Petition for Review and to Set Aside in Part an Order of the National Labor Relations Board.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
Wilson & Co., Inc., has petitioned to have an order of the National Labor Relations Board reviewed and set aside. The Board in its answer requests that its order be enforced.
The Board found that, following a strike which terminated on December 19, 1938, petitioner, in violation of Section 8(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1) (3), refused to reinstate twelve members of United Packinghouse Workers of America, Local No. 49, C.I.O., herein called the Union, because they had participated in the strike. Upon these findings the Board ordered petitioner to cease and desist from the unfair labor practices, to reinstate the employees with back pay, and to post appropriate notices.
Petitioner, a Delaware corporation having its principal place of business in Chicago, Illinois, is engaged in pruchasing and slaughtering livestock and in the processing, sale, and distribution of meat and meat products. Its plants are operated in nine states; the products of these plants are sold by branch houses throughout the United States. During a representative twelve-month period, petitioner purchased livestock valued at approximately $127,000,000 and sold meat and meat products worth about $250,000,000. The unfair labor practice here involved occurred at seven branch houses in the metropolitan district of New York. During 1939 these branches sold about 95,000,000 pounds of meat and meat products, all of which were shipped to them from points outside of the state of New York. The meat and meat products were sold to local retail butchers and jobbers and none of it was sold and shipped to points outside of the state of New York. The Board concluded that the unfair labor practices had a close, intimate, and substantial relation to trade, traffic, and commerce among the several states, and tended to lead to labor disputes burdening and obstructing commerce and the free flow of commerce within the meaning of § 2(6) and (7) of the Act, 29 U.S.C.A. § 152(6,7).
These facts, counsel for petitioner argues, show that interstate commerce was in no way obstructed or affected and that the products came to permanent rest within the state and have ceased to flow in interstate commerce. The fact that the commerce to be protected has come to rest in the state of New York is immaterial. If the obstructions incident to it result in an interruption of the free flow of interstate commerce, Congress has the power to regulate it. National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41, 42, 57 S. Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 604, 59 S. Ct. 668, 83 L. Ed. 1014; Virginia Electric & Power Co. v. N.L.R.B., 4 Cir., 115 F.2d 414; and National Labor Relations Board v. Schmidt Bakery Co., 4 Cir., 122 F.2d 162.
Petitioner next contends that the evidence does not warrant the conclusions drawn by the Board.
The facts adduced at the hearing showed that the Union commenced to organize petitioner's employees at its seven branches in the metropolitan area of New York City in September, 1937. Shortly thereafter petitioner informed the luggers*fn1 at the Fort Greene branch that owing to the fact that business had fallen below normal, it was necessary either to eliminate one lugger or adopt a plan of rotation whereby one lugger would be off for a week at a time. The luggers decided to try the rotation plan. On October 9, petitioner's manager told one Levine (a lugger) not to report the following week; the luggers, however, having reconsidered the question, decided to oppose all lay-offs and informed the manager that none of them would work if any lay-off practice was put in effect. On October 11, after Levine was refused work, the luggers went on a strike. That afternoon, after the luggers had joined the Union, the strike was settled and the rotation plan was abandoned.
In November, 1938, after the Board had certified the Union as the bargaining representative of the employees of six of petitioner's branch houses, the Union presented a proposed bargaining contract, which provided, among other things, for a closed shop, seniority arrangement, wage increase, arbitration of grievances, 40-hour week and 8-hour day. Representatives of the Union and the petitioner then met and discussed the terms of the contract, but they reached no decision. At this conference petitioner's representative stated that a closed shop was against petitioner's policy, that a wage increase could not be granted, and that practically all of the other terms were objectionable. Thereafter the Union made further attempts to negotiate an agreement.We do not deem it necessary to set out in detail the evidence concerning the negotiations; suffice to say, the negotiations were unsuccessful and on December 12, 1938, a strike occurred at all seven branch houses. The Board found that the strike was not the result of an unfair labor practice, but was a labor dispute within the meaning of § 2(9) of the Act. On December 17, 1938, at a conference between representatives of the Union and the petitioner, attended also by a Department of Labor conciliator, the strike was terminated, and petitioner agreed to reinstate all strikers whose jobs had not been filled during the strike and to employ the remaining strikers as soon as positions for them became available.
During the five-day strike fifteen new men were hired at four branch houses and promised steady work. Pursuant to the settlement agreement, the strikers reported for work on December 19 and all but 12 of them were reinstated. Eleven of those applying for work were told that their positions had been filled by new employees hired during the strike, and that they would be reinstated as soon as work became available.After the strike was terminated petitioner hired 12 new men, but none of the 11 strikers was reinstated, although they were qualified to perform the work for which the new men were hired. The 11 strikers who were not taken back had been employed prior to the strike at the Fort Greene, Jamaica, Westchester, and Mineola branch houses, and the 12 employees hired since the termination of the strike were taken on at these branches.
The proof also showed that petitioner's Vice President Cooney and District Manager Hawrey had indicated to some of the men seeking reinstatement that their participation in the strike foreclosed their chances of employment, e. g., shortly before the strike Cooney said "that in case of another strike we [the company] would be less inclined to take the men [the strikers] back." Hawrey, prior to the strike, had attempted to insure a vote against the Union by promises of favors to one Kolacz, a union shop chairman. After the strike Hawrey told Kolacz, "you know why you have lost your position. * * * Those are the things I warned you against some time ago."
The Board found that the failure to reinstate the men was motivated by a purpose to penalize them of rengaging in legitimate concerted activities and therefore was discriminatory within the meaning of § 8(3) and (1) of the Act.
Petitioner insists that there is no support in the record for the inference that this was in fact petitioner's purpose, and it points to the fact that it never interfered with the Union's efforts to unionize the branch houses; that it granted all requests for meetings; that it gave numerous wage increases prior to December, 1938; that it shortened hours of work; that it gave vacations; that it agreed with the Union on additional ...