N.L.R.B. v. Timberland Packing Corp., 76-1300
| Decision Date | 18 March 1977 |
| Docket Number | No. 76-1300,76-1300 |
| Citation | 550 F.2d 500 |
| Parties | 95 L.R.R.M. (BNA) 2032, 81 Lab.Cas. P 13,148 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TIMBERLAND PACKING CORPORATION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elliott Moore, Judith P. Wilkenfeld, Atty., N. L. R. B., Washington, D. C., argued, for petitioner.
Robert L. Johnson, Johnson & Foster, Lewistown, Mont., argued, for respondent.
Petition to Review a Decision of the National Labor Relations Board.
Before DUNIWAY, ELY and CHOY, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its order issued on November 24, 1975, and reported at 221 NLRB 728. The sole issue is whether the Board properly asserted jurisdiction over Timberland Packing Corporation.
Clearly, Timberland's activities have sufficient impact on interstate commerce to come within the Board's jurisdiction under the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. (1970). See NLRB v. Fainblatt, 1939, 306 U.S. 601, 607, 59 S.Ct. 668, 83 L.Ed. 1014; NLRB v. Inglewood Park Cemetery Association, 9 Cir., 1966, 355 F.2d 448, 451.
The Board, however, because it lacks the time and resources to exercise jurisdiction over every enterprise which may come within its statutory jurisdiction, has developed administrative standards whereby it limits its assertion of jurisdiction to classes of enterprises which meet a required annual dollar volume of business. For non-retail enterprises, such as Timberland, the Board has announced that it will assert jurisdiction over such a business if it has any interstate inflow (purchases) or outflow (sales) of at least $50,000 annually. Andover Protective Service, Inc., 1976, 225 NLRB No. 64; Siemons Mailing Service, 1958, 122 NLRB 81, 85. This is measured in two ways, directly by purchases from or sales to out-of-state enterprises, or indirectly either by sales to in-state users meeting any of the Board's jurisdictional standards (except the indirect standards) or by purchases from local businesses of goods originating outside the state.
When applying its jurisdictional amount standards, the Board has consistently refused to consider expected or predicted changes in business volume; it has based its determination upon a more objective standard, the figures for the most recent calendar year or fiscal year, or the year just before the Board hearing. Jos. McSweeney & Sons, Inc., 1958, 119 NLRB 1399, 1401; Aroostook Federation of Farmers, Inc., 1955, 114 NLRB 538, 539.
The extent to which the Board "chooses to exercise its statutory jurisdiction is a matter of administrative policy within the Board's discretion, . . . and is not a question for the courts, . . . in the absence of extraordinary circumstances, such as unjust discrimination" (citations omitted). NLRB v. Carroll-Naslund Disposal, Inc., 9 Cir., 1966, 359 F.2d 779, 780. Timberland argues...
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