National Labor Relations Board v. Louisville Refining Co., No. 7979.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: HICKS, SIMONS, and ALLEN, Circuit
• Citation: 102 F.2d 678
• Decision Date: 13 March 1939
• Docket Number: No. 7979.
• Parties: NATIONAL LABOR RELATIONS BOARD v. LOUISVILLE REFINING CO.

102 F.2d 678 (1939)

NATIONAL LABOR RELATIONS BOARD
v.
LOUISVILLE REFINING CO.

No. 7979.

Circuit Court of Appeals, Sixth Circuit.

March 13, 1939.

102 F.2d 679

Philip G. Phillips, of Cincinnati, Ohio (Charles Fahy and Robert B. Watts, both of Washington, D. C., Philip G. Phillips, of Cincinnati, Ohio, Laurence A. Knapp, of Washington, D. C., and Allen Heald, of Chicago, Ill., on the brief), for petitioner.

A. Shelby Winstead, of Louisville, Ky. (Woodward, Dawson & Hobson and A. Shelby Winstead, all of Louisville, Ky., on the brief), for respondent.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

This case arises out of a petition of the National Labor Relations Board filed under Title 29, Section 151 et seq., U.S.C., 29 U.S.C.A. § 151 et seq., to enforce its order theretofore issued against the respondent, an oil refining company operating in Louisville, Kentucky. A substantial part of the raw materials and the crude oil used originates outside of Kentucky, and much of the gasoline, kerosene and other finished products is distributed to Ohio, Indiana and Kentucky. The operation is plainly interstate. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 11, 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; Clover Fork Coal Co. v. National Labor Relations Board, 6 Cir., 97 F.2d 331; National Labor Relations Board v. Kentucky Fire Brick Co., 6 Cir., 99 F.2d 89.

Upon appropriate complaint which was denied in its material allegations by respondent's answer, the Board found that respondent had engaged in unfair labor practices within the meaning of Section 8 (1) (3) (5) of the act in that the respondent (1) had refused to bargain collectively with the designated representative of the employees, the International Association of Oil Field, Gas Well and Refinery Workers of America,¹ and (2) had discouraged membership in the union and discharged nineteen employees because of their union activity. The Board thereupon ordered respondent to cease and desist from such unfair labor practices, to reinstate the discharged employees with back pay, to bargain collectively with the union, and to post certain notices with reference to the order.

The respondent at the outset asserts that it is the duty of this court to exercise its own independent judgment as to facts found by the Board. With this contention we are not in accord. The statute Title 29, § 160(e) provides that "The findings of the Board as to the facts, if supported by evidence, shall be conclusive,"

102 F.2d 680

and under the plain terms of this provision the question presented is whether there is substantial evidence to support the findings of the Board. In certain cases (Bluefield Water Works & Imp. Co. v. Public Service Commission, 262 U.S. 679, 43 S.Ct. 675, 67 L.Ed. 1176; State Corp. Commission v. Wichita Gas Co., 290 U.S. 561, 54 S. Ct. 321, 78 L.Ed. 500, Cf. Crowell v. Benson, 285 U.S. 22, 46, 52 S.Ct. 285, 76 L.Ed. 598), the Supreme Court has indicated that parties attacking orders of rate-making bodies are entitled to the independent judgment of the courts both as to law and facts. This, however, is due to the legislative character of a determination of a schedule of future rates. Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S. 287, 289, 40 S.Ct. 527, 64 L.Ed. 908; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51, 52, 56 S. Ct. 720, 80 L.Ed. 1033. Respondent asserts that it is deprived of property without due process, in violation of the Fifth Amendment to the Constitution of the United States, U.S.C.A., when it is ordered to pay back wages. No decision of the Supreme Court is cited to the effect that...