Farah Manufacturing Company, Inc. v. NLRB, 73-1184.
| Decision Date | 01 August 1973 |
| Docket Number | No. 73-1184.,73-1184. |
| Citation | 481 F.2d 1143 |
| Parties | FARAH MANUFACTURING COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD and Amalgamated Clothing Workers of America, El Paso District Joint Board, AFLCIO, Intervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Acting Asst. Gen. Counsel, NLRB, Washington, D.C., for Labor Bd.
Nelson, Harding, Marchetti, Leonard & Tate, Lincoln, Neb., and Kenneth R. Carr, El Paso, Tex., for Farah Manufacturing Co.
Arthur M. Goldberg and Joel Ronald Ax, New York City, for intervenor.
Before VOGEL and BRIGHT, Circuit Judges.
Petitioner, Farah Manufacturing Company, Inc. (Farah), seeks review of the order of the National Labor Relations Board, entered on March 23, 1973, in Case Nos. 28-CA-2036, 2054, 2089, 2097, 2109, 2126, 2137, 2152, and 2210 (202 NLRB No. 99). In this proceeding we consider intervenor's (Amalgamated Clothing Workers of America) motions for dismissal or change of venue.
The petition for review was filed March 26, 1973. On April 9, 1973, in response to an application, we permitted Amalgamated Clothing Workers of America, the charging party, to intervene. The Board, on May 4, 1973, filed a cross-application for enforcement of its order. The intervenor thereafter moved to dismiss Farah's petition for want of jurisdiction since the petition for review failed to aver and establish that Farah resided or transacted business within the jurisdiction of the Eighth Circuit (see 29 U.S.C. § 160(f)). In the alternative, intervenor moved that we transfer these proceedings to the Fifth Circuit pursuant to our discretionary power or under the authority of 28 U.S.C. § 2112(a). In addition, the National Labor Relations Board asked leave to withdraw its cross-application for enforcement since neither the petition for review nor the certified record indicated that Farah resides or transacts business within the geographic boundaries of this circuit.
Farah has resisted each of the motions on several grounds, and in response, has filed an affidavit of one of its officers showing that it has been doing some business within this judicial circuit. The affidavit and its attachments show that Farah has maintained a small office (270 square feet) in a commercial building in Fargo, North Dakota, since about August 1, 1972. This office serves as headquarters for its sales agent who solicits customer orders in North Dakota and Minnesota. The affidavit and attachments also show that Farah's principal place of business is in El Paso, Texas, and that its gross annual receipts (apparently for 1972) from business operations transacted in whole or in part in North Dakota amounted to $1,176,082. Farah's total gross receipts, for the same period of time nationwide, were $156,764,474.
We note from the underlying record that Farah operates three manufacturing plants in El Paso and other plants in Texas and New Mexico; that its employees commenced union organizational activities in September of 1969; and that these organizational activities led to unfair labor practice charges and findings against Farah in a prior case. Farah Manufacuring Co., 187 N.L.R.B. 601 (1970), enforced, 450 F.2d 942 (5th Cir.1971).
The intervenor cites El Paso Joint Board, Amalgamated Clothing Workers v. Farah Manufacturing Co., Inc., 465 F.2d 1402 (5th Cir.1972), as an allied case growing out of the efforts of the union to organize Farah's production employees for collective bargaining. We are also cited to other cases pending in the Fifth Circuit growing out of the same organizing campaign.
We have carefully examined the briefs submitted by all parties. We agree with the position of Farah, concurred in by the Board, that the evidence submitted by Farah showing that it transacts business within this judicial circuit provides a sufficient basis for this court to exercise its jurisdiction upon the petition for review and cross-application for enforcement of the Board's order. Section 10(f) of the National Labor Relations Act (29 U.S.C. § 160(f)) provides that an aggrieved person may obtain review of the Board's order:
* * * in any United States court of appeals in the circuit wherein the unfair labor practice in...
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