National Labor Relations Board v. JG Boswell Co., No. 10148.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtDENMAN, MATHEWS, and STEPHENS, Circuit
Citation136 F.2d 585
PartiesNATIONAL LABOR RELATIONS BOARD v. J. G. BOSWELL CO. et al.
Decision Date18 June 1943
Docket NumberNo. 10148.

136 F.2d 585 (1943)

NATIONAL LABOR RELATIONS BOARD
v.
J. G. BOSWELL CO. et al.

No. 10148.

Circuit Court of Appeals, Ninth Circuit.

May 24, 1943.

Rehearing Denied June 18, 1943.


136 F.2d 586
COPYRIGHT MATERIAL OMITTED
136 F.2d 587
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136 F.2d 588
Robert B. Watts, Gen. Counsel, Ernest A. Gross, Howard Lichtenstein, and Malcolm F. Halliday, Associate Gen. Counsels, and Louis Libbin and William Strong, Attys., N.L.R.B., all of Washington, D. C., for petitioner

Sidney J. W. Sharp and M. Wingrove, both of Hanford, Cal., for respondents.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

Petitioner, herein called the Board, seeks our decree enforcing its order against J. G. Boswell Company, herein called the Boswell Company, and Corcoran Telephone Exchange, herein called the Exchange, with respect to their treatment of their respective employees and two labor organizations, Cotton Products and Grain Workers Union, Local 21798, herein called the Federal, and J. G. Boswell Company Employees' Association of Corcoran and Tipton, California, herein called the Association.

Federal filed with the Board the charges against the Boswell Company and the Exchange required for the making of the Board's complaint. Margaret A. Dunn, not a member of any union, also filed charges against her employer, the Exchange, concerning her discharge.1 The Association was served with a copy of the complaint, and notice of the hearing, and thus became subject to the Board's jurisdiction in the proceeding, though it did not appear therein. National Labor Relations Board v. Sterling Electric Motors, Inc., 9 Cir., 109 F.2d 194, 210.

A. Jurisdictional Facts. Boswell Company, a California corporation, is engaged in California and Arizona in the business of growing and processing cotton and of manufacturing cotton seed products. Of the products manufactured and processed during the period from July 1, 1937, to June 30, 1938, at its Corcoran, California, plant, where the unfair labor practices occurred, respondent shipped to points outside California all the bales of cotton owned by it, numbering over 40,000, approximately 860 bales of linters, and 60 tons of cottonseed cake; during the same period it used at its Corcoran plant approximately 52,000 jute "patterns" imported from India and steel bands received from Alabama.

Upon the foregoing facts stipulated by counsel, the applicability of the Act

136 F.2d 589
to Boswell Company is not open to question. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. N.L.R.B., 303 U.S. 453, 58 S. Ct. 656, 82 L.Ed. 954; N.L.R.B. v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; N.L.R.B. v. Grower-Shipper Vegetable Ass'n, 9 Cir., 122 F.2d 368, 371. There is no merit in Boswell Company's contention that the charged unfair labor practices began in July just after the period for which the volume of interstate commerce was stipulated. It is elementary that the Board could infer that what had continued until June 30th would not cease in the following month

The Exchange, a California corporation, is engaged in the telephonic communications business in Corcoran, California, where it provides to residents and business establishments the only available telephone service. Long distance calls to or from points outside the city of Corcoran or the State of California are effectuated through the joint facilities of the Exchange and the Pacific Telephone and Telegraph Company, a directly controlled subsidiary of American Telephone and Telegraph Company, which, pursuant to an agreement with the Exchange, maintains a cable of telephone wires connected to the Exchange's switchboard in Corcoran. At least three of the Exchange's subscribers — Boswell Company, Western Union Telegraph Company, and the Atchison, Topeka and Santa Fe Railroad — are engaged in interstate commerce. During 1938 the Exchange handled over 35,000 toll calls through the facilities of the Pacific Telephone and Telegraph Company; of this number there were 77 outgoing calls to points outside California and an undisclosed number of incoming calls from points outside the State.

The Exchange contends that its interstate communications are too small to confer jurisdiction upon the Board. Its position is without merit. The facilities of the Exchange are an integral part of the vast network of telephone lines which cover the entire nation. While these lines are owned by a large number of small telephone companies, such as the Exchange, they are operated as a unified system by virtue of physical connection of the lines and such operating agreements as are here involved. The Exchange's facilities and lines are admittedly available and used for the transmission of interstate messages, both those originating and terminating within the Exchange's system. The Exchange is thus an instrumentality of interstate commerce, and as such is clearly subject to Federal regulation, irrespective of any showing as to the amount of interstate traffic actually using its facilities. Associated Press v. N.L.R.B., 301 U.S. 103, 128, 57 S.Ct. 650, 81 L.Ed. 953; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1, 9, 24 L.Ed 708; N.L.R.B. v. Central Missouri Telephone Co., 8 Cir., 115 F.2d 563; The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 390, 33 S.Ct. 729, 57 L.Ed. 1511, 48 L.R.A.,N.S., 1151, Ann.Cas.1916A, 18. Moreover, respondent's interstate aspects assume greater importance by virtue of the fact that the Exchange furnishes the only medium of telephonic communication available to the business establishments of Corcoran, California. The Act "cannot be applied by a mere reference to percentages" (Santa Cruz Fruit Packing Co. v. N.L.R.B., 303 U.S. 453, 467, 58 S.Ct. 656, 661, 82 L.Ed. 954); it is applicable even though the interstate business "involves but a small part of the entire service rendered by the" Exchange. Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 221, 59 S.Ct. 206, 213, 83 L. Ed. 126; N.L.R.B. v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014. Later in this opinion is considered the conduct of the Exchange as affecting interstate commerce, even though not engaged in such commerce.

B. The Briefs. As required by our rule 20, the Board's brief presents a statement of the facts supporting its findings with page references to the transcript, here consisting of seven volumes of 3343 pages. Our examination shows a meticulous accuracy in the correspondence of the record with the statement required by the rule and, because of its accurate and compact form, this opinion adopts such of its language as is pertinent.

All that the Act requires to sustain the Board's findings is that they be supported by substantial evidence.2 Our rule 20 simplifies the presentation of the respondents' case, both for the respondents and the court. If the Board's statement of

136 F.2d 590
fact is not sufficient to sustain the findings, the respondents' brief, in effect, may demur to it. If sufficient, it may be attacked by a showing that the portions of the record referred to do not support the Board's statement. All of the respondents' 250-page brief which presents evidence contra to that supporting the findings, and upon which we are asked to "pass upon the credibility of witnesses and the weight" of their testimony, is unnecessary and surplusage

C. The Unfair Labor Practices. The Board found that respondent Boswell Company, in violation of Section 8(3) of the Act, 29 U.S.C.A. § 158(1), evicted seven employees from its plant and thereafter refused to reinstate them because of their membership and activities in Federal; that it dominated, interfered with, and assisted the formation and administration of the Association, in violation of Section 8(2); and that by the foregoing action and various anti-union conduct of its supervisory employees, the Boswell Company interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, thereby violating Section 8(1).

The Board further found that respondent Corcoran Telephone Exchange violated Section 8(3) and (1) of the Act by discriminating in the hire and tenure of employment of Margaret A. Dunn.

In addition to the usual cease and desist and posting provisions, the Board's order directed Boswell Company to offer reinstatement with back pay to the employees discriminated against, to place certain other employees upon a preferential hiring list, to afford all employees reasonable protection in the plant, and to refuse to recognize the Association as the collective bargaining representative of any of its employees. The order also directs the Exchange to reinstate with back pay Margaret A. Dunn.

The findings of a series of unfair labor practices by the Boswell Company are clearly supported by substantial evidence. From the many prohibited acts of Boswell Company so in evidence, some are hereafter stated. In this connection we find no support in the testimony for respondents' charge that the trial examiner failed to conduct an impartial hearing. His exclusion of certain evidence is not shown to have caused prejudice.

C (1). The Boswell Company's coercion against the organizing activities of Federal. Federal, in July, 1938, through Organizer Prior, was continuing its attempt to organize the Boswell Company employees. After an organizational meeting, Tom Hammond, who supervised the operations of the gins and mill, and occasionally laid off and reemployed employees, bluntly informed Employee Andrade that Boswell Company would never tolerate or recognize a union, warned that Boswell Company would shut the mill in the event that a union gained a foothold, and pointedly inquired whether the Federal would feed Andrade if the mill closed. Joe Hammond had a similar supervisory position. Both...

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34 practice notes
  • McPherson v. Public Employment Relations Bd.
    • United States
    • California Court of Appeals
    • February 11, 1987
    ...1011, cert. den. (1964) 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 176; National Labor Relations Board v. J.G. Boswell Co. (9th Cir.1943) 136 F.2d 585; National Labor Rel. Bd. v. Peter C.K. Swiss Choc. Co. (2d Cir.1942) 130 F.2d 503; Fort Wayne Corrugated P. Co. v. National L.R. Board (7th Cir......
  • Eastex, Incorporated v. National Labor Relations Board, No. 77-453
    • United States
    • United States Supreme Court
    • June 22, 1978
    ...& Cotten Mills, Inc., 11 N.L.R.B. 1, 4-5 (1939) (right to assist in organizing another employer's employees); NLRB v. J. G. oswell Co., 136 F.2d 585, 595 (CA9 1943), enf'g 35 N.L.R.B. 968 (1941) (right to express sympathy for striking employees of another employer); Redwing Carriers, Inc., ......
  • Mitchell v. Telephone Answering Service, Inc., Civ. No. 331-57.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 22, 1959
    ...Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The generation of electricity for use in the movement of interstate commerce was a part of the work-a-day duties of the employee, and his ......
  • New Mexico Public Service Co. v. Engel, No. 2933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 5, 1944
    ...Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The generation of electricity for use in the movement of interstate commerce was a part of the work-a-day duties of the employee, and his ......
  • Request a trial to view additional results
34 cases
  • McPherson v. Public Employment Relations Bd.
    • United States
    • California Court of Appeals
    • February 11, 1987
    ...1011, cert. den. (1964) 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 176; National Labor Relations Board v. J.G. Boswell Co. (9th Cir.1943) 136 F.2d 585; National Labor Rel. Bd. v. Peter C.K. Swiss Choc. Co. (2d Cir.1942) 130 F.2d 503; Fort Wayne Corrugated P. Co. v. National L.R. Board (7th Cir......
  • Eastex, Incorporated v. National Labor Relations Board, No. 77-453
    • United States
    • United States Supreme Court
    • June 22, 1978
    ...& Cotten Mills, Inc., 11 N.L.R.B. 1, 4-5 (1939) (right to assist in organizing another employer's employees); NLRB v. J. G. oswell Co., 136 F.2d 585, 595 (CA9 1943), enf'g 35 N.L.R.B. 968 (1941) (right to express sympathy for striking employees of another employer); Redwing Carriers, Inc., ......
  • Mitchell v. Telephone Answering Service, Inc., Civ. No. 331-57.
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 22, 1959
    ...Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The generation of electricity for use in the movement of interstate commerce was a part of the work-a-day duties of the employee, and his ......
  • New Mexico Public Service Co. v. Engel, No. 2933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 5, 1944
    ...Santa Cruz Co. v. Labor Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. J. G. Boswell Co., 9 Cir., 136 F.2d 585. The generation of electricity for use in the movement of interstate commerce was a part of the work-a-day duties of the employee, and his ......
  • Request a trial to view additional results

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