National Labor Relations Board v. Crowe Coal Co., 435

• Citation: 104 F.2d 633
• Decision Date: 26 June 1939
• Docket Number: No. 435,435
• Parties: NATIONAL LABOR RELATIONS BOARD v. CROWE COAL CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

104 F.2d 633 (1939)

NATIONAL LABOR RELATIONS BOARD v. CROWE COAL CO.

No. 435, Original.

Circuit Court of Appeals, Eighth Circuit.

June 26, 1939.

Samuel Edes, Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, General Counsel, Robert B. Watts, Associate General Counsel, Mortimer B. Wolf, Bertram Edises, and John H. Dorsey, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Frank H. Terrell, of Kansas City, Mo. (H. M. Langworthy, Byron Spencer, Carl D. Matz, and Langworthy, Spencer, Terrell & Matz, all of Kansas City, Mo., on the brief), for respondent.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

This case comes before the court upon petition by the National Labor Relations Board for the enforcement of an order issued by it pursuant to Section 10 (c) of the National Labor Relations Act, July 5, 1935, 29 U.S.C.A. § 151 et seq., against respondent, Crowe Coal Company, a Missouri corporation, which operates a coal mine in Henry County, Missouri. (Case No. C-564, decided Nov. 23, 1938.)

The case was begun by the filing with the Board of a charge by United Mine Workers of America, District No. 14, a labor organization referred to as the United. Thereafter United filed its amended charge in which it was alleged that respondent had engaged in and was engaging in certain described unfair labor practices affecting commerce as defined in the Act. The Board by its Regional Director at Kansas City, Missouri, issued a complaint and notice of hearing, which were served upon respondent. It was charged in the complaint that respondent discharged and refused to reinstate Kaples Forsythe, A. W. Sivils, Charles Kern and Carey Scott because they had joined and assisted the United and engaged in concerted activities with other employees of respondent for the purpose of collective bargaining and other mutual aid and protection; that by the aforesaid discharges and other acts respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act; and that by the foregoing acts respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. Respondent filed an answer in which it denied all the material allegations of the complaint.

A hearing was held at Kansas City, Missouri, before a Trial Examiner designated by the Board. At the hearing, counsel for the Board and for respondent entered into an "Agreed Statement of Facts", setting forth the facts as to the nature of respondent's business and containing the following paragraph dealing with the unfair labor practice charges:

"It is hereby stipulated * * *

"4. That the evidence which would be offered by the National Labor Relations Board at the hearing in the above-entitled matter as the reason for the discharge of the above-named employees, and each of them, would be sufficient to justify a finding by the National Labor Relations Board that the above-named men were discharged from the employ of the respondent because of their membership in the United Mine Workers of America, District No. 14."

No testimony of witnesses as to the discriminatory character of the discharges was introduced. Thereafter, the Trial Examiner filed with the Board his Intermediate Report in which he found that respondent had engaged in unfair labor practices as alleged in the complaint. Exceptions to the Intermediate Report were filed with the Board by respondent.

Thereafter the Board, being of the opinion that "the record was inadequate for a determination of the issues", issued an order, pursuant to Article II, Section 36, of the Board's Rules and Regulations, reopening the hearing for the purpose of introducing further evidence. Thereafter, due notice of the holding of a further hearing "on the complaint heretofore issued in the * * * matter" having been given, a second hearing was held before the Trial Examiner designated by the Board. At this hearing, the Board called witnesses and introduced evidence upon the issue whether or not the respondent had been guilty of the unfair labor practices alleged in the complaint.

At the conclusion of the second hearing, counsel for the Board requested that the record be kept open for the inclusion of "material that will pertain to the bituminous coal industry generally", and counsel for respondent also indicated that if respondent desired, the same opportunity should be given to it "to offer similar documentary proof." Counsel for the Board subsequently offered in evidence Bulletin No. 2 purporting to be a publication of the Division of Economic Research of the National Labor Relations Board, entitled "The Effect of Labor Relations in the Bituminous Coal Industry Upon Interstate Commerce", containing general economic and historical data and statistical tables relating to the subject of the title. The respondent filed objections to the introduction of this material in evidence on the grounds that the data was unverified hearsay "of no evidentiary value" and immaterial under the issues. The Board in its decision overruled the objections and ordered that the data be made part of the record. No objections to such action are argued here.¹

The respondent argued the case orally before the Board and filed a brief in support of its conclusions and on consideration of the entire record, the Board rendered its decision setting forth its findings of fact, conclusions of law, and the order now before us.

The findings of fact made by the Board were based upon the agreed statement of facts submitted before the examiner at the first hearing and the testimony taken before the examiner at the second hearing. The facts concerning the business of the respondent were found separately from those relating to the discharge of the workmen. In Section I it was found as to the nature of respondent's operations that respondent, "a Missouri corporation, operates a strip mine in Clinton, Missouri, and maintains a sales office in Kansas City, Missouri. During the year 1936, the respondent mined and sold 267,495.5 tons of coal to various consumers. Of this amount, jobbers who accepted delivery at the mine, sent 34,004.74 tons of coal out of the State f. o. b. respondent's mine. In addition, the respondent sold 32,231.33 tons of coal to the Kansas City Power & Light Company and 46,590 tons to the St. Louis-San Francisco Railway Company for road and engine service and for use in its stationary plants. The Kansas City Terminal Railway Company purchased 17,888.58 tons of coal which were used at its power house in Kansas City, Missouri."

In respect to the unfair labor practices, the Board found, Section III, "that respondent discharged Kaples Forsythe, Albert Sivils, Charles Kerns, and Carey Scott because of their membership and activity in the United; that respondent discriminated against its employees in regard to hire and tenure of employment, thereby discouraging membership in a labor organization; and that by the foregoing acts respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act."

Upon the foregoing findings of fact, the Board concluded the respondent had engaged in and was engaging in unfair labor practices in violation of Section 8, subdivisions (1) and (3) of the Act, and that said unfair labor practices affected commerce within the meaning of Section 2, subdivisions (6) and (7), of the Act. Thereupon the Board ordered respondent to cease and desist from discouraging membership in the United, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; and from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights as guaranteed in Section 7 of the Act.

As affirmative action which the Board found would effectuate the policies of the Act, the Board directed respondent to reinstate the four men to their former positions, to make them whole for part of their back pay and to post appropriate notices.

The Board's findings with respect to the nature of respondent's operations are based on the agreed statement of facts entered into between counsel for respondent and counsel for the Board and are not in dispute. It appears that respondent is a corporation organized under the laws of Missouri and is engaged in the operation of a strip coal mine located near Clinton, Missouri. Its only offices and places of business are its principal office and place of business in Kansas City, Missouri, and its office at Clinton, Missouri. The business done during the year 1936 was tabulated in the agreed statement and it was agreed that the sales, manner of billing and tonnage shown by the tabulation for the year 1936 was a representative year of respondent's business and is representative of all the periods of time here involved. During that year, respondent produced 267,494.50 tons of coal. Of its total production, 34,004.74 tons, or 12.7 per cent, was sold loaded in the cars at the mine to jobbers and billed at their direction to points outside the State of Missouri, and 64,478.58 tons, or 24.1 per cent, was sold to the St. Louis-San Francisco Railway and the Kansas City Terminal Railway Company.² Of the coal sold to the railways, 22,638.58 tons, or approximately 36 per cent, was used in the generation of power and production of heat in stationary plants within the State of Missouri, and 41,480 tons or approximately 64 per cent, was used directly in engine service as locomotive fuel. Thus, during the year 1936, a total of 98,583.32 tons, or 36.8 per cent of respondent's total production of coal, entered into the channels of interstate trade or was used either in the servicing of instrumentalities of interstate...