National Labor Relations Board v. Red Rock Co. et al, 187 F.2d 76 (5th Cir. 1951)

In its general aspects this is an ordinary proceeding by the Board for the enforcement of one of its remedial orders. Aside from two contentions of respondents to be later adverted to, the question presented is whether upon the record, considered as a whole, there is substantial evidence supporting the findings on which the order rests that the act was violated as claimed and found.

Of the opinion that there is, we would, but for the two contentions pressed upon us by respondents as barriers in the way of enforcement, say no more, and order enforcement.

One of these contentions is that the record fails to show compliance on the part of the Union with Sections 9(f), 9(g) and 9(h) of the act, 29 U.S.C.A. § 159(f, g, h), and, because thereof, the board was without jurisdiction to entertain the charge, file the complaint, and proceed to findings and an order on it.

The other is that the record furnishes no support in fact and in law for the Board's finding that, from the standpoint of the labor relations involved in this case, both respondents are employers and both are alike responsible for the violations found by the Board.

As a corollary to this second contention, respondent Red Rock Company, on whose payroll the affected employees were and with whom the Union sought to bargain, urges that, considered apart from its corespondent, Red Rock Cola Co., the interstate business done by it is not sufficient under the Board's rule, adopted since this case was heard, to support the filing of the complaint, and the enforcement order against it, alone.

As respondent, Red Rock Company, stated its contention No. 1 below, it was that the burden was upon the charging Union to show on the face of its charge and upon the Board to allege in its complaint and prove the fact of compliance as a condition precedent to the exercise of its jurisdiction and the filing of its petition here for enforcement of its order. It relied there, and it must rely here, not upon any proof of its own that the Union had not complied, but upon what it deems the failure of the Union and Board to carry their burden.

It is true that respondent does assert here that, by answer and oral and written motions and expressions, it did undertake below to raise, and to support by proof, its contention that the Union was not in compliance.

An examination of the appendix to respondent's brief, however, shows that, aside from causing subpoenas to issue, respondent made no effort to prove affirmatively that there was no compliance.

Its point made below was that the charges show on their face¹  that there had been no compliance with the filing requirements of Section 9 of the Taft-Hartley Act, and the Board's complaint on its face fails to show that there had been compliance.² 

In his report and opinion, the trial examiner held that the question of compliance was not a matter for pleading and proof at the hearing before him but was an administrative matter to be determined by the Board itself.

The Board, in its opinion, in addition to specifically approving the examiner's finding that the question of compliance was a matter for administrative determination by the Board and is not litigable by the parties in this proceeding, declared "Moreover, we are administratively advised that the Union has fully complied with the filing requirements of the amended act."

In this state of the record, we are quite clear that respondent's contention is wholly without merit, both because if it was necessary for the Union charges to show compliance on their face, this was done, and because the act does not, as a condition to the exercise of its jurisdiction, require pleading and proof by the Board that the Union had complied.³ 

This is not to hold that if, on a petition for enforcement, it is made to appear to this court by clear and positive proof that the Board has, contrary to the statute, taken jurisdiction of a charge made by a non-complying Union, particularly one which has not complied with Sec. 9(h), the filing of the non-communist affidavit, and has ordered a respondent to recognize and bargain with it, this court would enforce the Board's order.⁴  On this record, that question is not before us.

Neither do we decide whether, or, if so, the circumstances under which, this court would hear clear and positive evidence to the contrary, where, as here, the Board, in its findings and order, has affirmatively declared that there was compliance. On this record this question is not before us.

All that we have before us, and all that we decide, is that the record does not support the position of respondents taken below, that no compliance appears on the face of the charges or that, because of the failure of the Board to affirmatively allege compliance, it was without jurisdiction to proceed.

Upon respondents' second contention, the failure of the record to support the findings and order against the Cola Company, we agree with respondents,⁵  and we will not, as to that company order enforcement.

We do not agree with respondent Red Rock, though that this conclusion requires us to refuse enforcement of the order as to it. Within the meaning and effect of decisions of this court, N.L.R.B. v. Mid-Co. Gasoline Co., 5 Cir., 183 F.2d 451 and N.L.R.B. v. Gulf Public Service Co., 5 Cir., 116 F.2d 852, the amount of interstate commerce being done by that respondent was sufficient to support the Board's jurisdiction. The fact that by a self-denying rule or order made since this complaint was filed and order entered, the Board has set limits to the exercise in the future of the jurisdiction it possesses is not a matter of which respondent may avail. The petition to enforce as to Red Rock will be granted. It will be denied as to Red Rock Cola Co.

Enforced in part and denied in part.