Petition for Enforcement of Order of the National Labor Relations Board.
Before EVANS, SPARKS, and TREANOR, Circuit Judges.
Petitioner seeks the enforcement of an order of the National Labor Relations Board directing the respondent company to reinstate employees, who had theretofore gone on a strike and had been replaced by other employees. The order*fn1 of the Board was predicated on a finding that the company had been guilty of unfair labor practices; namely, refusal to bargain with the union which represented a majority of its employees.
The employees who had been hired to replace the stokers have intervened and appear separately.
The conflict between the company and the union has been protracted and bitter. It covers several issues. We find it necessary to state the facts somewhat in detail to give a thorough understanding of the case.
The Facts: The Columbian Enameling and Stamping Company, an Indiana corporation, located at Terre Haute, Indiana, manufactures and sells enamelware. It employed about 600 persons, 500 of whom were production and maintenance employees who were eligible to membership in the Enameling and Stamping Mill Employees Union, No. 19694. About 485 of the 500 eligible employees belonged to the union. The strike began March 22, 1935; the National Labor Relations Act became effective, July 5, 1935; and the specific day on which the company is alleged to have refused to bargain is July 23, 1935. The labor agreement between respondent and its employees ran for a year and expired July 14, 1935. Because of the importance of the chronological presentation of the successive steps in this conflict, we set them forth in detail.*fn2
(1) The constitutionality of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.*fn3
(2) Whether there is evidence to support the Board's finding of unfair labor practices, and if so whether interstate commerce, if found to exist, is thereby burdened.
(3) Whether the Board's order is valid. If so, whether it can be enforced to the detriment of the intervenors, present employees.
CONTENTIONS AND COUNTER-CONTENTIONS.
1) The act is unconstitutional.
2) Interstate commerce is not involved because both raw materials and finished products remain at rest in the Company's place for several months before and after interstate shipment and therefore the continuity in interstate commerce shipment is broken.
3) Further conferences would have been useless because all that union was demanding was a closed shop, and company would not so operate.
4) The act was passed after the strike and therefore is inapplicable; furthermore, the strike was an illegal one because there was an arbitration agreement, and being an illegal strike or strike in violation of wage and employment agreement, the relationship of employer and employee had been terminated. The arbitration contract provided that there should be no strikes.
1) The act had been held constitutional (National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352, and other cases.)
2) Majority of raw material used in the manufacture comes from 20 states; and 85% of manufactured product is shipped to 47 states; three interstate railroads and eight interstate truckers are used.
3) Union was demanding other things than closed shop, such as 2 hour pay when machinery broke down. Union was asking for the conferences, which was indicative of fact that they were in conciliatory mood.
4) The act is applicable, and need not be retroactively construed to be here applicable because the refusal to meet and confer occurred on July 22 and thereafter, after the passage of the act, and the company had refused to arbitrate, and the arbitration agreement only provided that there should be no strike while a matter was pending before the Committee of Arbitration. A strike does not terminate the employer-employee relationship (Citing the Michaelson Case, Michaelson v. U.S. ex rel. Chicago, St. P., M. & O. R. Co., 7 Cir., 291 F. 940). The National Labor Act has been held applicable in two cases where the strike occurred prior to its passage. Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 139, 112 A.L.R. 948, cer. denied, Oct. 18, 58 S. Ct. 55, 82 L. Ed. ; Carlisle Lumber Co. Case, National Labor Rel. Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138, now pending on application for certiorari in Supreme Court, filed Mar. 30.
August 4, 1935 Picketing resumed.
Sept. 20, 1935 Company refused to bargain collectively with union.
Company did not answer letters of Union asking ...