National Labor Relations Board v. Austin Co.

• Decision Date: 19 December 1947
• Docket Number: No. 9402.,9402.
• Citation: 165 F.2d 592
• Parties: NATIONAL LABOR RELATIONS BOARD v. AUSTIN CO.
• Court: U.S. Court of Appeals — Seventh Circuit

165 F.2d 592 (1947)

NATIONAL LABOR RELATIONS BOARD v. AUSTIN CO.

No. 9402.

Circuit Court of Appeals, Seventh Circuit.

December 19, 1947.

A. Norman Somers, Asst. General Counsel, William T. Little, Atty., National Labor Relations Board, Gerhard P. Van Arkel, General Counsel, Morris P. Glushien, Associate General Counsel, and Fannie M. Boyls, Atty., National Labor Relations Board, all of Washington, D. C., for petitioner.

Edward J. McLaughlin, Harry L. Kinser, and McKnight, McLaughlin & Dunn all of Chicago, Ill., for respondent.

Before KERNER and MINTON, Circuit Judges, and BRIGGLE, District Judge.

KERNER, Circuit Judge.

The National Labor Relations Board (hereinafter called the Board) is petitioning for enforcement of its order issued against respondent after proceedings under § 10 of the National Labor Relations Act.¹ The Board found that respondent's operations were subject to the terms of the Act, and that respondent had committed unfair labor practices in violation of § 8(1) and (3) of the Act.

The questions presented for our review are (1) whether the Act is applicable to respondent's operations; (2) whether the Board's findings of fact are supported by substantial evidence on the record as a whole; and (3) whether the Board's order is valid and proper.

Respondent is engaged in the business of designing and constructing office and industrial buildings throughout the United States, Canada, and other countries. To facilitate the operation of its business the respondent maintains fourteen offices in ten States and the District of Columbia, and has employees in several foreign countries. During the period mentioned in the complaint (September, 1945), its Chicago office, where the alleged unfair labor practices occurred, was engaged in designing and constructing buildings and structures in several States for numerous corporations. Specifically, the work of the Chicago office consisted of the determination of an appropriate design, the preparation of plans and blueprints, and the purchases of necessary construction materials for the erection of the desired building. At the commencement of construction a field force was sent out from the Chicago office to supervise the work. As the work progressed, lay-outs and blueprints were completed at the Chicago office and sent to the site of construction. The value of the design work performed by the Chicago office for the eighteen months preceding July 1, 1945 was over $400,000 and of this twenty-five per cent was performed for projects located outside of Illinois. The value of the materials purchased by the Chicago office during this same period was over $1,600,000 and it appears that a substantial portion of this was transported in interstate commerce to the site of construction.

Respondent contends that by the nature of its business it is not subject to the jurisdiction of the Board, because it is not engaged in interstate commerce within the purview of the Act. It argues that it is engaged in a purely local business of construction, which in this instance merely comprises a service leading up to construction work, although sometimes it does include the actual construction; that the primary nature of its business of construction is not altered by the fact that materials and men are gathered from outside the State wherein the construction work is performed. In support of its contentions, the respondent relies upon Schechter Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L. R. 1352; and Santa Cruz Co. v. National Labor Relations Board, 303 U.S. 453, 58 S.Ct. 656, 82 L.Ed. 954. In each of these cases there is no doubt that the Supreme Court has examined minutely the power of Congress to extend federal control over activities which separately considered are intrastate. In the two earlier cases, neither of which considered the Act here involved, the Court found that the activities involved — operation of a slaughterhouse and coal mining — were of sufficiently local nature as to be excluded from any governmental regulation of interstate commerce. The two later cases, both of which were in consideration of the terms of the Act, widened the purlieus of interstate commerce regulation (without a rejection of the earlier cases) and set up the criterion "of degree" in the relation of interstate commerce to the activity under consideration. As the Court explained it in Santa Cruz Co. v. National Labor Relations Board, supra, 303 U.S. at page 467, 58 S.Ct. at page 661, 82 L.Ed. 954, "The question that must be faced under the act upon particular facts is whether the unfair labor practices involved have such a close and substantial relation to the freedom of interstate commerce from injurious restraint that these practices may constitutionally be made the subject of federal cognizance through provisions looking to the peaceable adjustment of labor disputes."

By a subsequent pronouncement in National Labor Relations Board v. Fainblatt, 306 U.S. 601, at page 604, 59 S.Ct. 668, 670, 83 L.Ed. 1014, the Court recognized the expansion of federal regulation over interstate commerce, and said: "* * * an employer may be subject to the National Labor Relations Act although not himself engaged in commerce. The end sought in the enactment of the statute was the prevention of the disturbance to interstate commerce consequent upon strikes and labor disputes induced or likely to be induced because of unfair labor practices named in the Act."

Any questions directed at the Board's jurisdiction then must be answered by placing the particular facts of each case against the possible obstruction of interstate commerce "induced or likely to be induced" by unfair labor practices.

In this case it is obvious that interstate commerce could be affected by industrial strife in the Chicago office. Any interference due to an unfair labor practice in the transmission of the blueprints in interstate commerce necessarily would retard construction and would disrupt the flow of building materials traveling in interstate commerce. This would constitute sufficient cause to bring respondent within the Act, because "Interstate communication of a business nature, whatever the means of such communication, is interstate commerce regulable by Congress under the Constitution." Associated Press v. National Labor Relations Board, 301 U.S. 103, 128, 57 S.Ct. 650, 654, 81 L.Ed. 953.

In considering the question of whether the Board's findings of fact are supported by substantial evidence, we are not unmindful of the recent enactment by Congress of the Labor Management Relations Act of 1947,² which, among other things, amended the National Labor Relations Act. Under § 10(f) of the original Act courts reviewing the orders of the Board were guided by the provision that "* * * the findings of the Board as to the facts, if supported by evidence, shall * * * be conclusive." Under § 10(f) of the amending Act the reviewing courts are now empowered to apply the test that "the...