Petition for Writ of Certiorari — First Congregational Church v. National Labor Relations Board

Supreme Court brief1966

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IN THE

Supreme Court of the United|stdfa® ™*°

JOHN &. DAVIS, CLERK

Offiee-Supreme Court, U.S,

FILED

- ' October Ferm, 1965

No. 120 0

First CONGREGATIONAL CHURCH OF Los ANGELES,

Petitioner,

US.,

NATIONAL LABor RELATIONS BOARD, —

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

RicHarp W. Lunp, *%

Pau. R. WATKINS,

DANA LATHAM,

615 South Flower Street,

Los Angeles, Calif. 90017,

Counsel for Petitioner.

Joun S. WELcH,

RoBERT B. WESSLING,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

SUBJECT INDEX

. | Page

Citations to Opinions Below ............ 7 Peete

Jutisdiction 2 esi ae

Question Presented - sil ha 2

Constitutional Provisions and Statutes Involved ...... 3

Statement ......... ; : ; 4

Reasons for Granting the Writ ................ . 5

Conclusion ..........--...--- cheno laleleialibdiniccstals 22

r INDEX TO APPENDICES

Appendix A—Constitutional Provisions an

Appendix B—Statutes 2

Appendix C—Opinions and Judgment Below ............ 5

Appendix D—Record on Jurisdictional Issue .......... 27

ii.

TABLE OF AUTHORITIES CITED

Cases Page

A, F. Hutchinson Land Co. v. Whitehead Bros. Co.,

217 N.Y.S. 413, 127° Misc. 558 aff’d 218 App.

Div. 682, 219 N.Y.S. 413 . oe

Cohen v. Groman Mortuary, Inc., 231’ A. C. A. 5,

“44 Cal. Rptr. 574 .......... splitting 12

Enos v. Snyder, 131 Cal. 68, 63 |, RY, | ene ie”

Federal Baseball Club of Baltimore, Inc. v- National

League of Professional Baseball Chibs, 259 U.S.

200, 42 S. Ct. 465 ce ae

Flatbush General Hospital, 126 N.L. R. B. 144 .......... Pe

Floridan Hotel of Tampa, Inc.,-124 N.L.R.B. 261 ..°17 -

Gray v. N.LR.B., 295 F. 2d 38 ren 21

Gray v. Southern Pacific Co., 21 Cal. al 2d 240,

68 P. 2d 1011 wes” -

Guthrie v. Weaver, 1 Mo. App. 136 isactalienpian 12

Hialeah Race Course, Inc., 125 N.L.R.B. 388 ...... 21

Huntly v. Zurich Gen. Liab & Acc. Ins. Co., 100

Ca]. App. 201, 280 Pac. 163 .... 12.

Industrial. Association of San Francisco v. United

States, 268 U.S. 64, 45 Ss. Ct. 403 19

Lawson v. Woodmere, Inc., 217°, Fe TE acicntassans 10

N.L.R.B. v. Anrora City Lines, Inc,, 299 F. 2d 229 |

17, 19, 20

N.L.R.B. v. Fainblatt, 306 U.S. 601, 59 S. Ct. 668 :

..8, 18

N.L.R.B. v. Hazen, 203 F. 2d 807 ; 16

N,L.R.B. v. Holiday Hotel Management Co., 311

380 om : j 6

Beg

iii.

a, Page

N.L.R:B. v. Jones & Laughlin Steel Corporation,

1 US. 1, 575, Ce 615 2, 3, 6, 9, 10

N.L.R.B. v. Pierce Bros., 206 F. 2d 569 cert. den.

347 U.S. 915, 74S. Ct. 514 16°.

N.L.R.B. v. Reliance Fuel Oil Corp., 371 U. S. 224,

83 S. Ct. 312 6, 8

N.L.R.B. v. Stroller, 207 F. 2d 305 20

North East Coal Co. v. areal 253 Ky. 11, 68

S.W. 2d 769 son ae

O’Donnell v. Slack, 123 Cal. 285, 55 Pac. 906 ........ 12

Pennaytvania Labor Relations Board v. Friedberg,

395 Pa. 294, 148 A. 2d 909 app. dsmd. 361 U.S.

2, 80 S. Ct. 63 ...: 19

Polish National Aliiance of United States of —

North America v. N.L.R.B., 322 U.S. 643, 64 S: -

Ct. 1196 ce 9, 18

Santa Cruz Fruit Packing Co. v. N. L.R B., 303 ;

U.S. 453, 58 S. Ct. 656 snteoe’ AM

Seattle Real Estate Board, 130 tide 608 .......... 21 -

. Southwestern Hotels, Inc., 126 N.L.R.B. 1151... 17

Spears Free Clinic & Hospital v. Cleere, 197 F. 2d

126 -- 5 15

Steen v. Whittington, 9 Cal. App. 2d 445, 50 P.

2d 118 " . 12

Walter A. Kelley, 139 N.L. RB: 744 ins

Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82 .. salah 8

Wong Yung Guy, 2 Fed. 624 .. . 12

| iv. |

Statutes Peat *\ <>

California Business and Professions Coe, Secs.

9600-9770 Sastadlies oe

California Health ‘and — Code, eee. 7000-9677

s 11

California Health and Safety Code, Sec. 7009 atvelden 11

California Health and-Safety: Code, Sec. 7100 sispens 11°

_California Health and Safety Code, et. 7 Ne ee

California Health and Safety Code, Sec, 7900-7906 ..” 12 -

‘National Labor Relations Act, Sec. 10(€) .....ace.----- :

52 Statutes at Large, p. 31 st R 8

61 Statutes at Large, {p. 136 -.-sseccmccceceeeeeeeeed, 4 3

73 Statutes at Large, p. 519 ..: ait iB, 4 (

United States Code, Title 7, Sec. 1281 et seq. .....-.- 8

- United States Code,*Title 15, Sec. 1 et me: 10, 13, 14 4

‘United States Code, Title 15, Sec. 2(7). .. 14

United States Code, Tifle 28, ‘Sec. 1254(1) cas ‘3:

United States ‘Code, Title 29, Sec. 151 et seq. ....3, 13

- United States Code, Title 29, Sec. 152(7 ) sidihipiaatanpat 14

_ ‘United States Code, Title 29, Sec. 160(€) sevcceecee 4

*, United States Constitution, Att J, Se. Brinn 3°

* 10 Avieviesn Jurisprudence, pe Seeuilomaaae a 13" a

“15 California Jurisprudence 2d, -p. 58 Er oer

25 Corpus Juris Secundum, p. 1016 + 13 =

i*. IN legs

Supreme Court of the United States oe

; - October Term, 1965

No, W. ,

c& ad

—-

First CONGREGATIONAL CHURCH OF Los ANGELEs,

ae Petitioner,

VS.

NATIONAL Lagor RELATIONS Boarp, .,

'' "| Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit. .

Petitioner, First Congregational Church of Los An-

geles* prays that a writ of certiorari issue to review the

decree of the United States Court of Appeals for the

_ Ninth Circuit, entered in the above-entitled case on

January 14, 1966. f 7

*On April 4, 1966, counsel for Petitioner was notified that the

Ninth Circuit Court of Appeals had granted the motion of Ingle-

wood Park Cemetery Association that First Congregational -

Church of Los Angeles be subSsityted for it as Respondent be-

low. This motion was made because ‘of the purchase on December §

28, 1965, by: the First Congregational Church of Los Angeles of

all of the outstanding stock of Inglewood Park Cemetery As-

' sociation and the subsequent dissolution by the Church of the

Inglewood ‘Park Cemetery Association. Since ‘the notification of

the order substituting parties was received after this Petition was

at the printers, all references herein to Petitioner are to Ingle-

wood Cemetery Association, but the real party in interest is the

First Congregational Church of Los Angeles doing business as

Inglewood Park Cemetery. :

“we

De ile ee,

fi ta ae.

: Citations to Opinions Below.

Decision and Order of the National labor Relations ;

Board [R. Vol. I, pp. 24-25], printei in Appendix Ce

hereto, infra, pp. 5-6; are reported’ at 147. N.L.R. Bi’ ae

803 ( 1964). The ‘opinion of the’ Court of. Appeals

[R. Vol. I, pp. 34-37] printed: in Appendix, C hereto,

infra, pp. 22-26, is repoyed at 335 F. 2d’ 448. ‘The

record ‘below has not been printed because the only i issue

— the question of jurisdiction - — is ‘clearly presented by

the Complaint and Notice of Héaring issued by ‘the

- General. Counsel\of the N.L.R.B. [R. Vol. I, pp. 4-7] -

and the Answer 4 Respondent filed by Petitioner. [R.

Vol. I; pp. -9.]

| Jurisdiction. }

‘The decree of the Circuit Court of Appeals was en-

tered on January 1-4, 1966. [R. Vol. I, pp. 38-43.] The»

jurisdiction of the Court is invoked under am U.S.C.,

Section 1254(1). |

_ Questions Presented.

1. Whether the purchase of $3,086.31 worth i

goods from out of state by a cemetery whose

‘ operations are otherwise strictly local is suf-

ficient to subject the cemetery to the jurisdiction

of the National Labor Relations Board.

_* 2, Whether there is any ‘remaining validity to the

distinction between local and interstate com-

merce under the Act as envisioned by the Com-

merce Clause and as stated-by this Court in

N.L.R.B. v. Jones & Laughlin Steel Corporation,

‘ . ®

ad ¢

; —,

301 US. 1; 57 S. Ct. 615 (1937) in the light

of the rationale applied by the court below, that

even though the quantitative activities before the

Board do not affect commerce, if they are repre-

sentative of many others hout the ceuntry

the totality of which may become harmful to in-

terstate commerce, jurisdiction may be asserted

_- by the National Labor Relations Board.

3. Whether’the doctrine of de minimis is spalicable

‘undér the National Labor Relations Act to a local

activity where the sole basis for asserting juris-

diction is the purchase of $3, 086.31 worth of

“ gabds from out of state.

4. Whether it effectuates the policies of the Act

_ for:the National Labor Relations Board to assert

_ > state commerce was the purchase of $3,086.31

| worth of goods from out of state.

Constitutionat ‘Provisions and Statutes Involved.

The statute? the proper application of which js in=

volved, is the National Labor Relations Act, as arnended

(61 Stat. 136, 73 Stat. 519, 29:U.S.C.; Sec. 151 et seq.),

- which confers power upon the National Labor Relations

_ Board to prevent persons from engaging in unfair labor

practices. affecting commerce. Pertinent. provisions of

the Act are set forth in Appentix B gales infra, pp.

The “constitutiona authority. titel which the Na-

tional Labor Relations. Act was enacted is the Commerce

Clause (Art. 1, Sec. 8) which is set forth in Appendix

A hereto, aR p.1.: 0 B

jurisdiction in-this case involving a strictly local

ee ‘operation where the ouly connection with inter-

ee a Cena mad

= on

Statement.

Petitioner seeks review of a decree of the United

States Court of Appeals for the Ninth Circuit filed

January 14, 1966, enforcing an order of the. National

Labor Relations Board directing ‘Petitioner to take cer-

tain action regarding the alleged commission of cer-

tain unfair labor practices by Petitioner. [R. Vol. I,

pp. 38-43.] :

After filing by the Union’ of an unfair labor

practice charge against Petitioner [R. Vol. I, p. 3], the

Board issued its complaint based thereon (Case No:

21-CA-5420) [R. Vol. I, pp. 4-7], and a hearing before

a Trial Examiner of the Board was conducted. [R. Vol.

II, pp. 1-76.] :

At the outset of the hearing before the Trial Ex-

aminer, Petitioner’s counsel made an oral motion for a |

dismissal of the proceeding for lack of jurisdiction

under the Act, based upon the allegations in the com-

plaint admitted by Petitioner in its answer. [R. Vol.

II, p. 6.] The Trial Examiner denied this motion. [R..

Vol. II, p. 9.] Petitioner then withdrew from the hear-

ing preferring to rest its entire defense upon the lack

of jurisdiction of the subject matter. [R. Vol. IT, p. 9.]

At the conclusion of the hearing, the Trial Examiner

issued his decision. [R Vol. I, pp. 11-19.] The Board

subsequently adopted the findings, conclusions and rec-.

ommendations of the Trial Examiner [R. Vol. I, pp.

_ 24-25], and subsequently, pursuant to Section 10(e) of

the National Labor Relations Act as amended (61 Stat.

136, 73 Stat. 519, 29 U.S.C., Sec. 160(e), petitioned

the United States Court of Appeals for the~° Ninth

1Miscellaneous Warehouseman, Drivers and Helpers, Local

986, International Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America.

—5—

Circuit for enforcement of its order. [R. Vol. I, pp.

26-27. |

Following the receipt of briefs and hearing of oral

argument on the jurisdictional issue, the Court of Ap-

peals entered its decree on January 14, 1966, cntaheing

the Board’s order. [R. Vol. I, pp. 38-43.]

On application of Petitioner, issuance of the Decree

has been stayed by the Court of Appeals pending the

filing of this petition on or before April 10, 1966.

such date to be continued pending the final disposi-

tion of the case by the Supreme Court of the United

States.

. The only facts pertaining to jurisdiction which were |

before’the Board and the Court of Appeals are the fol-

lowing: Petitioner, a California corporation, was en-

gaged in the operation of a cemetery located in Ingle-

wood, California. From July, 1962 through June 30,

_ 1963, Petitioner received in excess of $500,000 from the ,

sale to the public of services, burial lots, crypt space.

- and related items. During the same period, Petitioner

__ purchased goods directly from outside the State of Cali-

| fornia valued at $3,086.31. [R. Vol. I, pp. 47, 8-9.]

- ” These portions of ‘the record are’ \printed in Appendix

D hereto, infra, pp. 27-28.

Reasons for Granting the Writ.

_ 1. If the Board properly asserted jurisdiction in this

case and on this record, there is no longer any “local”

commerce. Petitioner’s operations are essentially local.

The only factual basis for the Board’s assertion of legal

_ jurisdiction was Petitioner’s purchase of $3,086.31

worth of goods from outside the State of California |

during the period July 1, 1962 through June 30, 1963.

[R. Vol. I, pp. 47, 8-9. See Appendix D hereto,

Pes OH IR RIY BCR A RN RNR OTE

siiciljaees

infra, pp. 27-28.]. These facts taken alone are insuffi-

cient as a basis for jurisdiction under the Act.

* This Court had declared that the Board was ‘eiied

. by Congress with “the fullest jurisdictional breadth con-

stitutionally permissible under the Commerce Clause.’”

It has not, however, declared that the jurisdictional

reach of the Board is without limitations. The fol-

lowing principles enunciated by Mr. Chief Justice

Hughes, in N.L.R.B. v. Jones & Laughlin Steel Cor-

poration, 301 U.S. 1, 30, 31, 37, 57 S. Ct. 615, 621, 624

(1937), upon which the constitutionality of the act rests,

are believed by Petitioner to be the correct interpreta-

tion of the act:

» - The authority of the federal government

may not be pushed to such an extreme as to de-

stroy the distinction, which the commerce clause it-

self establishes, between commerce ‘among the sev-

eral, states’ and the internal concerns. of) a state.

That distinction between what is national and what

is local in the activities of commerce is vital to the

maintenance of our federal system. — |

. The grant of authority to the Board does

not purport to extend to the relationship between

all industrial employees and employers. Its terms

_do not impose collective bargaining upon all indus-

try regardless of effects upon interstate or foreign

commerce. It purports to reach only what may be

deemed to burden. or obstruct that commerce and.

thus qualified, it must be construed as contemplat-

ing the exercise of control within constitutional

bounds. .

2N.L.R.B v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 83

S. Ct. 312, 313 (1963). (Emphasis supplied.)

Ss -

“. . . Undoubtedly, the scope of this power must

be considered in the light of our dual system of

government and may not be extended so as to em-

brace effects upon interstate commerce 4so indirect

and remote that to embrace them, in view of our

complex society, would effectually obliterate the

distinction between what is national and what is

local and create a complete centralized govern-

ment.”

Admittedly, as stated by the court below, it is within

the province of Congress to regulate essentially local

_ activity “if such activity affects commerce among the

several states”. [R. Vol. I, ‘p. 36.] However, there are

no facts in the present record which support the con-

clusion by the court below that Petitioner’s activities

fall within the scope of this pronouncement. The court |

below indicated it was “troubled” by the close question

presented in the case and admitted it “with a

degree of reluctance” that they affirmed the Board, yet

it felt obliged to go outside of the record to non-.

judicial authority to attempt to support-its unsubstan-

tiated statement that [R. Vol. I, p. 36]: |

“We cannot ignore the fact that business concerned _

with death is ‘big’ business,? and the Board has

determined that in. the interlacings of--business

across state lines the particular operation involved

can and may affect interstate commerce adversely.”

» ™See generally Harmer, The High Cost of Dying

(1963); Mitford, The American Way of Death,

39-41, 49-50 (1963); Sher, Funeral Prearrange-

ment; Mitigating the Undertaker’s Bargaining Ad-

vantdge, 15 Stan. L. Rev. 415, 418-19 and nn.

12-15 (1963).”

~ —g—

We submit it is improper to assume facts not appearing

in the record.

The four cases cited by the court below to support

' its finding of jurisdiction are .clearly distinguishable }

from the within case. In Wickard v. Filburn, 317 U.S.

111; 63 S. Ct:.82 (1942), the parties had stipulated to

a summary of the economics of the wheat industry.

This court, in reaching its decision that Congress had

not exceeded its power under the Commerce Clause in ~

enacting the Agricultural Adjustment Act of 1938 (52.

Stat. 31, as amended, 7 U.S.C., Sec. 1281 et seg.) stated

[317 U.S. 111, 128-129, 63 S. Ct. 82, 91 (1942)]:. |

“This record leaves us in no doubt that Congress’

may properly have considered that wheat con-

sumed on the farm where grown, if wholly outside

the scheme of regulation, would have a substantial —

effect in defeating and obstructing its purpose to

stimulate trade therein at increased prices.”

In N.L.R.B. v. Reliance Fuel Oil Corporation, 371

U.S. 224, 83 S. Ct. 312 (1963), wherein this Court

reversed the Second Circuit Court of Appeals decision

denying enforcement of a Board order for lack of juris-

diction, the basis for jurisdiction was [371 1 US. 224,.

225, tae Ct. 312, 313 (1963) ] :

. the fact that Reliance, a New York dis-

‘ribaioe of fuel oil whose operations were local,

purchased within the State a substantial amount

of fuel oil and related products from the Gulf Oil

Corporation, a supplier concededly engaged in in-

terstate commerce.

In N.L.R.B. v. Fainblatt, 306 U.S. 601, 59 S, Ct. 668°

(1939), the employer was engaged in production for

—9-—-

commerce. It had 200 employees manufacturing more

than 12,000 dozen garments per year, all of which

would be shipped through interstate commerce both be- -

fore and after processing. Polish N ational Alhance of

United S tatés of North America v. N.L.R.B., 322 U.S.

643, 64 S. Ct. 1196 (1944), involved a. fraternal bene-

_ fit society whose activities and money-making transac-

tions crossed many state lines and ciearly affected inter-

state commerce. o

Lacking sufficient factual basis for its determina-

tion that the Board properly asserted jurisdiction in

this case, the court below has indicated that in de-

' termining whether there is the requisite affect in com-

Merce it is not confined to the activities immediately

before it. Yet there can be no remaining validity to the

distinction between local and interstate commerce under

the Act as envisioned by the Commerce Clause and

as stated by this Court in the Jones & Laughlin case

under the rationale applied by the court below that even

though the quantitative activities before the Board do

not affect commerce, if they are representative of

many others throughout the country, the totality of

which may become harmful to interstate commerce,

jurisdiction may be asserted by the National Labor Re-

lations Board. If this Court intended the scope of this —

rationale to be as all-inclusive as the use of it by the

court below suggests, there can be no local commerce.

Under this rationale, every law firm, every accounting

firm, every doctor’s office, every local grocery store,

every four-stool hot dog stand, every three-chair barber

~shop, every shoe-shine stand, and every other business

throughout the country previously considered to be local

‘is subject to having their labor relations regulated by

ane et oe

peeerereninaneaere eee

kg or :

fi.

the Board. For surely if jurisdiction is sustained here,

the totality of the operations of each of these other

categories of businesses is sufficient to possibly “be-

come harmful to interstate commerce.”

It is submitted, therefore, that if the principles set

forth in N.L.R.B. v. Jones & Laughlin Steel Corp., 301

U.S. 1, 57 S. Ct. 615 (1937), retain any of their

intended vitality this Court must grant certiorari and

must reverse the decision by the court below that the

Board properly asserted jurisdiction in this case. To

hold otherwise requires a determination by this Court

that there is no longer any distinction betweén local

and national activities as the Constitution envisioned.

If this be the intention let the Court now say so once

and for all.

Petitioner is engagéd in the most local of activities,

the operation of a cemetery for intermerit of the de-

ceased. In Lawson v. Woodmere, Inc., 217 F. 2d 148

(4th Cir. 1954), an action under the Sherman Act,*

a cemetery and its affiliated vault company were the

defendants. The court observed that (p. 151), “their

activities are clearly and intensely local” (emphasis

added), and quoted (p. 152) with approval the follow-

Based upon information furnished by the California State

Board of Bates Examiners, as of July 1, 1965, there were

22,619 licensed barbers and 13,316 barber shops in California. -

pel the rationale applied by the court below is correct, it

y encompasses the activities of each local barber shop

because of the ftal impact all barber shipe might have on ie

terstate commerce.

415 U.S.C. §§ 1 et seq. Petitioner is, of course, aware of

the different coverage under the Commerce Clause of the vari-

One oe ae eee te Soe petition to cases in-

other statutes (the Sherman Act, the Fair Labor Stand-

ais ct, etc.) are limited to those cases where this -distinction

is not material on the point for which the case is cited.

delet

ing passage by the district court + (120 F. Supp. 267

at 269):

“It seems to the Const that all the arrangements

made by the cemeteries are within their rights and

‘ powers and beyond the power of Congress to regu-

late or control. The owning and 3 of a

cemetery is certainly intrastate business.” ~ ‘ :

‘ a :

' This case differs entirely on the ‘jurisdictional issue

from any other cases under the Act because of the na-

ture of the Petitioner’s business. We are not here deal-

ing with a manufactured - product, a commodity or a

service, the use or transportation of which can be in- oe

terrupted by a labor dispute or’ strike.’ The death rate -

will not be affected by any such dispute. Because in-

terment is required in California by law,” the bodies of

all other private cemeteries in the area close operations.

It is difficult to conceive of a more local activity

and one less related to commerce than the operations of

a cemetery. This fact is emphasized by the extensive

control of cemeteries: by a multitude of state and local-

laws, ordinances and regulations which properly exer-

cise the local-police power in regard to the maintenance

of the health and safety of the inhabitants,* -and by

the fact that cemeteries are, for the most part, main-

tained and operated by local religious and frat or-

tions and by the federal, state, and local ern-

ts. :

Petitioner's operation of a cemetery is in reference to’

| SGalif. Health & Safety Code, §§ 7009, 7100, 7103.

deceased persons will be buried even if Petitioner and

SE.g., Calif. Health & Safety Code, §§ 7000-9677; Calif. Bus.

& Prof, Code, §§ 9600-9770.

it is obvious, it must not be overlooked that —

» >

wa sp . eee

Ce a een a atte 2 bbe .

R { 3.

& | —l2— « |

immovable land, and that there are even restrictions ©

on the discontinuance of use or sale.of the cemetery

after ‘the removal (when and as permitted) of the

humian remains."-

Cemeteries, like churckes, are seldom considered as

commercial’ ventures in the usual sense of that term.

. es authorities are unanimous that there is no property

_. “/- in dead bodies, and consequently the remains of human

| bodies are not a subject of commerce.®

The “intensely” local nature of the activities of Peti- .

tioner are evidenced by the personal private acts with

which the activities are concerned, the non-conimercial

' mature of the human remains with which they are

_ primarily concerned, and the,numerous local regulations -

governing them. This local frature serves to distinguish

the instant situation from almost every other case de-

cided under the Commerce Clause. CREATES

"> The mere receipt in California from out of state

of an inconsequential amount of godds does not render ©

the intensely local activity (as distinguished from the —_—

transportation itself) subject to control of Congress. ~-

In the instant situation’ such purchases amounted to |

only $3,986.31 over a period of a year. :

7Calif. Health & Safety Code, §§ 7900-7906.

8Cohen v. Groman Mortuary, Inc., 231 A.C.A. 5, 8, 41 Cal.

Rptr. 574 (1964); Gray v. Southern Pacific Co.,.21 Cal.. App.

“2d 240, 68 P. 2d.1011 (1937); Steen v. Whittington, 9. Cal.

App. 2d 445, 50 P. 2d 118 (1935); Huntly v. Zurich Gen.

Liab. & Acc. Ins. Co., 100 Cal. App. 201, :280 Pac. 163

«+ (1929); Enos v. Snyder, 131 Cal. 68, 63 Pac. 170 (1900); ——

*Donnell v.- Slack, 123 Cal.-285, 55 Pac. 906 (1899); Wong

Yung Guy, 2 Fed. 624 (C.C.D. Calif., 1880); Guthrie -v.

Weaver, 1 Mo. App..136 (1876); see A. F. Hutchinson Land

Co. -v. Whitehead Bros. Co.; 217 N.Y.S. 413, 418, 127 Misc.

_ 558 (1926) aff'd 218 App. Div. 682, 219 N.Y.S. '413 (1926) ;

It is readily apparent that the only connection what-:.

soever of the Petitioner with interstate commerce is

these purchases. The original shipment of,such goods

into California was, of course, an interstate activity

subject to the power of Congress to regulate. But it

does not follow. therefrom that Congress had the power -

or,. in fact, inténded through enactment of the Act to

regulate the local labor relations of an employer of the

nature of Petitioner who operates only in California.

. These minimal shipments into California yiewed in con-

junction with the local operation of Petitioner constitute

too remote and indirect an effect on interstate’ com-

merce to sustain the Board’s jurisdiction inthis matter.

Such shipments would have to be significantly greater

in volume or Petitioner’s operations would otherwise. .

have to have a, more direct impact on interstate com-’

merce in order to hold otherwise. The Constitution and

the Act’require a substantial effect or burden on inter-

‘state commerce to bring an activity within the rig

. control.

We submit that the Board has failed to show and that

the Court of Appeals erred in holding that the req-

uisite “affect” on or relationship to interstate com-

merce. exists in this case. Obviously, if one looks hard

and long enough one can find some affect on inter-

state commerce produced by every local sale regardless

- of size; yet the Constitution and the Act require more.

One has only to refer to Section 1 of the Act® to

learn that Congress only intended’ to enact legislation

regarding activities which substantially. affect interstate

North East Coal Co. v. Pickelsimer, 283 Ky. 11, 68 SW. 2d

769 (1934) ; 25 C.J.S. 1016; 15 Cal. Jur. 2d 58: 10 Am. Jur.

929 U.S.C. § 151.

RR EET OS RR SE Lm

eee —14— ma

commerce, thereby remaining withinthe, constitutional

grant of power. Thus, in Section 1 we find the phrases,

“materially affecting, restraining, or‘controlling the flow

_of raw materials,” “substantially ‘burdens and affects

the flow of goods,” and “to eliminate the causes of cer-

tain substantial obstructions to the free flow of com-

merce”. (Emphasis supplied.) Indeed, by Section 2(7)*°

itself, activity. to affect commerce has to be “in com-

merce” or else must “burden” or “obstruct” it. The

choice of such words indicates a clear requirement of

substantial affect. :

This Court has, stated it in this manner:

“It is also clear that where federal control is

sought to be exercised over activities which sepa-

ratély considered are intrastate, it must appear that —

there is a close and substantial relation to inter- .

state commerce in order to justify the, federal in-

tervention for its protection. However difficult

in application, this principle is essential to the

maintenance of our constitutional system. The sub-

ject of federal power is-still ‘commerce’, and not

_ all commerce but commerce with foreign nations

and among the several states. The expansion of en-

térprise has vastly increased the interests of inter-

- state ‘commerce, but the constitutional differen- |

tiation still obtains.” Santa Cruz Fruit Packing

Co. v. N.L.R.B., 303 U.S. 453, 466, 38 S. Ct.

656, 660 (1938). \

Yet the*Record herein does not show any substantial

effect or potential effect on interstate commerce in

this matter..

1029 U.S.C. § 152(7).

—15— ‘)

_ The mere receipt in California, from out of state of

an inconsequential amount of goods does not convert ;

a local activity into one affecting interstate commerce. _

Thus, in Federal Baseball Club of Baltimore, Inc. v:

National League of Professional Baseball Clubs, 259 |

U.S. 200, 209, 42 S. Ct. 465, 466 (1922), in holding

that the interstate movement ofa major league base-

ball team and its equipment to play its games was

merely incidental to the exhibitions, and did not affect

commerce, this Court commented :

. According to the distinction insisted upon in

eas v. California, 155 U.S. 648, 15 S. Ct. 207,

39 L. Ed. 297, the transport is a mere incident,

‘not the essential thing. That to which it is inci-

dent, the exhibition, although made for money,

would not be called trade or commerce in the com-

monly accepted use of those words. As it is put

by the defendant, personal effort, not related to

production, is not a subject of commerce. That

which in its consummation is not commerce does

not become commerce among the States because

the transportation that we have mentioned takes

place. To repeat the: illustrations given by the

Court below, a firm of lawyers sending out a

member to argue a case, or the Chautauqua lec-

ture bureau sending out lecturers, does not engage

in such commerce because the lawyer or lecturer

goes to another State.” 6

The decision of the Court below conflicts in principle

with the Federal Baseball Clip case.

The decision below is also isi conflict in principle

with Spears Free Clinic & Hospital v. Cleere, 197 F. 2d

125, 126 (10th Cir. 1952), a case involving the practice

—l6y,

of chiropractic. In dismissing the complaint for lack of:

jurisdictioa under the Sherman Act, the court held

that the .practice of the healing arts is wholly local in

character, and is not brought into commerce by the fact

that patients came from out of state for treatment.

Petitioner is not engaged in interstate commerce.

Further, it is not engaged in manufacturing. It ships

nothing outside of the State or the local area; in fact, it

does no shipping at all." It produces no goods and

. performs no services for other concerns subject to the

Act. Its sales and services are only to the public.

We have been unable to find any case in which juris-

diction of the Board has been sustained where, as here,

' there sages a local operation and the sole basis for

jurisdictidn would be annual extra-state purchases of as

little as $3,000. A distinction which appears in previ-

ously decided cases but which the Board and the court

below overlooked is that between an activity which,

regardless of interstate purchases, has a relation to and

affect on interstate commerce (such as the operations

of a hotel or of a Bus company, etc.) and an activity

which is strictly local. The latter does not become sub-

ject to regulation under the Act merely because of some

incidental and minimal ‘interstate purchases. For ex-

ample, in N.L.R.B. v. Holiday Hotel Management Co.,

311 F. 2d 380 (10th Cir. 1962), the court did not

“The that Petiticner does riot ship caskets and ship-

i out of state as was the case in the mortuary cases _

ecided by the Ninth Circuit Court of Appeals clearl

distingui our present situation from those cases, -N LRB.

v. Pierce Bros., F. 2d 569 (9th Cir. 1953) cert. den., 347

“US. 915, 74 S. Ct. 514 (1954); N.L.R.B. v. Hazen; 203 F.

2d 807 (9th Cir. 1953).

find jurisdiction on the basis of the.extra-state purchases

alone, but“only on the ground of such purchases’ and

the direct relation of the hotel operation to actual in-

terstate’ transportation.” Quoting from the Board’s de-

cisions in Southwestern Hotels, Inc., 126 N -L.R.B. 1151,

1154 (1960) and Floridan Hotel of Tampa, Inc., 124

N.L.R.B. 261, 263 (1959), the court commented in this

connection (p. 381): eh

“. . . The respondent here received more than $1,-

500 worth of goods, equipment, and supplies which

were shipped directly to it from out of state points.

‘While this amount is not impressive, it must: be

considered together with the obvious fact that, ‘ho- —

tels which serve a transient trade play an impor-

tant role in furthering travel and in fostering com-

mercial relationships between the ‘inhabitants of

the several states.’ Labor disputes which interfere

‘with the operations of these hotels affect the ‘opera-

a the various media of passenger transpor-

tation’ and if left unchecked, would spread to the

other hotels in the area with consequent far-reach-

ing harmful effects on interstate commerce.” Yi

This distinction is further illustrated by the case of ©

N.L.R.B. v. Aurora City Lines, Inc., 299 F. 2d 220

(7th Cir. 1962). In that case there was really little ques-

tion of legal jurisdiction inasmuch as the employer was

a subsidiary of an organization operating in twelve

different states. However, the court found support for

72With respect to the court’s enforcement of the Board’s

order it should be noted that no exceptions were filed by the

employer to the trial examiner’s report finding jurisdiction, the

proceeding was before the court on a petition for simmary en-

try of an enforcement decree and the Respondent made no argu-

ment against’ the order.

ponies

its sustaining of jurisdiction by noting (page 231)

that the employer there involved was in the transpor-

tation business which necessarily involves a direct im-

pact on interstate commerce.

If the decision that the Act applies to the “intensely”

local activities of Petitioner is not reversed it shall

mean that the court below has correctly applied the ra-

tionale stated by this Court in Polish National Alliance

of United States of. North America v. N.L.R.B., 322

U.S. 643, 64 S. Ct. 1196 (1944), that the Board may as-

sert jurisdiction even though the avai activities

before it do not affect commerce the activities are

representative of many others throughout the country

the totality of of which may become harmful to tnter-

state commerce. This, in turn, shall mean that the distinc-

tion between local and national activities under the Act

is abolished. The Board will then have achieved its ap-

parent goal of statutory jurisdiction over all labor: rela-

tions regardless of their “affect” on interstate com-

merce.

2. An aduitional ‘treason: for granting certiorari in

this case is because of the great deal of uncertainty as

to when the doctrine of de minimis announced by this

Court to be oat in labor relations cases should be

applied. This Court Should make a clear pronouncement

to end this confusion.

In N.L.R.B. v. Fainblatt, 306 U.S. 601, 607, 59 S.

Ct. 668, 672 (1939), this Court recognized that the

maxim “de minimis non curat lex” applies in the in-

terpretation and application of the Act. At a time when

the dollar was worth about four times its present value, :

a transaction affecting interstate commerce under the

itrust laws in the amount of “a few thousand dol-

lars” was considered by this Court “so insignificant”

-as to call for the application of the de minimis doctrine.

pe es

Industrial Association of San Francisco v. United States,

268 :«U.S. 64, 84, 45 S. Ct. 403, 408 (1925). Similarly,

in Pennsylvania Labor Relations Board v. Friedberg,

395 Pa. 294, 148 A. 2d 909 (1959) app. dsmd. 361 U.S.

2, 80 S. Ct. 63 (1959), the court held that in the ap-

plication of the N.L.R.A., $12,162 in services by a local

firm \for interstate enterprises was de minimis and the

N.L.R.B. did not have jurisdiction. While these two

cases are not directly in point, they do furnish strong

support for the proposition that de minimis should ap-

ply in this case. id

By way of contrast to the above cases is the case of

N.L.R.B. v. Aurora City Lines, Inc., 299 F. 2d 229

(7th Cir. 1962) to the extent that it holds that the pur-

chase of $2,000 worth of \materials from out of state

was not de minimis. As discussedNearlier, supra, p. 17,

we believe jurisdiction in the Aurora case was. based

primarily upon the nature of the company’s transporta-

tion business. However, to the extent that the Seventh

Circuit Court of Appeals addressed itself solely to the

de minimis issue, the decision, as well as the one by the

court below in this matter, conflicts in principle with

decisions such as Industrial Association of San Fran-

cisco, supra, p. 19. This Court should address itself

to, this conflict and end the caine regarding the

de minimis doctrine. .

The court below indicated that it was “troubled” he

the close question in this case and admitted that it was

_ “with a degree of reluctance” that they affirmed the

Board. [R. Vol. I, p. 37.] Yet they ignored the cases

discussed above which applied the doctrine of de minimis

on facts involving as much and even more money than

is involved in this case.

—2{ }—

- Under the circumstances of this case, particularly

in light of today’s inflated dollar, where the operations

are “intensely” local, where the goods received from ©

out-of-state amount to substantially less than one per

cent of the sales and would not equal the annual earn-

ings of a single employee, and where the local labor re-

lations of about 90 employees are involved, the impact

- of the goods received from out-of-state is so inconse-

quential that the doctrine of de minimis should be ap-

plied. want

In choosing reluctantly to deny the applicability of

the doctrine to this case, the court below relied on clearly

. distinguishable cases. We have previously discussed

the Aurora case, supra, p. 17 N.L.R:B. v. Stroller,

207 F. 2d 305, 306 (9th Cir. 1953), involved the opera-

tion ‘of a laundry and dry-cleaning establishment on an

atomic energy reservation which was owned by the

United States and operated by the Atomic Energy

Commission. Furthermore, the respondent operator had

purchased one-half of his supplies for the relevant

year from out-of-state.

By way of contrast to the cases relied on by the

court below, Petitioner is engaged in the operation of a

cemetery and therefore is not related to interstate trans-

portation or interstate commerce as such. Furthermore,

Petitioner has no government contract and was found

to have purchased only $3,086.31 worth of goods from

out-of-state, an amount equal to substantially less than

one per cent of its total revenues for the relevant year.

We submit, therefore, that the small amount of pur-

chases here involved could only have the remotest ef-

fect imaginable in interstate commerce and that the

ae eas

de minimis maxim should properly have been and should

now be applied in this case.

3. It would not effectuate the purposes of the Act

to permit enforcement of the Board’s order.

In Gray v. N.L.R.B., 295 F. 2d 38 (9th Cir. 1960),

the court below refused to enforce an order of the

Board in part on the ground that it could not find

“that enforcement would effectuate the purposes of the

National Labor Relations_Act’’. We believe that the same

decision should have been reached in this case and that

the court below erred in not so holding.

The essentially local nature of Petitioner’s operations

are of the type as to which the Board has found in

numerous cases, involving such operations as race-

tracks, hospitals, and real estate brokers, that it would -

not effectuate the policies of the Act to assert jurisdic-

tion.”

We are unable to see any basis on which the Board

could assert jurisdiction over cemeteries generally, or

this Petitioner particularly, in view of such precedents

as those referred to above. As a matter of fact, the case

for declining jurisdiction over the cemetery is much

stronger than in any of those operations. Accordingly,

assuming for purposes of discussion that the court be-

_ low properly held that legal jurisdiction exists, it would

not effectuate the policies of the Act to assert jurisdic-

tion over this Petitioner and, therefore, the Board’s

order should not be enforced against Petitioner.

Hialeah Race Course, Inc., 125 N.L.R.B. 388 (1959);

Walter A. Kelley, 139 N.L.R.B. 744 (1962); Flatbush General

Hospital, 126 N.L.R.B. 144 (1960); Seattle Real Estate

Board, 130 N.L.R.B. 608 (1961).

—22—

Conclusion.

For the foregoing reasons, this petition for a writ

of certiorari shot d be granted.

Respectfully submitted, Se

Ricuarp W. Lunp,

PAut R.“WaArTKINs,

x ; Dana LATHAM,

Counsel for Petitioner. °

Joun S. WELCH, _

_Rosert B. WESSLING,

Of Counsel.

April 6, 1966,

APPENDIX A,

Constitutional Provisions.

Lis The elena provisions of the . United States’ Coristitu-

tion afe as follows: — a Rae 5

Art. I Sect. 8: The Congress shall have power—

7 kok ek ek *.

ac ge resnitii Commerce with foreign Nations, and

“ among the several States and with the Indian Tribes.

.- Ameridiment X: The powers “not delegated to the

United. States. by the Constitution, nor prohibited by

it to the States, are reserved to the otates respectively,

or to the people. .

Eee eee

peta

_ APPENDIX B.

Statutory Provisions.

The relevant provisions of the National Labor Rela-—

tions Act, as amended (6) Stat. 136, 73 Stat. 519, 29

U.S.C., Secs. 151, et seg.) are as follows:

FINDINGS AND DECLARATION OF POLICY

Sec. 1.

ek Re Ok,

ae It is declared to be the policy of the United

States to eliminate the causes of certain’ substan-

tial obstructions to the freé flow of commerce and

to suiGivale and eliminate these obstructions when

they have occurred by encouraging the practice and

procedure of collective bargaining and by protect-

ing the exercise by workers of full freedom of

association, self-organization, and designation of

representatives of their own choosing, for the pur-

pose of negotiating the terms and conditions of

their employment or other mutual aid or protection.

DEFINITIONS

Sec. 2. When used in this Act — °

x k* * *

(6) The term “commerce” means trade, traf-

fic, commerce, transportation, or communication y

among the several States, or between the District

of Columbia or any Territory of the United States

and any State or other Territory, or betwedn any

foreign country and any State, Territory, or the

District of Columbia, or within the District of

Columbia or any Territory, or- between points in

the same State but through any other State or any

\ .

(

ee Sh

Territory or the District of Columbia or any for-

eign country.

(7) The term “affecting commerce” means in

commerce, or burdening or obstructing commerce

or the free flow of commerce, or having led or -

tending to lead to a labor dispute burdening or ob-

» structing commerce or the free flow of commerce.

a.’ 2. .

‘PREVENTION OF UNFAIR

_ LABOR PRACTICES

Sec. 10.(a) The Board is empowered, as hereinafter

' provided, to prevent any person from engaging in any

unfair labor practice (listed in section 8) affecting com-

merce.

x* * * *

Sec. 10.(e) The Board shall have power to petition

any court of appeals of the United States * * *

within any circuit * * * wherein the unfair labor prac-

tice in question occurred or wherein such person re-

sides or transacts business, for the enforcement of such

order and for appropriate temporary relief or restrain-

ing order, and shall file in the court ‘the record in the

proceedings, as provided in section 2112 of title 28,

United States Code. Upon the filing of such petition,

the court shall cause notice thereof to be served upon

such person, and thereupon shall have jurisdiction of

the proceeding and of the question determined therein,

and shall have power to grant such temporary relief or ~

restraining order as it deems just and proper, and to

make and enter a decree enforcing, modifying, and en-

forcing aslo modified, or setting aside in whole or in

pagt the order of the Board. No objection that has not

been urged before the Board, its member, agent, or

agency, shall be considered by the court, unless the fail-

ure or neglect to urge such objection shall be excused

because of extraordinary circumstances. The findings

of the Board with respect to questions of fact if sup-

ported by substantial evidence on the record considered

as a whole shall be conclusive. If either party shall ap-

ply to the court for leave to adduce additional evi-

dence and shall show to the satisfaction of the court

that such additional evidence is material and that there

were reasonable grounds for the failure to adduce such

evidence in the hearing before the Board, its member,

agent, or agency, the court may order such additional

evidence to be taken before the Board, its member,

agent, or agericy, and to be made a part of the record.

* * * Upon the filing of the record with it, the juris-

diction of the court shall be exclusive and its judg-

ment and decree shall be final, except that the same

’ shall be subject to review by the * * * Supreme Court

of the United States upon writ of certiorari or certi-

fication as provided in section 1254 of title 28.

allie

APPENDIX C. Z

Decision and Order of N.L.R.B. {

United States of America, Before the N ational Labor

Relations Board. |

Inglewood Park Cemetery Association and miscellane-

ous Warehousemen, Drivers & Helpers, Local 986, In-

ternational Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers of America. Case No. 21-CA-

5420. °

DECISION AND ORDER

On April 9, 1964, Trijl Examiner David Karasick

issued his Decision in/the above-entitled proceeding,

finding that the Respofident had engaged in and was en-

gaging in certain unfair labor practices and recom-

mending that it cease and desist therefrom and take cer-

tain affirmative action, as set forth in the Trial Ex-

aminer’s Decision attached hereto. Thereafter, the Re-

spondent filed exceptions to the Trial Examiner’s De-

cision and a supporting brief.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, the Board has delegated

its powers in connection with this case to a three-member

panel.

The Board has reviewed the rulings of the Trial Ex-

aminer made at the hearing and finds that no preju-

dicial error was committed. The rulings are hereby af-

firmed. The Board has considered the Trial Examiner’s

Decision, the Respondent’s exceptions and brief, and the

entire record inethe case, and hereby adopts the find-

ings, conclusions, and recommendations of the Trial Ex-

aminer.

Fone ae

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the Board hereby adopts as

its Order, the Order recommended by the Trial Ex-

aminer and orders that the Respondent, Inglewood Park _

Cemetery Association, Inglewood, California, its officers,

agents, successors, and assigns, shall take the action set

forth*in the Trial Examiner’s Recommended Order,

as amended herein: ‘

The Notice attached to the Trial Examiner’s De-

cision as an Appendix is amended by inserting, after

the word “assist” in the last indented paragraph before

the signature line, the words “or to refrain from fain-

ing or assisting.”

Dated, Washington, D. C. June 26, 1964. ~

Frank W. McCulloch, Chairman

John H. Fanning, Member

| Gerald A. Brown, Member

; National Labors Relations Board

(Seal)

Trial Examiner’s Decision.

TXD-(SF)-39-64 Inglewood, Calif.

- United States of America, Before the National Labor

Relations Board, Division of Trial Examiners, Branch

Office, San Francisco, California.

Inglewood Park Cemetery Association and Miscel-

laneous Wareh , Drivers & Helpers, Local 986,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers of America. Case No. 21-CA-

5420. ;

oe Se

Jerrold H. Shapiro, Esq., for the General Counsel.

Latham & Watkins, by R: W. Lund, Esq., of Los

Angeles, Calif., for the Respondent. j

Before: David Karasick, Trial Examiner. {

TRIAL EXAMINER’S DECISION

Statement of the Gase

This proceeding was heard before me in Los Angeles, ©

California, on February 25, 1964, upon a complaint’

of the General Counsel and an answer of Inglewood

Park Cemetery Association, herein called the Respond-

ent. The complaint alleges that the Respondent com-

mitted unfair labor practices in violation of Section 8(a)

(1) and (3) of the National Labor Relations Act, -as

amended, herein called the Act. The answer denies the

jurisdiction of the Board and further denies the commis-

sion of the unfair labor practices alleged. Counsel for the

. Respondent appeared at the hearing and moved to dis-

_ miss the complaint on the ground that the Board lacked

jurisdiction. The motion was denied for the reason set

forth in Section I, hereafter. Counsel for the ‘Re-

spondent then withdrew from the hearing. The General

Counsel proceeded with his case and the hearing there-

after continued in the absence of counsel for the Re-

spondent. |

Upon the entire record’ and from my observation of

the witnesses, I hereby make the following :

1The vag, BE issued December 6, 1963, is based on a charge

filed July 2, 1963. Copies of the complaint. and the: charge

were duly served upon the Respondent. ;

?The unopposed post-hearing motion of the General. Counsel

to correct the transcript, copy of which was duly served upon

the Respondent, conforms to my recollection of the testimony

and is hereby granted. .

aes

Findings of Fact

I. The business of the Respondent

The Respondent is a California corporation engaged in

the operation of a cemetery located in Inglewood, Cali-

fornia. From July 1, 1962 through June 30, 1963, the

Respondent received in excess of $500,000 from the sale

to the public of services, burial lots, crypt spaces, and

related items, and purchased goods directly from outside

the State of California totaling $3086.31. In its an-

swer, the Respondent admitted the foregoing facts al-

leged in the complaint with respect to the business op-

erations of the Respondent but denied that such facts

constituted a sufficient basis upon which the Board

could ‘assert_ jurisdiction.

I note that, based on identical facts, the Board, in an.

unpublished decision in Inglewood Park Cemetery As-~

sociation and Centinela Concrete Vault.Company, Case

No. 21-RC-8450, decided October 11, 1963, found the

Respondent had met the Board’s applicable standard

for assertion of jurisdiction and further found that,

since the Respondent had made purchases directly from

outside the State in excess of $3000, the Board had

legal jurisdiction over its operations in accordance with

its decision in Aurora City Lines, Inc., 130 NLRB 1137.

I find that, on the foregoing: facts alleged in the com-

plaint and admitted in the answer, the Respondent is

engaged in commerce within the meaning of the Act

and that it will effectuate the policies of the: Act to

assert jurisdiction in this case. —

Il. The labor organization involved -

Miscellaneous Warehousemen, Drivers & ‘Help rs,

Local 986, International Brotherhood of Teamsters,

ii.

Chauffeurs, Warehousemen & Helpers of America, here-

in called the Union, is a labor organization within the

meaning of Section 2(5) of the Act.

III. The alleged unfair labor practices

A. The facts

- On June 26, 1963, after they had finished their work

for the day, John Dzavan, Jr., Forgets ys and

Ruben Diaz, employees of the Respondent, went to the

office of Les Coombs, business representative of the

Union, to inquire about becoming members of that

labor organization. Coombs explained to the 3 em-

ployees the procedure to be followed and gave them a

_ humber of authorization cards.-On the following day,

before and after working hours and during the lunch

period, the 3 employees gave a number of such cards

to their fellow workers. Diaz signed one of the cards

on June 26, Simpson on June 27 and Dzavan. on the

morning of June 2B :

During the afternoon on June 27, William Faulkner,

a foreman, approached Dzavan while the latter was at

work, and asked him if he had passed out union cards.

‘Dzavan asked Faulkner who had told him so. Faulkner

replied that one of the men had informed him that he

had been “given a union authorization card by Dzavan.:

Dzavan responded by requesting that e be confronted

with Faulkner’s informant and F r agreed, saying

that he would return at once with him, but he did not

‘do so. Before he left, however, Faulkner also told

Dzavan that if A. H. Conquest, the Respondent’s su-

perintendent, ever found out that the employees were

passing out union authorization cards he would dis-_

charge them on the spot.

—0- 3°

On June 28, at approximately 4 p.m., the employees _

of ‘he Respondent were called to attend a meeting at

the Grace Chapel. Superintendent Conquest told them

that he had heard they were trying to form a union,

that he would not have a union and that he would fight

‘against it. He also tdld the employees that workers at

the Hollywood Cemetery had joined a Union and were

receiving an average hourly wage which was lower

than that being paid by the Respondent, who also gave

its employees uniforms. and a Christmas basket, and

that at the Hollywood Cemetery they were dissatis-

fied with the union contract and were waiting for thé

year to expire so that they could get out of the union.

After the meeting was over, Dzavan, Simpson and —

Diaz, as well as Leroy Leazotte, who worked together

with Dzavan as a marker trimmer, were told that

‘Superinténdent Conquest wished to see them in his of-

fice. The four employees were ushered into Conquest’s

office separately. Each was told he was discharged

and was given his final pay check. Conquest told Dzavan

that he was being discharged because his work was in-

sufficient, Simpson because he was wasting time

on the job, and Leazotte*® because he and Dzavan had

been a team for a long time and had done nothing

but fool around. Diaz, who is of Spanish extraction,

testified that he did not understand what Conquest

had said to him at the time he handed him his final

pay check. ; th

Dzavan and Leazotte were two of the six marker

trimmers employed by the ‘Respondent whose job it

was to trim the grass around the headstones in the

cemetery. These employees worked in teams of two.

51_eazotte had signed a union authorization card on June 27.

en Ie

They: operated a three-wheel scooter propelled by a

gasoline motor which provided the power for the two

trimmers. Dzavan and Leazotte had worked together

as a team in this manner for approximately 3 years.

Dzavan began working for the Respondent on July 13,

1959 and worked,continuously until he was discharged

on June 28, 1963. When Dzavan began work for the

Respondent he was receiving a wage rate of $1.65

an hour. At the time of his discharge he was receiving

$2.35 an hour having received two wage increases,

neither of which had been requested by him.‘ |

Leazotte first began work for the Respondent in 1952

but voluntarily left his job in 1957. He returned to work

for the Respondent in 1959 and worked thereafter con-

tinuously until the date of his discharge. At the time

he last was employed by the Respondent in 1959 he be-

gan work at a wage rate of $1.65 an hour and thereafter

received 2 or 3 wage increases. He was being paid

$2.35 per hour at the time of his discharge. Before the

day of the discharges, Dzavari had never been told by

the Respondent that his work was insufficient nor had

Leazotte ever been told that he had been fooling around

or that his work was unsatisfactory. :

Simpson, who was employed as a power motor opera-

tor, began work for the Respondent in 1952 and worked

continuously until he was discharged on June 28, 1963..

His rate of pay was $2.35 per hour at the time of his

discharge and he had received 3 wage increases during

‘Dzavan testified that the second of these wage . increases

was received. in September 1962, that the had been

trying to form a union at the time and that Mr. Latteau, the

owner jof the cemetery, spoke to the employees and told them

- that he did not want a union, that they were too small an out-

fit to join the union and that he would give the

a faise to keep them quiet. :

Mt,

; —12—

... the’ period of his employment, none of which ‘he had

requested. Although Superintendent Conquest had told .

Simpson that he was being discharged because he had

been wasting time on the job, Simpson had never be-

fore been told by the Respondent at any time that he

was either wasting time at his work or that his work

was not satisfactory.

Diaz, who was employed as a stone setter, began work

for the Respondent on April 15, 1959, and worked con-

tinuously until he was discharged on June 28, 1963. -

He was paid $1.70 per hour at the-time he was first

employed and received 3 or 4 wage increases, none of

which he had requested, during the period of his em-

ployment. He was being paid $2.50 per hour at the time

that he was discharged. He had never teceived any com-

plaints about his work.

Although afforded an Seana to do so, . the Re-

| spondent offered no evidence to refute that presented

by the General Counsel, but instead, as noted above,

withdrew from the hearing. The undisputed evidence

- thus offered shows that Dzavan; Diaz and Simpson

engaged in union activities by distributing union au-

thorization cards among their fellow employees; that

the Respondent had knowledge of such activities; that

the Respondent was opposed to the unionization of its

‘employees as Superintendent Conquest told them at the .

meeting on June 28; and that the day after learning of

the union. activities in questfon ‘the Respondent dis-

charged the three employees who had engaged in such

acivities. Although Leazotte had signed a-tunion author-

ization card, there is no showing t ie distributed such

cards among his fellow workers as had the other 3

employees. He and Dzavan had worked together as a

| < anal

team, as Conquest observed at the time he told JLeazotte

that he was being terminated. These two employees

worked together for approximately 3 yezrs and it is

’ reasonable to infer that the Respondent discharged Lea-

zotte as well as Dzavan because. of the close relation- -

ship between the two. Although the employees were told

they were being discharged either because they were

loafing on the job or that their work was unsatisfactory,

none of them before had received complaints about his

wotk or had been warned that he was wasting time, —

each was’ an employee who had, worked for the Re-

spondent for an appreciable period of time, and each

had been awarded 2 or more wage increases during the

period of his employment. Under such circumstances

and in the light of the Respondent’s* opposition to’

unionization of its employees aS«shown by the state-

ments of Owner Latteau and the wage increase granted

the employees in September 1962,° the statement of

Foreman Faulkner to- employee Dzavan on June 27,

1963, that if Superintendent Conquest discovered that

the employees were distributing union authorization

cards he would discharge them on the spot;, and the

statement of Superintendent Conquest to, the employees

at the meeting on June 28, 1963; that the Respondent

would not accept a union and would fight. against it,

I.find that the reasons told the employees by the Re-- :

°The/ complaint does not -allege and no finding herein is

made that this conduct constituted an unfair labor practice and

‘such a finding would be barred in any event by Section 10(b)

of the ‘Act. Tne conduct in question may, and has been, con-_

_ sidered, however, as background evidence to throw light upon

the later.acts of the Respondent all as unlawful.’ Local

Lodge No. 1424, I.A.M., et al. v. N.L.R.B, (Bryan Mfg. Co.).

362 U.S. 411; Axelson Manufacturing- Company, 88 NLRB

nana: : ;

Sh es ‘ see : ° ‘

ae ig

‘

oe}

Z —14—

spondent as the basis for discharging them cannot be

credited and that the true reason for the discharge of

Dzavan, Simpson and Diaz was because each of them

* had engaged in union activities and that Leazotte was

discharged because of his close association with Dzavan.

The discharges by the Respondent on June 28, 1963,

of Dzavan, Simpson, Diaz and Leazotte for the fore- |

going reasons were acts of discrimination which dis-

couraged union members within the meaning of Sec-

. tion 8(a)(3)¢of the Act. In addition, the discharges

of these employees and the conduct of Foreman Wil-

liam Faulkner on June 27, 1963; in interrogating em-

ployees John Dzavan, Jr., as to his union activities,

Faulkner’s statement on “that occasion that Superin-

tendent Conquest would discharge employees who en-

gaged in such activities, and Superintendent Conquest’s

statements to the assembled employees at the meeting

on: June 28, 1963, that he.would not have a union and

would fight against it constituted acts of interference,

restraint and coercion of the employees in the exercise

of the rights guaranteed them in Section 7, thereby

es Section 8(a)(1) of the Act.

. IV. The-effect of the stile labor

practices upon commerce

The activities of the Respondent set forth in Section

III, above, occurring in connection_with the operations

of the Respondent described’ in Section I, above, have —

a clos¢,. intimate and substantial rélation to trade,

traffic, and commerce among the several States and |

tend to lead to labor disputes burdening and obstructing

cominiérce and the free’flow of commerce.

anlifinn

V. The remedy

teatiig found that the Respondent has engaged in cer-

tain unfair labor practices, it will be recommended

that it cease and desist therefrom and take. certain af-

firmative action designed to efféctuate the policies of

the Act. @

Having found that the Respondent discriminated with

respect to the hire and tenure of John Dzavan, Jr.,

John Simpson, Leroy Leazotte and Ruben Diaz, it will

be recommended that the Respondent-offer each of said

employees immediate and full reinstatement to his for-

mer or substantially equivalent position of employment

. without prejudice to his seniority or other rights and

privileges. See The Chase National Bank of the City of

New York, San Juan Puerto Rico Branch, 65 NLRB

827. It will further be recommended that the Re-

- spondent make each of said employees whole for any

loss of pay suffered by reason of its discrimination

against him. Said loss of pay, based upon earnings which

. each of said employees would have earned as wages

from the date of the discrimination to the date of offer

of reinstatement, shall be computed on a quarterly basis

in the manner established by the Board in F. W.

Woolworth Co., 90 NLRB 289. intergst thereon at the

rate of 6 per cent per annum shall be added, as provided

in Isis Plumbing and Heating Co., 138 NLRB 716.

. The unfair labor practices committed in this case

strike at the very heart of the Act. N.L.R.B. v. En-

twistle Manufacturing Co., 120 F. 2d 532 (C.A. 4).

The inference is therefore warranted that the Respond-

ent maintains an attitude of opposition to the funda-

mental purposes of the Act designed to protect the

rights of the employees. It will accordingly be recom-

—1l6—

mended that the Respondent cease and desist from in-

fringing in any manner upon the rights guaranteed in

Section 7 of the Act. >

Conclusions of Law

Upon the basis of the foregoing findings of fact

and upon the entire record in this proceeding, I make

_ the following conclusions of law:

1. The Union is, and ha8 been at all times material De

to the issues in this proceeding, a labor organization,

within the meaning of Section 2(5) of the Act.

«=, °2. The Respondent is, and has been at all times ma-

terial to the issues in this proceeding, an employer,

within the meaning of Section 2(2) of the Act. .

3. By discriminating with respect to the hire and

tenure of-employment of John Dzavan, Jr., John Simp-.

“™ son, Leroy Leazotte and Ruben Diaz, thereby dis-

couraging membership in a labor organization, the Re-

spondent has engaged in unfair labor practices, within |

the meaning of Section 8(a)(3) of the Act. ¢

4. By interfering with, restraining and coercing |

employees in the exercise of rights guaranteed them in

Section 7 of the Act, the Respondent has engaged in un-

fair labor practices, within the siete of Section 8- |

(a)(1) of the Act. . }

5. The aforesaid unfair labor practices are unfair | |

labor practices affecting commerce, within the meaning

oe Section 2(6) and (7) of the Act.

wy RECOMMENDED ORDER

Upon the basis of the foregoing findings of fact

and conclusions of law and upon the entire record in

this proceeding, I recommend that the Respondent, In-

glewood Park Cemetery Association, Inglewood, Cali-

fornia, its officers, agents, successors, and assigns,

shall:

1. Cease and desist from:

(a) Interrogating employees with respect to their

union activities in a manner constituting interference .

with, coercion, or restraint in violation of ertin 8-

(a)(1) of the Act. |

(b) Threatening to discharge cnekivicks because they

have engaged in union activities.

not have and would fight against a union. |

(d) Discouraging membership in Miscellaneous

- Warehousemen, Drivers & Helpers, ‘Local 986, Interna-

tional Brotherhood of Teamsters, Chauffeurs, Ware-

housemen & Helpers of America, or any other labor

organization of its employees, by discharging or in any

other manner discriminating in regard to hire, tenure

of employment, or any term or condition of employ-

ment, except as authorized Section 8(a)(3) of the Act.

(e) In any other manner interfering with, restraining

or coercing its employees in the exercise of their right to

self-organization, to form labor organizations, to join

or assist Miscellaneous Warehousemen, Drivers & Help-

ers, Local 986, International Brotherhood of Team-

__ sters, Chauffeurs, Warehousemen & Helpers of

America, or any other labor ‘organization, to bargain

collectively through representatives of their own choos-

- ing, or to engage in other concerted activities for. the

purpose of collective bargaining or other mutual aid or

protection, or to refrain from any or all such activities, _

" except to the extent that such right may be affected by

an agreement requiring membership in a labor organiza-

tion as a condition of employment, as authorized in

Section 8(a) (3) of the Act.

2. Take the following affirmative action which is

necessary to.effectuate the policies of the Act:

(a) Offer to John Dzavan, Jr., John ie Law

Leazotte and Ruben Diaz immediate and full reinstate-

ment to their former or substantially equivalent posi-

tions without prejudice to their seniority or other rights

and privileges.

(b) Make whole John Dzavan, Jr.; John Simpson,

Leroy Leazotte and Ruben Diaz for any loss of pay suf-

fered by reason of the discrimination against them in

accordance with the method set forth above in the sec-

instatement or backpay made by the National Labor

Relations Board is effectuated and make available to

the said Board, and its agents, upon request, for exam-

ination and copying, all payroll records, Social Security

payment records, timecards, personnel records and re-

‘ports, and all other records relevant to a determination

of the amount of backpay due, and to the reinstatement

and related rights provided under the terms of any

such order. ie we

(d)* Post in conspicuous places at its usual place of

business located in Inglewood,, California, including all

places where notices to employees are customarily post-

ed, copies of the notice® attached hereto as an Appen-

Since notices are customarily framed in the language of the

statute and because of their technical nature are often difficult

for employees to undetstand, I am recommending that the no-

tice in this case embody the simplified form which appears in

the appendix.

inl BaP

dix.’ Copies of said notice, to be furnished by the Re-

gional Director for the Twenty-first Region of the Na-

tional Labor Relations Board, shall, after being duly

signed by an authorized representative of the Respond-

ent, be posted by it immediately upon receipt thereof

and maintained by it for 60 consecutive days thereafter

in such conspicuous places.’ Reasonable steps shall be

taken by the Respondent to insure that said notices are

not altered, defaced, or covered by any other material.

(e) Notify the Regional Director for the Twenty-

first Region in writing within 20 days from the date of

the receipt by the Respondent of a copy of this Deci-

sion what steps the Respondent has taken to comply

therewith.* Ee

“Tt is further recommended that unless on or before

20 days from the date of the receipt of this Decision

the Respondent notify the Regional Director that it will

comply with the foregoing recommendations, the Na-

tional Labor Relations Board issue an order requiring

the Respondent tatake the action aforesaid:

Dated:

DAVID KARASICK

David Karasick

Trial Examiner

In the event that this recommended order be adopted by the

Board, the words “A DECISION AND ORDER” shall be

substituted for the words “THE RECOMMENDED QRDER

OF A TRIAL EXAMINER?” in the notice. In the further event

that the Board’s order be enforced by a decree of the United

States Court of A , the words “A DECREE OF THE

UNITED STATES COURT OF APPEALS ENFORCING

AN ORDER” shall be substituted for the words “A DECI-

SION AND ORDER.” _ P

8In the event that this r lended order be--adopted—by

the Board, this provision shall be modified to read: “Notify

said Regional Director in writing within 10 days from the. date

of this order what steps the Respondent has taken to comply

therewith.” a ie

—_ZO—

APPENDIX

NOTICE TO ALL EMPLOYEES

PURSUANT TO

The Recommended Order of a Trial Examiner of the

National Labor Relations Board, we are posting tlfs

notice to inform our employees of the rights guaranteed

them in the National Labor Relations Act:

WE WILL NOT interfere with the rights of our

employees under the law by scans ae them about

their union activities. ‘.

WE WILL NOT threaten to discharge our em-

ployees because they have engaged in union activi-;

ties.

WE WILL NOT du our gloves that we will

not have a union or that we will fight against it.

WE WILL offer immediately to the employees

named below the ,jobs they held before they were

discharged, or jobs like them, without loss of sen-

iority or any other rights and privileges, and we

will give each of the employees named below what-

ever backpay he has lost: 7

JOHN DZAVAN, JR.

LEROY LEAZOTTE i

JOHN SIMPSON. wt

RUBEN DIAZ

ALL OUR EMPLOYEES have the right to join

or assist MISCELLANEOUS WAREHOUSE-

MEN, DRIVERS & HELPERS, LOCAL 986,

. INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN & HELPERS OF AMERICA, or

: —21—

any other union. WE WILL NOT question our ’

employees as to whether they engage in union ac-

tivities or threaten them for doing so or take any

action against them for doing so.

INGLEWOOD PARK CEMETERY

ASSOCIATION

(Employer)

(Representative) (Title)

NOTE: We will ‘notify the above-named employees, Vf

presently serving in the Armed Forces of the es

States, of their right to full reinstatement upon appli-

cation in accordance with the Selective Service Act and

the Universal Military Training and Service Act of

. 1948, as amended , after discharge from the Armed

Forces.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced or covered by any other material.

Information regarding the provisions of this notice

or compliance with its terggs may be secured from the

Regional Office of the National Labor Relations Board,

849 So Broadway, Los Angeles, California 90014 (Tel-

ephone No. 688-5204). 7

Y-

—22—

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, )

vs. )- No. 19,741

Inglewood Park Cemetery Association, )

Respondent. )

[January 14, 1966]

Petition to Enforce an Order of the

National Labor Relations Board.

Before: POPE, DUNIWAY, and ELY, Circuit Judges

ELY, Circuit Judge:

The Nationa! Labor Relations Board siditea under)

section 10(e) of the National Labor Relations Act, as

amended, 29 U.S.C. § 160(e), for a decree enforcing

_its order issued against respondent, Inglewood Park

Cemtery Association. Respondent urges that we deny

the petition on the ground that the Board lacked juris-

diction for the issuance of its order.

The Board concluded that the respondent violated sec- .

tion 8(a)(1) and (3) of the NLRA}’ by interrogat-

ing.and threatening its émployees with regard to their

protected activities, by discharging three employees be-

“Sec. 8(a) It shall be an unfair labor practice for an’ em-

ployer—(1) to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed i in section 7;

* * *

(3) by discrimination in regard to hire or tenure of employ-

ment Or any term or condition of employment to encourage or

discourage membership in any labor organization: * * * *” 29

U.S.C. §158(a)(1),(3). Section 7 provides in part: “Em-

ployees shall have the right to self-organization, to form, join, or

assist labor organizations, . . .’ and to engage in other con-

certed activities for the ag .of collective bargaining or

other mutual aid or-protection, . . . .” 29 U.S.C. S57,

cause of their activities in behalf of the union, and by

discharging a fourth employee because of his close as-

sociation with the union organizers. The Board’s order

requires respondent to cease and desist from the unfair

labor practices found and from, in any other manner,

interfering with, restraining, or coercing its’ employees

in the exercise of their protected activitiés, and af-

firmatively requires respondent to reinstate .the dis-

charged employees immediately to their former or sub-

stantially equivalent positions, to make them whole for

any loss of pay: they may have suffered by reason of

-respondent’s: discriminatory ‘conduct, to preserve and

make available records relevant to the computation of

backpay due, and to post appropriate notices.

In our court, respondent does not challenge the: con-

clusions and order of. the Board as they pertain to un-

fair labor practices; hence, our consideration is confined

to the Board’s conclusion that respondent’ s business af-

fects interstate commerce within the meaning of the

Act and that it would effectuate the policies . of the Act —

for it to assert jurisdiction.

Respondent is a California nrpecetian engaged in the

operation of a cemetery located in Inglewood, Cali-

fornia. From a period beginning July 1, 1962, and end-

ing June 30, 1963, during which the four employees

were discharged, the respondent received in excess of

lots, crypt spaces, and related items. During the fiscal

year period, respondent purchased $3,086.31 worth of

goods from sources outside the State of California.

“The Congress shall have Power . . . To regulate

Commerce . . . among the several States . .-. [and] To

make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers, . . .”

: \

woe —24—

U.S. Const. art. I, § 8. The Board. derives its existence,

power, and direction from national: labor legislation

_ enacted by Congress under the authority of article I,

section eight of the Constitution. Section 10(a) of the _

NLRA provides that “The Board is empowered, . . .,

to'prevent any person from engaging in any unfair

labor practice . ... affecting commerce.” 29 U.S.C.

§160(a). “Commerce” is\defined as “trade, traffic, com-

merce,. transportation, of communication among the

several States, ... .” (29 hence § 152(6)) and “af.

fecting commerce” is defined as “in commerce, or bur-.

* dening or obstructing commerce or the free flow of

commercé; or having led or tending to lead to a,.labor

dispute burdening or obstructing commerce or the free

flow of commerce” (29 U.S.C. § 154(7).

The respondent contends that its activities are es-

sentially local,-that the doctrine of de minimis is ap-

plicable as to its interstate salen or and, thus, that its

operations do not “affect commerce”

It has been established that it is within the province:

of Congress to regulate essentially local activity if

such activity affects commerce among the several states.

Wickard v. Filburn, 317 °U.S. 111, 87 L. Ed. 122, 63

Sup. Ct. 82 ( 1942). It is also established that. “Con-

gress intended to and did vest in the Board the fullest:

jurisdictional breadth constitutionally permissible under

the Commerce Clause.” NLRB v. Reliance Fuel Oil

Corp., 371 U.S. 224, 226, 9 L. Ed. 2d 279, 83 Sup.

_Ct. 312° (1963). (Emphasis supplied.) And with re-

gard to the exercising by the Board of its jurisdiction :

the Supreme Court Stated:

‘“Ahe A stablishes a. frarnework within which

the Board.is to determine ‘whether proscribed

practices: would in particular situations adversely

Ieee

ellen

affect commerce when judged. by the full- reach

of the constitutional power of Congress." Whether

or no practices may be deemed by Congress to af- .

fect interstate commerce is not to be determined’

by confining judgment to the quantitative effect

of the activities immediately before the Board. Ap-

propriate for judgment is the fact that the im-

_ mediate situation is representative of many others

throughout the country, the total incidence of which

. if. left unchecked may well become far-reaching in

its harm to commerce.’ Polish Alliance v. Labor>

Board, 322 U.S., at 648. See also Labor Board es:

Fainblatt, 306 U.S., at 607-608.” Mo

NLRB v. Reliance Fuel Oil Corp., 371 Us S. at. se ;

We cannot ignore the fact that business ‘concerned

with death is “big” business,” and the Board \has de-

termined that in the interlacings of business across -

state lines the particular opération involved can and

may affect interstate conimerce adversely. 7

As to the respondent’s contention that the $3,086.31

in purchases outside the State of California ig de

minimis, we are confronted with a problem not capable

of solution by application of precise mathematical for- si

mula. We have held that a dry-cleaning establishment

doing approximately $12,000 per year in interstate

» business fell within the jurisdiction of the Board.

N.L.R.B. v. Stoller, 207 F.2d 305 (9th Cir. 1953),

cert. denied, 347 U.S. 919, 98:L. Ed. 1074, 74 Supe Ct.

517 (1954). The Seventh Circuit has held that a local

transit company. which purchased, locali.:,. approxi-

2See generally Harmer, The: High Cost of Dying (1963);

Mitford, The y Scerveen Way of Death 39-41, 49-50 (1963) ;

Sher, Funeral Prearrangemient: Mitigating the Und er’s Bar-

gaining Advantage, 15 Stan. L. Rev. 415, 418-19 nn. 12-

15 (1963). . se ; 7

7. a

min <*

mately $2,000 worth of materials originating outside

the state in which i? operated wag subject to the juris-

diction of the’ Board, saying, as to the de minimis

argument of the company,~“The time has not yet ‘ar-

rived when $2,000 is but a trifle.” NLRB v. Aurora

City Lines, Inc., 299 F.2d 2294231 (7th Cir. 1962).

The Supreme Court has written that “we can perceive

no basis for #hferring any intention of Congress to

make the operation of the Aetlepend on any particular

volume of cotpmierce affected more than that to which

the courts would apply the maxim de minimis.” NLRB

v. Fainblatt, 306. U.S. 601, 607, 83 L.. Ed. 1014, 59

Sup. Ct. 668 (1939). Here, the close: question has

troubled us. ‘We are required, however, to. accord a

proper measure of respect to Board conclusions. , In

the light of that consideration, we, with a degree of ke

luctance, affirm the détermination that, under all the

circumstances’ shown by the record, the de minimis

maxim cannot be applied to vitiate the order.

The Petition for Enforcement is granted.*

8In some cases we have held that the inclusion of the phrase

“in any other manner” was improper. See, e.g., NLRB v.

~ Phaostron Instrument & Electronic Co., 344 F.2d 855 (9th

Cir. 1965). In this case, however, the respondent has made.no

objection to the form of the order, and the history of the

dispute, developed by testimony which the respondent did not

deny, affords some justifigation for the order’s broad direc-

tion. The four discharged employees had worked for the re-

— for lengthy and continuous periods of time. One of

, @ power mower operator, had been engaged in the em:

ployment for approximately eleven years. All of them had

been wi ote wage increases from time to time, and prior to the .

peri

when they commenced to engage in union activities, no

complaints had been made of their work. When the. activities

began, the respondent’s superintendent advised’ the employees

that he would not have.a union and that he would fight against

it. He undertook in other comments to discourage the activity,

and when the employees were discharged, they were given false

reasons for the termination of their work. The respondent has

not contested the claims of unfair labor practices and in our

court makes no contention that the Board’s findings of such

practices were improper.

APPENDIX D.

Record on Jurisdictional Issue.

Complaint and Notice of Hearing issued by Giniceas

Counsel of N.L.R.B. ;

__2. » Petitioner is now, and has been at_all times ma-

(= “terial herein, a California corporation engaged in the

2 (Operation of a cemetery in Inglewood, California. Dur-

‘ing the period from July 1, 1962, through June 30,

1963, the Petitioner received an amount in excess of

$500,000 from the sale to the public of services, burial

lots, crypt spaces, and related items, and purchased

goods directly from outside the State of California to-

taling $3,086.31.

3. Petitiorier is now, and has been at all times ma-

terial herein, ary employer engaged in commerce and in

“a business affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

11. The activities of Petitioner described in para-

graphs 6 through 10 above, occurring in connection

with the operations of Petitioner described in para-

graphs 2 and 3 above, have a close, intimate, and sub-

stantial relation to trade, traffic, and commerce among |

the several states, and tend to lead, and have led, to

labor dispute burdening or obstructing commerce or the

free flow of commerce within the meaning of Section

2(6) and (7) of the Act.

12. The activities of Petitioner as set forth in para-

graphs 6 through 11 above constitute unfair labor prac-

tices affecting commerce within the meaning of Section

8(a)(1) and (3) and Section 2(6) and (7) of the

Act. CAS

—_28—

Answer of Respondent: :

Admits the allegations of Paragraph 2.

: IH |

Denies each and every allegation in Paragraph 3.

} VII - |

-Denies each and every allegation in Paragraphs 7, 8,

"9, 10, 11, and 12. 3 ms

» the Sugreme Court th the Binited Sines

‘ OcToBER Ten, 1965 ;

| No. 1200 past

First CONGREGATIONAL CHurcH oF Los ANGELES,

2 PETITIONER, | 7

. Nationa LaBor RELATIONS Boarp

ON PETITION FOR A WRIT OF OBRTIORARI TO JHE UNITED

STATES COURT OF APPHALS FOR THE NINTH OIROUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD

+ TW OPPOSITION |

OPINIONS. BELOW "4

The opinion of the court of appeals (Pet. App. 22-

26) is reported (sub, nom. National Labor Relations

Board v. Inglewood Park Cemetery Association) at

355 F. 2d 448: The Board’s decision and order (Pet.

App. ie are re arted at 147 NLRB 808. Fy

‘ \ aol CTION } :

| nd judgment of the court of appeals was entered

on January 14, 1966 (Pet. 2). . The petition for cer-

tiorari was filed on April 8, 1966. The jurisdiction of

this Domrt 3 is invoked under 28 US. C. aha dl |

QUESTIONS PRESENTED

A California corporation, which. had cm gross

- reeaipts in excess of $500,000 _— the operation of a

216-272—66 (1)

1 : .

c 2 Wie : 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.