National Labor Relations Board v. Mackay Radio & Tel. Co.

• Decision Date: 11 January 1937
• Docket Number: No. 8137.,8137.
• Citation: 87 F.2d 611
• Parties: NATIONAL LABOR RELATIONS BOARD v. MACKAY RADIO & TELEGRAPH Co.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F.2d 611 (1937)

NATIONAL LABOR RELATIONS BOARD v. MACKAY RADIO & TELEGRAPH Co.

No. 8137.

Circuit Court of Appeals, Ninth Circuit.

January 11, 1937.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Thomas I. Emerson and Stanley S. Surrey, Attorneys, National Labor Relations Board, all of Washington, D. C., and Bertram Edises, Atty., National Labor Relations Board, of San Francisco, Cal., for petitioner.

Louis W. Myers and Homer I. Mitchell, both of Los Angeles, Cal., and J. Harold Merrick, of New York City, (O'Melveny, Tuller & Myers of Los Angeles, Cal., of counsel), for respondent.

Before WILBUR, GARRECHT, and MATHEWS, Circuit Judges.

WILBUR, Circuit Judge.

The National Labor Relations Board has petitioned this court for an order of enforcement in accordance with the provisions of section 10, subdivision (e), of the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. ? 151 et seq., ? 160(e) approved July 5, 1935. The order of the Board was made after an extensive hearing, and at the conclusion of a lengthy opinion rendered upon the complaint of the American Radio Telegraphists' Association, San Francisco Local No. 3, on behalf of five employees of the respondent who were not re-employed by the respondent after the termination of a strike in which four of the five employees actively participated as members of that association. The order requires the respondent to cease and desist from discharging or threatening to discharge employees who have joined that union or have engaged in union activities, and from interfering with the rights of self organization and collective bargaining "as guaranteed by section 7 of the National Labor Relations Act 29 U.S.C.A. ? 157," and to offer the five former employees "immediate and full reinstatement * * * without prejudice to any rights previously enjoyed," and to pay them full compensation for the period of unemployment, less the amount earned subsequent to discharge, and to post notices for thirty days that it will not discharge members of that association or others desiring to join or assist it or other union activities. The full text of the order is set out in footnote No.¹.

The respondent appears and attacks the constitutionality of the National Labor Relations Act (49 Stat. 449, 29 U.S.C.A. ? 151 et seq., approved July 5, 1935), hereinafter referred to as "the Act," and the validity of the proposed order in pursuance thereof.

At the time of the argument the Supreme Court had under advisement a case arising under the Bituminous Coal Conservation Act (15 U.S.C.A. ?? 801-827, 49 Stat. c. 824, p. 991), otherwise known as the Guffey Act, a decision in which it was thought might be decisive in this matter. Accordingly it was arranged that supplemental briefs might be filed by the parties within 60 days after the decision in that case. The decision therein was rendered May 18, 1936. Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. The act there in question dealt with the mining of bituminous coal. It was held that such production of coal was not interstate commerce, and, consequently, it was held that the attempt of Congress to regulate that industry was not within the power delegated to the federal government by the commerce clause of the Constitution (article 1, ? 8, cl. 3). Upon the authority of that decision the Circuit Court of Appeals for the Fifth Circuit held the National Labor Relations Act void in so far as it attempts to regulate the production of steel. National Labor Relations Board v. Jones & Laughlin Steel Corporation, 83 F. (2d) 998, decided June 15, 1936.

In the case at bar it is conceded that the respondent was engaged in interstate commerce, and that each of the five employees ordered restored to their positions was so engaged.

The respondent contends that the entire act must be held invalid if the general provisions thereof relating to such intrastate activities as mining and manufacturing are beyond the regulatory power of Congress, because, if the all-inclusive character of the act is destroyed, the purpose of Congress is frustrated. It is pointed out that the Supreme Court in January, 1908, in the cases of Howard v. Illinois Central Railroad Co. (Brooks v. Southern Pacific Co.), 207 U.S. 463, 28 S.Ct. 141, 146, 52 L.Ed. 297, declined the task of segregating the interstate commerce features from the intrastate features of an Act of Congress of June 11, 1906, dealing with employers' liability (34 Stat. 232), for the purpose of limiting the act to interstate commerce. The act, however, presented a peculiar difficulty in that it purported to deal specifically with the District of Columbia and with the territories of the United States over which the Congress of the United States has plenary legislative authority. To write into that act a restriction confining it to those employees engaged in interstate commerce the court thought would be to negative the expressed will of Congress as to the District of Columbia and the territories. Justice White, speaking for the majority of the court, said: "To write into the act the qualifying words, therefore, would be but adding to its provisions in order to save it in one aspect as to interstate commerce, and thereby to destroy it in another as to the District of Columbia and as to the territories; that is, to destroy in order to save, and to save in order to destroy." The decision of the majority of the Supreme Court is, of course, controlling, but it should be noted that the minority of four members maintained that the constitutional and unconstitutional features of the act could be separated and the former enforced by holding the act in question applicable only to interstate commerce and to those engaged in it. The difficulty which confronted the Supreme Court in the Howard Case, 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297, supra, dealing with the Employers' Liability Act of June 1906, is not so pronounced in dealing with the National Labor Relations Act because in the Labor Relations Act Congress has expressly predicated that legislation upon its power to regulate interstate commerce. It has defined commerce in section 2, subdivision 6 (29 U.S.C.A. ? 152 (6), as interstate commerce.² The term "affecting commerce" is also described as applying to acts which "burden" or "obstruct" the free flow of "commerce." Section 2, subdivision 7 of the act (29 U.S.C.A. ? 152(7).³

In view of the definition of commerce contained in the act, and the use of the familiar expressions relating thereto "burdening," "obstructing," the "free flow of commerce," the act by its terms is expressly confined to the regulation of interstate commerce. Any attempt to apply the act to activities other than interstate commerce and to matters which only indirectly affect such commerce is not authorized by the terms of the act if properly construed. There is, therefore, no difficulty to be encountered by the courts in limiting the act to matters within the commerce clause of the Constitution, for Congress has already done so. If the officials of the government in executing this statute have attempted to extend it to matters wholly intrastate in character, they have done so in the teeth of the statute and the federal Constitution. Moreover, Congress has expressly provided that the invalidity of a portion of the act shall not affect its application of the act to others coming within the constitutional power of Congress (section 15 of the act (29 U.S.C.A. 165),⁴ and this provision of the act requires the court to apply the act to interstate commerce unless it can be clearly seen that such application would frustrate the real object and intent of Congress in passing the act.

In a recent decision by the Circuit Court of Appeals for the Fifth Circuit it was held that the act was not totally void, although some of the provisions might be held unconstitutional. Bradley Lumber Co. of Arkansas v. National Labor Relations Board, 84 F.(2d) 97, decided June 5, 1936. See also, Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686; Utah Power & Light Co. v. Pfost, 286 U.S. 165, 52 S.Ct. 548, 76 L.Ed. 1038; Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, 55 S.Ct. 758, 79 L.Ed. 1468; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 873, 80 L.Ed. 1160, dissent of Chief Justice Hughes, 56 S.Ct. 877, dissent of Justice Cardozo, 56 S.Ct. 883.

In so far as the act purports to regulate interstate commerce, Congress was acting within its constitutional grant of power over commerce, and the act is thus applicable to the interstate business of the respondent in which the five employees were engaged.

It remains to consider the constitutional limitations upon the power of Congress to regulate commerce contained in the bill of rights (Const. Amendments 1 to 10), by which the people of the United States sought to protect individual and personal rights from legislative encroachment by prohibiting Congress and the national government from enacting or enforcing laws derogatory thereto. The respondent invokes articles 5 and 7 of these constitutional amendments and claims that it would be deprived of liberty and property within the meaning of article 5 and of a jury trial as to damages in violation of article 7 if the order of the Board were enforced.

These fundamental rights of man were recognized by the Declaration of Independence as inherent in him. It was therein declared that governments were instituted to secure these rights.⁵

The Fifth Amendment to the Constitution provides for the protection of certain of these inalienable rights by providing that "no person shall be * * * deprived of life, liberty, or property, without due process of law" by the federal government. The respondent contends that one of the liberties announced by the Declaration of Independence as a self-evident right, and thus guaranteed by the Federal Constitution, is the right of men to freely enter into contracts. R...