National Labor R. Board v. Idaho-Maryland M. Corp.

• Decision Date: 19 July 1938
• Docket Number: No. 8788.,8788.
• Citation: 98 F.2d 129
• Parties: NATIONAL LABOR RELATIONS BOARD v. IDAHO-MARYLAND MINES CORPORATION.
• Court: U.S. Court of Appeals — Ninth Circuit

98 F.2d 129 (1938)

NATIONAL LABOR RELATIONS BOARD v. IDAHO-MARYLAND MINES CORPORATION.

No. 8788.

Circuit Court of Appeals, Ninth Circuit.

July 19, 1938.

Charles Fahy, Gen. Counsel, NLRB, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, H. Gardner Ingraham, and Samuel Edes, Attys., NLRB, all of Washington, D. C., and John T. McTernan, Regional Atty., NLRB, of San Francisco, Cal., for petitioner.

Charles W. Slack and Edgar T. Zook, both of San Francisco, Cal., for respondent.

Robert M. Searls, of San Francisco, Cal., amicus curiae for California Metal and Mineral Producers Ass'n.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

MATHEWS, Circuit Judge.

The National Labor Relations Board has petitioned this court for enforcement of the Board's order of January 10, 1938, requiring respondent, Idaho-Maryland Mines Corporation, to cease and desist from certain unfair labor practices found by the Board to have been engaged in by respondent, and to take certain affirmative action. Respondent moves to dismiss the petition, on the ground that the Board had no jurisdiction to issue the order.

Whatever jurisdiction the Board has in such matters is conferred by § 10 of the National Labor Relations Act (29 U.S.C.A. § 160).¹ Section 10 does not deal with, or empower the Board to deal with, or to issue orders concerning, unfair labor practices in general. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 31, 57 S.Ct. 615, 621, 81 L.Ed. 893, 108 A.L.R. 1352. The Board's jurisdiction extends only to unfair labor practices "affecting commerce." The "commerce" referred to is defined in § 2 of the Act (29 U.S.C.A. § 152):

"The term `commerce' means trade, traffic, commerce, transportation, or communication among the several States, or between the District of Columbia or any Territory of the United States and any State or other Territory, or between any foreign country and any State, Territory, or the District of Columbia, or within the District of Columbia or any Territory, or between points in the same State but through any other State or any Territory or the District of Columbia or any foreign country."

The "commerce" thus defined (aside from that in a Territory or the District of Columbia) is "interstate and foreign commerce in the constitutional sense."² National Labor Relations Board v. Jones & Laughlin Steel Corp., supra (page 621). Section 2 also defines the term "affecting commerce":

"The term `affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce."

Unfair labor practices found by the Board to have been engaged in by respondent were: (1) Interfering with, restraining and coercing respondent's employees in the exercise of their right to self-organization, their right to form, join or assist labor organizations, their right to bargain collectively through representatives of their own choosing, and their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; (2) dominating, interfering with the administration of, and contributing support to, a labor organization of which some of respondent's employees were members; and (3) discouraging membership in another labor organization, by discrimination in regard to hire and tenure of respondent's employees.

The question is whether these unfair labor practices were unfair labor practices "affecting commerce", within the meaning of § 2, supra.

Facts concerning which no dispute exists are as follows:

Respondent was at all pertinent times, and is now, engaged in the business of mining gold and silver at Grass Valley, California, and Forbestown, California. All employees who were or could have been affected by respondent's labor practices were employed in said business. Said business was and is conducted wholly and exclusively within the State of California.

Respondent's supplies and equipment are purchased by it in the State of California. Some, however, though purchased in California, originate elsewhere. Purchases by respondent of supplies and equipment manufactured outside the State amount to approximately $125,000 annually.

Respondent does no smelting or refining. Its product is a natural alloy of gold and silver. Respondent transports the major portion of its product by its own airplanes to San Francisco, California, and there sells and delivers it to the United States mint. It sells the rest of its product to a refinery at Selby, California, which refines such product, pays respondent the current Government price therefor, less refining charges, and, in turn, sells the refined gold and silver to the San Francisco mint. Respondent has not, since passage of the Gold Reserve Act of 1934,³ shipped or sold any of its product to anyone except the San Francisco mint and the refinery at Selby.

In 1936 respondent produced and sold to the San Francisco mint, in conformity with Federal regulations, 95,756 ounces of gold and 29,238 ounces of silver, receiving in payment for the gold $3,351,470.18, and for the silver $22,680.54. From January 1, 1937, to April 30, 1937, respondent produced and sold to the San Francisco mint 34,998 ounces of gold and 10,919 ounces of silver, receiving in payment for the gold $1,224,930, and for the silver $8,407.

Upon receipt by the mint, respondent's product is assayed and paid for at the current Government price, less refining charges. For about 30 days respondent's product is kept segregated by the mint. Thereafter it is refined, the gold and silver are separated, and each is transformed into bars. In this process respondent's product is commingled with that of various other producers, and its identity is destroyed. Under the present policy of the Treasury Department, all bars of refined domestic gold, as they accumulate at the San Francisco mint, are from time to time shipped to the United States mint at Denver, Colorado. In addition, unrefined gold and silver bars are also shipped in substantial quantities to the Denver mint.

The Board found as a fact that the unfair labor practices engaged in by respondent had a close, intimate and substantial relation to interstate and foreign commerce and tended to lead to labor...