Townsend

185 F.2d 378 NATIONAL LABOR RELATIONS BOARD v. TOWNSEND. No. 12362. United States Court of Appeals Ninth Circuit. September 11, 1950. Rehearing Denied November 22, 1950. COPYRIGHT MATERIAL OMITTED David P. Findling, Associate Gen. Counsel, National Labor Relations Board, A. Norman Somers, Asst. Gen. Counsel, Abraham H. Maller, all of Washington, D. C., and Charles K. Hackler, Attys., National Labor Relations Board, Los Angeles, Cal., for petitioner. Findlay A. Carter, Frederick A. Potruch and Carter & Potruch, all of Los Angeles, Cal. (James M. Nicoson, Los Angeles, Cal., of counsel), for respondent. Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges. DENMAN, Chief Judge. 1 This is a petition by the National Labor Relations Board pursuant to the National Labor Relations Act, as amended, 1 hereinafter called the Act, for the enforcement of its order directing respondent to cease and desist from certain unfair labor practices, to reinstate with back pay three employees and to take other action. Respondent resists on the ground that the Board lacks jurisdiction because the claimed unfair labor practices were not proved to affect interstate commerce. 2 Respondent is…

This is a petition by the National Labor Relations Board pursuant to the National Labor Relations Act, as amended, 1 2 herein-after called the Act, for the enforcement of its order directing respondent to cease and desist from certain unfair labor practices, to reinstate with back pay three employees and to take other action. Respondent resists on the ground that the Board lacks jurisdiction because the claimed unfair labor practices were not proved to affect interstate commerce.

Respondent is the proprietor of the “M. L: ‘Red’ Townsend’s Garage” in Santa Maria, California. He sells new and used automobiles, automotive parts and supplies, and does automobile repair work. His sales of new automobiles are confined to Hudson automobiles purchased from the Hudson Sales Corporation located in Los Angeles, California. All such automobiles are picked up by respondent in that city.

Pursuant to a complaint filed in 1948 proceedings were had culminating in the order sought to be enforced. The Board determined that respondent’s activities were within the purview of the Act, finding that in the year 1947 the respondent sold new Hudson automobiles purchased from the Hudson Sales Corporation…

(dissenting).

I dissent. The automobiles were purchased by a local retail dealer from a California company which had theretofore purchased them from the out-of-state manufacturer. That is the essential fact from which the majority arrive at the conclusion that the retail dealer was in “commerce” or that any interruption in his business would “affect commerce.” For all we know the automobiles purchased from the California wholesale dealer had “come to rest” in the wholesaler’s California warehouse as his own automobiles long before they were sold and shipped to the retailer. Of course, the interruption of one automobile sale by reason of the retailer’s labor troubles in the long reach of time might have some effect on commerce. But in reason can a mere indefinite, remote, possible effect be held to come within the spirit of the Wagner Act? If so, interstate commerce is not a distinct thing — it is what Congress from time to time says it is. What good is there in saying “We recognize that the commerce clause cannot be pushed so far as to destroy the distinction between what is solely within the *384 domain of the states and what is subject to federal control.” It reminds me of…

On Petition for Rehearing.

Although the contention was not made in his assignment of errors, respondent contends that an order ■ of dismissal recommended by the trial examiner in his first-report became the order of the Board because no exception was filed thereto, citing Section 10(c) 1 of the Act,- which provides, inter alia: “In ca'se the evidence is -pre-' sented before a member of the Board, or before an examiner or examiners thereof, such member, or such- examiner or "examiners as the case may be, shall issue and cause to be served on the parties- to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period, as the Board may authorize, such-recommended order shall become the order of the Board and become effective as therein prescribed.”

Assuming the order thus became the order of the Board, we do not agree with the contention that the Board lost control over the order and that it must be considered the final adjudication in the proceeding. The above quoted provision is immediately followed by Section…