Appendix — Forest Lawn Memorial-Park Ass'n v. National Labor Relations Board

APPENDIX.

NATIONAL Lasor RELATIONS Act AS AMENDED.

(Title 29, U. S. C. Sections 151 et. seq.)

“SecTION 1. FINDINGS AND DECLARATION OF POLICY.

The denial by some employers of the right of employees to

organize and the refusal by some employers to accept the

procedure of collective bargaining lead to strikes and

other forms of industrial strife or unrest, which have the

intent or the necessary effect of burdening or obstructing

commerce by (a) impairing the efficiency, safety, or

operation of the instrumentalities of commerce; (b) oc-

curring in the current of commerce; (c) materially affect-

ing, restraining, or controlling the flow of raw materials

or manufactured or processed goods from or into the

channels of commerce, or the prices of such materials or

goods in commerce; or (d) causing diminution of em-

ployment and wages in such volume as substantialiy to

impair or disrupt the market for goods flowing from or

into the channels of commerce.

“The inequality of bargaining power between employees

who do not possess full freedom of association or actual

liberty of contract, and employers who are organized in

the corporate or other forms of ownership association

substantially burdens and affects the flow of commerce,

and tends to aggravate recurrent business depressions, by

depressing wage rates and the purchasing power of wage

earners in industry and by preventing the stabilization of

competitive wage rates and working conditions within and

between industries.

“Experience has proved that protection by law of the

right of employees to organize and bargain collectively

safeguards commerce from injury, impairment, or inter-

sits

ruption, and promotes the flow of commerce by removing

certain recognized sources of industrial strife and unrest,

by encouraging practices fundamental to the friendly ad-

justment of industrial disputes arising out of differences

as to wages, hours, or other working conditions, and by

restoring equality of bargaining power between employers

and employees.

“Experience has further demonstrated that certain prac-

tices by some labor organizations, their officers, and mem-

bers have the intent or the necessary effect of burdening

or obstructing commerce by preventing the free flow of

goods in such commerce through strikes and other forms

of industrial unrest or through concerted activities which

impair the interest of the public in the free flow of such

commerce. The elimination of such practices is a neces-

sary condition to the assurance of the rights herein guar-

anteed.

“Tt is hereby declared to be the policy of the United

States to eliminate the causes of certain substantial ob-

structions to the free flow of commerce and to mitigate and

eliminate these obstructions when they have occurred by

encouraging the practice and procedure of collective bar-

gaining and by protecting the exercise by workers of full

freedom of association, self-organization, and designation

of representatives of their own choosing, for the purpose

of negotiating the terms and conditions of their employ-

ment or other mutual aid or protection.

“DEFINITIONS

“Section 2. When used in this Act—

* * * * * * x *

“(2) The term ‘employer’ includes any person acting

as an agent of an employer, directly or indirectly, but

_

an oe

shall not include the United States or any wholly owned

Government corporation, or any Federal Reserve Bank,

or any State or political subdivision thereof, or any cor-

poration or association operating a hospital, if no part of

the net earnings inures to the benefit of any private share-

holder or individual, or any person subject to the Railway

Labor Act, as amended from time to time, or any labor

organization (other than when acting as an employer),

or anyone acting in the capacity of officer or agent of

such labor organization.

* * * * * * - a

“(6) The term ‘commerce’ means trade, traffic, com-

merce, transportation, or communication among the sev-

eral States, or between the District of Columbia or any

Territory of the United States and any State or other

Territory, or between any foreign country and any State,

Territory, or the District of Columbia, or within the Dis-

trict of Columbia or any Territory, or between points

in the same State but through any other State or any

Territory or the District of Columbia or any foreign

country.

“(7) The term ‘affecting commerce’ means in com-

merce, or burdening or obstructing commerce or the free

flow of commerce, or having led or tending to lead to a

labor dispute burdening or obstructing commerce or the

free flow of commerce.

* * + « * * * * *

“PREVENTION OF UNFAIR LABOR PRACTICES

“Section 10. (a) The Board is empowered, as here-

inafter provided, to prevent any person from engaging in

any unfair labor practice (listed in section 8) affecting

didlos

commerce. This power shall not be affected by any other

means of adjustment or prevention that has been or may

be established by agreement, law, or otherwise: Provided,

That the Board is empowered by agreement with any

agency of any State or Territory to cede to such agency

jurisdiction over any cases in any industry (other than

mining, manufacturing, communications, and transporta-

tion except where predominantly local in character) even

though such cases may involve labor disputes affecting

commerce, unless the provision of the State or Territorial

statute applicable to the determination of such cases by

such agency is inconsistent with the corresponding provi-

sion of this Act or has received a construction inconsistent

therewith.

* * * * * * *x * *

“(e) The Board shall have power to petition any circuit

court of appeals of the United States (including the

United States Court of Appeals for the District of Colum-

bia), or if all the circuit courts of appeals to whic ap-

plication may be made are in vacation, any district court

of the United States (including the District Court of

the United States for the District of Columbia), within

any circuit or district, respectively, wherein the unfair

labor practice in question occurred or wherein such per-

son resides or transacts business, for the enforcement

of such order and for appropriate temporary relief or

restraining order, and shall certify and file in the court a

transcript of the entire record in the proceedings, includ-

ing the pleadings and testimony upon which such order

was entered and the findings and order of the Board.

Upon such filing the court shall cause notice thereof to

be served upon such person, and thereupon shall have

—

eer We

jurisdiction of the proceeding and of the question deter-

mined therein, and shall have power to grant such tem-

porary relief or restraining order as it deems just and

proper, and to make and enter upon the pleadings, testi-

mony and proceedings set forth in such transcript a decree

enforcing, modifying, and enforcing as so modified, or

setting aside in whole or in part 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 failure 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 supported by substantial evidence on the record -

considered as a whole shall be conclusive. If either party

shall apply to the court for leave to adduce additional

evidence 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 evi-

dence to be taken before the Board, its members, agent,

or agency, and to be made a part of the transcript. The

Board may modify its findings as to the facts, or make

new findings, by reason of additional evidence so taken and

filed, and it shall file such modified or new findings, which

findings with respect to questions of fact if supported by

substantial evidence on the record considered as a whole

shall be conclusive, and shall file its recommendations, if

any, for the modification or setting aside of its original

order. The jurisdiction of the court shall be exclusive

and its judgment and decree shall be final, except that

the same shall be subject to review by the appropriate

circuit court of appeals if application was made to the

ellie

district court as hereinabove provided, and by the Supreme

Court of the United States upon writ of certiorari or

. certification as provided in sections 239 and 240 of the

Judicial Code, as amended (U. S. C., title 28, secs. 346

and 347).”

NATIONAL Lasor RELATIONS ACT.

(Wagner Act 49 Stat. 449.)

Section 2. Definitions

When used in this Act

“(6) The term ‘commerce’ means trade, traffic, com-

merce, transportation, or communication among the sev-

eral States, or between the District of Columbia or any

Territory of the United States and any State or other

Territory, or between 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

Territory or the District of Columbia or any foreign

country.

“(7) The term ‘affecting commerce’ means in com-

merce, or burdening or obstructing commerce or the free

flow of commerce, or having led or tending to lead to a

labor dispute burdening or obstructing commerce or the

free flow of commerce.”

INDEX

Page

MMMM 5 20k a sds Rene aelbolaendenbvaccdness 1

re et aS ke ne gL wk Ma AWA eA eee 2

Grentions peenemted . 2... 2.26... cece c eter c renee eens 2

a A she wu a eae RR Ne orn ae eee 2

Statement :

I. The Board’s findings and order................... 2

A. The business of petitioner................. 2

B. The unfair labor practices................ 4

Seg ye eg eR i 4

II. The decision of the court below.................. 4

EE Ca, Li. the se ea ae CORA eo oS oela os pe diean gen nes 5

IRS rd cP ue eae ore lads Sask e ehins Wed soli cs es 10

ENE CSer ree ree eeee Tore eee LT Tite eee ea ee 11

CITATIONS

Cases :

Federal Trade Commission v. Bunte Brothers, Inc., 312

ER ERE Ba Dies Winey Sil aie Seay Gere mnre eee ae 6

Haleston Drug Stores v. National Labor Relations Board,

187 F. 2d 418, certiorari denied, 342 U.S. 815......... 7

Helvering v. R. J. Reynolds Tobacco Company, 306 U.S. _

cra et ean ars Be ke hea ate hipaa aera 4 NK 6

International Brotherhood of Electrical Workers v. Na-

tional Labor Relations Board, 341 U.S. 694.......... 6

Local 74, United Brotherhood of Carpenters & Joiners

v. National Labor Relations Board, 341 U.S. 707...... 6

National Labor Relations Board v. Acme Mattress Co.,

i I on is yk ws cs oe eke Reames oa 8

National Labor Relations Board v. Cleveland-Cliffs Iron

gc ati ls GN orks a Wn ike Geom ney id hobo ims8 0s 8

National Labor Relations Board v. Crompton-Highland

Na area pe SR RR aN pe ae 8

National Labor Relations Board v. Denver Building ¢

Construction Trades Council, 341 U.S. 675........... 5,7

National Labor Relations Board v. Dixon, 184 F. 2d 521. . 8

National Labor Relations Board v. Fainblatt, 306 U. S.

CaN er CCE Nee ere Guat ce KK se F584 Faeae REN Os kes 6

National Labor Relations Board v. Grace Co., 184 F. 2d

OAPs pg ERNE SIR rn RL ae oy 9

National Labor Relations Board v. Gullett Gin Company,

Pa MR i on sap kee cae anes dev ea Pas ene 6

National Labor Relations Board v. Indiana ¢ Michigan

NE i I MINE We hice S 5h cacbeus pessoas saustc 7

It

Cases—Continued Pune

National Labor Relations Board v. Pool Mfg. Co., 339

NE ete raid at cy Sine a ee h 4 ne oo ok 8

National Labor Relations Board v. Pennsylvania Grey-

ROMMA- TAMOG A Uae UE nk os. oy CEA aa RTO Res 9

Polish National Alliance v. National Labor Relations

TE OB SR eyes er tae 6,7

United States v. Morton Salt Co., 338 U.S. 632......... 6

United States ex rel. Sejnensky v. Tod, 285 Fed. 523.... 9

United Corp. v. Federal Trade Commission, 110 F. 2d

WE i ihhan ck Seer Er eas Pa WORE TUSK Ceres awh ase bana 9

Statutes :

National Labor Relations Act, as amended (61 Stat. 136,

29 U.S.C., Supp. V, 151, et seq.) :

eee. 8d bib nig cae a ate ws Sk pole Ke 7

EE sisi cas eh wpe bea Oh MAW enace aA 7

RINT ER ise ok rons cou hads sweenew ewes 8

ED S55 bc iene Kilo La eK ed Cone kde ceuwn’ 8,11

Yuthe Supreme Court of the Hnited States

OcTOBER TERM, 1953

No. 438

Forest LAawN MeEmoriAL-ParK AssocraTIONn, INC.,

PETITIONER

Vv.

NationaL Laspor Reitations Boarp

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPINIONS BELOW

The opinions of the court below, denying peti-

tioner’s motion for leave to adduce additional evi-

dence and enforcing the order of the Board (R. 154-

157, 173-174), are reported at 198 F. 2d 71 and 206

F. 2d 569. The findings of fact, conclusions of law,

and order of the Board (R. 50-55, 31-48) are re-

ported at 97 NLRB 309.

(1)

2

JURISDICTION

The decree of the court below (R. 158-164) was

entered on September 16, 1953. The petition for a

writ of certiorari was filed on October 26, 1953.

The jurisdiction of this Court is invoked under 28

U.S. C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Board properly found that peti-

tioner’s operations bring it within the coverage of

the National Labor Relations Act, as amended.

2. Whether the circumstance that petitioner,

after the entry of the Board’s order against it, may

have ceased or curtailed its interstate operations

precluded enforcement of the order by the court

below.

STATUTE INVOLVED

The pertinent provisions of the National Labor

Relations Act, as amended (61 Stat. 136,29 U.S. C.,

Supp. V, 151, et seq.), are set forth in the Appendix

to the petition, pp. 1-6, and the Appendix to this

brief, infra, p. 11.

STATEMENT

I. The Board’s findings and order

A. The business of petitioner—Petitioner is a

nonstock, nonprofit cemetery association of lot

owners in Forest Lawn Memorial-Park, a private

cemetery in Glendale, California (R. 32-33; 19).

Petitioner is engaged in the operation and main-

tenance of Forest Lawn and through 27 depart-

ments offers complete undertaking service and in-

terment facilities (R. 33; 19, 22-23, 25-27). The

mortuary department, involved here, has 58 em-

3

ployees, and for some years has handled more

mortuary cases than any similar concern in Los

Angeles County, except for two others (R. 33;

25-26).

During the twelve-month period ending April

30, 1951, petitioner provided mortuary services in

3,870 cases and received the sum of $4,621,803 for

sales of property and supplies (including graves,

crypts, and niches), interment charges, cremations,

and other services (R. 33; 21). Of this amount,

the sum of $53,572 was received for services and

supplies furnished in connection with 114 bodies

ultimately shipped for burial outside the State of

California (R. 33-34; 22). The charge made by

petitioner for shipping cases accounted for $4,085

of this sum, charges for embalming and other serv-

ices accounting for approximately $33,000 of the

remainder, and charges for caskets the other

$16,495 (R. 33-34; 22).

During the same period, petitioner purchased

$1,242,244 worth of services, capital equipment,

materials, and supplies, $40,452 of which was

shipped directly to petitioner from outside the

State of California and an additional $216,684 of

which was manufactured or produced outside the

State though purchased within the State (R. 52, n.

5; 20-21).

1In approximately 85 percent of these cases, the bodies

were shipped outside the state within one week and, in most

instances, petitioner made the appropriate arrangements with

the carrier (R. 34: 23-24). Transportation charges of not

less than $5,700, which in most instances were advanced by

clients in the form of checks payable to the carriers, have not

been included above (R. 34; 24).

ce

4

Upon the foregoing facts, the Board found that |

petitioner was engaged in commerce within the |

meaning of the Act and that assertion of jurisdic-

tion in this case would effectuate the policies of the

Act (R. 34-36, 51-52).

B. The unfair labor practices—In March and

April, 1951, during the course of a union organiz-

ing campaign, petitioner discharged four em- |

ployees because of their membership in and activi-

ties on behalf of a union, interrogated employees

with regard to union activity, accused employees

of disloyalty to petitioner for attending union

meetings and refusing to identify union adherents,

told employees they must choose between loyalty

to petitioner and loyalty to the union, and sought

to induce an employee to continue with the union

in an effort to disrupt it (R. 36-41). Upon these

facts, not challenged here or in the court below, the

Board found that petitioner had violated Section

8(a)(1) and (3) of the Act (R. 40-43, 51).

C. The Board’s order—The Board’s order (R.

53-55) requires petitioner to cease and desist from

the unfair labor practices found and from in any

other manner interfering with the rights guaran-

teed its employees under Section 7 of the Act. Af-

_firmatively, the order requires petitioner to rein-

state the four discharged employees with back pay

and to post appropriate notices.

II. The decision of the court below

The court below sustained the Board's jurisdic-

tion over petitioner and enforced the Board’s or-

der in full (R. 155-157). The court also rejected

petitioner’s contention, raised by motion for leave

|

5

to adduce additional evidence (R. 167-168), that

even if petitioner was subject to the Act at the time

of the entry of the Board’s order, the order was not

entitled to enforcement because subsequent to its

entry petitioner had discontinued the interstate

shipment of bodies and had reduced the volume of

its out-of-state purchases (R. 173-174).

ARGUMENT

1. Petitioner’s contention (Pet. 10-16) that the

Board lacked jurisdiction is insubstantial and pre-

sents no question warranting review by this Court.

As stated above, p. 3, petitioner in the course of

its operations during the year ending April 30,

1951, purchased $40,452 worth of equipment, sup-

plies and materials which were shipped directly to

it from points outside the State of California and

an additional $216,684 worth which were manu-

factured outside though purchased by petitioner

within the State. These purchases alone suffice

to sustain the Board’s jurisdiction over petitioner.” '

Moreover, during the same period petitioner re-

ceived $53,572 for services and supplies, including

over $20,000 worth of caskets and shipping cases,

furnished in connection with bodies shipped out-

a

side the State of California (supra, p. 3). Taken

together, these facts, as the Board and the court

below held, plainly place petitioner within the cov-

erage of the Act. National Labor Relations Board

2 The contention (Pet. 16) that the court below failed to z

take into account that approximately half of these purchases

were “non-recurring purchases of capital equipment” does not

advance petitioners’ case. For, even if such purchases are

eliminated, petitioner’s remaining purchases of supplies and

materials which come from outside California are sufficiently :

substantial to sustain the Board’s jurisdiction.

6

v. Denver Building & Construction Trades Council,

341 U. 8. 675, 683-685; Local 74, United Brother-

hood of Carpenters & Joiners v. National Labor

Relations Board, 341 U. 8S. 707, 712; International

Brotherhood of Electrical Workers v. National

Labor Relations Board, 341 U. 8. 694, 699. See,

also, National Labor Relations Board v. Fainblatt,

306 U.S. 601, 604-609; Polish National Alliance v.

National Labor Relations Board, 322 U. 8S. 648,

647-648.

The court below properly rejected the conten-

tion (Pet. 17-18) that the Board is precluded from

asserting jurisdiction over petitioner because of its

failure to assert jurisdiction over similar enter-

prises prior to the 1947 amendments to the Act.

Failure to exercise power does not extinguish

it. United States v. Morton Salt Co., 338 U.S. 632,

647-648; Federal Trade Commission v. Bunte

Brothers, Inc., 312 U. 8. 349, 352. Further, as

noted by the court below (R. 157), there is no ‘‘sug-

gestion in the legislative history of the Act as

amended tending in any way to support the view

that Congress intended to exclude mortuaries from

the sweep of the Act:’’* The definitions of the

terms ‘‘commerce’”’ and ‘‘affecting commerce’’ set

8 This is not a case like National Labor Relations Board v.

Gullett Gin Company, Inc., 340 U. S. 361, 365-366, cited by

petitioner, where this Court noted that Congress had specifically

considered a Board practice, set forth in Board decisions and

sustained by the courts, and by clear implication had ratified

it. Helvering v. R. J. Reynolds Tobacco Company, 306 U. S.

110, 116-117, also cited by petitioner, is similarly inapposite.

In that case, Treasury Regulations, issued pursuant to statu-

tory rule-making powers, were approved by Congress through

reenactment of the statutory language as interpreted by the

Regulations.

7

forth in Section 2(6) and (7) of the Act and the

Board’s authority under Section 10 to prevent un-

fair labor practices ‘‘affecting commerce’’ remain

unchanged in all material respects in the amended

Act. This reenactment confirmed the intention of

Congress to confer upon the Board power to pre-

vent unfair labor practices which ‘‘affect com-

merce when judged by the full reach of the consti-

tutional power of Congress.’’ Polish National Al-

liance v. National Labor Relations Board, 322 U.S.

643, 648. Of course, under the original Act, as

under the amended Act, the Board had wide dis-

cretion in asserting its legal jurisdiction and often

declined to exercise it on grounds of policy, or for

budgetary or other reasons. See National Labor

Relations Board v. Denver Building & Construc-

tion Trades Council, 341 U. 8S. 675, 684; National

Labor Relations Board v. Indiana & Michigan Elec

tric Co., 318 U.S. 9,18. And in this very case, the

Board pointed out that petitioner’s operations met

the standards, promulgated in 1950, by which the

Board is guided in determining whether to exert its

power (R. 52). This practice was recognized

and approved by Congress, but, as the court noted

in Haleston Drug Stores v. National Labor Rela-

tions Board, 187 F. 2d 418, 422 (C. A. 9), cer-

tiorari denied, 342 U. S. 815, ‘‘Nothing was added

to the section [10] suggestive of an intent on the

part of Congress to circumscribe or curtail the

Board’s authority in respect of the prevention of

such practices, or to render less flexible the unfair

labor practice provisions of the original act.”’

2. There is no merit in petitioner’s further con-

8

tention, raised by motion for leave to adduce addi-

tional evidence, that the Board’s order was not en-

titled to enforcement because, subsequent to the

entry of the order, petitioner assertedly curtailed

or discontinued its interstate operations (R. 167-

168, 173-174). Under Section 10(a) and (c) of the

Act the Board on finding that a person ‘‘has en-

gaged in or is engaging in”’ an unfair labor prac-

tice ‘‘affecting commerce’’ is required to issue a

cease and desist order to prevent further unfair

a labor practices ; in addition, the Board is expressly

\ authorized to undo, as far as possible, the conse-

quences of past violations by requiring an offend-

ing employer ‘‘to take such affirmative action in-

cluding reinstatement of employees with or with-

out back pay, as will effectuate the policies of this

Act.’’ The statutory language precludes the con-

tention that an employer may escape the conse-

quences of his unfair labor practices by the ex-

pedient of withdrawing from interstate commerce

| or even discontinuing his business operations after

the Board has issued its order. National Labor Re-

lations Board v. Cleveland-Cliffs Iron Co., 133 F.

2d 295, 300 (C. A. 6); National Labor Relations

Board v. Acme Mattress Co., Inc., 192 F. 2d 524,

528 (C. A. 7); National Labor Relations Board v.

Dizon, 184 F. 2d 521, 522-523 (C. A. 8); ef. Na-

tional Labor Relations Board v. Pool Mfg. Co., 339

U. S. 577, 581-582 (an order ‘‘made by the Board,

lawful when made, does not become mcot because it

is obeyed or because changing circumstances indi-

cate that the need for it may be less than when

made’’); National Labor Relations Board v.

EL SoD a a RT |

9

Crompton Highland Mills, 337 U. S. 217, 225, n. 7;

National Labor Relations Board v. Pennsylvania

Greyhound Lines, 303 U. 8. 261, 271.*

The decision of the court below does not conflict

with the decision of the Court of Appeals for the

Fourth Circuit in United Corp. v. Federal Trade

Commission, 110 F. 2d 473, cited by petitioner.

There, as the court pointed out (at p. 476), the

Commission did not, as the governing statute

required, have jurisdiction over the party

against whom its order was directed as of

the date the order issued. Nor is this a case

like National Labor Relations Board v. Grace Co.,

184 F. 2d 126 (C. A. 8), also cited by petitioner,

where the court indicated it would not enforce a

Board order requiring an employer to bargain with

a union if it were shown that after the order issued

the employer had closed its plant permanently,

thereby rendering the Board’s order impossible of

fulfilment and of no benefit to the employees. 184

F. 2d at 130.° Here petitioner is still in existence

and there is no impediment to carrying out the pro-

visions of the order. Also inapposite is United

States ex rel. Sejnensky v. Tod, 285 Fed. 523 (C. A.

2), where immigration authorities were barred

from carrying out a deportation order directed

*Of course, as the court below pointed out (R. 174), the

Board order as enforced, insofar as it is prospective in effect,

interdicts only such future acts as affect interstate commerce,

and in any future contempt proceedings under the decree “It

would then be a complete defense to show that the acts did

not affect interstate commerce.”

5 The court expressly distinguished that situation from cases

“in which although, after the Board’s order, the employer has

gone out of business, the order is in part possible of enforce-

ment * * *.” 184 F. 2d at 131.

——

_

2 er

10

against a person who, although an alien at the time

of the issuance of the order, had become a citizen

before its execution. There, as the court pointed

out (p. 526), ‘‘the immigration authorities [had]

lost all power over her and [were] without author-

ity to deport her.’”’ Here, although the Board may

not have the power to entertain future unfair

labor practice charges against petitioner if the lat-

ter’s operations no longer affect commerce, the

Board, as we have stated, has not lost its power

under the statute to remedy past unfair labor

practices committed by petitioner which affected

_commerce within the meaning of the Act.

CONCLUSION

The decision below is correct and presents neither

a conflict of decisions nor any substantial ques-

tion warranting review. The petition for a writ of

certiorari should be denied.

Respectfully submitted,

Rosert L. STERN,

Acting Solicitor General.

‘GrorGE J. Bort,

General Counsel,

Davin P. FINDLING,

Associate General Counsel,

Dominick L. MANOLI,

Assistant General Counsel,

Rosert G. JOHNSON,

Attorney,

National Labor Relations Board.

DECEMBER, 1953.

11

APPENDIX

Section 10(c) of the National Labor Relations

Act, as amended (61 Stat. 136, 29 U.S. C., Supp. V,

151, et seg.), provides in pertinent part as follows:

PREVENTION OF Unrarr LAaBor PRACTICES

Sec.10.* * *

(c) The testimony taken by such member,

agent, or agency or the Board shall be reduced

to writing and filed with the Board. There-

after, in its discretion, the Board upon notice

may take further testimony or hear argument.

If upon the preponderance of the testimony

taken the Board shall be of the opinion that any

person named in the complaint has engaged

in or is engaging in any such unfair labor prac-

tice, then the Board shall state its findings

of fact and shall issue and cause to be served

on such person an order requiring such per-

son to cease and desist from such unfair labor

practice, and to take such affirmative action

including reinstatement of employes with or

without back pay, as will effectuate the poli-

cies of this Act: * * *

* U. S. GOVERNMENT PRINTING OFFICE: 1983 280368 603

SUBJECT INDEX

Page

Questions presented ............ see eee eee eeeeees l

Summary of facts pertaining to the jurisdictional issue 2

Why the writ of certiorari should be allowed ........ 2

Funeral Directors and Embalmers are ‘professional

NE og ib ohies Cove eons Robes Nese neurWedee 5

The question of whether a Funeral Director is or is not

in “Interstate Commerce” has been decided in

cases other than N.L.R.B. cases. ...........-6- 9

RR oe ck da alc nih 6 oe EOE OOO oh ash 12

TABLE OF AUTHORITIES CITED

Cases

Page

American Express Co. v. Eppley, 5 Ohio Dec. (Rep.)

DOT nGib kh van devas seks bate ks bane camepedces 3-4

Beekman St., Matter of (N.Y.) 4 Bradf. Surr.503.... 4

Buchanan v. Buchanan, 28 Misc. 261, 59 N.Y. Supp.

| RE eee tS Per reer y Tr eae Pot ee 3

Danahy v. Kellogg, 70 Misc. 25, 126 N.Y. Supp. 444... 3

Driscoll v. Nicholls, 71 Mass. 488 .............--- 4

Enos v. Snyder, 131 Cal. 68, 63 P.170 ...........-.- 3

Fox v. Gordon (Pa.) 16 Phila. 185 .............+.-- 4

Griffith v. Charlotte, etc. R. Co., 23 S.C. 25 ........ 3

Guthrie v. Weaver, 1 Mo. App. 136 ..........---. 5

Hayne’s Case, 12 Coke 113, 77 Eng. Rep. 1389 ...... 4

Hutchinson Land Co. v. Whitehead Bros. Co. 217

N.Y.S. 413, 418, 127 Misc. 558 .........-.-5--: 3

Jefferson County Burial Society v. Scott, 218 Ala. 354,

a | Spee eer eer rT Trey eer Tee eee. 3

Jones v. Ashburnham, 4 East 455, 102 Eng. Rep.905.. = 3

Keyes v. Konkel, 119 Mich. 550, 78 N.W. 649 ...... 3

II.

Long v. Chicago, etc. R. Co. 15 Okla. 512, 86 P. 289 4

Newman, Maurice E. of Dover, Del., I. C. Docket MC

SOR + btw ake vin canbe eee sete ci patasak newest 9.

Northeast Coal Co. v. Pickelsimer, 68 S.W. 2d 760,

8 Se re ee rere ere pry rer rte re 3

O'Donnell v. Slack, 123 Cal. 205 0.0.5 ccccsevcees 3

Pacific Exp. Co. v. Gathwright, 61 Tex. Civ. App. 587,

PO NE SO x odie ebb bbs codices akon aus 4

Reg. v. Fox, 2 Ad. & El. (N.S.) 246,114 Eng. Rep.95 4

; Reg. v. Scott, 2 Q.B. 248, note b, 114 Eng. Rep. 97 . 4

j Southern Life & Health Ins. Co. v. Morgan, 21 Ala.

ee 8 Se BP eer eee eer 4

‘ Toppin v. Moriarty, 59 N. J. Eq. 115,44 Atl. 469 .... 4

3 Union Funeral Service of Gillespie, Ill., 1.C. No. MC

3 BE hinds sper ceeds KeReak eds aaeberedcens 9

} Wong Yung Quy on Habeas Corpus, 2 Fed. 624 ...... 2

‘ STATUTES

. Page

Deering’s California Codes, Article 1—Par. 7600 .... 6

Par. 7622 . 7

: Par. 7643 7

Par. 7646 8

} Par. 7662 8

f Par. 7668 ..... 8-9

q Federal Code Annotated, Title 29, Par. 152 (12) . 5

{ Federal Code Annotated, Title 29, Par. 151 (12) .... 9

3 Federal Code Annotated, Title 29, Chapter 8, Par. 201 9

4 Federal Code Annotated, Title 29, Par. 213 (a) .... 10

Federal Code Annotated, Title 42, Par. 411 (c) (5) .. 10

Federal Code Annotated, Title 42, Par. 411 (c) .... 10

Federal Code Annotated, Title 49, Par. 301 ...... 9

In the

UNITED STATES SUPREME COURT

October Term 1953

No. 438

FOREST LAWN MEMORIAL-PARK

ASSOCIATION, INC.,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

BRIEF OF NATIONAL FUNERAL DIRECTORS

ASSOCIATION OF THE UNITED STATES, INC.

AS AMICUS CURIAE

National Funeral Directors Association of the United

States, Inc., a non-profit corporation, which is composed

of more than twelve thousand independent Funeral Di-

rectors located in all forty-eight States of the Nation, and

in Alaska, Hawaii and’ Puerto Rico, is filing this Brief with

the consent of the Petitioner and the Respondent.

QUESTIONS PRESENTED

The question presented, to which this Amicus Curiae

desires to direct this Brief is — ““Does the Petitioner come

within the provisions of the National Labor Relations Act

as amended, insofar as Interstate Commerce is concerned?”

2

1. SUMMARY OF FACTS PERTAINING TO THE

JURISDICTIONAL ISSUE.

The facts are well set out in the Petition for a Writ of

Certiorari filed by the Petitioner herein.

2. WHY THE WRIT OF CERTIORARI SHOULD

BE ALLOWED.

A. The shipping of bodies outside the State of Califor-

nia does not constitute “Interstate Commerce” within the

meaning of the Act.

(1) The responsibility for and jurisdiction of the body

ceases when the remains are delivered to the baggage agent

of the carrier; consequently the Funeral Director performs

no act in “Interstate Commerce.”

(2) Adead human body does not constitute “property”

in the normal sense of the word when we are thinking in

terms of Interstate Commerce.

For hundreds of years, since the beginning of what we

now know as Modern Law, it has been held that a dead

human body is not “property” in any sense of the word.

In re Wong Yung Quy on Habeas Corpus, a case re-

ported in 2 Fed. 624 it was held:

“A corpse is not property, and the remains of

human beings carried out of the State for burial

in a foreign country are not exports within the

meaning of the clause of the Constitution pro-

hibiting the laying of imposts or duties by the

State upon exports.”

It was thus determined that a dead humar. body with

its casket cannot be considered as property being exported,

even when it is being carried outside the State.

8

In the case of A. F. Hutchinson Land Company v.

Whitehead Bros. Co., 217 N.Y.S. 413, 418, 127 Misc. 558,

it was held:

“There is no right of property in a dead body

in the ordinary sense, but it is regarded as property

so far as necessary to entitle next of kin to legal

protection from violation or invasion of its place

of burial.”

See also Northeast Coal Co v. Pickelsimer, 68 S.W. 2d

760, 253 Ky. 11.

A dead body is not part of the assets of the estate.

O’Donnell v. Slack, 123 Cal. 285;

Enos v. Snyder, 131 Cal. 68, 63 P. 170;

Griffith v. Charlotte, etc. R. Co., 23 S.C. 25.

It is not subject to replevin.

Keyes v. Konkel, 119 Mich. 550, 78 N.W. 649;

Buchanan v. Buchanan, 28 Misc. 261, 59 N.Y.

Supp 810.

It is not property in a sense that will support discovery

proceedings.

Danahy v. Kellogg, 70 Misc. 25, 126 N.Y. Supp

444.

It may not be held as security for funeral costs.

Jefferson County Burial Society v. Scott, 218 Ala.

354, 118 So. 644;

American Express Co. v. Eppley, 5 Ohio Dec.

(Rep.) 337;

See also

Jones v. Ashburnham, 4 East 455, 102 Eng. Rep.

905;

4

Reg. v. Fox, 2 Ad. & El. (N.S.) 246, 114 Eng. Rep.

95;

Reg. v. Scott, 2 Q. B. 248, note b, 114 Eng. Rep.

97.

It cannot be withheld by an express company or returned

to the sender, where shipped under a contract calling

for cash on delivery.

American Express Co. v. Eppley, supra;

Pacific Exp. Co. v. Gathwright, 61 Tex. Civ. App.

587, 130 S.W. 1035.

It may not be the subject of a gift causa mortis.

Driscoll v. Nicholls, 71 Mass. 488.

It is not common law larceny to steal a corpse.

Toppin v. Moriarty, 59 N.J. Eq. 115, 44 Atl. 469;

Fox v. Gordon, (Pa.) 16 Phila. 185;

Hayne’s Case, 12 Coke 113, 77 Eng. Rep. 1389.

Rights in a dead body exist ordinarily only for pur-

poses of burial, and, except with statutory authorization,

for no other purpose.

Southern Life & Health Ins. Co. v. Morgan, 21

Ala. App. 5, 105 So. 161;

Matter of Beekman St. (N.Y.), 4 Bradf. Surr. 503;

Long v. Chicago, etc R. Co., 15 Okla. 512, 86 P.

289.

Since dead bodies do not constitute “property,” the

question might arise concerning the casket, clothing or

other tangible items incident to the burial.

Funeral Directing is not a commercial business in the

ordinary sense of the word; neither is the Funeral Director

a “supplier.” He solely renders a service. He can be

i

;

;

5

likened to the doctor, lawyer, dentist. The tangible items

he uses in his profession are but incidental to the service

he renders.

In the case of Guthrie v. Weaver, 1 Mo. App. 136, it was

held that:

“A coffin which, with the consent of all persons

having any pecuniary interest therein, had been

deposited in a grave for purposes of interment

with a corpse enclosed within it, is no longer a

subject of property.”

Thus, when a Funeral Director administers embalming

fluid to a dead body, or supplies it with a suit of clothes

or a shroud, these are rendered in connection with the

Funeral Director’s professional services.

We thus respectfully contend that the Petitioner is not

engaged in “interstate commerce’’ because he does not

ship anything outside the State which can be legally claimed

as “property,” and even though it should be held that a

dead human body and casket are ‘‘property’’ then the con-

trol and custody of the shipment ceases when the same

have been delivered to the baggage agent of the carrier.

3. FUNERAL DIRECTORS AND EMBALMERS ARE

“PROFESSIONAL MEN.”

As “professional men’”’ Funeral Directors and embalmers

are exempt under the National Labor Relations Act as

amended. Title 29 F.C.A. par 152 (12) of this Act provides

as follows:

“The term “professional employee” means —

(a)any employee engaged in work (i) pre-

dominantly intellectual and varied in character

as opposed to routine mental, manual, mechani-

6

cal, or physical work; (ii) involving the consistent

exercise of discretion and judgment in its per-

formance; (iii) of such a character that the out-

put produced or the result accomplished cannot

be standarized in relation to a given period of

time; (iv) requiring knowledge of an advanced

type in a field of science or learning customarily

acquired by a prolonged course of specialized

intellectual instruction and study in an institution

of higher learning or a hospital, as distinguished

from a general academic education or from an ap-

prenticeship or from training in the performance

of routine mental, manual, or physical processes;

or

(b) any employee who (i) has completed the

courses of specialized intellectual instruction and

study described in clause (iv) of paragraph (a),

and (ii) is performing related work under the

supervision of a professional person to qualify

himself to become a professional employee as de-

fined in paragraph (a) .”

Practically every State of the Union, including California,

has a license law governing Funeral Directors and Em-

balmers which laws were placed on the books primarily

to protect the public and to raise the standards and ethics

of the Funeral Director and Embalmer.

These laws, many of which were drawn under the

supervision of the General Counsel of National Funeral

Directors Association of the United States, Inc., are pattern-

ed after the various State laws governing lawyers, doctors

and dentists. They require extended courses of study,

examination and licensing. Thus the California Law

known as “The Funeral Directors and Embalmers Law,

Business and Professions Code of Deering’s California

Codes,” Article 1, § 7600 et seq. provides that the ap-

7

plicant for a Funeral Director’s license, must be over

twenty-one years of age, of good moral character and must

be examined, and successfully pass the examination on —

l.

>

3.

Signs of death

Manner of determining death

Laws governing preparation, burial and disposal of

dead human bodies and shipment thereof

Local health laws and regulations.

(see paragraph 7622)

The cond@# of his business is specifically regulated by

rules and regulations promulgated by the State Board of

Funeral Directors and Embalmers.

Embalmers are separately licensed. (Par. 7640.) Para-

graph 7643 provides tha. the applicant for embalmer’s li-

cense must:

-

Be over 21 years of age.

2. Of good moral character.

2.

Furnish proof of completion of high school course

or that he has been licensed and has practiced as an

embalmer for three of the last seven years in

another State or County and that such license was

never suspended or revoked for unethical conduct.

Have completed two years apprenticeship under li-

censed embalmer in this State and practiced as such

in an approved funeral establishment and assisted in

the embalming of 100 human dead bodies; provided

that one who has practiced embalming three of the

last seven years in another State or county and never

had license suspended or revoked shall serve

only one year apprenticeship and shall have assisted

in the embalming of 50 dead human bodies.

8

5. Complete course of nine months in approved em-

balming school on subjects set out in § 7646.

The subjects of examination are set forth in § 7646, which

are as follows:

1 - Theory of embalming

2 - Anatomy, histology, embryology and dissection

3 - Pathology and bacteriology

4 - Hygiene, sanitation, health

5 - Chemistry, toxicology

6 - Restorative art

7 - Health laws and rules

Apprentice embalmers must, according to paragraph 7662 —

1 - Be over 18 years of age

2 - Of good character

3 - Furnish proof of high school completion or that he

has practiced as an embalmer for three of last seven

years in other state or county and his license was

never revoked or suspended.

The Board may suspend or revoke licenses of Funeral Di-

rectors and Embalmers and apprentices after hearing. The

stringency of this supervision is illustrated under Paragraph

7668 which provides as follows:

“The Board may suspend or revoke certificate of

apprenticeship when apprentice is found guilty

after hearing, for the following acts or omissions: -

a. Failure to devote full time to apprenticeship.

b. Failure to make reports as required to Board.

c. Absence from duty unauthorized.

d. Gross immorality.

e. On duty under influence of liquor.

f. Disobedience of orders of superior.

VOIR, ME IE LN ef OPTS

75 SAE

9

g. Violation of law or regulations of Board.

h. Soliciting business for funeral director or embalmer.

i. Fraud or misrepresentation.

j. Failure to pay fee.

Thus, in the eyes of the laws of California and the other

States having licensing laws, and under Title 29 F.C.A.

paragraph 151 (12), Funeral Directors and Embalmers as-

sume the status of ‘professional men.”

4. THE QUESTION OF WHETHER A FUNERAL

DIRECTOR IS OR IS NOT IN “INTERSTATE

COMMERCE” HAS BEEN DECIDED IN CASES

OTHER THAN N.L.R.B. CASES.

A. Thus, under the Motor Carrier Act of 1935 as

Amended. Title 49 F.C.A., par. 301 et seq., it was held

in 1938, In the Matter of Maurice E. Newman of Dover,

Delaware, Docket MC 18962, by the Interstate Commerce

Commission after a thorough hearing, that the Funeral Di-

rector was not engaged in Interstate Commerce, and this

notwithstanding the fact that a substantial part of his equip-

ment, caskets and fluids had been purchased outside the

State of Delaware, and that about three percent of his

visits in carrying on his business as a Funeral Director

brought him into another State. See also case of Union

Funeral Service of Gillespie, Illinois, I. C. No. M C 67243.

B. Federal Wage and Hour Law.

(Fair Labor Standards Act)

Title 29 F.C.A. Chapter 8, par 201 et seq.

Under this Act the Funeral Director is exempt as a

Service Establishment, the greater part of whose selling or

servicing is in intrastate commerce.

10

Title 29, par. 213 Exemptions (a) provides in part as

follows:

“The provisions of Sections 6 and 7 (pars. 206,

207 of this title) shall not apply with respect to

(1) any employee employed in a bona fide execu-

tive, administrative, professional, or local retailing

capacity, or in the capacity of outside salesman

(as such terms are defined and delimited by regu-

lations of the administrator); or (2) any em-

ployee engaged in any retail or service establish-

ment the greater part of whose selling or servicing

is in intrastate commerce.”

C -The Social Security Act as amended, Title 42, par.

411 (c) (5) excludes self employed funeral directors,

placing them in the same category as physicians, lawyers,

dentists and other professional men.

Title 42 F.C.A. par 411, Self-Employment (c) Trade or

Business.

“The term “‘trade or business’, when used with

reference to self-employment income or net earn-

ings from self-employment, shall have the same

meaning as when used in Section 23 of the

Internal Revenue Code (26:23) except that such

term shall not include —

(1) The performance of the functions of a

public office;

(2) The performance of service by an indivi-

dual as an employee (other than service described

in Section 210 (a) (16) (B) [par. 410 (a) (16)

(B) of this title] performed by an individual

who has attained the age of eighteen;)

(3) The performance of service by an indivi-

dual as an employee or employee representative

as defined in Section 1532 of the Internal Revenue

Code (26:1532) ;

1]

(4) The performance of service by a duly

ordained, commissioned, or licensed minister of

a church in the exercise of his ministry or by a

member of a religious order in the exercise of

duties required by such order; or

(5) The performance of service by an indivi-

dual in the exercise of his profession as a physi-

cian, lawyer, dentist, osteopath, veterinarian,

chiropractor, naturopath, optometrist, Christian

Science practitioner, architect, certified public

accountant, accountant registered or licensed as

an accountant under State or Municipal law, full-

time practicing public accountant, funeral di-

rector, or professional engineer; or the perform-

ance of such service by a partnership.

During the writer’s more than forty years practice of

the law — and particularly as United States Attorney for

the Southern District of Ohio under the Wilson Adminis-

tration — we saw attempts by various governmental agencies

in the administrative or executive branch, to extend their

jurisdiction by amending by regulation or rule, the statutes

under which they operated, yet never have we seen such

an attempt as the National Labor Relations Board has

been making during the past few years, even though, as

stated above, every other governmental agency has held

the average funeral director to be not engaged in interstate

commerce — and this, even though in a case before the Inter-

state Commerce Commission, a part of the actual funeral

service rendered, went across a state line into another

State.

Not only is the National Labor Relations Board, in our

opinion, attempting to improperly extend its jurisdiction

by arbitrary rulings and formulae, but they are going

counter to every other governmental agency and therefore,

Be

12

every Act of Congress under which these other govern-

mental bodies operate. As an example, take the Fair Labor

Standards Act, which expressly exempts retail and service

establishments under certain conditions. The funeral di-

rector is admittedly in the Service branch of endeavor.

In a very recent situation this Court held that pro-

fessional baseball was still a sport and not a business even

though it admittedly was in interstate commerce. We

mention this because in our situation the National Labor

Relations Board, in its attempt to obtain jurisdiction over

another line of endeavor, is not only making Interstate out

of Intrastate, but is endeavoring to take Funeral Services

out of the service category.

As a matter of fact, if the average funeral director is

subject to the jurisdiction of the National Labor Relations

Board, then in our opinion, every corner drugstore and

small retail establishment, every barber shop and other

service enterprise, in fact, everybody is engaged in inter-

state commerce and should be subject to the supervision

of the National Labor Relations Board. This I do not

believe was ever intended by Congress or it would not

have passed the laws creating the Federal Trade Commis-

sion, the Interstate Commerce Commission, the Wage and

Hour Division, and others.

5. CONCLUSION

It is respectfully submitted for the reasons above set

forth that the Court of Appeals has wrongfully held that

the National Labor Relations Board had jurisdiction in this

case, and its decision is of such far-reaching consequence

that the Writ should be granted and that this Honorable

a

13

Court may once and for all time properly define the status

of a Funeral Director and Embalmer insofar as the National

Labor Relations Act is concerned.

Dated January 4, 1954.

eneral Counsel for National

uneral Directors Association of

BURTON E. ROBINSON, on the Brief.

PETITION

— FOR A

WRIT OF

CERTIORARI

>

ers

ERO ras etm

Se

> a

+ We

sae Risarenlwe

:

SUBJECT INDEX

PAGE

Opinions Below 1

Jurisdictional Statement 2

Question Presented 2

Statute Involved 2

Summary Statement of the Case 2

Specification of Errors 7

Reasons Relied on for the Allowance of the Writ 7

Conclusions 15

Appendix. Pertinent Provisions of the Act . App. p. 1

TABLE OF AUTHORITIES CITED

CasES PAGE

Conley v. San Carlos Opera Co., 163 F.2d 310 (2d Cir. 1947)...

Federal Baseball Club of Baltimore, Inc. v. National League of

Professional Baseball Clubs, 259 U.S. 200, 42 S.Ct. 465

(1922)

Federal Trade Commission v. Bunte Bros., Inc., 312 U.S. 349,

61 S.Ct. 580 (1941)

Forest Lawn Memorial-Park Association, Inc., 97 N.L.R.B.

309 (1951), enforced, 206 F.2d 569 (9th Cir. 1953), pet. for

cert. filed Oct. 26, 1953 8,

Fox v. Summit King Mines, 143 F.2d 926 (9th Cir. 1944)........

Gray v. Southern Pacific Co., 21 Cal. App. 2d 240, 68 P.2d

1011 (1937)

Hart v. B. F. Keith Vaudeville Exchange, 12 F.2d 341 (2d

Cir. 1926)

Hazen & Jaeger Funeral Home, 95 N.L.R.B. 1034 (1951)........

Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 114-

115, 59 S.Ct. 423, 425 (1939)

McLeod v. Dilworth Co., 332 U.S. 327, 64 S.Ct. 1023 (1944)...

National Labor Relations Board v. Condenser Corp. of America,

128 F.2d 67 (3d Cir. 1942)

National Labor Relations Board v. Gullett Gin Co., 340 U/S.

361, 366, 71 S.Ct. 337.

National Labor Relations Board v. Hazen, et al., 203 F.2d 807

(9th Cir. 1953) 8,

National Labor Relations Board v. Idaho Maryland Mines Corp.,

98 F.2d 129 (9th Cir. 1938)

National Labor Relations Board v. Shawnee Milling Co., 184

F.2d 57 (10th Cir. 1950)

Press Co. v National Labor Relations Board, 118 F.2d 937

(D.C. Cir. 1940), cert. den. 313 U.S. 595 (1941)...

12

11

14

10

14

Riverside Memorial Chapel, Inc., 92 N.L.R.B. 1594 (1951)........

Spears Free Clinic and Hospital v. Cleere, 197 F.2d 125, 126

(10th Cir. 1952) 11

Steen v. Whittington, 9 Cal. App. 2d 445, 50 P.2d 118 (1935) 8

United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357

(1950) 13

Wong Yung Quy, In re, 2 Fed. 624 (C.C.D. Calif. 1880)............ 8

STATUTES

United States Code, Title 28, Sec. 1254 2

United States Code, Title 29, Secs. 151 et seq 2

United States Constitution, Art. I, Sec. 10(2)

IN THE

Supreme Court of the United States

October Term, 1953.

BO Siciehdaccpaniecione

PIERCE BROTHERS,

Petitioner,

vs.

NATIONAL LABoR RELATIONS BOARD,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit.

Petitioner Pierce Brothers prays that a Writ of Cer-

tiorari issue to review the decree of the United States

Court of Appeals for the Ninth Circuit entered in the

above-entitled case on September 16, 1953, and respectfully

shows:

Opinions Below.

Decision and Order of the National Labor Relations

Board [R. 59] are reported at 97 N.L.R.B. 317 (1951).

The opinion of the Court of Appeals [R. 198] is off-

cially reported at 206 F.2d 569 (9th Cir. 1953).

ae Ne

Jurisdictional Statement.

The statute believed to sustain the jurisdiction of this

Court is Section 1254 of Title 28 of the United States

Code.

Question Presented.

Did petitioner engage in labor activities affecting com-

merce within the meaning of the Act or within the mean-

ing of the Commerce Clause of the United States Con-

stitution ?

Statute Involved.

The statute, the proper application of which is involved,

is the National Labor Relations Act as amended (Sections

151 et seq. of Title 29, United States Code), which con-

fers 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 the Appendix.

Summary Statement of the Case.

1. Summary of Procedure Below.

Petitioner seeks review of a decree of the United States

Court of Appeals for the Ninth Circuit filed September

16. 1953, enforcing an order of the National Labor Rela-

tions Board directing petitioner to take certain action re-

garding the alleged commission of certain «unfair labor

practices by petitioner [R. 201].

After filing by the Union of an unfair labor practice

charge against petitioner [R. 1], the Board issued its

complaint based thereon (Case No. 21-CA-1078) [R. 4],

‘tiled

and a hearing before a Trial Examiner of the Board was

conducted [R. 64]. Facts bearing on the interstate com-

merce question were stipulated by counsel and admitted in

evidence [R. 11, 69].

Then petitioner moved for a dismissal of the complaint

for lack of jurisdiction on the ground that it was not en-

gaged in commerce within the meaning of the National

Labor Relations Act, and that none of its labor practices

could affect commerce within the meaning of the Act.

The Trial Examiner reserved decision on this motion and

petitioner withdrew from the hearing, preferring to rest

its entire defense upon what it regarded as a clear-cut lack

of jurisdiction of the subject matter [R. 70-71}.

After the hearing the Trial Examiner issued his Inter-

mediate Report denying petitioner’s motion to dismiss [R.

22] and finding that petitioner had committed unfair labor

practices affecting commerce within the meaning of the

Act [R. 29-31].

The Board adopted the Trial Examiner’s finding in its

decision and order [R. 59] and subsequently petitioned

the Court of Appeals for the Ninth Circuit for enforce-

ment of its order [R. 187].

Following the receipt of briefs and hearing of oral

argument on the jurisdictional issue, the Court of Ap-

peals entered its decree on September 16, 1953, enforcing

the Board’s order [R. 201].

On application of petitioner issuance of mandate has

been stayed by such court pending the filing of this peti-

tion on or before November 26, 1953, such date to be

continued pending the final disposition of the case by the

Supreme Court of the United States,

— in

2. Summary of Facts Pertaining to the Jurisdictional Issue.

Petitioner is a California corporation engaged since

1902 in the undertaking business in Los Angeles County.

Because of the geography of Metropolitan Los Angeles

and the localized nature of mortuary activities it operates

15 mortuaries in such county, all but one within a radius

of 15 miles of the main office.

In the 12 months’ period ending on March 31, 1951,

Pierce Brothers purchased capital equipment, materials,

and supplies of a value of approximately $590,000.00. Of

tiis total amount approximately $7,500.00 worth in value

was shipped to petitioner directly from out of state and

$45,000.00 worth, while purchased locally, originated out-

side the state. That is, there was less than 1.3% of direct

“inflow” and less than 8% of indirect “inflow” [R. 13].

In such 12 months’ period petitioner handled 5,780

cases from which it received approximately $1,900,000

[R. 13]. In 722 of such cases either the bodies (544

cases) or the cremated remains (178 cases) were ulti-

mately shipped out of California. In many of such cases

the bodies were transported to vaults in local cemeteries

or the cremated remains were held at Pierce Brothers

Crematorium, a wholly owned subsidiary, for days, weeks,

and even months pending a decision by the family as to

where in the State of California or elsewhere the remains

should be interred [R. 15, 16].

In connectic.i with most of these 722 cases, petitioner

furnished all of its customary services including the fol-

lowing: making the first call to the home or hospital, pick-

ing up the body and removing it to Pierce Brothers’ near-

est mortuary; embalming, dressing, performing cosmetic

work, and otherwise preparing the body for burial; placing

a

and maintaining the body in a reposing room; publishing

the obituary notice; preparing and executing the death

certificate, and obtaining the attending doctor’s signature

thereto; obtaining the interment or removal and other

required state and local government permits; furnishing

the chapel and conducting the service (including arrange-

ment of flowers, furnishing organist, soloist, altar, and

other accoutrements for all faiths, funeral director and

attendants) ; transporting the family; furnishing acknowl-

edgment cards and giving comfort, counsel and advice [R.

14, 15].

The only additional service performed where remains

were to be shipped, either within the state or out of state,

was the furnishing of a shipping case (for bodies) or box

(for ashes) and the making of arrangements with the

carrier. Petitioner made no additional charge for such

arrangement [R. 15]. Where a decision is made to have

the remains shipped elsewhere Pierce Brothers instructs its

employees to obtain from the client an authorization and

direction for shipment, making Pierce Brothers the agent

for the client as consignor. Pierce Brothers’ employees

followed instructions and obtained such a form [R. 19]

in approximately one-half of the cases handled [R. 15].

Of the cases in which the remains were moved to other

states only 121 were handled for out-of-state clients.

These paid only $4,604.40 for shipping cases and shipping

boxes and $5,220.00 for caskets, and $13,349.55 for the

usual locally performed mortuary and crematory serv-

ices. Thus receipts from caskets and shipping cases and

boxes in such cases totalled only $9,824.40, or five-tenths

of one per cent (.005) of the total receipts for the year

($1,900,000.00) [R. 13, 20].

a

Local clients by or for whom the remaining out-of-state

shipments of remains were made, paid $23,830.00 for

shipping cases and boxes and $68,287.56 for caskets which

were shipped, and $180,727.59 for the usual locally per-

formed mortuary and crematory services [R. 13, 20].

In many of these instances caskets were furnished be-

fore any decision regarding shipment was reached by the

family [R. 15] The furnishing of a casket is standard

procedure in all cases, whether interment is to be local or

otherwise [R. 14].

In over 99% of the cases handled annually by petitioner

the person died or was buried in Los Angeles County.

In over 957% of the cases handled annually the deceased

died and/or the client lived within fifteen miles of the

particular mortuary handling the case [R. 13].

Petitioner owns 97% of the capital stock of Pierce In-

surance Company, a California corporation engaged in

the funeral service insurance business. Such company is

an independent business, with separate officers who have

independent power to determine employment and person-

nel policies and procedures. Such company’s insurance is

handled by a large number of independent mortuaries and

sold by employees thereof and of petitioner. Pierce In-

surance Company is licensed to do business in a number

of states and in Hawaii, doing over $25,000.00 worth of

business in California, Missouri and Washington in 1950,

and over $20,000.00 in Hawaii in 1950 [R. 16-18].

ili

Specification of Errors.

The Court of Appeals erred:

(1) In holding that petitioner engaged in labor activi-

ties affecting commerce within the meaning of the Act.

(2) In holding that reenactment of the Labor Act did

not give the force of law to prior Board policy of refusing

to assert jurisdiction over mortuaries.

(3) In failing to remand the proceeding to the Board

for the receipt of evidence establishing the Board’s prior

practice with regard to mortuary Cases.

(4) In failing to hold that reversal by the Board of

its long-standing rule of hearing cases involving mor-

tuaries amounted to the issuance of a rule of general

policy required by the Administrative Procedure Act to

have been published in the Federal Register.

(5) In failing to find that Congress intended that mor-

tuaries are and should remain beyond the jurisdiction of

the Board.

(6) In enforcing the Board’s order.

Reason Relied on for Allowance of the Writ.

In view of the large number of mortuaries and other

organizations performing local professional services, it is

of national importance for this Court to decide whether

labor activities of such organizations affect commerce .

within the meaning of the National Labor Relations Act

or the Constitution,

—F

a

The Court of Appeals for the Ninth Circuit is the only

federal court having decided whether the labor practices

of a mortuary could affect commerce within the meaning

of the Act or Constitution." Due to the fact that such

activities are not commercial and do not involve production

in the ordinary sense but partake of a professional nature,

and considering the large number of organizations similar

to petitioner which are affected by the decision below, this

important question calls for final decision by the United

States Supreme Court.

1. Interstate Movement of Human Remains.

Jurisdiction was based in large part by the court below

upon the fact that in a small percentage of the mortuary

cases handled by petitioner, the human remains, after

petitioner had perform all its services, were taken outside

the state for burial. This result was reached even though

under petitioner’s prescribed procedure it is the clients who

are consignors and petitioner acts only as their agent.

In such a case no transportation of goods in the ac-

cepted sense takes place. A dead body or its ashes is not

a commodity. It is not even property in the usual sense.

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); In re Wong Yung Quy, 2 Fed.

624 (C.C.D. Calif. 1880) (holding that remains of de-

ceased persons are not exports as the term is used in Arti-

cle I, Section 10(2) of the United States Constitution). A

1In addition to this case and its companion case, National Labor

Relations Board v. Forest Lawn Memorial-Park Association, Inc.,

the court below has decided National Labor Relations Board v.

Hazen, et al., 203 F.2d 807 (9th Cir. 1953).

ins

body and casket are intended for interment only and the

shipping case, not intended for further use, has no value

unless it be for scrap. Thus, nothing of commercial value

is transported; nothing is intended for the channels of

commerce. There is no interstate business occurring be-

tween petitioner and its clients.

In order to affect commerce, petitioner’s activities would

have to be related to the interstate movement of products,

messages, or credits. A dead body or cremated remains is

none of these, and petitioner is engaged solely with the

preparation of the dead for burial.

Labor strife may have a decided impact upon ordinary

business activity but death is controlled only by the im-

mutable laws of nature. Regardless of labor strife or

interpretations of the Act, people will continue to die and

be buried.

It is submitted that the court below wholly failed to

appreciate the basic question involved.

2. Measurement of Interstate Activity.

As the measure of interstate activity the court below

and the Board counted all amounts received by petitioner

for its locally performed mortuary, funeral and _ related

services in those cases where out-of-state burial occurred.

This unrealistic approach disregards the nature of the

services rendered. Preparation of dead human remains is

accomplished for purposes of dignified, reverent burial ;

funeral services include such utterly uncommercial activi-

ties as the preaching of sermons, singing of hymns, con-

duct of church services and care of the bereaved. None

of these services has the remotest connection with prod-

ucts which are to move in commerce. Such services are

haieaiaat —

<n

truly local in character and on a par with other local

activities such as those of lawyers, consultants, those prac-

ticing the healing arts, notels, sanitariums and hospitals.

The fact that in some of the cases after petitioner has

performed its local services the body is interred in some

other state is entirely incidental to the main activity.

But even if that were not so, the only items which

properly could be considered in determining dollar

volume of interstate activity are the shipping cases and

possibly the caskets, although the caskets are transported

solely for ultimate consumption in the interment of the

dead human remains they contain. Any yardstick based

on locally performed personal services rendered “in connec-

tion with” the sale of such items would be a vague and

shifting standard incapable of just application.

3. The Distinction Between Local and Out-of-State Clients.

Furthermore, the court below ignored the distinction

between out-of-state and local clients of petitioner. In the

case of a local client petitioner has no interstate contacts

whatever. Surely, the fact that after petitioner has com-

pleted all its services for which it is compensated, the local

client with petitioner’s assistance makes a non-commercial

shipment of the body for burial cannot convert all that

has gone before into interstate commerce.

The court below has previously held location of the cus-

tomer to be of vital importance in determining whether

commerce is affected. Cf. National Labor Relations

Board v. Idaho Maryland Mines Corp., 98 F.2d 129 (9th

Cir. 1938) (customer located in same state as seller) with

Fox v. Summit King Mines, 143 F.2d 926 (9th Cir.

1944) (shipments to out-of-state customer); see also

— oe

McLeod v. Dilworth Co., 332 U. S. 327, 64 S.Ct. 1023

(1944), involving the constitutionality of a state taxing

statute as applied to particular sales, which held that a sale

made in Tennessee upon the request of an Arkansas cus-

tomer was a transaction in interstate commerce and there-

fore not subject to the state taxing statute; it was the fact

that the order came from an out-of-state customer which

made the transaction one in interstate commerce.

4. The Baseball Case and Similar Cases.

This Court has clearly established that personal effort

not related to production is not a subject of commerce

and does not become so merely because of prior or subse-

quent interstate transportation. Federal Baseball Club

of Baltimore, Inc. v. National League of Professional

Baseball ‘ lubs, 259 U.S. 200, 42 S.Ct. 465 (1922). In

that case this Court held that the interstate movement of

a major league baseball team to play its games was merely

incidental to the exhibitions, and did not affect commerce.

Shipment of a body to its final resting place, after local

performance of all the various mortuary and funeral

services by petitioner, is also merely an incidental activity.

The decision of the court below conflicts in principle with

the Federal Baseball Club case.

The decision below also conflicts in principle with Spears

Free Clinic and Hospital v. Cleere, 197 F.2d 125, 126

(10th Cir. 1952), which was an action for damages

under the Clayton Act for restraining the practice of

chiropractic. Jurisdiction was sought on the basis of the

travel of patients from out of state to the clinic for treat-

ment. In dismissing, the court held that the practice of

the healing arts is wholly local in character, and is not

ae

x. an

brought into commerce by the facts that patients come

from out of state for treatment.

The decision below is also in conflict in principle with

Hart v. B. F. Keith Vaudeville Exchange, 12 F.2d 341

(2d Cir. 1926), and Conley v. San Carlos Opera Co., 163

F.2d 310 (2d Cir. 1947), also involving the Sherman

Act. These cases held that the transportation of stage

properties, apparatus, costumes, etc., across state lines and

the travel of the performing artists was merely incidental

to the essentially local nature of vaudeville.

5. Purchases Originating Out of State.

Jurisdiction was based to some extent by the court

below upon petitioner’s having purchased relatively small

amounts of supplies and capital equipment having its

original source outside the state.

It is of great practical importance to employers in many

related fields for this Court to decide to what extent, if

any, dollar volume of purchases, direct or indirect, of a

concern engaged in the local performance of professional

services or other characteristically local activities, may be

considered in determining whether its labor practices could

have a substantial effect upon commerce.

6. Significance of National Labor Relations Board History

Under Wagner Act.

Of great significance in determining the existence or

non-existence of jurisdiction in this case is the fact that

during the entire twelve-year period of the Wagner Act,

and for several years after its reenactment, with amend-

ments, by the Taft-Hartley Act there were no pub-

lished rulings, interpretations or decisions to which the

— ae

Labor Board had ever asserted jurisdiction in mor-

tuary cases. The court below [R. 200] dismissed

this history as a “mere failure to assert jurisdic-

tion.” In view of the many decisions of the Board

which are unpublished, particularly those where action

of a Regional Director in dismissing a petition for repre-

sentation is sustained on appeal to the Board in Washing-

ton, the more reasonable inference is that all during the

existence of the Wagner Act the Board followed a uni-

form practice of refusing to assert jurisdiction over mor-

tuaries.

It is true of course that since 1951 the Board has

asserted jurisdiction over mortuaries in this and other

cases. Riverside Memorial Chapel, Inc., 92 N.L.R.B. 1594

(1951) (involving a multi-state mortuary operation) ;

Hazen & Jaeger Funeral Home, 95 N.L.R.B. 1034

(1951), enforced, NLRB v. Hazen, et al., 203 F.2d 807

(9th Cir. 1953); Forest Lawn Memorial-Park Associa-

tion, Inc., 97 N.L.R.B. 309 (1951), enforced, 206 F.2d

569 (9th Cir. 1953), pet. for cert. filed Oct. 26, 1953.

But in view of the Board’s history under the Wagner Act

followed by verbatim reenactment by the Taft-Hartley

Act of the provisions of such Act defining interstate com-

merce, the Board at those late dates was acting without

jurisdiction.

Action of the court below in finding jurisdiction to

exist is clearly in conflict with the following principles:

(a) The fact that powers have long been unexercised

calls for close scrutiny as to whether such powers ever

existed. United States v. Morton Salt Co., 338 U.S. 632,

70 S.Ct. 357 (1950).

sessilis

(b) Refusal or failure to assert jurisdiction for a

long period of time is a fact to be considered in determin-

ing non-existence of jurisdictional power. Federal Trade

Commission v. Bunte Bros., Inc., 312 U.S. 349, 61 S.Ct.

580 (1941).

(c) Long-settled interpretation or practice of an agency

under a statute attains the force of law upon a reenact-

ment of the statute: National Labor Relations Board v.

Gullett Gin Co., 340 U.S. 361, 366, 71 S.Ct. 337, 340-

341 (1951); Helvering v. R. J. Reynolds Tobacco Co.,

306 U.S. 110, 114-115, 59 S.Ct. 423, 425 (1939).

7. Pierce Insurance Company.

The court below did not consider the activities of Pierce

Insurance Company in determining that petitioner was

subject to the Act. While in his intermediate report the

Trial Examiner included facts concerning Pierce Insur-

ance Company in his finding of fact as to the business of

petitioner, he placed no specific reliance upon such activi-

ties. It would not be proper to consider the existence of

Pierce Insurance Company as a feature of this case upon

which jurisdiction could be based. The interstate aspects

of Pierce Insurance Company’s business are completely

separate and distinct from the mortuary operations and

there could be no effect upon the interstate aspects of the

insurance business of Pierce lisurance Company as a re-

sult of any labor practice or labor strife at the mortuaries.

National Labor Relations Board v. Shawnee Milling Co.,

184 F.2d 57 (10th Cir. 1950); Cf. Press Co. v. National

—15—

Labor Relations Board, 118 F.2d 937 (D.C. Cir. 1940),

cert. den. 313 U.S. 595 (1941); National Labor Rela-

tions Board v. Condenser Corp. of America, 128 F.2d

67 (3d Cir. 1942).

There are a large number of mortuaries in the United

States which will be affected by the decision of the court

below. Undoubtedly, many of the mortuaries prepare

bodies which are buried in other state. If the decision of

the court below is allowed to stand, an entire new field of

activity may be opened by the National Labor Relations

Board and its jurisdiction may even be extended to such

organizations as hospitals, clinics, and other professional

and services organizations. This Court should therefore

grant certiorari in this case in the interest of authorita-

tively deciding whether it is proper for the Board to func-

tion in this field.

Conclusions.

It is respectfully urged for the reasons above stated

that (1), the Court of Appeals has so misconstrued the

National Labor Relations Act in finding jurisdiction of

the Board to exist, has so ignored the cited decisions of

this Court, and has so far departed from the accepted and

usual course of judicial proceedings in enforcing the

Board’s order and in failing to remand the case to the

Board for further proceedings, and (2), such conflicts of

law and such unanswered questions exist with regard to

important points of federal law, as to call for an exercise

of the power of supervision of this Court.

Se

Wherefore, petitioner prays that a Writ of Certiorari

issue to the United States Court of Appeals for the Ninth

Circuit to the end that the errors referred to may be cor-

rected by this Court.

Dated: November 24, 1953.

Respectfully submitted,

Dana LATHAM,

Pau R. WATKINS,

Attorneys for Petitioner.

ARNOLD M. CANNAN,

RireHarp W. Lunp,

Joun S. WELCH,

LATHAM & WATKINS,

Of Counsel.