National Labor Relations Bd. v. Carlisle Lumber Co.

• Decision Date: 15 October 1938
• Docket Number: No. 8361.,8361.
• Citation: 99 F.2d 533
• Parties: NATIONAL LABOR RELATIONS BOARD v. CARLISLE LUMBER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

99 F.2d 533 (1938)

NATIONAL LABOR RELATIONS BOARD v. CARLISLE LUMBER CO.

No. 8361.

Circuit Court of Appeals, Ninth Circuit.

October 15, 1938.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, A. Norman Somers, Senior Litigation Atty., and Philip Levy, Atty., National Labor Relations Board, all of Washington, D. C., for petitioner.

Theodore B. Bruener, of Aberdeen, Wash., and Charles H. Paul, of Seattle, Wash., for Carlisle Lumber Co.

Before WILBUR, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

The prior decision herein (9 Cir., 94 F.2d 138, certiorari denied 58 S.Ct. 1045, 82 L.Ed. 1539, May 23, 1938) sets forth the facts and nature of the proceeding. At that time we made an order enforcing the order of the Board, except that part requiring back pay. Supplemental orders regarding back pay as suggested in our opinion have been made by the Board, and their enforcement is now sought.

On May 3, 1935, 263 of respondent's employees went on strike. On June 25, 1935, respondent discharged the employees on strike. On July 5, 1935, the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., became effective. Thereafter respondent engaged in practices, which were alleged to be unfair labor practices. On August 5, 1935, respondent resumed operations with 174 employees. Of that number 65 were new employees, and of the 109 old employees, 22 were former members of the union.

The charge that respondent had engaged in unfair labor practices was filed, and the complaint issued on January 16, 1936. Hearings began on April 7, 1936, and on the following day, respondent filed an answer. The Board made its decision, findings, conclusions and order on September 26, 1936. On October 19, 1936, the Board's petition for enforcement was filed.

Respondent contended that the act was not applicable to it because it was not engaged in interstate commerce. We held that the test as to the applicability of the act was whether or not the unfair labor practices directly affected interstate commerce; that respondent's unfair labor practices did have such an effect, and that therefore the act was not inapplicable for the reason urged (page 144). Respondent seems now to concede that our holding was correct in view of Santa Cruz Packing Company v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L. Ed. 954, March 28, 1938.

Respondent also contended that the act was not applicable because the strike had terminated the relation of employer and employee. We held that a strike, independently of the act in question, did not terminate such relationship,¹ and that the act so provided (pages 144, 145).²

Respondent further contended that the act did not apply because it had discharged all employees prior to the effective date of the act, and since the act was directed to unfair labor practices by an employer to his or its employees, respondent had not violated the act because it had no employees. We held that Congress had declared the men to be employees because their work had ceased as a consequence of a current labor dispute by § 2(3) of the act, 29 U.S.C.A. § 152(3), and that the right to discharge was not a vested right³ but subject to the power of Congress to regulate interstate and foreign commerce (pages 145, 146). Compare: Appalachian Electric Power Co. v. National Labor R. Board, 4 Cir., 93 F.2d 985.

The Board ordered respondent to "Make whole its employees who were employed on May 3, 1935, who struck on that date or thereafter, and who were members of the union on July 29, 1935, the day of the respondent's first act of discrimination against all of the members of the union, for any losses of pay they have suffered by reason of such discrimination, by payment to each of them a sum equal to that which each would normally have earned as wages during the period from July 29, 1935 to the date of respondent's offer of reinstatement, less the amount earned by each of them during such period". With respect to respondent's contention that such provision was arbitrary and capricious, we said that the "act authorizes the Board to make such an order * * * and the provision in the act is constitutional" (page 146). However, because the names of the employees and the amounts to which they were entitled, were not specified, we permitted the Board to adduce additional evidence and to find the amounts due (pages 146, 147).

Hearings were held on the 1st, 2nd, 3rd and 4th of February, 1938, before a trial examiner. Respondent participated therein, was given full opportunity to cross-examine, and adduced evidence. The trial examiner then certified the evidence directly to the Board, and made no intermediate report as specified in § 32 of the Board's rules and regulations. On March 3, 1938, the Board made its supplemental decision and order. It found that "the employees named in Schedule A were employed by the respondent on May 3, 1935, struck on that date or thereafter, were members of the Union on July 29, 1935, and had not obtained regular and substantially equivalent employment elsewhere at the time of our order on September 26, 1936" and that the "amount due for the period up to February 1, 1938 * * * is that set forth in Schedule A after his name" and ordered payment thereof. The date of February 1, 1938, was fixed because respondent had not offered reinstatement to employees. Schedule A, attached to the Board's order of March 3, 1938, contains the names of 134 men, and amounts set after their names, totalling approximately $175,000.

The trial examiner took further evidence on April 18, and 19, 1938. Respondent took part in the hearing. The trial examiner then certified the evidence to the Board. On May 21, 1938, the Board made a second supplemental decision and order concerning a class of employees who "had apparently obtained regular and substantially equivalent employment". It found that certain of such employees "indicated their desire to return to their former positions with the respondent company. The evidence also indicates that they have lost valuable seniority rights, in some cases as much as ten years, which they would have retained had they continued in the employ of the respondent.

"We find, therefore, that these individuals did not have regular and substantially equivalent employment at the time of the Board's order of September 26, 1936."

It ordered payment of back pay, totalling about $9,000 to 12 men. An amendment to the latter order was made on June 9, 1938, inserting the name of one further employee with back pay in the approximate sum of $1,000.

Respondent was ordered to reinstate a total of 147 men and to give them back pay totalling approximately $185,000. Under the order the largest sum fixed as the amount of back pay was $3,080.16, and the smallest was $17.59. The following table shows groups consisting of amounts paid, and the number of men in each group:

                      Group                 No. of Men
                      To $100                    5
                    $100-$500                   30
                    $500-$1,000                 41
                  $1,000-$1,500                 37
                  $1,500-$2,000                 18
                  $2,000-$2,500                  8
                  $2,500-$3,000                  6
                    Over $3,000                  2
                

The case is again before us on the Board's application to enforce these supplemental orders.

The main, if not the only purpose of the act, is to prevent obstructions to interstate and foreign commerce. It was legislatively determined that some of the strikes, which are obstructions to such commerce, were caused directly or indirectly by certain practices frequently engaged in by an employer. Such practices were listed and designated as unfair labor practices (§ 8, 29 U.S.C.A. § 158). With the exception of § 8(2), 29 U.S.C.A. § 158(2) all the unfair labor practices spring from conduct by an employer to his "employees" (as defined in the act) only. Section 8(2), although not mentioning "employees" was directed to "company" unions. See: Senate Committee on Education and Labor Report No. 573, 74th Congress, p. 9; House Committee on Labor Report No. 972, 74th Congress, p. 15. I think we may therefore assume that § 8 provides as "unfair" the conduct of an employer toward his "employees" as described in that section.

The Board is empowered to prevent any person from engaging in such practices. It may do so by an order requiring such person to cease and desist such practices, but it is not limited to such an order, for it may require such person "to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act chapter". Section 10(c), 29 U.S.C.A. § 160(c). Regarding that provision, House Committee on Labor Report No. 972, 74th Congress, p. 21, states:

"* * * The most frequent form of affirmative action required in cases of this type is specifically provided for, i. e., the reinstatement of employees with or without back pay, as the circumstances dictate. No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern, by their nature and consequences, present or potential; the proceeding is in the name of the Board, upon the Board's formal complaint. The form of injunctive and affirmative order is necessary to effectuate the purpose of the bill to remove obstructions to interstate commerce which are by the law declared to be detrimental to the public weal."

A condition of reinstatement is that the employer must have been guilty of an unfair labor practice. Nat. Labor Relations Board v. Mackay Radio & Tel. Co., supra. Another condition is that the affirmative action must be such as will effectuate the policies of the act. The time when it is to be determined whether or not the affirmative action will effectuate such policies is the time when the Board makes its order, for what might effectuate such policies at a previous time might not do so at the time of the order. For example,...