National Labor R. Bd. v. Friedman-Harry Marks C. Co., 425
| Decision Date | 27 May 1936 |
| Docket Number | 426.,No. 425,425 |
| Citation | 83 F.2d 731 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. FRIEDMAN-HARRY MARKS CLOTHING CO. (two cases). |
| Court | U.S. Court of Appeals — Second Circuit |
Leonard Weinberg, of Baltimore, Md., for the motion.
Robert B. Watts, of New York City, opposed.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The respondent moves to dismiss two petitions, filed by the National Labor Relations Board for enforcement orders under section 10 (e) of the National Labor Relations Act (29 U.S.C.A. § 160 (e). On October 26, 1935, the Board "issued and caused to be served * * * a complaint" against the respondent under section 10 (b) of the act (29 U.S.C.A. § 160 (b), on which hearings were had on November 6th and 12th and on December 5th; and on November 19, 1935, a second "complaint" followed, on which a single hearing was had on December 5th. The respondent, wishing to challenge the constitutionality of the act, put in no evidence; and on Saturday, March 28, 1936, the Board filed findings of fact in each proceeding, and entered two "cease and desist" orders, which it mailed to the respondent on that day from Washington, and which reached it at its principal place of business in Richmond, Va., on Monday, the 30th. On the 28th the Board also forwarded to our clerk two petitions for enforcement under section 10 (e), dated that day, alleging that its orders had been "duly served upon the respondent," but not alleging that they had been disobeyed. These reached the clerk some time on the 30th, but whether before or after the mailed copies of the orders were delivered to respondent in Richmond does not appear. On the 2nd of April the Board filed typewritten transcripts "of the entire record" in this court, and the clerk mailed the proper notices to the respondent on the same day. Since our rules require such transcripts to be printed, the Board procured ex parte from Judge L. Hand an oral direction that printing be dispensed with and that the transcripts be deemed to have been filed nunc pro tunc as of March 30, 1936. Meanwhile the respondent, having received the orders on March 30th, filed petitions for review under section 10 (f) of the act (29 U.S.C.A. § 160 (f) on the 31st in the office of the clerk of the Circuit Court of Appeals for the Fourth Circuit, which it followed by filing the proper transcripts on April 15th. The question is, whether the Board's enforcement proceedings conferred an earlier, and therefore an exclusive, jurisdiction upon this court under section 10 (e), before the respondent's proceeding for review gave a similar jurisdiction to the Circuit Court of Appeals for the Fourth Circuit under section 10 (f).
The Board is right in supposing that under section 10 (e) any Circuit Court of Appeals, which it may for any reason select, will acquire jurisdiction of an enforcement proceeding, if the respondent "transacts business" within its circuit; the hearings need not have been conducted within that circuit, nor need the forbidden acts have occurred there. The respondent does in fact "transact business" in the Second Circuit. The Supreme Court in Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 372, 47 S.Ct. 400, 71 L. Ed. 684, passed upon those words, as used in section 12 of the Clayton Act (15 U.S. C.A. § 22), and held that they were satisfied by less activities than those of the respondent here in question. To be sure the reasoning in that case rested in part upon the progressive enlargements of the venue provisions of the anti-trust acts; but it is not likely that when a phrase has received such an authoritative interpretation in one statute regulating industry, a different intent attended its recurrence in another statute as near as this. The authorities relied upon by the respondent as to when a corporation is "present" within a state are not therefore applicable; but even if they were, it is by no means clear that the respondent is not also "present" in New York. The mere fact that it found it necessary to take out a license to do its business here shows how it itself regarded its activities.
There remains only the question of the respective dates when the Fourth Circuit and ourselves got jurisdiction. The allegation in the Board's petitions, executed on March 28th, that the orders had then been served, was erroneous for "service" in this connection implies receipt, as it generally does. An enforcement proceeding pre-supposes by its very nature that the respondent has disobeyed the order, which he cannot do until he is at least advised that the "complaint" against him...
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