National Labor Relations Bd. v. Central Missouri Tel. Co., 483

• Decision Date: 27 November 1940
• Docket Number: No. 483,483
• Citation: 115 F.2d 563
• Parties: NATIONAL LABOR RELATIONS BOARD v. CENTRAL MISSOURI TELEPHONE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

115 F.2d 563 (1940)

NATIONAL LABOR RELATIONS BOARD v. CENTRAL MISSOURI TELEPHONE CO.

No. 483, Original.

Circuit Court of Appeals, Eighth Circuit.

November 27, 1940.

L. N. D. Wells, Jr., Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, and Bertram Edises and Malcolm S. Mason, all of Washington, D. C., Attys., National Labor Relations Board, on the brief), for petitioner.

Charles K. Hackler, of Warrensburg, Mo., for respondent.

Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge.

THOMAS, Circuit Judge.

The National Labor Relations Board has filed a petition in this court praying for the enforcement of the Board's order of October 2, 1939, directed to the respondent, Central Missouri Telephone Company. The respondent moves to dismiss the petition on the ground that the Board lacked jurisdiction to issue the order.

The respondent is a Missouri public utility corporation engaged in the business of owning and operating a number of local telephone exchanges in the state of Missouri. Upon charges duly filed by the International Brotherhood of Electrical Workers, Local Union B-1107, affiliated with the American Federation of Labor, the Board issued its complaint against respondent alleging that respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of section 8(1), (3), and (5), and section 2(6), and (7) of the National Labor Relations Act, c. 372, § 1, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.

The respondent answered denying the alleged unfair labor practices and stating affirmatively that its business and its relations with its employees are matters exclusively of local and intrastate concern and that its activities and particularly its labor relations do not affect commerce within the meaning of section 10(a) and section 2(6), and (7) of the Act. At the close of the hearing the respondent moved to dismiss the proceedings for want of jurisdiction. The trial examiner denied the motion and filed his intermediate report finding the respondent guilty of unfair labor practices affecting commerce as charged in the complaint.

Thereafter the respondent and the Board agreed upon a stipulation of the main facts relative to the question of jurisdiction. The respondent, relying solely on this issue, waived its right to make exceptions to the report of the trial examiner, waived the making of findings of fact or conclusions of law by the Board, and consented that the Board issue a decision and order based upon the entire record including the stipulation.

The order of the Board directs that respondent (1) cease and desist from (a) interfering with its employees in the exercise of their right of self-organization and collective bargaining, (b) discouraging membership in Local Union B-1107, International Brotherhood of Electrical Workers, or any other labor organization, (c) refusing to bargain collectively with the Union as the representative of respondent's plant department employees, and (2) take the following affirmative action, (a) upon request, bargain collectively with the Union as the exclusive representative of respondent's plant department employees, and (b) post appropriate notices. The Board seeks enforcement of the affirmative provisions of the order. The single question to be determined is that of jurisdiction.

The Board made findings of fact relative only to the jurisdictional question raised by the respondent. On this issue the findings, stipulations and the uncontroverted record disclose in brief the following facts: The respondent is engaged in the business of using and licensing others to use telephones and other apparatuses and appliances for the transmission of intelligence by electricity, and for such purposes constructing, owning, maintaining, and operating public and private telephone lines, central offices, and district exchanges. Twenty-four of the twenty-seven exchanges owned and operated by respondent are located in sections of Missouri contiguous with one another. The remaining three exchanges are located in a section of Missouri about 500 miles distant from the general area served by the other twenty-four. Approximately three-fourths of the twenty-seven exchanges are connected with one another by a network of wires and toll lines operated by the respondent. None of its lines extend beyond the limits of the state of Missouri.

Pursuant to sections 4924-4926, Rev. Stat. of Mo.1929, Mo.St.Ann. §§ 4924-4926, pp. 2239, 2240, 2245, and under an agreement with the Southwestern Bell Telephone Company, the switchboards of respondent in twenty-four of the twenty-seven towns served by it are connected with the lines of the Bell company for the purpose of effecting the transmission of messages destined for delivery at points in Missouri not on the respondent's lines and at points outside the state of Missouri. Messages destined for interstate and foreign delivery originating on the lines of respondent are routed over toll lines owned and operated by the Bell company and thence over the lines of the Bell system or those of other telephone companies. Whenever a long distance call is placed in any of the twenty-four towns in which respondent's switchboards are connected with the lines of the Bell company the operator of respondent makes the wire connection with the Bell line and thereafter the call is handled by employees of the Bell system. Incoming calls are handled in the same manner.

Interstate messages originating or received over respondent's lines amount to a relatively small percent of the total messages transmitted by respondent in any one year. The revenue to respondent from this source, while substantial, is but a small portion of respondent's gross operating revenue each year.

The foregoing facts are all that need be considered in determining the jurisdictional question here presented, but additional facts found by the Board may be noted. The respondent maintains a local office at Warrensburg, Missouri, and general offices in Newton, Iowa. With the exception of director's qualifying shares, all of the stock of the respondent is owned by Investors Telephone Company of Chicago, Illinois, a Delaware Corporation, which is the sole owner of several telephone companies having their general offices at Newton. During the years 1936, 1937, and 1938, the respondent purchased equipment and materials valued at $25,193.66, $32,689.83, and $26,766.35, respectively, substantially all of which were shipped from points outside the state of Missouri. During the same years the respondent's gross operating revenue averaged approximately more than $170,000 a year. Pursuant to the stipulated facts the Board found that the number of interstate messages a month amounted to 7.6 percent. of the total messages completed, and the revenue therefor amounted to 13.2 percent. of the total revenue received in these years. The respondent now states that an error crept into these percentages as stipulated and that actually the percent. of interstate messages to total messages handled, and the revenue derived therefrom, is far smaller than that found by the Board. As will appear hereafter, this fact if true is immaterial in reaching a decision.

On the basis of the facts stated above the Board concluded that "respondent is engaged in...