Appeal from the National Labor Relations Board.
Before BIGGS, MARIS, and GOODRICH, Circuit Judges.
This case is before the Court upon petition of the National Labor Relations Board for enforcement of its order against the Botany Worsted Mills and upon petition by the latter to set aside the order of the Board.
On March 8 and June 25, 1940, the Textile Workers Union of America filed with the Board's Regional Director petitions for investigation and certification of representatives at Botany's plant at Passaic, New Jersey. The Board conducted the appropriate proceedings and on October 7, 1940, issued a decision and direction of election and subsequently on December 13, 1940, a certification in which it found that the union represented a majority of the employees in a unit appropriate for the purpose of collective bargaining. Thereafter, upon charges filed by the union, the Board issued its complaint against respondent alleging that it had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of §§ 8(1)(5) and 2(6)(7) of the National Labor Relations Act, 29 U.S.C.A. §§ 158(1, 5), 152(6, 7). After requisite proceedings under § 10 of the Act, 29 U.S.C.A. § 160, were had, the Board, on May 25, 1942, issued its findings of fact, conclusions of law and an order requiring respondent to bargain collectively with the union. The Board thereafter petitioned this Court to enforce its order and Botany petitioned to set it aside, moving to consolidate the petitions and for leave to adduce additional evidence.
The first point made by Botany is that there has been a failure to show that the Board had jurisdiction over it. This contention is clearly without merit.
The complaint, after stating that Botany Worsted Mills is a New Jersey corporation engaged in that state in the manufacture, sale and distribution of woolen and worsted products, alleged that a substantial amount of the material and products used in its business were transported in interstate commerce from and through the States of the United States, other than the State of New Jersey, to the Passaic plant and that a substantial amount of the products manufactured by Botany were sold to be delivered in interstate commerce from the Passaic plant. These allegations were not denied. Under Article II, § 10 of the Rules and Regulations of the Board, promulgated pursuant to Congressional authority under § 6(a) of the Act, 29 U.S.C.A. § 156, an allegation in a complaint not specifically denied in the answer is deemed admitted and may be so found by the Board. Botany contends that the allegations are legal conclusions and do not have to be denied. We do not agree. We think these allegations state facts as to the receipt of material by Botany, for manufacture, from sources outside New Jersey and facts that the manufactured products are shipped to points outside that State.
Furthermore, a similar finding had been made by the Board in the representation proceeding. It was founded upon a stipulation between the parties relative to the first six months of 1940 which stated that during that period Botany had purchased 5,000,000 pounds of raw material, substantially all of which was shipped to it from points outside the State of New Jersey and that it had sold approximately 1,500,000 pounds of finished products, approximately 95% of which Botany shipped f.o.b., from Passaic, New Jersey, to points outside the State of New Jersey. Botany maintains that this stipulation is not available in this proceeding since, when made, it had been limited to the representation proceeding alone. We think the representation and the complaint proceedings cannot be so separated. The provisions of § 9(d) of the Act, 29 U.S.C.A. § 159(d),*fn1 indicate the contrary. As the Supreme Court said in an analogous situation in Pittsburgh Plate Glass Co. v. National Labor Relations Board, 1941, 313 U.S. 146, 158, 61 S. Ct. 908, 915, 85 L. Ed. 1251, "The unit proceeding and this complaint on unfair labor practices are really one."
Either of these answers is sufficient to establish the Board's jurisdiction. It is well settled, of course, that its power is not limited to cases where actual industrial conflict has already begun. National Labor Relations Board v. Bradford Dyeing Association, 1940, 310 U.S. 318, 60 S. Ct. 918, 84 L. Ed. 1226.
Botany complains of the size of the unit chosen. It consists solely of persons designated as sorters or trappers in the Passaic plant. The Board found that the company employed in that plant 5000 workers.*fn2 At the time of the election only 32 employees were in the unit designated as appropriate.
It must be borne in mind that the selection of the appropriate unit under the statute is vested in the Board. § 9(b). If the determination is not arbitrary or capricious it is not to be set aside. Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 1940, 113 F.2d 698, 701, affirmed 1941, 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251. This Court did veto the Board's designation in National Labor Relations Board v. Delaware-New Jersey Ferry Co., 3 Cir., 1942, 128 F.2d 130, because we felt that the public in terest had not received sufficient consideration. However, we still recognize fully that the choice of the appropriate unit is, within the area designated by the statute, one for the expert judgment of the Board.
Objections raised to the Board's designation are several in number. One is that the provision of the Act ( § 9(b) is unconstitutional because it lacks sufficient standards for the Board's guidance. This question of law we think has been settled by the Supreme Court in the Pittsburgh Plate Glass Co., case, cited above, adversely to the contention of Botany. Another objection is that of convenience and impracticality because it would be impossible to bargain with so large a number of small groups. This point is answered by language used by the Board in another case.*fn3 "The respondent does not ...