NLRB v. Central Oklahoma Milk Producers Ass'n

• Decision Date: 09 December 1960
• Docket Number: No. 6340.,6340.
• Citation: 285 F.2d 495
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

285 F.2d 495 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTRAL OKLAHOMA MILK PRODUCERS ASSOCIATION, Respondent.

No. 6340.

United States Court of Appeals Tenth Circuit.

November 12, 1960.

Rehearing Denied December 9, 1960.

Herman I. Branse, Washington, D. C. (Stuart Rothman, Dominick L. Manoli, Marcel Mallet-Prevost and Melvin Pollack, Washington, D. C., were with him on brief), for petitioner.

Stuart H. Russell, Oklahoma City, Okl., for respondent.

Before MURRAH, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

MURRAH, Chief Judge.

This is a petition to enforce an order of the National Labor Relations Board, requiring the Respondent-Association to cease and desist from discouraging union membership, reinstate and compensate certain workers for back pay, and to notify all its workers of the order. The charge arises out of an alleged violation of the provisions of the Labor-Management Relations Act dealing with discrimination in regard to hire or tenure of employment. 29 U.S.C.A. § 158(a) (3) and (1). There main questions are presented: (1) whether, as the Board found, the Association can be said to be engaged in activities affecting interstate commerce; (2) whether the Board is barred from asserting its authority by the agricultural-worker exclusion, 29 U.S.C.A. § 203(f) and § 213; and (3) whether the record justifies the Board's order.

In determining whether the Association's activities come within the purview of the Act, as affecting commerce, the primary consideration is whether a work stoppage at the Association would tend to impede the free flow of interstate commerce. N. L. R. B. v. Conover Motor Co., 10 Cir., 192 F.2d 779, and cases cited therein. The respondent is an association comprised entirely of Oklahoma farmers which is, inter alia, engaged in the business of picking up milk, in bulk tank trucks, from farms and delivering it to processors who, while engaged in interstate commerce, sell the milk wholly within the state. Another facet of the Association's activities involves purchasing, for the members, goods which are imported from out of the state. In the year in question, 1958, some $200,000 was expended for such purchases. It is readily apparent that a work stoppage causing cessation of these activities would tend to impede the importation of a considerable quantity of goods from out of the state, and it is immaterial that the Association does not possess legal title to the imported goods, N. L. R. B. v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Santa Cruz Fruit Packing Co. v. N. L. R. B., 303 U.S. 453, 454, 58 S.Ct. 656, 82 L.Ed. 954; or that it "* * * sells nothing in interstate commerce." Salt River Valley Water Users' Ass'n v. N. L. R. B., 9 Cir., 206 F.2d 325, 327. The crucial factor is that the goods are imported in substantial quantities as an ordinary part of the business activities. N. L. R. B. v. Denver Building & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; N. L. R. B. v. Conover Motor Co., supra. It is thus plain that the business of the Association has a direct effect on the free flow of commerce, even though most of its activities are local in nature.

The argument that the agricultural-worker exclusion should apply presents a question closely analogous to Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 768, 69 S.Ct. 1274, 1281, 93 L.Ed. 1672, involving a similar association of farmers collectively joined together for mutual benefit. The court pointed to the "* * * difference between the hiring of mutual servants by a group of employers and the creation by them of a separate business organization, with its own officers, property, and bonded indebtedness, which in turn hires working men. * * The controlling fact is that the company has been set up by the farmers as an independent entity * * *." The respondent argues that this case is distinguishable because here the drivers do certain work on the farms, primarily testing the milk before putting it into the trucks. It is clear, however, that this work is done for the association entity, not for the individual farmers. It is, of course, necessary that precautions be taken to prevent spoiled milk from reaching the trucks. But, the fact that this necessary work must be done on the farm in no way leads to the conclusion that the drivers are not working for the Association — an entity separate and distinct from the individual members thereof, and thus the agricultural-worker exclusion does not apply.

On the question of the sufficiency of the facts, it is of course the primary function of the Board to find facts, draw inferences, and construe the Act to effectuate its purposes. While we have the "ultimate responsibility for the rationality of the Board's decision," we should not...