of wool and tanned sheep skins; the purchase, packing and sale of eggs, poultry and cheese; the purchase of cream and butter and the manufacture and sale of butter, margarine and ice cream; the mining of rock salt; and the operation of brine...