National Labor Relations Board v. Hopwood R. Co.

• Decision Date: 12 July 1938
• Docket Number: No. 393.,393.
• Citation: 98 F.2d 97
• Parties: NATIONAL LABOR RELATIONS BOARD v. HOPWOOD RETINNING CO., Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

98 F.2d 97 (1938)

NATIONAL LABOR RELATIONS BOARD v. HOPWOOD RETINNING CO., Inc., et al.

No. 393.

Circuit Court of Appeals, Second Circuit.

July 12, 1938.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, and Ernest A. Gross, all of Washington, D. C., for National Labor Relations Board.

Kotzen, Mann & Siegel, of New York City (Abraham Mann, of New York City, of counsel), for respondent Monarch Retinning Co., Inc.

Daniel J. Byrne, of Ridgewood, N. Y., for respondent Hopwood Retinning Co., Inc.

Before MANTON, SWAN, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

The petitioner seeks enforcement of an order isued by it against both respondents pursuant to § 10(c) of the National Labor Relations Act (29 U.S.C. §§ 151 et seq., 160(c), 29 U.S.C.A. §§ 151 et seq., 160(c). Jurisdiction of this court is provided for by § 10(e), 29 U.S.C.A. § 160(e).

Charges were filed by the Metal Polishers International Union, Local No. 8 and the Milk Drivers Local No. 584, International Brotherhood of Teamsters and Helpers, charging the respondent Hopwood with certain unfair labor practices, affecting commerce within the meaning of the act.

May 24, 1937, by its Regional Director, petitioner issued a complaint and notice of hearing which was served upon the Hopwood Company. Respondent Hopwood is a New York corporation engaged in the collection, reconditioning and distribution of milk and ice cream containers. It is charged with refusing to bargain collectively with the Polishers and the Teamsters Unions, who were alleged to represent majorities in two separate units of Hopwood's employees. It is also charged that on March 31, 1937, Hopwood locked out and discharged all its employees, except clerical and supervisory employees, because of their concerted activities for the purpose of collective bargaining; that it had attempted to persuade the locked-out and discharged employees to withdraw from membership in the two unions and, by such unfair labor practices, it affected commerce within § 8, subds. (1), (3) and (5) of the Act, 29 U.S.C.A. § 158(1, 3, 5). The answer of Hopwood excepted to the jurisdiction of the Board and denied that it had committed unfair labor practices or that it had been engaged in the business described in the complaint since March 31, 1937.

A hearing was held, commencing June 7, 1937, and on June 9th the trial examiner granted a motion amending the complaint so as to add as a respondent the Monarch Retinning Company, Inc., which was organized April 15, 1937 under the Laws of New Jersey. It was charged that when, on March 31, 1937, Hopwood discontinued its business in Brooklyn, N. Y., it transferred its machinery and processing business to the Monarch Company in New Jersey for the sole purpose of avoiding Hopwood's obligations under the act; and that Monarch in taking over the processing of Hopwood constitutes the same entity as Hopwood. Service of this amendment was made upon Hopwood's attorney, who, at that time was president of Monarch, and further hearings were postponed until June 18th in order that Monarch might prepare its defense and answer the complaint. On June 18th, Monarch appeared specially and moved to dismiss the complaint against it on the ground that it could not be made a party to an amendment to the complaint in the absence of any charge previously filed against it. This motion was denied. An offer was made to permit Monarch to cross examine the witnesses who had testified at the preceding hearings.

Monarch filed its answer and challenged the jurisdiction of the Board. Full opportunity was given to cross examine the witnesses thereafter called and to introduce testimony. Monarch appeared and was represented by attorneys on June 18th and 19th, when the hearings were concluded.

The Board ruled that Monarch was properly joined as a party. It found, with evidence to support it, that Hopwood was a New York corporation engaged principally in retinning and servicing milk and ice cream containers; that it employed about 190 production employees and 17 truck drivers and helpers and in 1936 its total business was $621,967.70, of which about 23% was derived from states other than New York. On March 31, 1937 Hopwood ceased the business of reconditioning containers and since has functioned only as the exclusive sales agency for Monarch. The latter company is performing all the reconditioning operations at its plant in Jersey City; it serves practically the same customers as were served by Hopwood and at least 77% of its business is derived from states other than New Jersey. It found that Hopwood locked out and discharged its production employees and truck drivers and helpers on March 31, 1937, because of their union membership and activity and to thwart union organization amongst the men and that their discharge constituted an interference with, restraint and coercion of its employees in the exercise of their rights provided for in § 7 of the Act, 29 U.S.C.A. § 157, and was discrimination in regard to hire and tenure of employment, thereby discouraging membership in the unions. It found that when Hopwood ceased processing operations, it organized Monarch for the purpose of avoiding its obligations under the act, and that, prior to the removal to New Jersey, it had attempted to compel its employees to return to work under individual contracts but refused to recognize the union. The Board found that the production employees and the truck drivers and helpers employed by Hopwood constituted two separate units appropriate for the purpose of collective bargaining and that the Polishers Union and the Teamsters were the duly designated representatives of a majority of the employees in each of the units and that Hopwood refused to bargain collectively with the two unions as the exclusive representatives of all its employees and thereby engaged in unfair labor practices within § 8 (1) (5) of the act, 29 U.S.C.A. § 158(1, 5).

The order to cease and desist forbade unfair practices and required affirmative action (a) in offering to Hopwood employees who were locked out on March 31, 1937, and who have not since that date received regular and substantially equivalent employment at the plant of Monarch, immediate and full reinstatement to their former or equivalent positions at the Hopwood or Monarch plants; (b) make whole said employees from any losses of pay they have suffered by reason of the lock-out; (c) bargain collectively upon request with the unions as the exclusive representatives of the employees in the unions; (d) inform in writing each of the employees who have entered into an individual contract with either Hopwood or Monarch that such contract was entered into pursuant to unfair labor practices and will be discontinued and not enforced; (e) to post appropriate notices.

Hopwood contends that it is not engaged in interstate commerce and that its business does not directly affect interstate commerce. It says it does not engage in commerce but merely performs a service. It refers to Federal Base Ball Club v. National League, 259 U.S. 200, 42 S.Ct. 465, 66 L.Ed. 898, 26 A.L.R. 357; Hopkins v. United States, 171 U.S. 578, 19 S.Ct. 40, 43 L.Ed. 290; United States v. Fur Dressers' & Fur Dyers' Ass'n, D.C., 5 F. 2d 869; and Smith v. Jackson, 103 Tenn. 673, 54 S.W. 981, 47 L.R.A. 416, but these cases are not applicable. Hopwood's trucks picked up and made deliveries of containers upon which work was to be done and transported them, in 23% of its business in interstate commerce. Its business consisted of straightening the containers, the removal of rust and solder and retinning and resoldering. New bottoms and other parts were also supplied, all of which was included in the service charge. It also purchased used containers which it reconditioned and sold. It was clearly engaged in interstate commerce. Consolidated Edison Co. v. National Labor Relations Board, 2 Cir., 95 F.2d 390; National Labor Relations Board v. National N. Y. Packing Co., 2 Cir., 86 F.2d 98.

The evidence sufficiently supports the findings of the Board that the lockout was the result of union activities and was an attempt by Hopwood to discourage unionization. Prior to March 31 the Teamsters' Union had organized the helpers and truck drivers and there had been strife...