*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
Ҥ
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
Ҥ
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.,
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,
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.