1943 - National Labor Relations Board

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The N. L. R. A. in Practice: Jurisdiction 59department store, and to building and maintenance employees of aloft buildingThe decisions of the Board and the courts have made clear that itis not the character of the enterprise involved nor its size, nor thenumber of men employed, nor the nature of the commodities producedor service rendered that is the controlling factor in determiningwhether the Act may constitutionally be applied in any given situation.The test is whether or not stoppage of operations by industrialstrife would result in substantial interruption to interstate or foreigncommerce.In two cases, decided during the fiscal year ending June 30, 1943,jurisdiction turned on the question of whether the persons involvedwere employees within the meaning of Section 2 (3) of the Act, orwhether they were independent contractors. In one case tiff minersand haulers were found to be employees of the landowners, in spiteof the contention that the miners were independent contractors byvirtue of a mining statute, where the miners work on the land in aday-to-day process of earning a living in the service of thelandowners. The landowners were` the owners of the_tiff,'with oneof the landowners managing the land for all of them, arranging forthe disposition of the tiff and giving directions for hauling to theselling points where miners and haulers receive a portion of theselling price fixed by the managing landowner as their_pay. In theother case,' the Circuit Court of Appeals set aside an order of theBoard which found that newsboys . engaged in selling daily newspapersin a metropolitan area were employees of the newspaper. Thisdecision has been carried to the Supreme Court.Agricultural laborers are excluded from the protection of the Actby Section 2 (3). The Board and the courts, in deciding whether aparticular group of employees are agricultural laborers, consider thenature of the work performed in its actual context. They have heldthat fruit packers in a packing house, and employees in the feed milland feeding pens of a meat-packing plant were not "agriculturallaborers," since they worked away from the fields, in one case atan 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 themeaning of Section 2 (3) of the Act." The Board, during the fiscalyear ending June 30, 1943,- found that the employees of a largecommercial hatchery were agricultural laborers, and hence excludedfrom the protection of the Act by Section 2 (3).9N. L. R. B. v. Blount, 131 F. (2d) 685 (C. 0. A. 8); cert. den. 318 U. S. 791.'Hearst Publications v. N. L. R. B., 12 L. R. R. 660; (0.0. A. 9); decided June 12,1943; petition for certiorariHied September 9, 1943.7 Matter of North Whittier Heights Citrus Association, ION. L. R. B. 1269, enforced in North Whittier HeightsCarus Aisociation v. N. L. R. B. 109 F. (28) 76 (C. 0. A. 9); and Matter of Toorea Packing Company, 12N. L. R. B. 1063, enforced inN. L. R. B. v. Toarea Packing Co., Ill F. (2d) (6280.0.A.9).g Matter of Stark Brothers Nurseries and Orchards Company, 40 N. L. R. 5.1243.Mailer of Lindstrom Hatchery & Poultry Farm, 49 N. L. R. B., No. 11.558154-44 5
VIIENFORCEMENT LITIGATIONOrders of the National Labor Relations Board are not self-enforcing.Unless the employer voluntarily complies with the Board's order, theBoard must resort to the courts for enforcement. Similarly, if theemployer is of the opinion that the Board's order is invalid, he mayobtain judicial review of the order. Upon the Board's petition forenforcement or the employer's petition to review, the court enters adecree enforcing, modifying and enforcing as so modified, or settingaside 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 ofjudicial review of administrative orders and proceedings is incorporatedin the method of enforcement provided by the Act. It operatesin this case in the following mannerOnly cases involving unfair labor practices are reviewable by thecourts. 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 orderdirecting the eniployer to perform or not perform an act; 1 they merelyconstitute an investigation to determine the representatives chosenby the employees. Only when representation proceedings becomepart of a complaint case under Section 8 (5), involving a failure on thepart of the employer to bargain collectively, are they reviewable bythe courts.2 This procedure expedites the right of employees to choosetheir representatives, which might otherwise be impaired by appealsat an intermediate stage. At the same time it guarantees eventualjudicial review to an employer who may ultimately be the subject ofan order which is predicated on the record produced in the representationproceedingsFor similar reasons in unfair labor practice cases, an appeal can betaken only from a filial order of the Board. Then the court reviews1 American Federatio% of Labor v. N. L. R. B., 3138 U. S. 401.2 "Whenever an order of the Board made pursuant to Section 10 (c) is based in whole or in part uponfacts certified following an investigation pursuant to subsection (c) of this Section, and there is a petition forthe enforcement or review of such order, such certification and the record of such investigation shall be includedin the transcript of the entire record required to be filed under subsection 10 (e) or 10 (0, and thereuponthe decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Boardshall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript."Sec. 9 (d) of the National Labor Relations Act.60
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EIGHTH ANNUAL REPORTOF THENATIONAL
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NATIONAL LABOR RELATIONS BOARDH. A.
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THE NATIONAL LABOR RELATIONS BOARD
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The N. L. R. B. in the War 3The War
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The N. L. R. B. in the War 5closed.
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The N. L. R. B. in the War 7current
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Page 24 and 25: IIIA STATISTICAL ANALYSIS OF CASES.
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Appendix B. List of Cases Heard Dur
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APPENDIX CLIST OF CASES IN WHICH TH
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Appendix C. Decisions Rendered Duri
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Appendix. C. Decisions Rendered Dur
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Borg-Warner CorpBrennan, P., CoBurn
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APPENDIX DSUMMARY OF LITIGATION FOR
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Appendix D. Summary of Litigation 1
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Appendix D. Summary of Litigation.
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Appendix D. Summary-of Litigation 1
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APPENDIX ENATIONAL LABOR RELATIONS
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184 Eighth Annual Report of the Nat
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1 86 Eighth:A nnual Report of the N
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WAR LABOR DISPUTES ACT 1AN ACTRelat
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APPENDIX FThese Rules and Regulatio
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APPENDIX GREGIONAL OFFICESFirst Reg
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Appendix G. Regional Offices 239emu
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Appendix G. Regional Offices 241DIM
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Appendix G. Regional Offices 243
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Appendix G. Regional Offices 247
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LIST OF TABLESTables Appearing in T
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1943 - National Labor Relations Board

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