NATIONAL LABOR RELATIONS BOARD v. MOORE-LOWRY FLOUR MILLS CO.; MOORE-LOWRY FLOUR MILLS CO. v. NATIONAL LABOR RELATIONS BOARD.
Nos. 2226, 2234
Circuit Court of Appeals, Tenth Circuit
July 17, 1941
Application to Modify Decree Denied Sept. 6, 1941
122 F.2d 419
Moreover, in view of the delicate question of interference by inferior Federal courts with the judgment of the courts of a sovereign state of the Union which is presented by an application such as this, it appears to be the approved practice that if such an application is to be presented after exhaustion of the State judicial remedies, it should be made directly to the Supreme Court of the United States. See Mooney v. Holohan, supra; Ex parte Jefferson, 9 Cir., 106 F.2d 471, 472; Ex parte Penney, 9 Cir., 103 F.2d 27, 28.
The order of the District Court is affirmed.
On Petition for Rehearing
Rehearing denied.
STEPHENS, Circuit Judge.
I agree to the denial of the petition for rehearing sрecifically upon the ground that “*** recourse should be had to whatever judicial remedy afforded by the state may still remain open.” Mooney v. Holohan, 294 U.S. 103, 115, 55 S.Ct. 340, 343, 79 L.Ed. 791, 98 A.L.R. 406. Petitioner has the right, which apparently he has never exercised, to sue out the writ of habeas corpus in the Nevada State Court notwithstanding the fact that certain issues of petitioner‘s trial have been passed upon by the Nevada Supreme Court.
Joseph Hoskins and Leonard Appel, both of Washington, D. C. (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Lewis M. Gill, and Jerome I.
George Siefkin, of Wichita, Kan. (George B. Powers, of Wichita, Kan., on the brief), for Moore-Lowry Flour Mills Co.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
Moore-Lowry Flour Mills Company, a corporation, hereinafter called the company, operates at Coffeyville, Kansas, a flour mill for the processing of grain into flour and other products, and it also operates ten grain elevators at various places in that state; Flour Mill and Cereal Workers Union No. 20601, affiliated with the American Federation of Labor, hereinafter called the union, is a labor organization admitting to membership employees of the company; and Moore-Lowry Flour Mills Employees Association, hereinafter called the association, is an unaffiliated labor organization admitting to membership employees of the company.
In a conventional proceeding, had under
By separate petitions for review the Board seeks enforcement of the order and the company prays that it be set aside. Pursuant to a stipulation of the parties, the two causes were consolidated, submitted on a single record, and briefed and argued together.
The company employs in its mill at Coffeyville approximately thirty-eight workers and thirteen persons in clerical and supervisory capacities. During the fiscal year beginning June 1, 1937, it purchased about eight hundred carloads of grаin, of which approximately one-fourth was purchased outside of Kansas. The mill produces about twenty to twenty-five thousand barrels of flour per month, more than one-half of which is sold and transported to points in other states. The nature and extent of the operations of the company bear such close and intimate relation to interstate commerce as to bring the company within the scope of the act and subject it to the jurisdiction of the Board. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Southern Colorado
In addition to numerous subsidiary findings which need not be detailed, the Board found that by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in section 7 of the act, the company was engaged in unfair labor practices, within the meaning of
Evidence was introduced which tended to establish these facts: In April, 1937, the union was organized by employees of the company as well as those of Nutrena Mills Company, located just across the street. Orville Lander and Harlan Ray were charter members of the union; Wilson Ray, son of Harlan Ray, became its president; and Lander became its secretary. Prior to that time, Ray and Lander had been on friendly terms with Lee Hood, superintendent of the mill, but thereafter Hood‘s attitude changed. He referred to them as “Reds,” “Bolsheviks,” and “troublemakers,” and stated on one occasion that he intended to assign them to work together in order that they could not organize. He asked Ray if he was a member of the union and upon receiving an affirmative answer stated that a company union was best. Ray expressed the view that a company union would violate the act, and Hood thereupon belittled the act and stated that he was going to fire one man that day and one every thirty days until he got rid of all of them, and on another occasion he told Ray that he had been a good man for a long time but was just a troublemaker since he joined the union. Hood made slurring remarks about Lander, and told him on one occasion that he did not have any sense. On another occasion he pointed out Lander to Watson Ellis as a union man who held a job in the union. When Lander stated that he was secretary of the union, Hood inquired what he thought the union was going to do, and stated that he belonged to a union once and “got a good gypping“; Ellis said that he had a similar experience, that he once joined a union, that he had saved up some money, and that the union got all of it; and Hood and Ellis said that a company union was best, that they should have a company union so that no dues would have to be paid out. After some intervening discussion, Hood admonished Lander not to think that because he was a member of the union he could not be fired because Hood was going to fire union men when they thought that. Charlie Cox, warehouse foreman, announced to a number of employees that he did not mind seeing them all get together but that they did not want outside representatives there.
In June, the organization of an unaffiliated union was initiated. After two informal meetings had been held on the lawn—company property—in front of Hood‘s office, a notice signed by W. H. Hurt, an employee, was posted on the bulletin board of the company announcing thаt a meeting would be held on the lawn that evening. The meeting was opened with the statement that its purpose was to organize a little company union of the employees. Hurt, Reidy and Ellis were elected president, secretary and treasurer, respectively. Reidy and Ellis were second millers. The next day Hood demoted Lander from the position of oiler to that of sweeper at reduced wages. Maiden, an organizer for the American Federation of Labor, took up the matter with Hood. After some discussion, Hood agreed to reinstate Lander to his former position. But, despite the agreement,
At the time of the posting of the notice that the company would not recognize the first organization, and at the time the association was in process of organization in the manner outlined, an article from the American Miller, a trade magazine, was posted on the bulletin board of the company. It was entitled “Don‘t be a Sucker.” It said among other things:
“There‘s a big difference between gentlemanly organization and mad-dog terrorism. We have no room here to dissect the current reign of labor-agitation but room must be made for a word of warning to all employees to let the beast alone. Hands off! Poison! * * * Now here‘s the point: Don‘t be a dupe for any wily organizer. * * * Finally if you suffer from arrested mental development—if you believe the tripe which labоr agitators stuff into simple ears—at least keep your mouth shut. Reckless gabbing will ruin your future. * * * Not long ago an employer quietly pointed to one of his workmen, ‘We have been grooming that man for a superintendency,’ he whispered. ‘But, to our surprise, he‘s begun preaching unrest to our people. He‘s getting nowhere because our men are thoroughly contented. The poor fool will never know it, but he‘s missed the advancement and financial benefits we had planned for him—simply because he was putty in the hands of the labor wolves.’ * * * This needs no amplification—don‘t be a goof!”
A clipping from another issue of the publication was also posted. It was entitled “The Code of the Trustworthy Mill Worker,” and contained this language:
“If conditions do not suit you, talk it over with your superiors. But—be an American. Not a rat, operating in the shadows. Avoid company with rabble-rousers. Remember always that radical agitators are seeking to feather their nests—not yours. There‘s no future for you as a cog in mad-dog labor movements. Thinking millers agree with the Southerner who recently wrote: ‘We‘re still backward enough down here to believe in property and civil rights. And no hunkies with dynamite can change our minds‘.”
Considered as a whole the evidence and the inferences fairly to be drawn from it warranted the Board in making the findings in question. In other words, it cannot be said that the findings are not supported by substantial evidence. True, there was countervailing evidence of substance but it merely presented issues of fact for the determination of the Board, not this court.
Reidy and Ellis, second millers of the company, were the secretary and treasurer, respectively, of the first organization. As second millers they were in charge of the mill at night during the absence of the superintendent, and gave orders to other emрloyees. They were not foremen or supervisors to whom executive functions had been committed. They did not have the power to hire and fire. But they were “lead men” to whom a measure of authority over employees during the absence of the superintendent had been entrusted, and they occupied positions which could be utilized strategically in respect to translating to their subordinates the desires and policies of the company. Their membership and official positions in the earlier organization prejudiced the right of the employees to freedom of self-organization, within the scope of the act. National Labor Relations Board v. Continental Oil Company, 10 Cir., 121 F.2d 120.
Company sponsorship and influence of an earlier organization does not affect a later one provided there is a clear and complete cleavagе between the two. But the slate must be wiped clean by the complete abandonment of the old and a bona fide, separate and distinct beginning of the new. Swift & Co. v. National Labor Relations Board, 10 Cir., 106 F.2d 87; Continental Oil Company v. National Labor Relations Board, supra; Magnolia Petroleum Co. v. National Labor Relations Board, supra; National Labor Relations Board v. Continental Oil Company, supra. The Board found in this case that the sponsorship and influence of the company in the organization of the earlier organization was carried forward and continued to dominate the association. The evidence and the inferences
But let it be assumed for the moment that there was a clear and complete cleavage between the first organization and the association. Two meetings of the associatiоn were held on company property immediately adjacent to the office of the superintendent, one during working hours; the superintendent directed Lander to attend the first, and stated that he would be treated right; he also directed a group of employees to go to the meeting and stated that he could run the mill himself; Cox told an employee in his department that there would not be any work until the meeting ended; a notary was called from the office into the meeting to take acknowledgments to the bylaws; and about three days later Hood referred to Lander and Ray as “Reds,” inquired what they thought of the union and stated that they had better get out of it and into the association. The mill was shut down during the second meeting; Hood told Ray that he had better attend the meeting; he then directed Ray and Lander to sit on the dock until the meeting ended; a contract with the association wаs speedily entered into; without any obligation to do so, Hood adopted the policy of submitting the names of applicants for employment to the committee of the association for approval or rejection; and he submitted to the committee the question whether Lander should be restored to the position of oiler from which he had been demoted. Such acts, conduct and statements, and others not necessary to detail, considered separate and apart from the evidence relating to the first organization, interfered with the right of the employees to self-organization, and support the finding that the company engaged in unfair labor practices.
The Board found that in August, 1937, the company discharged Lander and refused thereafter to reinstate him because of his membership in and activities on behalf of the union, and in that manner restrained and coerced its employees in the exercise of the rights guaranteed to them by section 7 of the act. Many subsidiary findings were made concerning the discharge and refusal to reinstate. The primary findings are challenged on the ground that they are without substantial evidence. Evidence was adduced which tended to prove these facts: Lander had worked for the company since 1934. He was first employed as a millwright helper but was later promoted to the job of oiler. He and Claude Cox, son of the warehouse foreman, had some heated words in the mill. Cox walked away but soon returned with a butcher knife in his hand. A fight ensued. Hood separated the combatants. He had not seen the beginning of the encounter and did not know how it originated. Still, without making any effort to ascertain who started it or who was at fault, he immediately stated to Lander that he and Ray had reached the point where they thought they were running the place. Hood reported the incident to Kliwer, a traveling superintendent who happened to be there that day, and Kliwer discharged both combatants. Almost immediately Cox was given a job in the mill of the company at Wichita; and soon thereafter, at the request of the association, he was reinstated to his former position at Coffeyville. Lander made efforts to be reinstated, and Maiden interceded for him. He declined to appear before the executive committee of the association for the purpose of a hearing on the matter of his reinstatement. Certain officers and the attorney for the company met with Lander and representatives of the union to consider the matter. Lander made a statement and requested that Cox be called but the officers conferred with him later in the absencе of Lander and representatives of the union. At the suggestion of Maiden, Lander declined to answer certain questions which the attorney for the company propounded to him. The evidence is in conflict as to whether the questions related to the encounter or the union. The attorney advised Lander by letter that his request for reinstatement was refused. The latter stated that in addition to his version of the physical encounter which was the immediate cause of his discharge, “consideration was also given to other matters affecting your conduct as an employee and acts of insubordination occurring during the course of your employment, as well as facts concerning the character of your work which you have performed.” The letter further stated that the conclusion was rested entirely upon the fitness of Lander as an employee, and that all facts concerning the controversy in respect to labor organizations had been excluded. About ten days after the discharge, and prior to the hearing and the writing of the letter by the attorney, Kliwer gave Lander a general letter of recommendation in which it was
Discrimination in the employment or reinstatеment of a former employee, due to his affiliation with a labor organization or activities in its behalf within permissive bounds, constitutes an unfair labor practice. Cf. Phelps Dodge Corporation v. National Labor Relations Board, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217, decided April 28, last.
The provision in the order of the Board directing the company, upon application, to offer employment with back pay to Harlan Ray and Owen Kline and to make them whole, rests upon findings that the union1 called a strike at the mill because of the discharge of Lander and the refusal to reinstate him, that Ray and Kline, the only employees besides Lander who were members of the union, went on strike, and that the strike was still in effect at the time of the hearing.
But the company contends that these two striking employees are not entitled to reinstatement with back pay because of certain acts of trespass at the mill. Striking employees who commit unwarranted acts of trespass or violence against the property of the employer are not entitled to reinstatement, with or without back pay. National Labor Relations Board v. Fansteel Corporation, 306 U.S. 240, 59 S. Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; Republic Steel Corporation v. National Labor Relations Board, 3 Cir., 107 F.2d 472, modified on another point, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6. Here, the mill was shut down for approximately thirty minutes beginning at about the time the strike was called, and the record indicates that it was due to an interruption of power. However, each of the two employees unqualifiedly denied that he had anything to do with it or knew the cause, and no other evidence was introduced relating to the matter. In short, the contention of the company is met with an absence of proof to sustain it.
The order provides in paragraphs 2(c) and (e) that in making Lander, Ray and Kline whole, the company shall deduct from the respective amounts due them the sums received during the period in question for work performed upon Federal, State, county, municipal, or other work-relief projects. Those provisions are beyond the authority of the Board. Republic Steel Corporation v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6.
The order of the Board will be modified by eliminating the provisions contained in paragraphs 2(c) and (e) respecting the deduction of the amounts received from governmental agencies; and, as modified, it will be enforced.
PHILLIPS, Circuit Judge (dissenting).
On June 11, 1937, the Flour Mill and Cereal Workers Union No. 206011 filed charges with the National Labor Relations Board‘s Regional Office at Kansas City, Missouri, alleging that the Moore-Lowry Flour Mills Company2 was engaging in unfair labor practices within the meaning of § 8 (2) of the Act. E. F. Merrill, general manager of the Flour Company, was requested to come to the office of George O. Pratt, Director of the Seventeenth Region, National Labor Relations Board, and dis-
The executive committee of the original organization, Hurt, Ellis, and Reidy, consulted Welch, an attorney at Coffeyville, with a view to setting up a properly formed local organization. Hurt, a former school teacher, employed by the Flour Company as a laborer in the sack room and as a night watchman on Sundays and holidays and occasionally on nights when the regular watchmen were off, was the leader in the formation of both local organizations. Before consulting Welch, Hurt made inquiry of the employees as to whether they should make a second effort to effect a local organization and having received affirmative answers, posted a notice for a meeting to be held on July 13. The meeting wаs held in the Flour Company‘s garage on company property. About 35 of the 40 employees attended. Hurt opened the meeting by announcing that it was necessary to disband the old organization because of the fact the supervisory employees had been elected as officers. The by-laws which had been prepared by Welch were read. Lander, secretary of the Union, also read a portion of the
The meetings of July 13 and July 24 were held during working hours on company property.
When Lander reported for work on the morning of July 13, Hood stated to him, “You had better get yourself over to that meeting.” Lander replied that he might get “bawled out” if he took the time out. Hood replied, “No, you won‘t get bawled out; you attend the meeting and they will treat you right.” As the employees were proceeding to the meeting place, Hood said, “All you guys get over to that meeting; I can run this mill by myself.” Cox, a foreman, told other employees when they reported for work that there would not be any work until after the meeting was completed. Hood told Ray, an employee who was active in the Union and the father of its president, that he “had better go on over to that meeting.” When Ray demurred on the ground he was not a member of the Association, Hood told him to “sit here on the dock until the meeting is over with.” At the same time Hood told Lander that he “might just as well go out there and sit down with Nick [Ray] until the boys get back.” The employees were docked for the time spent at the Association meetings held during working hours.
While the meetings were held on company property, that action was sanctioned by Foster, representative of the Board. This constituted at most a trivial contribution by the Flour Company.
The employees were free to adopt any form of organization and representation, whether purely local or connected with a national body. A local labor organization may be the product of the right of the employees to self-organization and to collective bargaining “through representatives of their own choosing” guaranteed by § 7 of the Act. They had the right to form such local organization immediately after the disеstablishment of the original local organization.6 When the first organization
Thirty-eight of the employees testified that they voluntarily organized the Association and that they were not influenced in joining it by any action of the Flour Company. There was no evidence that Hurt, who was the moving spirit in the organization of the Association, was in anywise influenced by the Flour Company, and he testified he acted voluntarily and without suggestion from the management of the Flour Company. I think there was no substantial evidence that the Flour Company interfered with the organization of the Association.7 The only thing of moment that occurred was the statement by Hood when the men were proceeding to the meeting of July 13, “All you guys get over to that meeting.” It is obvious that the statements of Hood to Lander and Ray, who were mеmbers of the Union and who never joined the Association, were innocuous and of no effect.
What was said by the court in Humble Oil & Refg. Co. v. Labor Board, 5 Cir., 113 F.2d 85, 92, is apposite:
“It would be strange indeed if a labor organization, freely organized by a large majority of the employees, is to be destroyed whenever some well-wishing supervisor, contrary to his own duty and orders, says something in its favor. As we see it, the employees who freely formed these organizations have the right under the law to have them function. If the employer trespasses through his representatives, he and they ought to be stopped, but a more serious and demoralizing trespass than here appears is necessary to show such domination or interference or support as will justify annihilation of such organizations.”
Neither do I think the fact that Reidy and Ellis, second millers, accompanied Hurt when he consulted Welch respecting the formation of the Association and employment of him to drаft the by-laws is of ma-
terial importance. Neither had authority to hire or discharge. While they were in physical charge of the mill at times, adjusted machinery and made repairs, they were at all times under the general direction and supervision of the superintendent and foremen and carried out only routine work. Such being their status, they were eligible to membership in the local organization.8
I think the evidence clearly established that the employees wanted their own local organization and that when they found the first organization was defective, acting under the advice of Foster, representative of the Board, they undertook to form a local organization which would comply with the requirements of the Act.
The Board severely condemned a provision of the contract limiting the Association‘s bargaining committee to employees of the Flour Company. It was in the draft of the contract prepared by Welch. The employees had the right to select any bargaining agent they chose. That is one of the rights guaranteed under the Act. They had the right to eliminate from the bargaining committee any person who was not a fellow employee. I see no basis for the condemnation.
It is my conclusion that those parts of the order directing the disestablishment of the Association and the withdrawal of recognition of the Association as the bargaining agent of the employees and directing the Flour Company not to give effect to the contract should not be enforced.
PER CURIAM.
A majority of the court is of the opinion that neither the order of the National Labor Relations Board nor the decree should be modified.
PHILLIPS, Circuit Judge, is of the opinion that subdivision 2(f) of the decree should be modified by inserting after the words “American Federation of Labor,” the following “or any other proper labor organization.”
The application is denied.
Notes
This notice is posted in order that the employees of the company may be familiarized with the attitude of the company respecting the matters herein stated.
1—The Company recognizes the right of its employees to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.
2—Under the Wagner Labor Act the Company is prohibited from interfering with, restraining, or coercing employees in the rights above recited. The Company is prohibited from dominating or interfering with the formation or administration of any labor organization, from contributing financial or other support to it.
3—The Company intends to comply with both the letter and the spirit of the law.
4—The Company has been advised that an employees’ association has been formed and has requested that the Company treat with it. Subsequent to this request charges were filed claiming that ‘this organization does not meet the requirements of the Wagner Labor Act and a conference has been had with the representatives of the Director of the National Labor Relations Board.
5—Because of this charge it is deemed inadvisable for the Company to acknowledge the present organization of its employees as a proper bargaining agency.
6—The Company has been assured by the representative of the Director of National Labor Relations Board that if properly requested by the employees, an impartial election will be had under the supervision of a representative of that Board and the employees of this company by means of a secret ballot will be permitted to determine what agency, if any, shall be entitled to act as the bargaining representative of the employees.
7—If such election is requested any organization of employees properly formed as the requirements of the Wagner Labor Act, will have the right to be represented on the ballot for the purpose of determining the sole bargaining agency for the employees.
8—It is improper for the company to do anything which will interfere with the freedom of choice by the employees. Superintendents and other representatives of the Company not entitled to membership in the bargaining agency are prоhibited from doing anything to affect or influence the action of the employees.
9—Employees are requested to refrain during working hours from discussion of these matters.
10—The Company has been assured by the Director of the National Labor Relations Board that any employee or group of employees may avail themselves of the advice of said department concerning any questions which may arise in connection with the matters herein referred to.