National Labor Relations Board v. Baltimore T. Co.

• Citation: 140 F.2d 51
• Decision Date: 03 April 1944
• Docket Number: 5109.,No. 5103,5103
• Parties: NATIONAL LABOR RELATIONS BOARD v. BALTIMORE TRANSIT CO. et al. INDEPENDENT UNION OF TRANSIT EMPLOYEES OF BALTIMORE CITY v. NATIONAL LABOR RELATIONS BOARD.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

140 F.2d 51 (1944)

NATIONAL LABOR RELATIONS BOARD v. BALTIMORE TRANSIT CO. et al. INDEPENDENT UNION OF TRANSIT EMPLOYEES OF BALTIMORE CITY v. NATIONAL LABOR RELATIONS BOARD.

Nos. 5103, 5109.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1944.

Writ of Certiorari Denied April 3, 1944.

Earle K. Shawe, Regional Atty., National Labor Relations Board, of Baltimore, Md. (Robert B. Watts, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, David Findling, Maurice R. Kraines, and Millard Cass, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for National Labor Relations Board.

Philip B. Perlman, of Baltimore, Md. (Chas. A. Trageser, Harry Troth Gross, J. Stanislaus Cook, and Henry H. Waters, all of Baltimore, Md., on the brief), for Baltimore Transit Co. and Baltimore Coach Co.

Carman, Anderson & Barnes and Harold J. Wolfinger, all of Baltimore, Md., for Independent Union of Transit Employees of Baltimore City.

Joseph Sherbow, Gen. Counsel, Public Service Commission of Maryland, of Baltimore, Md., for Public Service Commission of Maryland, amicus curiae.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied April 3, 1944. See 64 S.Ct. 847.

PARKER, Circuit Judge.

These cases involve a petition by the National Labor Relations Board to enforce an order against the Baltimore Transit Company and its subsidiary the Baltimore Coach Company and a petition by the Independent Union of Transit Employees of Baltimore to review and set aside the order. The Board's order requires the Transit Company and the Coach Company to cease and desist from unfair labor practices; to disestablish Independent as collective bargaining agent of their employees and cease giving effect to any contracts with it; to reimburse all employees for dues and fees in Independent checked off by respondents from their wages since June 2, 1942, the date of issuance of the Board's complaint; to reinstate immediately 9 of the employees discriminated against and to reinstate the tenth upon timely application after his discharge from the United States Army; to make the 9 whole for loss of pay since June 2, 1942, and the tenth for loss of pay, if any, during the period from 5 days after his timely application for reinstatement until an offer of reinstatement by respondents; and to post the usual notices of compliance with the Board's order.

Five questions are presented by the petitions: (1) Whether the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., is applicable to the Transit Company and its subsidiary, to both of which for the sake of brevity we shall hereafter refer as the company; (2) whether the complaint and order of the Board are barred by the doctrine of estoppel; (3) whether the Board's finding of domination by the company of Independent and the disestablishment of that association as a bargaining agent is sustained by the evidence; (4) whether the Board's finding of other unfair labor practices including the discriminatory discharges is so sustained; and (5) whether the order requiring the reimbursement of dues and fees of Independent checked off by the company are proper. We shall discuss these in the order named.

The Application of the National Labor Relations Act.

The company operates the street railway and bus transportation system serving the City of Baltimore, Md. and its environs. It operates 22 bus lines and some thirty street car lines, including three trackless trolleys, which serve practically every district of the city. At the time of the hearing, it had 1473 vehicles of which 1253 were in active use; and during the first four months of 1942, these vehicles carried 64,488,591 revenue passengers and traveled 12,235,627 vehicle miles. During 1941, they carried 160,050,096 revenue passengers and traveled 34,042,730 vehicle miles. Much of this traffic is intimately connected with industry. The evidence shows that during the morning rush hours, the company carries approximately 100,000 passengers to outlying industrial areas and approximately 90,000 passengers to the heart of the city where wholesale and manufacturing districts are located.

While the vehicles of the company do not cross state lines, there can be no question that they carry to and from work thousands of passengers who are engaged in the production of goods that flow in interstate commerce. Many of the great industrial and manufacturing corporations of the country have plants in the city of Baltimore or vicinity and large numbers of their employees use the cars and buses of the company as a means of getting to and from their work. It appears from the evidence that of 147,000 employees of 47 of the city's largest industrial concerns approximately 45,000 are dependent upon the company's cars and buses for transportation to and from work. These concerns are engaged in interstate commerce on a large scale, bringing into the state annually goods valued at over $271,000,000 and shipping out goods of a value exceeding $500,000,000. The cars and buses of the company, moreover, carry persons traveling in interstate commerce to and from the stations and wharves of interstate carriers, and transport mail and newspapers moving in interstate commerce. In connection with their operation, the company brings into the state annually large quantities of materials and supplies. Its purchases of machinery and equipment in 1941 from sources outside the state was $2,353,455.96. In the same year it purchased 1,698,280 gallons of gasoline and 313,976 gallons of oil which originally came from without the state and used 138,381,291 kilowatt hours of electricity, which it purchased from a producer that obtained exceeding thirty-nine per cent of its output from beyond the state.

Under such circumstances we think there can be no doubt that the provisions of the act are applicable to the company's business. Not only would the stoppage of its operations as a result of labor strife interfere with the flow in interstate commerce of the materials and supplies which it uses in the business, but such stoppage would seriously cripple and interfere with other businesses engaged in interstate commerce whose workers are transported to and from work on its cars and buses. We can take judicial notice of the fact that Baltimore is in size the seventh city of the United States; that it is a large city in a small state; that its industry is largely engaged in the production of goods for and the transportation of goods in interstate commerce; that the proper functioning of the industrial life of such a city is dependent to a large extent upon the transportation furnished by its street cars and buses; and that a tie up of this means of transportation would in large measure paralyze the life of the city and greatly hinder and impede the flow of the interstate commerce in which the people of the city are engaged.

The test of the Board's jurisdiction under the act is, not whether the operations of the company constitute interstate commerce, but whether a stoppage of its operations by threatened industrial strife would result in substantial interruption to or interference with the free flow of such commerce. N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41, 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; Consolidated Edison Co. v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 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; N. L. R. B. v. Bradford Dyeing Ass'n, 310 U.S. 318, 60 S.Ct. 918, 84 L.Ed. 1226; Newport News Shipbuilding & Dry Dock Co. v. N. L. R. B., 4 Cir., 101 F.2d 841, 843, affirmed on this point 308 U.S. 241, 60 S.Ct. 203, 84 L.Ed. 219. See also Kirschbaum Co. v. Walling, 316 U.S. 517, 521, 62 S.Ct. 1116, 86 L.Ed. 1638; Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82. The purpose of Congress to extend the operation of the act to cover any business whose interruption by labor disputes would interfere with interstate commerce is perfectly clear. The Board is expressly empowered "to prevent any person from engaging in any unfair labor practice * * * affecting commerce." 29 U.S.C. A. § 160(a). And "affecting commerce" is defined by the act to mean "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." 29 U.S.C.A. § 152 (7). And that such regulation is within the power of Congress is equally clear. As said in Wickard v. Filburn, supra 317 U. S. 111, 63 S.Ct. 89: "* * * even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exercises a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as `direct' or `indirect.'" (Italics supplied.)

If Congress may regulate the labor relations of a clothing manufacturer (N. L. R. B. v. Fainblatt, supra), the wages of an elevator operator in a loft building (Kirschbaum Co. v. Walling, supra), or the grain acreage of a farmer (Wickard v. Filburn, supra), because of the effect these may have on interstate commerce, it would be absurd to say that its power does not extend to the labor relations of a street transportation company, upon whose operation the industrial life of a great city extensively engaged in interstate commerce is so largely dependent.

The Question of Estoppel.

We see no merit whatever in the estoppel relied on. The facts are that in the year 1937 a union not involved in the complaint here made a charge to the regional director of the Board that the company had discriminatorily discharged one Brylke in violation of sections 8(1) and (3) of the act. The regional director refused to file a complaint because he was of...