National Labor Relations Board v. Bell Oil & Gas Co.

• Decision Date: 21 July 1937
• Docket Number: No. 8438.,8438.
• Citation: 91 F.2d 509
• Parties: NATIONAL LABOR RELATIONS BOARD v. BELL OIL & GAS CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

91 F.2d 509 (1937)

NATIONAL LABOR RELATIONS BOARD v. BELL OIL & GAS CO. et al.

No. 8438.

Circuit Court of Appeals, Fifth Circuit.

July 21, 1937.

Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D. C., and Gerhard Van Arkel, of New Orleans, La., for petitioner.

O. R. Tipps and C. J. Brannan, both of Wichita Falls, Tex., for respondents.

Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.

HUTCHESON, Circuit Judge.

By this petition the Board seeks a court decree to enforce its order to cease and desist, and to take affirmative action, entered in a proceeding against respondents under the National Labor Relations Act (section 10).¹ The cease and desist portions of the order are in general terms. They forbid respondents from interfering with, restraining or coercing their employees in regard to membership in any labor organization, or otherwise in the exercise of their rights guaranteed in section 7 of the National Labor Relations Act.² The affirmative action ordered was with reference to one George E. Bebermeyer. It directed respondents to (a) "offer him immediate and full reinstatement without prejudice to rights and privileges previously enjoyed, dismissing Maxwell, if necessary"; (b) make him whole by payment of moneys equivalent to what he would have earned in respondent's employ in the periods covered by the order.

Respondents answer the petition and resist the enforcement of this order, on three general grounds; (1) jurisdictional, that the respondents are not engaged in "commerce," as that term is defined in subdivision (6) of section 2 of the act: "The term `commerce' means trade, traffic, commerce, transportation, or communication among the several States," and that the activities made the subject of the Board's inquiry do not affect `commerce' as that term is defined in the act — "The term `affecting commerce' means 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."³

The point made on the first ground is that the activities of respondents and of their employees, out of and in connection with which the labor troubles, the strike, and the question of discrimination against Bebermeyer grew, are matters not of national, but of local, concern; have to do not with commerce among the states, but with the production of oil in a single state. The second and third grounds of resistance to the order are: (2) An attack upon the fact findings as unsupported by the evidence; (3) an attack upon the remedial order as (a) moot, because Maxwell, whom the Board ordered discharged, if necessary, to reinstate Bebermeyer, had already been discharged before the order was entered, and (b) as unsupported by the findings and the authority of the Board under the act, in requiring that the respondents reinstate Bebermeyer in addition to the two union men already re-employed, and divide among three work which required only two employees.

Upon the second point of attack the claim is made that the evidence does not support, that on the contrary it negatives, the finding that Bebermeyer, the employee ordered reinstated, was discriminated against, in regard to hire and tenure of employment, because of his membership and activities in the local. Respondents insist that the evidence permits no other conclusion than that the two employees working with Bebermeyer before the strike were re-employed and he was not, not because of Bebermeyer's union activities, but because the new plan of operation required only two, instead of three, men, and the two re-employed were more capable and efficient than Bebermeyer.

The third ground of attack (a) the mootness of the order, (b) its unsupport in fact and in law, searches the remedial order for its meaning and intended effect, and affirms or denies its validity according to that meaning.

The facts as to the business in which respondents are engaged, the nature and character of the activities involved in the dispute as "commerce," or "affecting commerce," the terms and tenure of Bebermeyer's employment before, the conditions leading up to, the consequences flowing from, and the action taken after, the strike, are all without dispute. They are well found by the Board.⁴

The Board's finding on jurisdiction was handed down after the Examiner had found no jurisdiction, and before the Supreme Court had on April 12, in the series of decisions of which the Jones & Laughlin Steel Corporation Case was the chief (National Labor Relations Board v. Jones & Laughlin Steel Corp., 57 S.Ct. 615, 81 L.Ed. ___, 108 A.L.R. 1352; National Labor Relations Board v. Fruehauf Trailer Co., 57 S.Ct. 642, 81 L.Ed. ___, 108 A.L.R. 1352; National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 57 S.Ct. 645, 81 L.Ed. ___, 108 A.L.R. 1352; Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 57 S.Ct. 648, 81 L.Ed. ___; Associated Press v. National Labor Relations Board, 57 S.Ct. 650, 81 L. Ed. ____), clarified the greatly disputed questions as to the scope and effect of the act. Upon a full recitation of the facts which amply supports its conclusion, the Board found that the respondents, engaged, as they were, in their repressuring operations in transporting gas to and from Texas and Oklahoma, were at least in the activities concerned in the Bebermeyer dispute engaged directly in interstate commerce, to wit, the transportation of gas among the states, and that labor conditions and troubles in connection with such operations had affected, and would affect, that commerce.

Before us the Board stands on that finding, but it insists further, upon the authority of the Jones & Laughlin, the Fruehauf, the Friedman-Marks, and the Associated Press Cases supra, that the activities of respondents, considered as a whole, were, and "affected," "commerce," and that the strike which followed the labor disputes, and the consequent shutdown of all the operations of respondents, both state and interstate, establish beyond question that the activities did affect commerce among the states, and that the labor disputes growing out of and connected with them were within the compass of the act.

Respondents vigorously contend that the facts that the operations were conducted on and near state lines, and that gas was transported from one state to another in connection with production operations, were simply incidents to mining operations, the production of petroleum. They urge that it is a far-fetched construction which would characterize as interstate commerce or transportation, repressuring activities merely because, incidental to them, gas was drawn through the lines from state to state. They also insist that nothing in the recent decisions of the Supreme Court, entered in disputes arising in industries and operatons nationwide in scope, supports the assertion of jurisdiction here.

We agree, not with respondents, but with the Board, upon both of the jurisdictional grounds it puts forward. Upon the first ground we think it may not be doubted that in their repressuring activities respondents were directly engaged in "commerce in," that is, interstate transportation of gas. If, as has been uniformly held, the carriage of stolen cars, of contraband oil, of women, of intoxicating liquor, from state to state, even though not for commercial, but only for personal, use, is transportation in interstate commerce, within the prohibition of acts forbidding such interstate transportation, certainly the transportation of gas from state to state in the operation of respondents' business is. Bebermeyer, the employee in question, as active operator of the repressure plant, was therefore directly engaged in interstate commerce, to wit, the transportation of commodities for commercial uses from state to state.

We think, too, that the disruptive results of the strike in completely stopping not only the activities of the repressure system, but those of the pipe line system, which carried oil to the refinery, and of the refinery itself, leave no doubt that, situated and engaged as these companies were, labor disputes among their employees not only might, but did, affect interstate commerce within the scope and meaning of the act.

The act is not confined in its jurisdiction to industries operating upon a nationwide scale. It extends to and embraces within its scope all activities, large or small, which are, or which affect, "commerce" as defined in it. By every test of the decisions the commerce power exerted in the act extended to this dispute, and to those involved in it. A few quotations from some of the recent decisions will show this:

"It is the nature of the work done and its relation to interstate transportation which afford adequate basis for the exercise of the regulatory power of Congress." Virginian Ry. Co. v. System Federation, 57 S.Ct. 592, 604, 81 L.Ed. 789.

"Interstate communication of a business nature, whatever the means of such communication, is interstate commerce regulable by Congress under the Constitution. This conclusion is unaffected by the fact that the petitioner does not sell news and does not operate for profit, or that technically the title to the news remains in the petitioner during interstate transmission." Associated Press v. National Relations Board, 57 S.Ct. 650, 654, 81 L.Ed. ___.

"The grant of authority to the Board does not purport to extend to the relationship between all industrial employees and employers. Its terms do not impose collective bargaining upon all industry regardless of effects upon interstate or foreign commerce. It purports to reach only what may be deemed to burden or obstruct that commerce and, thus qualified, it must be construed as contemplating the exercise of control within constitutional bounds. It is a...