VI THE NATIONAL LABOR RELATIONS ACT IN PRACTICE: JURISDICTION 1 Problems of the scope of the Board's jurisdiction under the commerce clause of the Constitution and under the Act have continued to be worked out case by case by the Board and by the courts in their decisions. The development of the principles with respect to the scope of the Board's jurisdiction has been presented in detail in previous Annual Reports.2 3 A wide variety of industrial activities has been found to "affect commerce." Since this definition of jurisdiction seems to be as broad as the commerce clause of the Constitution the jurisdiction of the Board has been delineated not only by cases arising under the Act ut also by decisions of the Supreme Court construing similar language in other statutes, notably the Fair Labor Standards Act, the Agricultural Adjustment Acts, and the Employers Liability Act. Numerous decisions have established that the Act covers not only labor relations in industries actually engaged in commerce, such as transportation and communications, but manufacturing, mining, lumbering, and the processing and distribution of agricultural commodities, where such activities are conducted on such a scale that they affect the flow of commodities among two or more States. During the past fiscal year the number of judicial decisions, in which the ambit of the Act was directly in issue, were fewer than usual and the cases on the whole have served only to reaffirm and clarify the principles implicit in other cases. The more notable decisions held the Act applicable to a national bank, a national fraternal organization, a local transportation system in a large industrial city, a large retail The Board's jurisdiction is stated in the Act in Sections 10 (a) and 9 (c). "Section 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 commerce. This power shall be exclusive and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise." "Section 9 (c). Whenever a question affecting commerce arises concerning the representation of employees the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected." Commerce is defined in Section 2 (6) to mean "trade, traffic, commerce, transportation or communication" among the several States and in the District of Columbia and the Territories and with foreign countries. "Affecting commerce" is defined in Section 2 (7) as meaning "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 obstructing commerce or the free flow of commerce." See especially Third Annual Report, Ch. VIII; Seventh Annual Report, Ch. VIII. Federal Trade Commission v. Bunte Bros., Inc., 61 S. Ct. 580, 312 U. S. 349. These cases are described in Ch. VII, Enforcement Litigation. department store, and to building and maintenance employees of a loft building. The decisions of the Board and the courts have made clear that it is not the character of the enterprise involved nor its size, nor the number of men employed, nor the nature of the commodities produced or service rendered that is the controlling factor in determining whether the Act may constitutionally be applied in any given situation. The test is whether or not stoppage of operations by industrial strife would result in substantial interruption to interstate or foreign commerce. In two cases, decided during the fiscal year ending June 30, 1943, jurisdiction turned on the question of whether the persons involved were employees within the meaning of Section 2 (3) of the Act, or whether they were independent contractors. In one case tiff miners and haulers were found to be employees of the landowners, in spite of the contention that the miners were independent contractors by virtue of a mining statute, where the miners work on the land in a day-to-day process of earning a living in the service of the landowners. The landowners were the owners of the tiff, with one of the landowners managing the land for all of them, arranging for the disposition of the tiff and giving directions for hauling to the selling points where miners and haulers receive a portion of the selling price fixed by the managing landowner as their pay. In the other case, the Circuit Court of Appeals set aside an order of the Board which found that newsboys engaged in selling daily newspapers in a metropolitan area were employees of the newspaper. This decision has been carried to the Supreme Court. Agricultural laborers are excluded from the protection of the Act by Section 2 (3). The Board and the courts, in deciding whether a particular group of employees are agricultural laborers, consider the nature of the work performed in its actual context. They have held that fruit packers in a packing house, and employees in the feed mill and feeding pens of a meat-packing plant were not "agricultural laborers," since they worked away from the fields, in one case at an occupation not normally associated with agricultural pursuits, and in the other in occupations incidental to an industrial enterprise." Employees of a large-scale commercial nursery who plant, fertilize, cultivate, and harvest crops in the open fields under natural conditions, however, have been held to be agricultural laborers within the meaning of Section 2 (3) of the Act. The Board, during the fiscal year ending June 30, 1943, found that the employees of a large commercial hatchery were agricultural laborers, and hence excluded from the protection of the Act by Section 2 (3).o 3 N. L. R. B. v. Blount, 131 F. (2d) 585 (C. C. A. 8); cert. den. 318 U. S. 791. Hearst Publications v. N. L. R. B., 12 L. R. R. 660; (C. C. A. 9); decided June 12, 1943; petition for certio rari filed September 9, 1943. Matter of North Whittier Heights Citrus Association, 10 N. L. R. B. 1269, enforced in North Whittier Heights Citrus Association v. N. L. R. B. 109 F. (2d) 76 (C. C. A. 9); and Matter of Tovrea Packing Company, 12 N. L. R. B. 1063, enforced in N. L. R. B. v. Torrea Packing Co., 111 F. (2d) (626 C. C. A. 9). Matter of Stark Brothers Nurseries and Orchards Company, 40 N. L. R. B. 1243. Matter of Lindstrom Hatchery & Poultry Farm, 49 N. L. R. B., No. 11. 558154-44-5 VII ENFORCEMENT LITIGATION Orders of the National Labor Relations Board are not self-enforcing. Unless the employer voluntarily complies with the Board's order, the Board must resort to the courts for enforcement. Similarly, if the employer is of the opinion that the Board's order is invalid, he may obtain judicial review of the order. Upon the Board's petition for enforcement or the employer's petition to review, the court enters a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Board. Since the Board has not in previous Annual Reports described in any detail its procedure for securing enforcement of its orders, a brief nontechnical account is given here. The well-established doctrine of judicial review of administrative orders and proceedings is incorporated in the method of enforcement provided by the Act. It operates in this case in the following manner. Only cases involving unfair labor practices are reviewable by the courts. Representation proceedings under Section 9 of the Act, including directions of election and certifications of representatives, are not reviewable as such because they do not lead to an order directing the employer to perform or not perform an act; they merely constitute an investigation to determine the representatives chosen by the employees. Only when representation proceedings become part of a complaint case under Section 8 (5), involving a failure on the part of the employer to bargain collectively, are they reviewable by the courts. This procedure expedites the right of employees to choose their representatives, which might otherwise be impaired by appeals at an intermediate stage. At the same time it guarantees eventual judicial review to an employer who may ultimately be the subject of an order which is predicated on the record produced in the representation proceedings. For similar reasons, in unfair labor practice cases, an appeal can be taken only from a final order of the Board. Then the court reviews 1 American Federation of Labor v. N. L. R. B., 308 U. S. 401. "Whenever an order of the Board made pursuant to Section 10 (c) is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this Section, and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection 10 (e) or 10 (f), and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript." Sec. 9 (d) of the National Labor Relations Act. all intermediate rulings which were made by the Board or its agents in the case, and to which the parties have taken exception. This is in accord with the principle that the administrative process must first be exhausted before court relief is sought. The reviewing courts are the United States Circuit Courts of Appeals, including the Court of Appeals of the District of Columbia. Their decisions are subject to review by the Supreme Court of the United States, upon writ of certiorari or certification as provided in the Judicial Code.3 4 There are two methods outlined in the Act for initiating court proceedings. First, the Board itself may petition the appropriate circuit court for enforcement of its order. Second, any "person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought" may petition the appropriate circuit court for an order setting aside the Board order. Parties who may intervene in the circuit courts to seek the review of a Board order include employers, unions which have been found to be companydominated and ordered disestablished as collective bargaining representatives, and unions involved in contracts which have been found to be in violation of the Act." After a Board order has been issued it is the policy of the Board to attempt to obtain compliance of the parties affected. Frequently agreement is reached for a consent decree in the circuit court, enforcing the Board order. Compliance by an employer with a Board order .does not preclude the Board from seeking its enforcement. In either case a court decree is valuable as a means of precluding the employer from resorting again to the unfair labor practices involved in the past. The reviewing court does not try the case de novo; it considers it only on the record that was prepared in the proceedings before the Board. In order to introduce into the record facts which may bear upon the decision, or to correct any errors which might have crept in, the reviewing court may on its own initiative, or on the petition of the Board, or of the other parties involved, remand the case to the Board for the purpose of introducing additional evidence or rectifying the record in other ways. Similar in purpose is the provision that 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. This procedure leaves the administration of the Act in the hands of the Board. * Sec. 10 (e). • Sec. 10 (f). N. L. R. B. v. Remington Rand, Inc., 94 F (2d) 862 (C. C. A. 2). • Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197. The court "shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such transcript 8 decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board." Sec. 10 (e). The provisions in the Act for judicial review incorporate the customary rule of administrative law that the "findings of the Board as to the facts, if supported by evidence, shall be conclusive." 10 In exercising its power to enforce a Board order, modify it, or set it aside, the reviewing court examines the record to ascertain whether the administrative proceedings have been conducted in such manner as to afford due process to the parties involved, whether the order of the Board is justified under the statute, and whether the findings of the Board are supported by substantial evidence in the record. Adjusting the remedies in a particular case to effectuate the policies of the Act is a fact-finding function entitled to conclusiveness when supported by substantial evidence. As the Supreme Court stated, substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." "1 LITIGATION RECORD The successful record of the Board in its litigation has been maintained during the fiscal year. The results of litigation involving enforcement or review by the Supreme Court and the Circuit Courts of Appeals of orders of the Board during the past fiscal year, and in the entire period since its inception, are summarized in the following table. Table 1.-Results of litigation for enforcement or review of Board orders, July 1, 1942June 30, 1943, and July 5, 1935–June 30, 1943 CONTEMPT AND OTHER COMPLIANCE LITIGATION The Act does not contain criminal sanctions but authorizes the Board to issue administrative remedies which become legally enforceable only when approved by the appropriate reviewing court. When the reviewing court enforces the Board's order, it issues a decree, which is an order of the court incorporating the various provisions 10 Ibid. 11 N. L. R. B. v. Columbian Enameling & Stamping Co., 306 U. 8.[292, 300. |