JL Brandeis & Sons v. National Lab. Rel. Board, No. 12782.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: STONE, SANBORN, and THOMAS, Circuit
• Citation: 142 F.2d 977
• Parties: J. L. BRANDEIS & SONS v. NATIONAL LABOR RELATIONS BOARD.
• Docket Number: No. 12782.
• Decision Date: 07 June 1944

142 F.2d 977 (1944)

J. L. BRANDEIS & SONS
v.
NATIONAL LABOR RELATIONS BOARD.

No. 12782.

Circuit Court of Appeals, Eighth Circuit.

June 7, 1944.

142 F.2d 978

Ralph E. Svoboda, of Omaha, Neb. (J. A. C. Kennedy, Yale C. Holland, George L. DeLacy, Kennedy, Holland, DeLacy & Svoboda, L. J. Tierney, and Harry R. Henatsch, all of Omaha, Neb., on the brief), for petitioner.

Roman Beck, of Washington, D. C. (Alvin J. Rockwell, Gen. Counsel, Malcolm F. Halliday, Associate Gen. Counsel, and Thomas B. Sweeney, Atty., National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This case, submitted upon a petition of J. L. Brandeis & Sons to review and annul a decision and order of the National Labor Relations Board and a request of the Board for enforcement of its order, presents only two questions, namely, (1) the jurisdiction of the Board and (2) the appropriate unit for collective bargaining.

The petitioner refused to bargain collectively with a labor union certified by the Board as the exclusive representative of petitioner's employees in a unit previously found to be appropriate for such purpose. The union filed charges, a complaint

142 F.2d 979

was issued and petitioner answered, denying that it was subject to the Act and alleging that the unit determined was not appropriate. The issues were submitted upon a stipulated record and the Board found that the petitioner refused to bargain collectively with the union in violation of § 8(5) and (1) of the National Labor Relations Act, 49 Stat. 449, 29 U.S. C.A. § 151 et seq., and ordered the petitioner to cease and desist from such unfair labor practice and to bargain with the union upon request

The petitioner is a Nebraska corporation engaged in owning and operating a retail department store in the city of Omaha in that state. The principal store occupies half a block and has ten floors and a basement. The basement and first seven floors are devoted to merchandising and the three upper floors are used for service departments and an assembly hall. The petitioner also operates, as departments of its store, two drug stores in other buildings; leases five floors of another building for warehousing, another building as a garage, carpenter, paint and repair shop, and another which supplies heat for the main store.

The store comprises 99 departments and 18 additional departments leased to other persons but held out to the public as departments of the store. In these 117 departments the petitioner has 984 employees and offers for sale to the public thousands of items and services to satisfy personal and household needs and desires.

During the fiscal year ending January 21, 1943, the petitioner purchased merchandise outside of Nebraska for resale at its store in Omaha at a cost of more than $3,700,000. For the fiscal year ending January 31, 1943, its mail orders were estimated to amount in value to $121,274, of which approximately $20,799 represented mail order sales to customers outside the state of Nebraska. During the same period it caused to be delivered to out-of-state customers approximately 8,900 packages.

The petitioner does not advertise on a nation-wide basis. It advertises in the Omaha World Herald which has a circulation of approximately 164,000 in Nebraska and 21,000 in Iowa. It also advertises in the Non Pareil, a newspaper published and circulated in Council Bluffs, Iowa.

The petitioner contends that the Board is without jurisdiction for the reasons (1) that the National Labor Relations Act does not apply to labor disputes in retail department stores; (2) that the doctrine of de minimis is applicable to its interstate sales, and that such sales are so small that to close the store would not have a direct and substantial effect upon interstate commerce; and (3) that the purchase and shipment of merchandise from outside the state for stocking the shelves of its store is not interstate commerce and should not be considered in determining the jurisdiction of the Board.

These contentions are supported by an exhaustive brief, but the arguments do not persuade. The Act does not exempt the retail business as such from the scope of its coverage. Section 10(a) provides that: "The Board is empowered * * * to prevent any person from engaging in any unfair labor practice * * * affecting commerce." (Italics supplied.) The only test of the applicability of § 10(a) of the Act to any business or enterprise is found in § 2(7), which provides that: "The term `affecting commerce' means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 220-223, 59 S.Ct. 206, 83 L.Ed. 126.

It is argued that the Act applies only to industries and that selling merchandise at retail is not an industry. Conceding arguendo that the law applies only to labor relations in industry, it can not be successfully maintained that the retail business is outside the scope of the meaning of that term. One of the definitions of industry given in Webster's...