*2 POPE, Before STEPHENS and Circuit HARRISON, Judges, Judge. District POPE, Judge. Circuit Respondent corporation California operates an agency automobile repair Glendale, and service at shop Cali- operates fornia. It under a non-exclusive agreement Corpora- with General Motors tion to sell Chevrolet cars trucks. supplied with new cars and trucks assembly plant Nuys, maintained at Van California, where all of the new cars and ing. purchased by were as- Board recite: trucks “The process of manufacture is one of a limited num and the sembled completed. per ber of Approximately products, cent of dealers selling Chevrolet *3 and, component parts of automobiles and virture of its relation the contractual shipped Nuys ship Van with Chevrolet Motor Division-Gen trucks which were the plant Corporation, part eral integral in the and manu- Motors is an assembling and used on, corporation’s system were of that national of dis process there carried facturing points foregoing outside of tribution. obtained located Under the circum from All stances the sales on the basis the California. of of entire record, find, Examiner, within we Trial were made California. the respondent engaged that the in commerce is Upon the we are confronted threshold Act, within the of meaning with the contention that policies will effectuate the Act of subject of jurisdiction is jurisdiction Respondent.” over assert requires We think the record Board. relationship The contractual thus referred an affirmance of the Board’s of substantially to is auto the same as the jurisdiction. In National Labor Relations agreement mobile sales described in Na Townsend, Cir., 185 F.2d Board v. tional Labor Relations Ken v. Rose jurisdiction court found Motors, Cir., F.2d which of local Hudson automobile activities court said “ties the into appeared dealer where it that while the re- Maria, spondent, operating integrated Cali- national network of an at Santa vast fornia, purchased system all his new automo- of distribution affects which com Corporation biles from the Hudson Sales merce.” Angeles, yet at organization Los latter However, January 20, the Court on shipped all such into the automobiles Appeals handed the Sixth Circuit points. State from outside The difference down its decision in National Rela here, course, Nuys as- Van the. Daniels, Inc., tions Board v. Bill sembly plant bring does not into State expressly disapproved the Ken completed completes automobiles but Speaking Rose Motors decision. assembly and manufacture there of cars Board’s contention based the Ken Rose per cent of com- and trucks but 43 whose case, the court order said: “In to be ponent parts are shipped in outside from part integral of Ford these would dealers points.1 have agents to be either We think that the difference between they Ford. It is not contended that are this and the Townsend degree case is one of employees and there is no evidence only aspect and not of substance. Another record that agents the dealers are Ford. present here, a circumstance not disclosed The contracts in essence are be contracts case, in the Townsend is that purchaser. tween vendor and operated under a agreement dealer’s cooperate fact that to avail themselves Corporation pursuant General Motors privilege advertising national which the latter exercises control over operation so small element in capital that it requirements, places business, hours, facilities, does not affect the conclusion service that the work personnel, signs and local area advertis- done is local.” Nuys plant,

1. The Trial Examiner forth the set facts said Van of which approximately per as follows: “The Chevrolet Division— amount cent were Corporation points shipped General Motors located outside the —maintains assembly plant During a new car and truck at of California. State the afore Nuys, California, year, Respondent’s pur Van from which the said fiscal obtains its new cars chases from Chevrolet Motor Division- year Sep Corporation ending For trucks. the fiscal Motors General —amounted produc but were less $1,500,000 tember motor vehicle mofe than parts parts, $2,000,000.” and accessories valued than $5,000,000 shipped in excess plished by agreement, regardless an an not' that this is think We For in what would be under traditional posed. called here question swer real lawyers, whether nomenclature used nevertheless inquiry must our view the final respond close, such the Board’s “a employer’s bear such activities trade, integral part corporation’s ent “is an of that intimate substantial relation “ system distribution”, has ‘war national the states” traffic and among commerce prac basis in rant record’ and reasonable application “any widespread Publications, Board Hearst in sub law”. Labor might result charged here well tices 111,131, 851,861, 88 322 U.S. stantially materials” decreasing the influx of yes. We 1170.3 think answer think 2 into state. We *4 impact agreements sales automobile . decision the Both because this court’s in upon question is the kind here involved here, case, supra, and Townsend controls us agree dependent upon, those not whether the the effect of Board’s on finding concepts square ments with common law relationship the this contractual flow principal employer and em agent, or we interstate commerce is one which should us, impor Rather, ployee. the it seems disturb, Board’s hold that we the arrangement is, engaged does the matter how in tant com- meaning merce act must be tie-up within the work? Is the between affirmed us. Corporation, accom- Motors General relationship. language quoted the all Labor in economic “Where from is 2. The pro require Bldg. the the relation Trades conditions of Denver & Const. Board v. Council, tection, ought given.’ protection 943, 675, 684, to be 71 S.Ct. U.S. 341 . * * * 4 necessary in case 949, It is not 128 95 L.Ed. completely make limitation to around the term has been a definitive question ‘employee.’ whether the That task 3. In case newspaper agen assigned primarily “em were vendors certain ployees” meaning cy by Congress Na the the within created to administer Act, Relations 29 U.S.O.A. Act. Determination of all the tional ‘where Reversing protec seq. require de et this court’s the' 151 conditions of tion’ involves relation § 608, 612, inquiries cision, were the Board 136 for ** * contractors, independent charged duty. word since the Un with this “given doubtedly interpre “employee” questions statutory its conven must meaning developed Supreme arising especially under the as in first tation when tional judicial law”, proceedings, held for Court" instance in are common newsboys “employees” resolve, giving appropriate and said: the courts to weight do, deciding question judgment whose will not of those “It application, ques special duty national one of uniform to administer ns * ** import the traditional com wholesale tioned statute. But where the to. conceptions specific question application distilled some is one of mon-law statutory proceeding as exclu local variations broad in a a term essence of their sively agency controlling administering in which the limitations initially, scope statute must determine it the re statute’s effectiveness. recognized viewing Congress those eco function Like court’s is limited. relationships neat be fitted cannot the commissioner’s determination under nomic designated Longshoremen’s ly ‘em & containers into the Harbor Workers’ ‘employer’ Act, ployee’ earlier which an a that man not a ‘member (South Chicago shaped purposes. had different crew’ Coal & Co. v. Dock law for^ * * * language Bassett, light, 251, 544, 547, In this the broad U.S. 309 60 S.Ct. injured definitions, 732) in' terms L.Ed. or that he ‘in the of the Act’s employment’ reject (Parker on such limitations v. Mo conventional course conceptions ‘employee,’‘employer,’ Sales, tor Boat 314 U.S. 184) dispute,’ its leaves no that broadly, 86 L.Ed. Federal Com ‘labor doubt applicability is munications Commission’s determination to be determined by underlying company situations, eco one doubtful under the ‘control’ in technically Corp. (Rochester Telephone c rather than of another nomi facts by previously States, exclusively le established * v. United ** gal 1147), term That the Board’s deter classifications. specified [employee], provisions, persons must mination that ‘em like other are ;be accepted pur ployees’ under this Act is to be reference to understood with pose of Act and facts involved Howell, International Asso- before the election January, In which the Board Union, petition Machinists, called ordered on the here Union’s mentioned ciation above, urged employee members initiated efforts to secure “vote favor employees. plant”, Meet- among and said him that if em- Leonard, ployee so>, ings Claude would do were held at which Howell would see that shop employees “got employees, one was selected raise in The time.” By January Board promised also found Howell had steward or senior chairman. employees employees other the 28 the bar- that if the Union were designating employees defeated signed would unit4 had cards receive a gaining raise. bargaining their the Union as collective representative. under that date The Union Bordeau,, one respondent claiming to be the wrote to the manager, service likewise

majority representative of the promised pay a raise employees for the recognition and for a confer- and asked defeated, the Union were and that agreement. On the same ence to discuss presence stated of two petition representation day filed the Union election, if the Union were victorious at the received with the Board. operations. would shut down its *5 February letter but did Union on along Other statements the same line with because, says, in it as it now it not answer charged respond- which the has Board the majority good Union’s faith doubted the ent, findings, and on which it has made claim. it, against Ogen arc those of one who bore- mentioned, just Following the incidents “body shop the title of foreman” in re- the the the Board spondent’s there occurred which has acts organization. be- testimony by the re- found constituted a violation the fore Board disclosed that em- when (5) spondent 8(a) (1), (3) of and ployee Leonard, who, as stated, § above had. Relations Act amended.5 National Union,, been selected an the officer of the claimed restraint and up With to wearing button, showed Ogen his Union em- and interference with the upon coercion commented the button and re- made right ployees self- in the exercise of their president marks to the effect that Howell 7,6 in the organization, guaranteed Board Ogen had told that the former going § to respondent’s president, its that the anybody Union; asserts fire joined who the manager attorney, and fore- Ogen its service did not want be near to Leonard while body shop, bring “all acted to man of its the latter wore the button because did he futility employees their get home not want to fired. There was also much advantage supporting the union and the evidence as to number talks kept they them if attorney which would accrue to Potruch made to away specifically, employees, More the Board from it.” first when were all assem- president, body, found that bled in one and separate later to Jackson (warrant lively representatives lias in the and record’ with the of his subject provisions basis in law.” reasonable 9(a) section by appropriate unit found the Board 4. The Employees respondent’s employees right “§ shall have 7. all to 6. consisted self-organization, form, join, except supervisors non-op- or and certain assist organizations, bargain erating employees. labor collective- ly representatives through of their own (a) engage choosing, shall an unfair 8. labor “§ and to in other concert- employer (1) practice purpose an to inter- for for ed activities of collective — employees with, restrain, bargaining pro- or coerce fere or other mutual aid or rights guaranteed tection, right in exercise of the shall and also have the to- * * * 7; (3) any discrimi- in section rain rcí from or all of such activities except regard right may in tenure em- to hire or nation to the extent that such any ployment agreement requiring or term or of em- condition affected encourage ployment discourage membership organization or in a labor as a membership any organization: in¡ employment labor condition of as authorized ** (5) bargain 8(a) (3)”. to refuse collec- section request respondent ignored the Union’s talks undertook groups. Potruch In-these the cam- length recognition views and embarked to state at considerable previously paign practices or- labor regard to unfair respondent the Union’s with forthcoming mentioned, consequence which, ganizing and the activities election of which the Union election. June lost, represent and un- the free em- his address the course of In employees. coerced -choiceof the attorney it was the ployees, the stated By way remedy set elec- respondent the Board view of the aside, reinstatement em- solely within ordered the Company operating one ployee pay, jurisdiction; back directed the Leonard with State, no juris- to cease desist from dis- would contest Union, Board, membership perhaps it couraging- diction of coercing refusing to bar- the issue its get that in-order to would be Union, gain collectively direct- court, would have before a be ed the notices. posting it to of certain something which would cause to do at- practice. The labor unfair cited contends that the evidence employees contained torney’s,speech to the findings support the Board’s insufficient to rights lengthy discussion principal coercion. The of restraint and Act; employer under.the Union and attacks relate the tes- these not be there could statements timony attorney concerning the remarks of wages working conditions changes Ogen. Potruch the conduct of foreman required period to test during the Potruch, it Concerning is contended that Board, jurisdiction of the talks substance his amounted no more *6 personal opinion attorney’s that was the expressions than views of of the employee his he would handle he were jurisdiction that the had no because Board by through not a union direct problems but of local character of its business. It employer. did with the The Board dealing expression 8(c) said that such an of under § por- violation of any the Act not find “any views, argument, opinion speech just mentioned, it but tions of shall not or be evidence of an un- constitute group meetings of the that at one did find practice”. fair labor As for the anti-union attorney of had with number which the a says remarks his Ogen, that attorney stated that only imputable it; conduct that the is not to be new deal "there would a after first supervisory respect Ogen’s evidence with to month”, say, that to after the elec- “foreman”; authority a is that he was called -a tion. The Board construed this to be Ogen that that there was evidence no promise 8(a) (1) of benefit violative of § any powers which are in that listed the Act. portion defining “super- of the Act term 152(11). visor”. Title U.S.C.A. § respect charge With of discrimina- 8(a) (3), unnecessary violation the Board We find to it resolve this § employee respect that controversy Leonard above with to effect of the discharged mentioned, by respond- was by by Ogen. statements Potruch and It is leadership his apparent ent because of in union activ- the Board that attached but minor employees. among significance ities As the re- attorney; to remarks of the bargain in 8(a) (5), fusal to violation of might well be Ogen, his acts such as § employer, the Board found failure be his chargeable to to under the respond the Union’s Machinists, to to letter Febru- rule of International Ass’n 1950,' 1, good was ary any etc., Board, because of not No. 35 v. majority, doubt the Union’s faith or be- 85 L.Ed. of National awaiting cause it outcome of the Labor Relations Board v. Security &W. representation proceeding Board, Co., Cir., before S. Cold 136 F.2d But contrary, pursuant wholly but apart to those considerations, isit deny jurisdiction findings its determination of clear Board’s with litigate and to issue; aspect case, supported the Board to this of the are re- enough there relating to of the was not to keep statements both men the evidence busy. urged spondent’s president strenuously its service man- It is and of that there is no employer evidence that the ager, Bordean. was con- scious of Leonard’s union activities and that Respondent the Board should argues that event other including Her- examiner in be have followed the trial not rick wore their union buttons and not who testified that lieving certain witnesses discharged. these men. the remarks were fact made Respondent complains bitterly “the Board’s unfair labor practice regard version believe Smith’s Board has chosen to was based Howell”, evidence that Leonard very than the truthful version was in rather fact competent capable we have Lilly refers Smith as one “whom mechanic and strong performing only not shown ani a drunkard brake work which he had respondent; unworthy doing been mus toward but the work that Herrick doing testi The Board credited the well. The button belief.” which Leon- ard wore mony Ogen and to same witness who testified which Foreman took such exception, violent ordinary he heard Bordeau make the statement was not an union shop shop button, but if the went union the would button steward’s argues leadership indicated shut its doors. that “the in the union activities. positively in cred Coincident with ridiculous becomes commence- resolution”, ment organizing activities, him ibility because the witness the em- ployer began participate in the conversation take work normally self as- signed Leonard, it, merely piece and because who worked but overheard on a basis, away time give from him and statement was made at a cocktail bar. the men lubricating on the rack. The work function of Of course it is not the shop, falling off, instead of increased say this court to that the Board the trial discharge; after Leonard’s earn- Herrick’s wrong have believed the witness examiner ings nearly doubled, and he found it neces- as the Board’s long es. are “So sary to call in an outside worker four times supported by substantial evidence on the keep up. in order to his work We think whole, appraised record as a not be will supports substantial evidence supported by disturbed. When credible evi *7 Board’s as the reason for to Leon- dence, Board’s between con choice two discharge. ard’s may displaced, flicting views not be ‘even though justifiably the court would have Respondent also attacks the Board’s made a different choice the matter been findings as to the refusal to before it de novo.’” National Labor Rela bargain. says It that it was not established Nabors, Cir., tions Board v. 196 F.2d January that when there were 275, and cases there cited. See Nation employees unit, in the 15 of them had al Labor Relations Board v. Dinion Coil designated the union as their authorized Co., Cir., 201 F.2d 484. representative. Proof of membership in The same union was by considerations must established dis means of the pose union authorization contention that there is cards which the em signed. ployees support no substantial evidence One finding to of the cards received employee discharged in evidence was that purporting Leonard was to be signed by employee Respondent on account of his union Malstrom. activities. The tes says respondent timony on behalf of that there was prove was that no testimony to Leonard, assigned authenticity who had been of the card to because do no one discharged signed “brake work” was and testified that the duties Malstrom it. The evi formerly performed by early him were turned dence was that on the morning of employee over January to another Herrick who had Leonard handed the card straight doing been “front question end and frame Malstrom to and asked him to ening it; sign work” because the latter better that sign was Malstrom said he would qualified job, to do the combined and it and return it. Before 10 A.M. of the decreasing day, brought amount of work so that same Malstrom the card to generally elicited signed had been aided the General Coun- Malstrom’s name Leonard. arguments upon sel. Much of the as- Ob- this when it was thus returned. card pect viously, proposi- of the case is based that there was lack contention tion that authenticity basis for no mat- trial examiner must have is without prejudiced biased name on the been and that he must ter who Malstrom’s wrote predetermined adopted against have card, clearly his re- issues Malstrom spondent consistently because found signature. he so own against questions it and credi- resolved think that the evidence abun We bility in favor on the those who testified dantly supports the Board’s Respondent other side. maintains recognition not withhold its obliged accept the trial examiner was to good because faith doubt of the Union by true statements made its own witnesses majority, that its con of the Union’s when those statements not contradict- desire generally duct motivated says: ed. is well “It settled law destroy in which the Un gain time to testimony where a witness’ is not contra- majority. had the ion’s dicted, right a trier has no ac- refuse to jurisdiction right question the Board’s cept it.” This is fallacy ancient right operations over its and to test that persists despite somehow the courts’ numer- right in the It also had the tell courts. rulings contrary. ous It overlooks- its of its intentions that re significance behavior, carriage, it, against gard if the and that bearing, manner appearance of a wit- respond litigate that issue to the it would ness, demeanor, testimony —his —when all the through courts ent’s “last dollar” orally given presence of the trier plain Supreme it is Court. But Ap- facts. As stated the Court of undertaking made its so this peals for the Second Circuit in a recent objective and primary purpose and con so case, Dyer MacDougall, eye upon legal tinuously kept its issue “Moreover, may 269: such evidence satis- good duty its faith overlooked tribunal, fy only that the witness’ bargain prepare bargain with the true, testimony is not but that the truth is Union. opposite story; of his for the denial of one, deny, may has a who motive to be ut- asserts hesitation, discomfort, with such tered ar- representa its Union did not withdraw rogance defiance, give as to assurance petition participated in the elec is, fabricating, that, he is he tion, Union the unfair waived labor- there is no alternative but to assume discussed and that it im practices here truth what denies.” That court took the Board to set aside the elec proper for cognizance of in National Re- representation processing of a tion. The *8 Co., supra, v. lations Board Dinion Coil a however, in petition, a matter which the many respects similar one case in policies to be made relate to decisions us. now before general in Congress has committed to the think the Board. We discretion We are unable to observe Board was within its'discre action examiner, of the trial in conduct or power scope of its and within terposition witnesses, questions to ask Joy v. National La forth Silk Mills set to indicate anything unfairness or de Board, U.S.App.D.C. 360, Relations 87 bor other than sire do ascertain the facts. 732, 741. 185 uniformly testimony credited That he fa Finally, argues uniformly it vorable dis testimony hearing process fair due credited was denied -not to warrant a conclusion that partiality sufficient law because un prejudiced against re objects trial was biased examiner. fairness spondent. v. Pittsburg Labor Board examiner fre S. S. the action trial Co., questions quently asking L. witnesses and Ed. 1602. says on those occasions the answers Enforcement of the Board’s order

granted. (concur-

STEPHENS, Judge Circuit

ring). deal

Once the business of the automobile commerce, be in interstate

er is held to but order the Board’s nothing

there is to do un must

order enforced. And this we do v.

der National Labor Relations Board Publications, Inc., 1944, 322 U.S.

Hearst and Na Townsend, tional Labor Relations Board v. Boyls, M. Washington, Fannie D. C. Cir., 1950, 185 F.2d 378. (George Bott, Counsel, General David P. J. Findling, Counsel, Associate Gen. A. Nor- Notwithstanding, I remain unconvinced Somers, man Counsel, Asst. Gen. Dominick actually “employee” means the word Manoli, C., Washington, Sonja L. D. Wagner elsewhere more in the Act than Goldstein, Washington, C.,D. on the brief) (Hearst simple business case) that petitioner. interstate com- within a state is transaction fine-spun tracing of merce because of a Charlotte, Blakeney, Whiteford S. N. C. remotely possible rela- and unmeasurable (Zeb. Turlington, Mooresville, C., V. N. (Townsend trade a state line tion to across Blakeney, Charlotte, and Pierce C., & N. case). Judge joins Harrison me in respondent. the brief) for concurrence. PARKER, Before Judge, Chief DOBIE, SOPER and Judges. Circuit

PER CURIAM. petition

This is a to enforce an order of National Labor Relations Board which guilty of unfair labor practices and ordered it to desist there- from and to reinstate with pay back three employees, Hawkins, McGraw, Davis and LABOR BOARD NATIONAL RELATIONS MILLS. whom it found to have been discriminato- MOORESVILLE rily discharged union member- No. 6557. ship. fully facts are set forth in Appeals States Court of United report of the trial examiner and the deci- Fourth Circuit. sion of the board. We think that find- Argued April 9, 1953. ings and order of the board are sustained substantial evidence on the record consid- May 6, Decided whole, except ered as a discharges of Davis and McGraw. As to

these we do not think that.the supports record as a whole the finding that discharged for union member- ship.

The order of the Board will accordingly by eliminating be modified therefrom all provisions relating to Davis and McGraw; and as so modified it bewill enforced. Modified and enforced.