National Labor Relations Board v. Sunshine Mining Co.

• Decision Date: 19 June 1940
• Docket Number: No. 9162.,9162.
• Citation: 110 F.2d 780
• Parties: NATIONAL LABOR RELATIONS BOARD v. SUNSHINE MINING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

110 F.2d 780 (1940)

NATIONAL LABOR RELATIONS BOARD v. SUNSHINE MINING CO.

No. 9162.

Circuit Court of Appeals, Ninth Circuit.

April 3, 1940.

Rehearing Granted, Decree Confirmed June 19, 1940.

COPYRIGHT MATERIAL OMITTED

Charles Fahy, Gen. Counsel, Robert B. Watts, Laurence A. Knapp and Malcolm F. Halliday, Asst. Gen. Counsels, and Leonard Appel, Atty., all of National Labor Relations Board, all of Washington, D. C., for petitioner.

Joseph C. Cheney, of Yakima, Wash., for respondent.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

GARRECHT, Circuit Judge.

The National Labor Relations Board has filed a petition in this court to enforce an order issued by it in proceedings which it instituted against the respondent, the Sunshine Mining Company. Respondent is a Washington corporation with its home office at Yakima, Washington. It maintains its principal place of business at Kellogg, Idaho.

The complaint, as amended, in addition to jurisdictional allegations, alleges the following material matters: that respondent had interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, 49 Stat. 449, 452, 29 U.S.C.A. § 157, by directing a campaign of propaganda, threats, and terrorization against the International Union of Mine, Mill and Smelters Workers (herein referred to as the Union), which is affiliated with the Committee of Industrial Organization, and by utilizing the device of a company-sponsored petition and election for the purpose of destroying the Union; that respondent had refused to bargain with the Union on June 28, July 9, and August 2, 1937, although the Union was then the representative of a majority of the employees in the appropriate unit for collective bargaining purposes; that by reason of this course of conduct a strike was called by the Union on behalf of respondent's employees; that respondent discharged and refused to reinstate over two hundred named employees because they had engaged in concerted activities through the Union for the purposes of collective bargaining and other mutual aid and protection; that respondent formed, dominated, and contributed support to a labor organization known as the Big Creek Industrial Union; and that by reason of the foregoing acts, respondent had violated Section 8(1), (2), (3), and (5) of the Act, 29 U.S.C.A. § 158(1, 2, 3, 5). Respondent filed an answer in which it denied that it was subject to the Act and denied that it had engaged in the unfair labor practices alleged.

The Big Creek Industrial Union, concerned herein, is an incorporated, unaffiliated labor organization admitting to its membership all the respondent's employees, including supervisory employees, who are not given voting rights. This union (hereinafter referred to as the Big Creek Union) was permitted to intervene in these proceedings and was represented by counsel and was afforded full opportunity to be heard, to examine witnesses, and to introduce evidence bearing on the issues.

At the close of the hearing the trial examiner granted a motion of counsel for the Board to amend the complaint to conform to the evidence.

The Board's findings of fact, conclusions of law, and order are summarized as follows: Respondent is a Washington corporation engaged in the extraction, mining, and milling of silver ore at its mine located near Kellogg, Shoshone County, Idaho. Rated as the largest producer of silver in the United States, respondent in the year 1936 mined and milled 215,949 dry tons of ore, which yielded some 9 million ounces of silver and considerable quantities of other metals. After reducing its ore to concentrate form, respondent transfers it to the Bunker Hill and Sullivan Mining and Concentrating Company, herein called the Smelter Company, under the terms of an exclusive sales contract containing the following terms:

"The Seller hereby agrees to sell and deliver to the Buyer, and the Buyer agrees to accept and purchase from the Seller at the prices and upon the terms and conditions hereinafter stated, the total output of ores mined and extracted from the mines and mining properties owned or controlled by the Seller situated in the Big Creek Mining District, Shoshone County, Idaho, together with all concentrates and mill products of every nature produced from ores owned or controlled by the Seller, for a period of five (5) years * * * all such ores, concentrates, and products, hereinafter designated as `product', to be delivered by the Seller to the Buyer, f.o.b., railroad cars at the Bunker Hill Smelter located at Bradley, Idaho.

* * * * * *

"During the life of this agreement said Buyer agrees to pay in lawful money of the United States to the Seller for said product and the Seller agrees to receive in full payment for said product, in each and every lot shipped hereunder, at the following prices and upon the following terms * * *."

The concentrate is processed at the Kellogg plant of the Smelter Company and from there the finished silver bars are shipped to the United States Mint at San Francisco, California. The gold recovered is sent to the United States Assay Office at Seattle, Washington, while the copper and lead in substantial quantities are sold in the open market outside the State. The Board found that the operations of respondent and the Smelter Company constitute a direct and continuous flow of commerce across state lines. Respondent in 1936 purchased materials, equipment, and other items necessary to its operations, totaling approximately $700,000, sixty per cent of which were transported to respondent's mine from outside the State of Idaho.

The Board found that respondent, by manifold anti-union activities, had interfered with, restrained, and coerced its employees within the meaning of Section 8(1) of the Act; that a majority of its employees in the appropriate unit had, on June 28, July 9, and August 2, 1937, and thereafter, designated the Union as their representative for collective bargaining; that respondent, on these dates, had refused not only to bargain collectively with the Union, but to embody understandings, if reached, in a written signed agreement, although requested by the Union so to do, thereby committing unfair labor practices within the meaning of Section 8(5) of the Act; that the strike of respondent's employees on August 2 was caused by this refusal to bargain; that respondent, on August 18, 1937, discriminated against all of its striking employees in regard to their hire and tenure of employment in violation of Section 8(3) of the Act; and that respondent, by dominating and interfering with the formation and administration of the Big Creek Union and contributing support thereto, had engaged in unfair labor practices within the meaning of Section 8(2) of the Act.

Upon the foregoing findings of fact, the Board concluded that respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(1), (2), (3), and (5) and that they were unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, 29 U.S.C.A. § 152.

Accordingly, the Board ordered respondent to cease and desist (a) from discouraging membership in the Union by discrimination in regard to hire and tenure of employment; (b) from in any manner dominating or interfering with the administration of the Big Creek Union or with any other labor organization of its employees or contributing support thereto; (c) from refusing to bargain collectively with the Union; and (d) from in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7. As affirmative action which it found would effectuate the policies of the Act, the Board directed respondent to offer reinstatement with back pay to all employees who went on strike on August 2, 1937; to withdraw all recognition from and disestablish the Big Creek Union as representative of its employees for collective bargaining; and to post appropriate notices. The Board's order also included the further affirmative requirement that respondent bargain collectively, on request, with the Union as exclusive representative of all employees in the appropriate unit, with respect to rates of pay, wages, hours, and other conditions of employment, and if an understanding is reached on such matters, "embody said understanding in a written signed agreement for a definite term, to be agreed upon, if requested to do so" by the Union.

Upon the Question of Jurisdiction.

Throughout these proceedings respondent has challenged the jurisdiction of the Board, contending it was not engaged in any business which substantially affected interstate commerce. This contention is renewed here, and, in addition, respondent filed a motion in this court to dismiss the petition, claiming that, in any event, there had been a termination of jurisdiction and in support thereof filed affidavits to the effect that on and before the 1st day of August, 1938, respondent wholly ceased purchasing any supplies, materials, machinery, equipment, or other articles of whatsoever kind or nature from any seller located outside the State of Idaho, and that since said 1st day of August, 1938, all purchases of whatsoever kind or character have been made by respondent in Idaho, by an Idaho contract with an Idaho seller, that is, from an Idaho concern regularly doing business in the State of Idaho and with a place of business in the State of Idaho, and that all of such purchases have been delivered to the respondent in Idaho by such Idaho seller.

It is asserted that the situation in this case is exactly the same as in National Labor Relations Board v. Idaho-Maryland Mines Corp., 9 Cir., 98 F.2d 129, 131. Without going into detail we deem it sufficient to say that the facts in that case are different from those found here. There the California mining concern sold its output to...