NATIONAL LABOR RELATIONS BOARD v. National Gas Co., 14739.

• Decision Date: 10 August 1954
• Docket Number: No. 14739.,14739.
• Citation: 215 F.2d 160
• Parties: NATIONAL LABOR RELATIONS BOARD v. NATIONAL GAS CO.
• Court: U.S. Court of Appeals — Eighth Circuit

215 F.2d 160 (1954)

NATIONAL LABOR RELATIONS BOARD v. NATIONAL GAS CO.

No. 14739.

United States Court of Appeals Eighth Circuit.

August 10, 1954.

Rosanna A. Blake, Attorney N. L. R. B., Washington, D. C. (George J. Bott, General Counsel, David P. Findling, Associate General Counsel, A. Norman Somers, Asst. Gen. Counsel, and Samuel M. Singer, Attorney N. L. R. B., Washington, D. C., on the brief), for petitioner.

Milton O. Talent, St. Louis, Mo. (Robert A. Dempster, Sikeston, Mo., on the brief), for respondent.

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

WOODROUGH, Circuit Judge.

Pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(e), the National Labor Relations Board has petitioned this court for enforcement of its order entered May 27, 1952, against respondent National Gas Company. By the terms of said order respondent is directed to:

"1. Cease and desist from:

"a. Discouraging membership in United Gas, Coke and Chemical Workers, C.I.O., or any other labor organization * * *.

"b. Refusing to bargain collectively * * *.

"c. Any bargaining * * * with individual employees in the unit aforesaid * * *.

"d. Suggesting to employees that they abandon their statutory collective bargaining representative * * *.

"e. In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization * * *.

"2. Take the following affirmative action:

"a. Offer to certain named individuals immediate and full reinstatement * * *.

"b. Make whole certain named individuals for any loss of pay * * *.

"d. Upon request, bargain collectively with United Gas, Coke and Chemical workers * * *."

(Parts c, e, and f of the Board's order relate to furnishing records, posting notices, etc.).

Respondent is engaged in the sale of bottled gas and gas appliances at Sikeston, Hayti, and Malden, Missouri, and the surrounding territories. Pursuant to a commerce stipulation entered into by the parties herein, it was shown that during the period April 30, 1949-April 30, 1950, respondent purchased raw materials, equipment and supplies from points outside of Missouri in the amount of $150,000. Under then existing rules adopted by the Board, this constituted 30% of the minimum amount of direct inflow necessary before the Board would assert jurisdiction. During the same period, respondent sold and delivered gas in the amount of $31,242.94 to forty-four cotton gins located in Missouri, each of which purchased, ginned, and sold cotton in excess of $50,000 annually. After ginning, the gins shipped the cotton to compresses located in Missouri and received negotiable warehouse receipts in payment therefor. These warehouse receipts were then sold to various buyers, either brokers or mill representatives, who directed delivery from the compresses. It is admitted by the parties that title to the cotton might pass through several buyers, but eventually 95% to 98% is shipped directly from the compresses to points outside of Missouri. In addition, respondent supplies gas to six other "agent" cotton gins in Missouri, each of whose annual sales exceed $50,000. These gins handle the cotton in the same way as stated above, except that they do not purchase the cotton from the farmers but merely remit the sale price after deducting ginning charges. The fifty gins mentioned, plus other consumers of respondent, each of which annually handle or process more than $25,000 worth of goods destined for out-of-state shipment, were furnished gas in the amount of $41,015.95 by respondent during the stipulated period. Under formula promulgated by the Board for asserting jurisdiction, this represented approximately 82% of the $50,000 minimum indirect outflow requirement for local enterprises furnishing materials or services to businesses engaged in interstate commerce. By adding the 30% direct inflow to the 82% indirect outflow, the 100% requirement under the Board policy for asserting jurisdiction was met and the Board asserted jurisdiction over a labor dispute at respondent's plants.

The Board's petition for enforcement was filed in this court on November 17, 1952, but due to the delay occasioned by a remand of the case for the purpose of taking further evidence on the question of the union's compliance with the filing provisions of the National Labor Relations Act, 29 U.S.C.A. § 159(f), (g), and (h), the case was not argued until the May, 1954, session of this court. In the meantime and on November 30, 1953, the Board handed down its decision in the Brooks Wood Products case, 107 N.L. R.B. 71, in which it declined to assert jurisdiction under a similar set of circumstances as disclosed here, and in which it expressly overruled its decision asserting jurisdiction in this case. After the decision in the Brooks case, however, the Board determined (by divided vote) to proceed to obtain an order of enforcement in this case.

On April 16, 1954, respondent filed a Motion to Amend Answer in which it charged that the action of the Board in undertaking to obtain enforcement of its order in this case was unreasonable, arbitrary and capricious and deprived respondent of due process of law. That motion was argued before us at the same time the Board's petition for enforcement was heard on the merits. Discussion of the merits of the case is unnecessary in view of our decision on respondent's motion.

The Board is asking this court to enforce an order which it entered upon a state of facts which the Board has later expressly held to be insufficient to justify its taking or exercising jurisdiction under the statute...