Haleston Drug Stores v. National Labor Relations Bd.
| Decision Date | 15 February 1951 |
| Docket Number | 12446.,No. 12412,12412 |
| Citation | 187 F.2d 418 |
| Parties | HALESTON DRUG STORES, Inc. v. NATIONAL LABOR RELATIONS BOARD. SMITH v. NATIONAL LABOR RELATIONS BOARD. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Masters & Masters, Portland, Ore., for Haleston Drug Stores, Inc.
Gibson, Dunn & Crutcher and J. Stuart Neary, Los Angeles, Cal. (William F. Spalding, Los Angeles, Cal., of counsel), for H. W. Smith.
Ida Klaus, Sol., National Labor Relations Board, Norton J. Come, Atty., National Labor Relations Board, Washington, D. C., for respondent.
Green, Landye & Richardson and Burl L. Green, Portland, Ore., J. W. Brown, Cincinnati, Ohio, as amicus curiae.
Before HEALY and POPE, Circuit Judges, and CLARK, District Judge.
These are proceedings to review orders of the National Labor Relations Board. The point in controversy is whether the Board, notwithstanding the existence of jurisdiction, has discretionary authority to dismiss unfair labor practice complaints on policy grounds.
The petitioner in No. 12,446 does business as A-1 Photo Service in San Pedro, California. In April, 1948, he filed with the regional office of the Board a charge alleging that a local union of the A. F. of L. and certain of its agents were engaged in unfair labor practices affecting commerce. The general counsel of the Board directed the issuance of a complaint. After a hearing the trial examiner issued his intermediate report finding that the petitioner's business was a retail store engaged in buying and selling photographic equipment and supplies, greeting cards and stationery, and that it regularly employed three clerks. He found that during the previous year the store purchased supplies totaling about $100,000, of which 44 per cent was obtained from outstate wholesalers, the balance being purchased from wholesalers located in California who had obtained a substantial portion thereof from out of the state. During the comparable period sales totaled about $133,000, practically all of which were made to local retail customers. The examiner concluded that the petitioner was engaged in commerce within the meaning of the Act, and that therefore the Board had jurisdiction. As regards the unfair practices complained of he found that the union and its officers were guilty of a refusal to bargain collectively, but had not committed other practices alleged.
The Board upon consideration of the record and the exceptions of the parties dismissed the complaint in its entirety. It accepted the commerce facts as found and did not disturb the other findings of the examiner or his conclusion that the petitioner was engaged in commerce. It decided, however, that the "employer's business is essentially local in nature and relatively small in size, and that interruption of his operations by a labor dispute could have only the most remote and insubstantial effect on commerce." In the exercise of what it believed to be its discretion it ordered the dismissal on the ground that the assertion of jurisdiction would not effectuate the purpose of the Act.
In No. 12,412 the petitioner, Haleston Drug Stores, operates four retail drug stores in Portland, Oregon. In October, 1948, it petitioned the Board for an election among its employees to determine their desires in respect of their representation. After a hearing the Board made findings respecting the petitioner's business. It found that the latter sells at its stores a conventional line of drugs and cosmetics, operates a soda fountain, and prepares and sells medical prescriptions. During the preceding year it had made purchases for resale totaling about $189,000, of which approximately 30 per cent was shipped to it directly from points outside Oregon, the balance being largely purchased within the state from warehouses engaged in interstate commerce. Sales during the same period totaled about $308,000, all being made locally at the petitioner's retail stores. On these facts the Board concluded that assertion of jurisdiction in the representation proceeding would not effectuate the policies of the Act "inasmuch as the employer's business is essentially local in character." Accordingly it dismissed the proceeding.
Shortly prior to this disposition the petitioner filed a charge with the Board's regional director alleging that a named union was in violation of § 8(b) (2) of the Act, 29 U.S.C.A. § 158(b) (2), in attempting to force Haleston to sign a collective bargaining contract said to contain illegal union security provisions. The general counsel, acting through the regional director, thereupon issued an unfair labor practice complaint. The trial examiner appointed in the case granted the union's motion to dismiss, predicating his action on the ruling of the Board in the representation matter. The petitioner and the general counsel sought review before the Board. The latter after a hearing sustained the examiner on the finding that the petitioner's operations were essentially local, hence their interruption by a labor dispute would have only a remote and insubstantial effect on commerce. It ordered a dismissal on the ground that assertion of jurisdiction over Haleston's business would not effectuate the policy of the Act.
It is of this latter order and the one made in No. 12,446 that review is here sought. The case for the petitioners rests on the provision of the Labor Management Act of 1947 setting up the office of general counsel. This provision, incorporated in § 3 of the National Labor Relations Act as subsection (d), reads: 1
In effect, the petitioners contend that by this legislation Congress took from the Board and vested in the general counsel the authority of making the policy decision reached by the Board in these cases. They argue that when the general counsel issues a complaint he necessarily finds that the effect of the unfair labor practice upon commerce is sufficiently substantial to warrant the exercise of the Board's jurisdiction, and that since he is given "final authority on behalf of the Board" in respect of the issuance and prosecution of unfair labor practice complaints, his determination of the point is conclusive upon the Board. The premise of the argument is undoubtedly correct but we think the conclusion drawn from it puts too great a strain on the provisions of § 3(d).
The courts have uniformly recognized that the National Labor Relations Act did not confer private...
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