Capital Service, Inc. v. National Labor Relations Board

This is an appeal by Brashears and Capital Service, Inc., hereafter Service, manufacturers of bakery products in non-union plants, and selling them to retail dealers merchandising such products in and around Los Angeles, California. The appeal is from a preliminary injunction of the district court 1 granted on the complaint of the National Labor Relations Board, hereafter called the Board, enjoining Service from “Enforcing or seeking to enforce or in any other manner giving continued effect to or availing themselves of the benefits of, the preliminary injunction issued on April 7, 1952, by the Superior Court of California, Los Angeles County, in Case No. 595892; and from taking or applying for any further proceedings in said Superior Court the effect of which would be to enjoin or restrain the defendant labor organizations in Superior Court Case No. 595892 from engaging in peaceful picketing or other concerted activities affecting the customers of Capital Service, Inc., and their suppliers, and which are carried on pursuant to a labor dispute with Capital Service, Inc.”

Service had filed a charge with the Regional Director of the Board alleging the acts of the unions hereafter…

204 F.2d 848 CAPITAL SERVICE, Inc. et al. v. NATIONAL LABOR RELATIONS BOARD. No. 13416. United States Court of Appeals Ninth Circuit. January 30, 1953. As Amended on Rehearing May 12, 1953. COPYRIGHT MATERIAL OMITTED Hill, Farrer & Burrill, Hyman Smith, Los Angeles, Cal., for appellants. George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Charles K. Hackler, Chief Law Officer, 21st Region, N.L.R.B., Los Angeles; Cal., Norton J. Come and Duane Beeson, Attys., N.L.R.B., Washington, D.C., for respondent. Stevenson & Richman, Los Angeles, Cal., Todd & Todd, San Francisco, Cal., for Bakery Drivers Local Union No. 276, amicus curiae. Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges. DENMAN, Chief Judge. 1 This is an appeal by Brashears and Capital Service, Inc., hereafter Service, manufacturers of bakery products in non-union plants, and selling them to retail dealers merchandising such products in and around Los Angeles, California. The appeal is from a preliminary injunction of the district court 1 granted on the complaint of the National Labor Relations Board, hereafter…

(concurring).

I think especially important the statement in Judge Denman’s opinion that “The purpose of the preliminary injunction sought for and granted below is to hold the situation in the status quo until the Board determines whether it will consider Service’s charge.” In adding this special concurrence I want to state that I think there is a most difficult question lurking in the background of this case and which it should be understood I, for one, do not now decide. Suppose that hereafter the Board should decide, as we have held it has a right to do, Haleston Drug Stores v. National Labor Relations Board, 9 Cir., 187 F.2d 418 , that Capital Service’s operations were so essentially local that their interruption would not have the requisite effect on commerce. 1 If that time came it is possible that we might find difficulty in discovering any intention of Congress to the effect that where the Board thus exercises its uncontrolled discretion to leave a controversy and a business alone, State action is prohibited. See Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U.S. 612, 623 , 29 S.Ct. 214 , 53 L.Ed. 352 ; Kelly v. Washington, 302 U.S. 1, 12 , 58 S.Ct. 87 , 82…