National Labor Relations Board v. GULF PUBLIC SERV. CO.
| Decision Date | 01 February 1941 |
| Docket Number | No. 9680.,9680. |
| Parties | NATIONAL LABOR RELATIONS BOARD v. GULF PUBLIC SERVICE CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert B. Watts, Gen. Counsel, National Labor Relations Board, and Frederick M. Davenport, Jr., Atty., N. L. R. B., both of Washington, D. C., for petitioner.
William Harrison Shook and John Louis Shook, both of Dallas, Tex., and Summers A. Norman, of Jacksonville, Tex., for respondent.
Gordon Simpson, of Tyler, Tex., for intervener.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
International Brotherhood of Electrical Workers, Local No. 790, having failed to obtain a bargaining agreement with Gulf Public Service Company, on July 9, 1938, struck, "to try and enforce the company into an agreement." Thirteen employees participated in this strike. The company notified the president of the union that the services of the strikers would be no longer required and each striker was paid in full for work performed up to the beginning of the strike. On July 29 and August 11, 1938, the Board upon charges made by the Local, issued a complaint and supplemental complaint. There were hearings and an intermediate report of the examiner, followed by the Board's decision against respondent. In it the Board found that respondent discouraged membership in the union; interfered with the rights of its employees, guaranteed by Section 7 of the Labor Relations Act, 29 U.S.C.A. § 157; refused to bargain collectively with the union though it was the exclusive representative of the employees in an appropriate unit; that the thirteen employees who went on strike because of this refusal, had been discharged to discourage membership in the union; and that respondent had dominated and interfered with the formation and operation of the Gulf Public Service Company Employees Cooperative, an independent labor union, and contributed support to it.
Upon these findings the board issued its cease and desist order and an affirmative order, requiring respondent, to offer reinstatement with back pay to the thirteen employees, to refuse to recognize the Cooperative, and upon request to bargain collectively with the I. B. E. W., as the exclusive bargaining representative of the employees. This petition is to enforce that order. Respondent assails it as entered without jurisdiction and as unsupported by evidence.
Its jurisdictional point is that, a Local Public Service Company, engaged exclusively in furnishing light and power intrastate, its activities are beyond the jurisdiction of the board. Its point on the evidence is, that while it did refuse to bargain with the union, it did so not to discourage membership in the union, but because the union did not represent the majority of its employees and that its refusal was not only not wrong, but was required under the law. The point it makes against the decision and order on the evidence therefore, is that the board in order to find that the Local was the representative of the majority of the employees, made an arbitrary classification of an appropriate unit, and this classification, being unsound and unreasonable, the findings and the order based on them, fall.
Upon the question of jurisdiction, the board points to the fact that the company furnishes power to companies doing an interstate business,1 and that in addition it buys annually, several thousands of dollars worth of material from out of state. It insists that within the plain terms of the statute as construed by the courts,2 the activities of respondent are within the stream of traffic, commerce, or communication among the several states, that labor disputes in connection with its business, would tend directly to burden or obstruct commerce or its free flow, and such disputes are, therefore, within the board's jurisdiction.
Upon the questions of whether there is substantial evidence to support its findings, that the company had interfered with the employees in the exercise of their right to self-representation, and had discouraged their membership in the union, the board points; to the settled attitude and policy of the company toward the union; its first refusal in 1935 to bargain with it; the strike; the one year contract; its refusal thereafter to make a contract; and the general attitude of...
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