National Labor Relations Board v. ALLOY CAST S. CO., 8693.

• Decision Date: 05 February 1941
• Docket Number: No. 8693.,8693.
• Parties: NATIONAL LABOR RELATIONS BOARD v. ALLOY CAST STEEL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

117 F.2d 302 (1941)

NATIONAL LABOR RELATIONS BOARD v. ALLOY CAST STEEL CO.

No. 8693.

Circuit Court of Appeals, Sixth Circuit.

February 5, 1941.

Philip G. Phillips, of Cincinnati, Ohio (Robert B. Watts, Laurence A. Knapp, Bertram Edises, and Marcel Mallet-Prevost, all of Washington, D. C., on the brief), for petitioner.

Ben T. Wiant, of Marion, Ohio, for respondent.

Before SIMONS, ALLEN, and MARTIN, Circuit Judges.

SIMONS, Circuit Judge.

To the enforcement petition of the National Labor Relations Board, the respondent in brief and argument makes the single reply that the Board had no jurisdiction over it or the subject matter of the complaint. The response appears to be founded upon a misconception of the purpose and scope of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., and upon lack of understanding of the many decisions interpreting its provisions, sustaining the orders issued under its authority, and adjudicating its constitutional validity.

The respondent is an Ohio corporation which operates an electric steel foundry in Marion, Ohio, where it receives a substantial part of its raw materials from without the state, and from which it ships products to other states. The greater part of its production, however, is sold to the Osgood Company and the General Excavator Company at Marion, where the rough castings are machined and built into assemblies shipped largely into other states. The three companies have the same president, secretary and treasurer, and five common directors. The same five stockholders own 40% of the respondent's stock, 41% of the stock of the Osgood Company and 98.5% of the stock of the General Excavator Company. The plant of the respondent and that of the General Excavator Company are on adjoining properties and are served by a common compressed air system. It is clear from this abbreviated recital, that any labor practice condemned by the Act as unfair, and which would lead or tend to lead to industrial strife, would directly and immediately affect interstate commerce. Santa Cruz Fruit Packing Co. v. N. L. R. B., 303 U.S. 453, 463, 58 S.Ct. 656, 82 L.Ed. 954.

In Consumers Power Co. v. N. L. R. B., 6 Cir., 113 F.2d 38, 41, we considered and rejected the argument that no immediate and direct effect upon interstate commerce follows a labor controversy which curtails the employer's activity when its products are sold to an intervening private agency over whom the employer has no authority or control. It was said in Consolidated Edison Co. of New York v. N. L. R. B., 305 U.S. 197, 59 S.Ct. 206, 214, 83 L. Ed. 126, "it is the effect upon interstate or foreign commerce, not the source of the injury, which is the criterion." Sales to purchasers are not withdrawn from federal control because the goods are delivered f. o. b. within the state of origin. Pennsylvania R. Co. v. Clark Bros. Coal Mining Co., 238 U.S. 456, 35 S.Ct. 896, 59 L.Ed. 1406; Clover Fork Coal Co. v. N. L. R. B., 6 Cir., 97 F.2d 331.

The principal challenge of the respondent to the Board's jurisdiction, and its sole contention before the court, is in the light of the adjudications and history of the Act, somewhat belated. The jurisdiction of the Board depends, it says, upon the existence of an unfair practice affecting commerce, citing § 10(a). If the act complained of does not affect commerce, the Board has no jurisdiction. The term, "affecting commerce," has been defined by § 2(7) as "burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." The...