National Labor Relations Bd. v. Kentucky Fire Brick Co.
| Decision Date | 12 October 1938 |
| Docket Number | No. 7866.,7866. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. KENTUCKY FIRE BRICK CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Philip G. Phillips, of Cincinnati, Ohio (Charles Fahy, Robert B. Watts, Laurence A. Knapp, and Mortimer B. Wolf, all of Washington, D. C., on the brief), for petitioner.
William Beye, of Pittsburgh, Pa., and B. L. Rawlins, Jr., of Chicago, Ill. (William Beye, of Pittsburgh, Pa., B. L. Rawlins, Jr., of Chicago, Ill., Charles G. Middleton, and Crawford, Middleton, Milner & Seelbach, all of Louisville, Ky., and Knapp, Allen & Cushing, of Chicago, Ill., on the brief), for respondent.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
This case is before the court on the petition of the National Labor Relations Board for enforcement of its order issued under Sec. 10(c) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C. Sec. 151 et seq., 29 U.S.C.A. § 151 et seq., and section 160(c).
The respondent, The Kentucky Fire Brick Company, a Kentucky corporation, having its principal place of business at Haldeman, Kentucky, by cross-petition seeks to have the order reviewed and paragraphs 1, 2, 3 and 4, (a), (b), (c) and (d) set aside. These parts of the order are printed.1
A primary question is whether the business of respondent in its relation to interstate commerce is subject to the Act.
Respondent operates two clay mines and two fire brick plants at Haldeman, employing around 300 men. It transports its clay from the mines to the plants and there manufactures it into fire brick. All materials used in the manufacturing processes are obtained within the State of Kentucky. During the eight months' period ending March 1, 1936, respondent made 148 shipments of machinery to these plants from seven states other than Kentucky at a total cost of $7,870.86. During the years 1934 and 1935 the plants produced 60,000 bricks a day. These fire bricks are used as linings in open hearth furnaces in steel plants.
Respondent is a subsidiary of the Illinois Steel Corporation, which in turn is a subsidiary of the United States Steel Corporation and all of respondent's bricks are sold to other subsidiaries of United States Steel Corporation located in at least ten different states other than Kentucky. The shipments from the plants are handled by the Chesapeake & Ohio Railway, an interstate carrier.
Upon a consideration of these undisputed facts we think that the power of the Board to issue the order in controversy is beyond question. See Santa Cruz Packing Co. v. National Labor Relations Board, 58 S.Ct. 656, 82 L.Ed. 954, decided by the Supreme Court, March 28, 1938; National Labor Rel. Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; also Clover Fork Coal Co. v. National Labor Rel. Board, 6 Cir., 97 F.2d 331, decided by this court June 8, 1938.
In May, 1934, respondent organized among its employees at the Haldeman plants the "Haldeman Employees Representation Plan" herein called "the Plan." The evidence indicates that this organization was to a large extent dominated by respondent. Many of the members soon becoming dissatisfied with the Plan, withdrew from it and organized Local Chapter No. 510 of the "United Brick and Clay Workers," herein called "the Union," which was affiliated with the American Federation of Labor.
In December, 1934, representatives of the Union undertook to negotiate a contract with respondent's president for the regulation of wages, hours and working conditions but he refused to discuss the matter. The spokesman of the committee testified, — that "he" (the president) "said he understood that it was the policy of the Union for such committee to come in to see him possibly a dozen times concerning an agreement or contract, and if that was true, we could go out of the door and come back to the office the required number of times; that he had given us his final answer; that his final answer was that they were not entering into any contract or agreement * * *" and "that if any of us had any personal matter to take up, he referred us to the proper representatives of the Representation Plan. * * *"
A strike ensued and the Union filed a complaint with the old National Labor Relations Board organized to administer the provisions of Sec. 7(a) of the National Industrial Recovery Act, 15 U.S.C.A. § 707(a). The strike was settled after National Guardsmen had been called to the scene but when the plants were reopened respondent refused to reinstate one of the members of the Union. As a result a complaint was filed with the old Board which was never acted upon because of the invalidation of the National Industrial Recovery Act in the case of Schechter Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947.
In June, 1935, a committee of the Union again presented a contract to respondent's president, vice-president and superintendent and secretary-treasurer, but these officers refused to consider it. The testimony is that the president said in substance, — "It seems as though you fellows are going to run this business." Further, that "I will shut the damned thing down, and let it sit there, and possibly the rust will eat it up." A strike followed immediately and the plants were closed for about four months during which time shipments to and from the plants ceased.
During this period the Union continued its effort through intermediaries to negotiate with respondent but without avail. The president of respondent absented himself and other officials left in control declared themselves without authority to act. The strike was attended with violence such as shooting, dynamiting and personal difficulties but it does not clearly appear that loss of life or substantial property damage resulted therefrom. The ill feeling was intensified by the fact that members of the Plan appeared to be in sympathy with respondent. In October respondent announced that it intended to reopen its plants and would reinstate all its employees who had not been guilty of violence or of interfering in an illegal manner in its operations and business. It distributed cards to those whom it intended to reinstate and directed them to report for work. It reopened its plants on October 17, but the union members, including those who had received cards, did not return.
Shortly thereafter the Union permitted such of its members as had received cards to return and filed charges against respondent with the Board, to the effect that respondent had refused to reinstate a large number of its employees because they had joined Local Union No. 510, and had engaged in concerted activities with other employees for the purpose of collective bargaining and that it had therefore engaged, and was engaging, in unfair labor practices within the meaning of Sec. 8, subdivisions (1) and (3) of the Act, 29 U.S.C.A. § 158(1, 3).
The Board found that the activities of the respondent in connection with the operation of its plants tended to lead to labor disputes which burdened and obstructed the free flow of commerce. It found as a matter of law that the strike of June 18, 1935, was a labor dispute within the meaning of Sec. 2, subdivision (9) of the Act, 29 U.S.C.A. § 152(9). It dismissed the complaint as to all except thirty employees but ordered them reinstated in their former positions, Par. 4(a) of the order, finding they had been denied reinstatement because they had joined and assisted the Union. These men were all active members of Local No. 510, and it is significant that the list included its vice-president, recording secretary, financial secretary and treasurer. It also included seven other men who were members of various committees appointed by the Union to negotiate with respondent. It included no members of the Plan.
We think that the attitude of respondent toward its Union employees both before, during and after the strike of June 18, 1935, carries a substantial inference that these 30 men were refused reinstatement because of their union activities. This inference is sufficient to support the order unless it is destroyed and refuted by other evidence now to be considered. See Sec. 10(e) of the Act, 29 U.S.C.A. § 160(e); National Labor Rel. Board v. Pennsylvania Greyhound Lines, 58 S.Ct. 571, 82 L.Ed. 831, 115...
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