National Labor Rel. Board v. Cowell Portland Cement Co.

Decision Date23 April 1945
Docket NumberNo. 10374.,10374.
Citation148 F.2d 237
PartiesNATIONAL LABOR RELATIONS BOARD v. COWELL PORTLAND CEMENT CO.
CourtU.S. Court of Appeals — Ninth Circuit

Robert B. Watts, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, and Roman Beck and Marcel Mallet-Prevost, Attys., National Labor Relations Board, all of Washington, D. C., for petitioner.

Max Thelen, Gordon Johnson, and Thelen, Marrin, Johnson & Bridges, all of San Francisco, Cal., for respondent Cowell Portland Cement Co.

Charles J. Janigian, of San Francisco, Cal., for United Cement, Lime and Gypsum Workers.

Before GARRECHT, MATHEWS, and STEPHENS, Circuit Judges.

MATHEWS, Circuit Judge.

Respondent, Cowell Portland Cement Company, a corporation, was at all pertinent times engaged in the business of manufacturing cement at a plant located at Cowell, Contra Costa County, California. It also operated a ranch called Rancho de los Cowell. On and after May 27, 1937, some of respondent's employees were members of International Union, Mine, Mill & Smelter Workers of America, Local No. 356, a labor organization hereafter called Local 356. Between August 26, 1937, and October 28, 1939, some of respondent's employees were members of Lime & Cement Employees Union of Contra Costa County, No. 21074, a labor organization hereafter called Local 21074. On and after October 28, 1939, some of respondent's employees were members of United Cement, Lime & Gypsum Workers International Union, Local No. 86, a labor organization hereafter called Local 86.

On July 17, 1937, Local 356 filed with petitioner, the National Labor Relations Board, a charge that respondent had engaged in and was engaging in unfair labor practices listed in § 8 of the National Labor Relations Act, 29 U.S.C.A. § 158. On August 9, 1937, Local 356 filed a supplemental charge. On August 20, 1937, the Board issued a complaint and caused it to be served on respondent. Respondent answered the complaint on September 24, 1937. On October 2, 1937, Local 356 filed an amended charge. On October 4, 1937, the Board issued an amended complaint which respondent answered on October 6, 1937. On October 7, 1937, the Board issued a second amended complaint which respondent answered on October 11, 1937. A hearing was had, and on September 6, 1938, the Board1 issued an order and caused it to be served on respondent. On February 6, 1939, the Board petitioned this court for enforcement of the order of September 6, 1938. In this court, Local 21074 was permitted to, and did, intervene. Respondent and Local 21074 answered the petition and prayed that the order of September 6, 1938, be set aside. A hearing was had, and on November 28, 1939, this court2 remanded the proceeding to the Board for such further action as it might deem proper.

On February 16, 1940, the Board3 set aside the order of September 6, 1938. On May 8, 1940, Local 356 filed a second amended charge. On May 11, 1940, the Board issued a third amended complaint, hereafter called the complaint, and caused it to be served on respondent and Local 86. Respondent answered the complaint on July 27, 1940. Local 86 answered it on July 30, 1940. A hearing was had, and on April 18, 1942, the Board4 issued an order and caused it to be served on respondent. On February 23, 1943, the Board petitioned this Court for enforcement of the order of April 18, 1942, hereafter called the order. Answering the petition, respondent and Local 86 pray that the order be set aside.

The order was based on the findings and conclusions hereinafter discussed.

The Board found that on July 16, 1937, a majority of respondent's employees5 were members of Local 356 and had designated it as their representative for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment and other conditions of employment;6 that on July 16, 1937, and at all times thereafter, Local 356 was, for the purposes mentioned, the exclusive representative of respondent's employees; and that on July 16, 1937, and at all times thereafter, respondent refused to bargain collectively with Local 356 as such representative. These findings are supported by substantial evidence and hence are conclusive.7

The Board found that on July 16, 1937, respondent shut down its plant and discharged 172 employees — Manuel Gonzales and 171 employees (including J. A. Burt, H. Carter, W. Manos and L. Marseu) listed in Appendix A attached to the order. Except as to Burt, Carter, Manos and Marseu, this finding is supported by substantial evidence and hence is conclusive. The evidence shows that Burt, Carter, Manos and Marseu were not discharged on July 16, 1937, but worked until August 26, 1937.8

The Board found that respondent's purpose in shutting down its plant and discharging employees on July 16, 1937, was to compel the discharged employees to become members of Local 21074 (then about to be formed)9 and to compel those who were members of Local 356 to renounce such membership; that on July 16, 1937, and at all times thereafter, respondent refused to reinstate the discharged employees unless and until they became members of Local 21074 and renounced their membership in Local 356; that respondent procured the formation of Local 21074, urged its employees to join Local 21074 and not to join Local 356, recognized Local 21074 as the representative of its employees for the purposes of collective bargaining, made closed shop agreements with Local 2107410 on August 27, 1937, and October 23, 1937, and gave effect thereto; that Local 86 was chartered on October 28, 1939; that the members, officers, books, records and property of Local 21074 thereupon became the members, officers, books, records and property of Local 86; that Local 86 thus became the successor of Local 21074; and that respondent recognized Local 86 as the representative of its employees for the purposes of collective bargaining, made a closed shop agreement with Local 8611 on April 10, 1940, and gave effect thereto. These findings are supported by substantial evidence and hence are conclusive.

The Board correctly concluded that, in refusing to bargain collectively with Local 356 as the representative of its employees, shutting down its plant and discharging employees for the purpose of compelling them to become members of Local 21074 and to renounce their membership in Local 356, refusing to reinstate discharged employees unless and until they became members of Local 21074, procuring the formation of Local 21074, urging employees to join Local 21074 and not to join Local 356, recognizing Local 21074 and Local 86 as the representatives of its employees, and making and giving effect to the closed shop agreements of August 27, 1937, October 23, 1937, and April 10, 1940, respondent interfered with, restrained and coerced employees in the exercise of rights guaranteed in § 7 of the Act, 29 U.S.C.A. § 157,12 and thus engaged in an unfair labor practice listed in § 8(1) of the Act, 29 U.S.C.A. § 158(1);13 that, in shutting down its plant and discharging employees for the purpose of compelling them to become members of Local 21074 and to renounce their membership in Local 356, refusing to reinstate discharged employees unless and until they become members of Local 21074, and making and giving effect to the closed shop agreements of August 27, 1937, October 23, 1937, and April 10, 1940, respondent discriminated in regard to hire and tenure of employment of its employees, thereby encouraged membership in Local 21074 and Local 86 and discouraged membership in Local 356, and thus engaged in an unfair labor practice listed in § 8(3) of the Act, 29 U.S.C.A. § 158(3);14 and that, in refusing to bargain collectively with Local 356 as the representative of its employees, respondent engaged in an unfair labor practice listed in § 8(5) of the Act, 29 U.S.C.A. § 158(5).15

The Board found that the unfair labor practices so engaged in by respondent tended to lead to labor disputes burdening and obstructing commerce16 and the free flow of commerce and therefore were unfair labor practices affecting commerce.17 This finding is supported by substantial evidence and hence is conclusive.

The order requires respondent to cease and desist from its unfair labor practices and to take certain affirmative action.

Respondent says that it "withdrew" from commerce on or before March 1, 1940, and was not thereafter engaged in commerce. It therefore contends that it was not subject to the Board's jurisdiction after March 1, 1940, and that therefore the Board had no jurisdiction to issue the complaint on May 11, 1940, or to issue the order on April 18, 1942. These contentions assume that, to be subject to the Board's jurisdiction, an employer must be engaged in commerce. The assumption is incorrect.18 Every employer who has engaged in or is engaging in any unfair labor practice affecting commerce is subject to the Board's jurisdiction,19 regardless of whether or not such employer is engaged in commerce.20 In this case, it was charged and found, and the finding is supported by substantial evidence, that respondent engaged in unfair labor practices affecting commerce on July 16, 1937, and continuously thereafter. Therefore the Board had jurisdiction to issue the complaint on May 11, 1940, and to issue the order on April 18, 1942, and had such jurisdiction despite the fact, if it be a fact, that respondent was not engaged in commerce after March 1, 1940.

In support of its contention that the Board had no jurisdiction to issue the order on April 18, 1942, respondent cites Chamber of Commerce v. Federal Trade Commission, 8 Cir., 13 F.2d 673, and United Corporation v. Federal Trade Commission, 4 Cir., 110 F.2d 473. These cases did not arise under the National Labor Relations Act, but arose under the Federal Trade Commission Act,21 and hence are not in point.

Respondent says "There is neither evidence nor...

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