National Labor Relations Board v. Richter's Bakery, 10695.

• Citation: 140 F.2d 870
• Decision Date: 01 March 1944
• Docket Number: No. 10695.,10695.
• Parties: NATIONAL LABOR RELATIONS BOARD v. RICHTER'S BAKERY.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

140 F.2d 870 (1944)

NATIONAL LABOR RELATIONS BOARD v. RICHTER'S BAKERY.

No. 10695.

Circuit Court of Appeals, Fifth Circuit.

February 8, 1944.

Rehearing Denied March 1, 1944.

Robert B. Watts, Gen. Counsel, Ernest A. Gross, Associate Gen. Counsel, and Helen F. Humphrey, Senior Atty., National Labor Relations Board, all of Washington, D. C., for petitioner.

Karl H. Mueller, of Fort Worth, Tex., and J. C. Hall and A. V. Knight, both of San Antonio, Tex., for respondent.

Before HUTCHESON, McCORD, and LEE, Circuit Judges.

LEE, Circuit Judge.

Pursuant to Section 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., the National Labor Relations Board on petition to this Court seeks a decree enforcing its order entered against the respondent, upon charges filed by the Bakery & Confectionery Workers' International Union of America, Local No. 478, a labor organization affiliated with the American Federation of Labor, hereafter referred to as the Union.

The Board's order is based upon its findings that the respondent had refused to bargain collectively with the Union, in violation of Section 8(5) of the National Labor Relations Act; and had refused to reinstate sixteen strikers, and had discriminatorily discharged an employee named Demmer, in violation of Section 8(3); and was guilty of interference, restraint, and coercion, in violation of Section 8(1) of the Act.

The order entered required respondent:

1. To cease and desist from these unfair labor practices;

2. Upon request, to bargain collectively with the Union;

3. To reinstate with back pay fifteen of the strikers and Demmer;

4. To make whole striker Terrell and reinstate him upon application within a fixed period following his discharge from the Navy; and

5. To post appropriate notices.

The only contested issues are (1) is the Act applicable to respondent, and (2) if so, are the Board's findings that Demmer was discriminatorily discharged supported by substantial evidence?

1.

The principal facts relevant to the jurisdictional issue are: Respondent is a Texas corporation, engaged in San Antonio, Texas, in a general bakery business. Its stock is equally divided among four Richter brothers and their mother. The four brothers also are equal owners of the stock of two other bakery corporations in Texas. One is Richter's Baking Company, located in Corpus Christi, Texas, and the other is Austin Baking Company, located in Austin, Texas. The four brothers and their mother also own 80 per cent of the stock in a fourth Texas bakery corporation, The Colonial Cake Company, of San Antonio, Texas. The aggregate gross sales of these concerns for the year 1941 exceeded $1,500,000. During the year ending February 28, 1942, they purchased raw materials valued in excess of $719,000, of which over 30 percent, valued at more than $220,000, were shipped to them from points outside the State of Texas. Of these raw materials, those used by respondent aggregated in value $236,968.18, of which more than 25 percent, valued at $60,150.13, came from sources outside the State. These out-of-State purchases consisted of 103 separate transactions with vendors in 11 different states, from New York to California.¹

Tested by the principles enunciated by this and other courts, respondent, upon the foregoing facts, is clearly subject to the Act. The fact that out-of-State purchases were relatively small and its products were sold and consumed locally is not controlling. In the Fainblatt case, the United States Supreme Court held:

"* * * Examining the Act in the light of its purpose and of the circumstances in which it must be applied we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimis."²

In the Suburban Lumber Company case, the Third Circuit Court held:

"De minimis in the law has always been taken to mean trifles — matters of a few dollars or less. Here, the Suburban's interstate purchases in a year when the retailer lumber business was at its nadir amounted to $150,000. Such a sum surely cannot be considered in the category of de minimis."³

In the Gulf Public Service Company case, this Court held:

"Congress undoubtedly had the power to bring within the field of Congressional supervision, all direct interference with interstate commerce, no matter how slight. Unless therefore, we can find in the Act, some qualifying term which reduces its scope to less than the whole, we must, upon the question of the power of the board, construing the Act as it has been construed, hold that it extends to any and all enterprises, without regard to their magnitude, in which labor troubles might reasonably be said to have the probable effect of directly interfering with the free flow of any interstate commerce."⁴

In the Newport News Shipbuilding & Dry Dock Co. case, the Fourth Circuit Court held:

"There can be no difference in principle between the case in which manufacture precedes and that in which it follows interstate commerce. If the flow of commerce is obstructed by labor disputes, it makes no difference from which direction the obstruction is applied."⁵

We concur in the Board's ruling maintaining its jurisdiction.

2.

Respondent contends that the Board's finding that Adolph Demmer was discharged, in violation of Section 8(3) and (1) of the Act, is based on surmise and suspicion and is not supported by any substantial evidence. The Board, as the record disclosed, discredited and rejected the testimony of some of respondent's witnesses. The accepted facts as to Demmer's discharge on March 23, 1942, are: He had entered respondent's employ in July 1927, as a benchman, and within six months was made oven foreman, holding that position until 1930 when he became a shift foreman. In 1934, he was promoted to shop foreman, in which position he was directly responsible to Superintendent Richter. Richter testified that Demmer had worked under him since 1931 and that he had been responsible for Demmer's promotion. Under the general supervision of Superintendent Richter, Demmer had been responsible for the operation of respondent's bakery, including the direction both of the production process and of the employees working thereon. For substantial periods of time when Otto Richter was absent, Demmer would carry on alone with apparent success.

During February of 1941, John P. Simmons, an International representative of the Union, came to San Antonio. Early in March, Simmons on two occasions telephoned Demmer and explained that he was trying to organize the bakers in San...