310 U.S. 318
NATIONAL LABOR RELATIONS BOARD
BRADFORD DYEING ASS'N (U.S.A.).
Argued and Submitted March 26, 27, 1940.
Decided May 20, 1940.
[310 U.S. 318, 319] Robert Jackson, Atty. Gen., and Mr. Charles Fahy, of Washington, D.C., for petitioner.
Mr. Harry Parsons Cross, of Providence, R.I., for respondent, Bradford Dyeing Ass'n.
Mr. William G. Feely, of Washington, D.C., for Bradford Dyeing Ass'n Employees' Federation Local Union No. 16, intervener, respondent.
Mr. Justice BLACK delivered the opinion of the Court.
The Circuit Court of Appeals declined to decree effective enforcement of an order of the National Labor Relations Board upon the ground that the Board's order, in material respects, rested upon findings that were not supported by substantial evidence. 1 Cir., 106 F.2d 119. [310 U.S. 318, 320] In its petition for certiorari, the Board took sharp issue with the Court of Appeals, asserting that some findings upset by the court were supported not merely by substantial but by 'uncontradicted' and 'undisputed evidence.' The petition also pointed out that the court's opinion was 'ambiguous and inconclusive' and 'left unclear the court's holding as to whether the Board had jurisdiction.' Our inspection of the court's opinion and decree disclosed that the court deemed the Board to be wholly lacking in jurisdiction. Nevertheless, the Board was ordered to proceed in accordance with the opinion which concluded with the indecisive statement that 'if the case should not be dismissed for lack of jurisdiction' a large part, but apparently not all, of the Board's order should be vacated. The court's decree did not direct enforcement even of those parts of the Board's order not expressly vacated. The Board's petition further pointed out that its motion for rehearing in order to clarify the question of its jurisdiction and to establish the status of 'those portions of the Board's order which the court neither vacated nor enforced' was denied without explanation. Because the Labor Board's petition in challenging the action of the Court of Appeals thus raised questions of grave public importance affecting the administration of the National Labor Relations Act, 29 U.S.C.A. 151 et seq., and judicial review as provided in the Act, we granted certiorari. 1
This proceeding was initiated upon charges filed by the Textile Workers Organizing Committee of the C.I.O. Thereupon, the Labor Board served a complaint and notice of hearing on the Bradford Dyeing Association (U.S.A.), respondent here.
In the complaint, it was alleged that respondent in order to discourage membership in the C.I.O., had discharged and refused to reinstate its employees, Edward [310 U.S. 318, 321] Nelson and Percy Schofield, because of their affiliation and activities in the Textile Workers Organizing Committee of the C.I.O., (T.W.O.C.); respondent had dominated and supported the Bradford Dyeing Association Employees' Federation, a labor organization, and had refused to bargain collectively with its employees through the T.W.O.C. after a majority had selected it as their bargaining representative.
The Board's jurisdiction was unsuccessfully challenged on the ground that respondent's business involved no activities in or affecting interstate commerce within the meaning of the Act. And, answering, respondent alleged that Schofield was discharged because he smoked during working hours; 'that ... Nelson was not discharged, that he was insubordinate and defiant, that he did not work and refused to work during the times when he was supposed to be working, that he was on the premises during hours when he was not supposed to be on the premises of respondent and was taking up the time of other employees who were supposed to be working during such time, that ... Nelson went upon a vacation and has not returned to work after such vacation nor made any statement of his readiness to return to work or made any request that he be put to work again'; that respondent had not dominated or coerced the Federation; and that any labor disputes at its plant were attributable to the conduct of the T.W.O.C.
The Federation was allowed to intervene in the extensive hearing held by the Board.
After this hearing, the Board found that 'a labor dispute' in respondent's plant would widely affect 'the flow of commodities in interstate commerce', with consequent jurisdiction in the Board, and that the charges of the complaint had been substantiated.
The Board accordingly ordered respondent to cease and desist from (1) interfering, or coercing its employees [310 U.S. 318, 322] in the exercise of their rights to self-organization; (2) dominating and interfering with the Federation or any other labor organization; (3) discouraging membership in the T.W.O.C.; (4) refusing to bargain collectively with the T.W.O.C.; and (5) ordered respondent affirmatively to offer reemployment to Schofield and Nelson and to make them whole, to withdraw all recognition from and completely disestablish the Federation, to bargain collectively with its employees through T.W.O.C., and to post the usual notices throughout its plant stating that the company would cease its unlawful and unfair labor practices and would treat its agreement with the Federation as of no effect.
In its final decree the Circuit Court of Appeals directed that 'until a new election has taken place by order of the Board, and the employees have expressed their preference as to what group or body shall represent them in any labor dispute between them and the respondent, the order of the Board except as to paragraphs 1, 2 and 3 of the case and desist portion of the order, and the entire paragraph 5 ordering affirmative action shall be vacated, the Board then to proceed in accordance with (the opinion passed down this day).' (106 F.2d 125.) As phrased, the decree is not clear but apparently the court vacated subdivisions (4) and (5) of the Board's order. The court's opinion did make clear that under its decree the company was left free to bargain collectively with the Federation and to decline to bargain with the T.W.O.C. Discharges of Schofield and Nelson were approved and the company was released from publishing notices which, if warranted, were 'essential if the employees were to feel free to exercise their rights without incurring the company's disfavor.' 2 Although those portions of the Board's order prohibiting the company's interfering with [310 U.S. 318, 323] its employees' union affiliations were not expressly set aside or modified, neither were they ordered enforced. 3 Thus the court's decree gave the Board's order no effect at all.
It did not explicitly so decree, but the Court of Appeals evidently was of the view that evidence was lacking upon which the Board could have found that respondent's business was in or affected interstate commerce. The court expressly found a lack of evidence to support the Board's conclusion that Schofield and Nelson were discharged for union activities and stated its belief that Schofield was discharged for smoking in the plant and Nelson for insubordination, and that 'the finding by the Board that the T.W.O.C. had a majority of the employees of the respondent signed up even to become members of a union under that name is without substantial evidence on which to rest.'
Without specifically passing upon the Board's finding that respondent had unlawfully dominated the Federation, the opinion of the court stated, ' ... Assuming that the president or officers of the respondent influenced its employees to join the Federation, so called, it does not appear by clear and substantial evidence that a majority of the employees ever joined, or indicated an intent to join, the T.W.O.C., ....' (Italics supplied.) Since the court [310 U.S. 318, 324] did not vacate that part of the Board's order directing the company to discontinue domination of the Federation, we might infer that the court accepted the Board's finding that the Federation had been so dominated. But this inference is opposed by the court's action in vacating the order of disestablishment. The uncertainty in which the court has left the questions of jurisdiction and company domination of the Federation makes necessary a review of the evidence on both, along with other evidence which we think amply demonstrates the justification for the Board's order in every respect.
First. As to Jurisdiction.
A major portion of the opinion of the court below is devoted to its expression of doubts about the Board's jurisdiction, i.e., 'there is no substantial evidence to warrant a finding that the transportation of these materials by the respondent was ever in interstate commerce'; 'there is also lacking substantial evidence that 40 percent of the supplies consisting of chemicals and dyes, which were contracted for in Rhode Island and delivered by the sellers to the respondent's plant in Bradford, were transported by the respondent in interstate commerce, or that they were used by the respondent except at Bradford, though the Board assumed without evidence that they were shipped by the respondent in interstate commerce, but its assumption lacks substantial evidence on which to rest, that would compel this court to accept it as a fact'; 'The respondent, according to uncontroverted testimony, neither sells, transports nor arranges for transportation of the goods into or out of Rhode Island in interstate commerce, which is done in each instance by the customer, ...' ; and 'The Board apparently assumed that the respondent transported goods to its plant and from it, which the uncontroverted evidence disclosed were not the facts.' Referring to waste products which respondent sells in interstate commerce, the court noted that they did [310 U.S. 318, 325] not 'exceed 1 percent of the total goods processed' and said that they were but 'a mere incident (of the business) and to which the maxim de minimis might well be applied, even by the National Labor Relations Board.' And the conclusions of the opinion were only stated subject to the condition 'If the case should not be dismissed for lack of jurisdiction.'
There was evidence before the Board which showed:
That this evidence was abundantly sufficient to justify exercise of jurisdiction by the Board is not now open to controversy. It is settled that the Act is applicable to a processor, who constitutes even a relatively small percentage of his industry's capacity,4 where the materials processed are moved to and from the processor by their owners through the channels of interstate commerce,5 and it is not material, as the court below thought, that respondent's customers might be able to secure the same services from other Rhode Island processors if a labor dispute should stop the interstate flow of materials to and from respondent's plant. Since the purpose of the Act is to protect and foster interstate commerce, the Board's jurisdiction can attach, as here, before actual industrial strife materializes to obstruct that commerce. 6
In its answer to the Board's complaint, the company contended that Nelson was not discharged April 3, 1937, but was merely 'laid off', and on April 2, 'went upon a vacation' and did not return or indicate a willingness to go back to work. However, the company insists, as it has throughout, that Nelson was not a diligent worker and was insubordinate; that he trespassed upon company property after work hours Thursday, April 1st; that 'one or two mornings that week he started work a little late [310 U.S. 318, 327] and quit a little early'; that he did not start work Saturday, April 3, until 7:30, a half hour late.
Some of the evidence supporting the Board's finding that Nelson was actually discharged for union activities on April 3, was:
From the testimony of the T.W.O.C. official in question, a T.W.O.C. Director for Rhode Island, Summersby would not rehire 'especially Mr. Nelson.' And Summersby himself stated that he told the Federal Conciliator, 'I couldn't take back either of them because it would break down the discipline of our plant.'
Nelson's foreman testified as a witness for respondent-
Third. Discharge of Schofield.
The court below saw no evidence supporting the Board's finding that this employee was discharged for union activities, and accepted the company's contention that he was discharged for smoking in the plant contrary to rules. Respondent admits that Schofield was discharged.
Schofield, a machine operator, or 'jigger', testified-
As told by the boss dyer who found Schofield smoking-
One of the fellow employees present in the locker-room where Schofield was found smoking, stated that he also had been smoking but was not doing so when the boss dyer came in, and that the third man was smoking at that time but wasn't observed. He got the impression, then, that the boss dyer said something to the effect that he at last 'had' Schofield after having been after him for some time. He 'had never seen ... (the boss dyer) go to the locker room' before. [310 U.S. 318, 333] Summersby testified that he had been told by Schofield that he was 'interested in organizing the C.I.O.'; and that he discharged Schofield for smoking.
Fourth. Domination of the Federation.
As already noted, the Court of Appeals' opinion did not especially pass upon this contention. Since, however, the Court did not enforce the Board's order to cease dominating and to disestablish the Federation, as we think it should have, appropriate evidence on this issue will be pointed out.
A machinist, employed eleven years by respondent, testified-
From testimony of other employees, it appeared that-
An employee testified-
Another employee supplied evidence that a week or two after Nelson was fired, the timekeeper took him to see Summersby, who asked about a C.I. O. card which had been on the back of this employee's car, and that Summersby then 'said he wouldn't recognize it' and could close the plant down.
The financial Secretary of the Federation stated-
The first vice president of the Federation testified-
T.W.O.C.'s State Director for Rhode Island stated-
According to the company's vice president-
One of the men present when Schofield was found smoking testified that a salaried employee who reports 'things which are done wrong' came around and asked everybody if he had joined the local union; at the meeting in the shipping room, Summersby said he would not recognize the C. I.O. but would recognize a local; the witness was paid for the fifteen minutes spent at that meeting; the men were told by the time-keeper that they would be so paid. An official of the Federation said, 'The impression was that Mr. Summersby probably wouldn't recognize' the C.I.O.; this official was 'one [310 U.S. 318, 338] of the first' organizers of the Federation and conveyed to people the impression that Summersby wouldn't recognize the C.I.O.
As related by Summersby, president and general manager of respondent-
Fifth. Designation of T.W.O.C. as bargaining agent.
The court below found no substantial evidence to support the Board's finding that a majority of respondent's employees joined the T.W.O.C., or that 'the T.W.O.C. ... ever came into actual existence with authority to negotiate a contract with the respondent.' Much of the testimony already referred to bore upon the genesis of T.W.O.C. at respondent's plant. [310 U.S. 318, 339] Schofield said:
Nelson stated that he told the timekeeper, on April 2, 'It's all over but the shouting .... We have well over sixty per cent signed up all ready.' And from the testimony of an officer of the Federation it appeared that the C.I.O. drive resulted in a number of signatures, and that both organizations could possibly claim fifty-one per cent of the employees signed up.
As explained by the T.W.O.C. State Director-
The T.W.O.C. Director's Secretary stated that the T.W.O.C. cards were brought in before April 12. It was agreed at the hearing that, after respondent checked against the original signed cards, T.W.O.C. had a list of four hundred and eighty-two names taken from those cards. And it was stipulated that these cards were signed 'on or before April 10, 1937.'
Shift in membership.
Respondent has contended before the Board, as here, that if the T.W.O. C. did actually represent a majority [310 U.S. 318, 340] of its employees on April 4 (as the Board found), a shift in membership had given the Federation a majority when the company on April 9 recognized it as exclusive bargaining representative. However, the Board found that 'the record is clear that, had it not been for the unfair labor practices of the respondent in organizing and fostering the Federation and in persuading, intimidating and coercing its employees to join the Federation and leave the T.W.O.C., the respondent's employees would have remained members of the T.W.O.C.' In view of the substantial support in the evidence for the Board's findings that the company intimidated and coerced its employees and dominated the Federation, the Board properly concluded that 'The unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammelled will of the majority.' 7 And, accordingly, the Board was justified in its finding 'that on April 4, 1937, and at all times thereafter, the T.W.O.C., pursuant to Section 9(a) of the Act, was the exclusive representative of all the employees in the appropriate unit for purposes of collective bargaining ....'
As one of the apparently alternative grounds of its decision, the Circuit Court of Appeals declared the Board without authority to order reinstatement of Nelson and Schofield because of so-called unlawful conduct and the alleged incitement of a 'sit down' strike within the meaning of the Fansteel case. 8 The opinion stated that 'Nelson even threatened truck drivers delivering materials to the plant with violence, and to destroy spur tracks over which materials were delivered to the plant. ... The [310 U.S. 318, 341] affirmative action that is authorized is to make these remedies effective in the redress of the employees' rights, to assure them self-organization and freedom in representation, not to license them to commit tortious acts or to protect them from the appropriate consequences of unlawful conduct. We are of the opinion that to provide for the reinstatement or reemployment of employees guilty of the acts, which it is not denied were committed in this instance, would not only effectuate any policy of the Act, but would directly tend to make abortive its plan for peaceable procedure.'
We find no such issue raised by respondent's pleadings before the Board. Respondent made request for special findings by the Board, but included none that Nelson and Schofield had been guilty of any unlawful conduct. Nelson categorically denied having made threats of violence. The court was apparently referring to the testimony of a truck driver which appears in the record. An objection of the Board's representative to the introduction of this particular testimony was overruled by the trial examiner when respondent's attorney made the following statement: 'If your Honor please, may I point out that while Mr. Nelson was on the witness stand in cross-examination I asked him if he did not say certain things at this time and place, that this witness has been referring to, which the witness Nelson denies. The testimony of this witness that Nelson did say those things is in contradiction of Mr. Nelson's testimony and is clearly admissible as tending to impeach the veracity of Mr. Nelson's testimony. Aside from that I also submit it as bearing on the type of conduct and the attitude of the representatives and organizers of this T.W.O.C. getting membership and conducting the affairs of this organization.'
This truck driver's helper testified that on the morning of April 8, after Schofield and Nelson had been laid off, he saw Nelson, Schofield and a third 'little fellow from the [310 U.S. 318, 342] C.I.O.' 'outside the mill yard.' He noticed Nelson 'going up and down motioning ... Going like this (illustrating by waiving arms, squatting and standing.)' As this truck driver recollected, Schofield was not 'doing anything.' 'If anybody was looking out the east door they could' see Nelson or Schofield moving their hands that morning; Nelson 'made a motion to sit down, that is all,' out 'on the main road going to the plant.' He 'couldn't say that' any workers would have seen Nelson; he 'couldn't say that, whether they could see out or not. I don't know.' An employee, not Nelson or Schofield, who 'went through the department shouting 'Sit-down strike," was taken for an automobile ride by the company's vice president, talked to, given lunch and sent home to bed without loss of pay and was still working for the company at the time of the hearing. When asked, 'You remember you said, 'Well, we can blow up the railroad?", Nelson answered, 'No, absolutely not.'
In vacating the Board's order of reinstatement on the ground that undenied evidence showed that Nelson and Schofield had, after their unlawful discharge, incited or threatened unlawful conduct, the court acted without any justification.
Congress has placed the power to administer the National Labor Relations Act in the Labor Board, subject to the supervisory powers of the Courts of Appeals as the Act sets out. If the Board has acted within the compass of the power given it by Congress, has, on a charge of unfair labor practice, held a 'hearing', which the statute requires, comporting with the standards of fairness inherent in procedural due process, has made findings based upon substantial evidence and has ordered an appropriate remedy, a like obedience to the statutory law on the part of the Court of Appeals requires the court to grant enforcement of the Board's order. Until granted such enforcement, the Board is powerless to act upon the parties [310 U.S. 318, 343] before it. And the proper working of the scheme fashioned by Congress to determine industrial controversies fairly and peaceably demands that the courts quite as much as the administrative body act as Congress has required.
Mindful of the separate responsibilities Congress has imposed upon the Board and the courts, we have carefully scrutinized this entire record. Within the range of our examination has appeared not merely the testimony but also the procedure followed from the filing of the charge before the Board to final decree of the Court of Appeals. The Board and its representatives solicitously guarded respondent's and intervenor's right to a full and fair hearing; manifested liberality in ruling upon evidence proposed by both sides; and conducted the proceedings in a manner calculated to bring about a just result. And as we have pointed out, substantial evidence supported the result which the Board did reach. 9 Notwithstanding, the court below declined to order enforcement of the Board's order, and the implications of its opinion are that the Board without a proper regard for either the limitations on its power or the evidence made findings all of which had no substantial support.
But in reaching this conclusion the Court of Appeals itself failed to give proper regard to the evidence which was before the Board, which appeared in the record before the court and which we have set out in this opinion. In refusing to enforce the Board's order, the court exceeded the power given it. The cause is reversed and remanded with directions to enforce the Board's order without conditions or qualifications.
Mr. Justice McREYNOLDS took no part in the consideration or decision of this case.
[ Footnote 3 ] Section 10(e) of the National Labor Relations Act gives the Board power to petition any Circuit Court of Appeals of the United States for the enforcement of its order; grants these courts exclusive jurisdiction and provides that 'Upon (the Board's filing a transcript of the entire record in the proceeding), the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to ... make and enter upon the pleadings, testimony, and proceedings set forth in such transcript a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board.' 49 Stat. 449, 454.
[ Footnote 4 ] The record indicates that respondent does roughly one per cent of the national total of business in its industry.
[ Footnote 6 ] Edison Co. v. Labor Board, 305 U.S. 197, 222 , 59 S.Ct. 206, 213; cf., National Labor Relations Board v. Jones & Laughlin Corp., 301 U.S. 1, 43 , 57 S.Ct. 615, 627, 108 A.L.R. 1352. A strike at respondent's plant in 1929 apparently did result in a stoppage of the flow of the interstate movement of materials to and of processed goods from respondent's plant.
Second. Discharge of Nelson.
[ Footnote 7 ] Cf. Texas & N.O.R. Co. v. Brotherhood of Ry. Clerks, 281 U.S. 548, 557 , 571 S., 50 S.Ct. 427, affirming, 5 Cir., 33 F.2d 13, affirming Brotherhood of Railway Clerks v. Texas & N.O.R. Co., D.C., 24 F. 2d 426; Id., D.C., 25 F.2d 873; Id., D.C., 25 F.2d 876, 877, 878.
Sixth. The 'Sit Down.'
[ Footnote 9 ] Accepting the underlying findings of the Board, as we do, it was within the province of the Board to draw the inferences that the guarantees of Section 7 of the Act, 29 U.S.C.A. 157, required disestablishment of the Federation (Falk case, 308 U.S. 461 , and cases cited), and that posting of appropriate notices was necessary. Id., p. 462.