National Labor Relations Bd. v. Moore-Lowry FM Co.

• Decision Date: 06 September 1941
• Docket Number: 2234.,No. 2226,2226
• Parties: NATIONAL LABOR RELATIONS BOARD v. MOORE-LOWRY FLOUR MILLS CO. MOORE-LOWRY FLOUR MILLS CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Tenth Circuit

122 F.2d 419 (1941)

NATIONAL LABOR RELATIONS BOARD v. MOORE-LOWRY FLOUR MILLS CO.

MOORE-LOWRY FLOUR MILLS CO. v. NATIONAL LABOR RELATIONS BOARD.

Nos. 2226, 2234.

Circuit Court of Appeals, Tenth Circuit.

July 17, 1941.

Application to Modify Decree Denied September 6, 1941.

Joseph Hoskins and Leonard Appel, both of Washington, D. C. (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Lewis M. Gill, and Jerome I. Macht, all of Washington, D. C., on the brief), for National Labor Relations Board.

George Siefkin, of Wichita, Kan. (George B. Powers, of Wichita, Kan., on the brief), for Moore-Lowry Flour Mills Co.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Moore-Lowry Flour Mills Company, a corporation, hereinafter called the company, operates at Coffeyville, Kansas, a flour mill for the processing of grain into flour and other products, and it also operates ten grain elevators at various places in that state; Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, hereinafter called the union, is a labor organization admitting to membership employees of the company; and Moore-Lowry Flour Mills Employees Association, hereinafter called the association, is an unaffiliated labor organization admitting to membership employees of the company.

In a conventional proceeding, had under section 10 of the Act of July 5, 1935, 49 Stat. 449, 29 U.S.C.A. § 160, to which the association became a party by intervention, the National Labor Relations Board, hereinafter called the Board, ordered the company to cease and desist from in any manner dominating or interfering with the administration of the association, or with the formation or administration of any other labor organization of its employees, and from contributing support to the association or to any other labor organization of its employees; from recognizing the association as the representative of any of its employees for collective bargaining purposes; from giving effect to a contract entered into with the association, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract which may be in force; from discouraging membership in the union or in any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of employment, of its employees; and from in any manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in section 7 of the act. 29 U.S.C.A. § 157. And the order required the company to withdraw all recognition from the association; to offer to Orville Lander immediate and full reinstatement of his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges; to make Lander whole for any loss of pay he may have suffered by reason of the company's discrimination in regard to his hire and tenure of employment; upon application, to offer to Harlan Ray and Owen Kline immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights or privileges; to make Ray and Kline whole for any loss they may have suffered by reason of any refusal of their application for reinstatement, by payment to each of them of a sum of money equal to that which he normally would have earned during the period from a date five days after the date of the refusal to the date of reinstatement; and to post appropriate notices.

By separate petitions for review the Board seeks enforcement of the order and the company prays that it be set aside. Pursuant to a stipulation of the parties, the two causes were consolidated, submitted on a single record, and briefed and argued together.

The company employs in its mill at Coffeyville approximately thirty-eight workers and thirteen persons in clerical and supervisory capacities. During the fiscal year beginning June 1, 1937, it purchased about eight hundred carloads of grain, of which approximately one-fourth was purchased outside of Kansas. The mill produces about twenty to twenty-five thousand barrels of flour per month, more than one-half of which is sold and transported to points in other states. The nature and extent of the operations of the company bear such close and intimate relation to interstate commerce as to bring the company within the scope of the act and subject it to the jurisdiction of the Board. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Southern Colorado Power Co. v. National Labor Relations Board, 10 Cir., 111 F.2d 539; Continental Oil Co. v. National Labor Relations Board, 10 Cir., 113 F.2d 473; Cudahy Packing Co. v. National Labor Relations Board, 10 Cir., 118 F.2d 295.

In addition to numerous subsidiary findings which need not be detailed, the Board found that by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in section 7 of the act, the company was engaged in unfair labor practices, within the meaning of section 8 (1), 29 U.S.C.A. § 158(1); and that by dominating and interfering with the formation and administration of the association and contributing to its support, the company was also engaged in unfair labor practices, within the scope of section 8 (2). These primary findings are challenged on the ground that they are not supported by substantial evidence and are in conflict with the evidence. The act commits to the Board the function of drawing inferences from established facts and circumstances of appraising conflicting evidence, of determining the credibility of witnesses and the weight to be given to their testimony, and of resolving issues of fact. And it is settled beyond room for argument that courts are not at liberty to overturn findings of the Board if they are supported by substantial evidence. National Labor Relations Board v. Waterman Steamship Corp., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L. Ed. 368; Continental Oil Co. v. National Labor Relations Board, supra; Magnolia Petroleum Co. v. National Labor Relations Board, 10 Cir., 115 F.2d 1007; Cudahy Packing Co. v. National Labor Relations Board, supra. With this controlling rule in mind, we turn to the record.

Evidence was introduced which tended to establish these facts: In April, 1937, the union was organized by employees of the company as well as those of Nutrena Mills Company, located just across the street. Orville Lander and Harlan Ray were charter members of the union; Wilson Ray, son of Harlan Ray, became its president; and Lander became its secretary. Prior to that time, Ray and Lander had been on friendly terms with Lee Hood, superintendent of the mill, but thereafter Hood's attitude changed. He referred to them as "Reds," "Bolsheviks," and "troublemakers," and stated on one occasion that he intended to assign them to work together in order that they could not organize. He asked Ray if he was a member of the union and upon receiving an affirmative answer stated that a company union was best. Ray expressed the view that a company union would violate the act, and Hood thereupon belittled the act and stated that he was going to fire one man that day and one every thirty days until he got rid of all of them, and on another occasion he told Ray that he had been a good man for a long time but was just a troublemaker since he joined the union. Hood made slurring remarks about Lander, and told him on one occasion that he did not have any sense. On another occasion he pointed out Lander to Watson Ellis as a union man who held a job in the union. When Lander stated that he was secretary of the union, Hood inquired what he thought the union was going to do, and stated that he belonged to a union once and "got a good gypping"; Ellis said that he had a similar experience, that he once joined a union, that he had saved up some money, and that the union got all of it; and Hood and Ellis said that a company union was best, that they should have a company union so that no dues would have to be paid out. After some intervening discussion, Hood admonished Lander not to think that because he was a member of the union he could not be fired because Hood was going to fire union men when they thought that. Charlie Cox, warehouse foreman, announced to a number of employees that he did not mind seeing them all get together but that they did not want outside representatives there.

In June, the organization of an unaffiliated union was initiated. After two informal meetings had been held on the lawn — company property — in front of Hood's office, a notice signed by W. H. Hurt, an employee, was posted on the bulletin board of the company announcing that a meeting would be held on the lawn that evening. The meeting was opened with the statement that its purpose was to organize a little company union of the employees. Hurt, Reidy and Ellis were elected president, secretary and treasurer, respectively. Reidy and Ellis were second millers. The next day Hood demoted Lander from the position of oiler to that of sweeper at reduced wages. Maiden, an organizer for the American Federation of Labor, took up the matter with Hood. After some discussion, Hood agreed to reinstate Lander to his former position. But, despite...