14 F. Supp. 58

merce Clause of the Constitution, that is, the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Article 1, § 8, cl. 3.

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 subsections 10 (e) or 10 (f) [sub ections 160 (e) or 160 (f) of this title], 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." (29 U. S. C. A. § 159.)

"Prevention of Unfair Labor Practices

"SEC. 10. (a) The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8 [section 158]) affecting commelce. 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.

(b) Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint. "(c)

* If upon all 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 practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act [chapter]." Such order may further require such person to make reports from time to time showing the extent to which it has complied with the order.

"(e) The Board shall have power to petition any circuit court of appeals of the United States (including the Court of Appeals of the District of Columbia), or if all the circuit courts of appeals to which application may be made are in vacation, any district court of the United States (including the Supreme Court of the District of Columbia), within any circuit or district, respectively, wherein the unfair labor practice in question occured or wherein such person 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, including 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 jurisdiction of the proceeding and of the question determined therein, and 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 a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board. The findings of the Board as to the facts, if supported by evidence, shall be conclusive. 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 district court as hereinabove provided, and by the Supreme Court of the United States upon writ of of certiorari or certification as provided in sections 239 and 240 of the Judicial Code, as amended [sections 346 and 347 of Title 28].

"(f) Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any circuit court of appeals of the United States in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the Court of Appeals of the District of Columbia, by filing in such court a written petition praying that the order of the Board be modified or set aside. A copy of such petition shall be forthwith served upon the Board, and thereupon the aggrieved party shall file in the court a transcript of the entire record in the proceeding, certified by the Board, including the pleading and testimony upon which the order complained of was entered and the findings and order of the Board. Upon such filing, the court shall proceed in the same manner as in the case of an application by the Board under subsection (e), and shall have the same exclusive jurisdiction to grant to the Board such temporary relief or restraining order as

14 F. Supp. 58

Defendants contend that plaintiff's "business is one whose economic existence is tied up completely with a constant flow of materials and products from and into the channels of interstate commerce" and that "the Act is clearly applicable not only to interstate transportation and communication systems but to industries engaged pre-[63]dominantly in interstate commerce," and that, accordingly, the defendants may, under the act, lawfully deal with the relation of plaintiff and its production employees. This is the familiar, but fallacious, argument which would, by judicial interpretation and construction, amend the Commerce Clause of the Constitution by striking therefrom the words "with foreign Nations, and among the several States, and with the Indian tribes," so that it shall read, simply, "Congress shall have power to regulate commerce," and which would broaden the definition of "Commerce" to include manufacturing, mining, agriculture, and, in fact, most of the activities of modern life. [64] The relationship with which the defendants propose to deal is a relationship between the plaintiff and its production employees, who are engaged in making for plaintiff, in its plant in Indiana, finished automobile and airplane parts and accessories from raw materials, that is, manufacturing. Manufacturing is not commerce, nor does the fact that the things manufactured are afterwards to be shipped or used in interstate commerce make their production a part thereof. Hammer v. Dagenhart, 247 U. S. 251, 272, 38 S. Ct. 529, 62 L. Ed., 1101, 3 A. L. R. 649, Ann. Cas. 1918 E, 724; Arkadelphia Co. v. St. Louis, S. W. R. Co., 249 U. S. 134, 151, 39 S. Ct. 237, 63 L. Ed. 517; Utah Power & L. Co. v. Pfost, 286 U. S. 165, 181, 52 S. Ct. 548, 76 L. Ed. 1038. "Commerce succeeds to manufacture,

it deems just and proper, and in like manner to make and enter a decree enforcing, modifying, and enforcing as so modified, or setting aside in whole or in part the order of the Board; and the findings of the Board as to the facts, if supported by evidence, shall in like manner be conclusive." (29 U. S. C. A. § 160 (a, b, c, e, f.)

"Investigatory Powers

"SEC. 11. For the purpose of all hearings and investigations, which, in the opinion of the Board, are necessary and proper for the exercise of the powers vested in it by section 9 and section 10 [sections 159 and 160 of this title]

"(1) The Board, or its duly authorized agents or agencies, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question.

"(2) In case of contumacy or refusal to obey a subpena issued to any person, any District Court of the United States or the United States courts of any Territory or possession, or the Supreme Court of the District of Columbia, within the jurisdiction of which the inquiry is carried on or within the jurisdiction of which said person guilty of contumacy or refusal to obey is found or resides or transacts business, upon application by the Board shall have jurisdiction to issue to such person an order requiring such person to appear before the Board, its member, agent, or agency, there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question; and any failure to obey such order of the court may be punished by said court as a contempt thereof." (29 U.S. C. A. § 161 (1, 2).

"Limitations

"SEC. 13. Nothing in this Act [chapter] shall be construed so as to interfere with or impede or diminish in any way the right to strike." (29 U. S. C. A. § 163.)

14 F. Supp. 58

and is not a part of it." U. S. v. E. C. Knight Co. 156, U. S. 1, 15 S. Ct. 249, 253, 39 L. Ed. 325. Even if it be assumed to be a fact that "a question has arisen concerning the representation of employees of" the plaintiff, such question has not arisen in interstate commerce. It [65] has arisen in a manufacturing process carried on wholly within the state of Indiana.

A consideration of the cases dealing with the so-called "flow," "current," or "stream" of interstate commerce, beginning with Swift & Co. v. U. S., 196 U. S. 375, 390, 25 S. Ct. 276, 49 L. Ed. 518, and ending with Schechter Poultry Corporation v. U. S., 295 U. S. 495, 543, 55 S. Ct. 837, 79 L. Ed. 1570, 97 A. L. R. 947, discloses situations where a certain commodity, such as grain or livestock, flows in a steady stream or current of interstate commerce from one part of the country to another, with little or no change in its form or characteristics. We do not find, as in the case at bar, raw materials being gathered together, some from within and some from without the state, and by the application of a large amount of labor, of relatively great value as compared with the value of the raw materials, converted into finished products, consisting of complicated mechanisms, which finished products are designed partly for intrastate and partly for interstate commerce. It is concluded, accordingly, that it cannot be said that the question has arisen in a manufacturing process which is within the "flow," "current," or "stream," of interstate commerce, as those words are used in the cases. Neither does the question directly "affect" interstate commerce. Its effect on commerce is merely indirect and incidental. The language of Mr. Chief Justice Hughes in Schecter Poultry Corporation v. U. S., supra, is applicable here (295 U. S. 495, at pages 548, 549, 55 S. Ct. 837, 851, 79 L. Ed. 1570, 97 A. L. R. 947 (italics supplied):

"The distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system.

*

"If the federal government may determine the wages and hours of employees in the internal commerce of a state, because of their relation to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost, also affecting prices, such as the number of employees, rents, advertising, methods of doing business, etc. All the processes of production and distribution that enter into cost could likewise be controlled. The government also makes the point that efforts to enact state legislation establishing high labor standards have been impeded by the belief that, unless similar action is taken generally, commerce will be diverted from the states adopting such standards, and that this fear of diversion has led to demands for federal legis

14 F. Supp. 58

lation on the subject of wages and hours. The apparent implication is that the federal authority under the commerce clause should be deemed to extend to the establishment of rules to govern wages and hours in intrastate trade and industry generally throughout the country, thus overriding the authority of the states to deal with domestic problems arising from labor conditions in their internal commerce. "It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it. * * The authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce 'among the several States' and the internal concerns of a state."

The National Labor Relations Act, if it be so construed as to warrant interference with and control of plaintiff's relation with its production employees, cannot be sustained as valid legislation under the Commerce Clause, and is in violation of the Tenth Amendment as an invasion of the control over purely local affairs thereby reserved to the states and to the people.

But, say the defendants, in effect, even though it be conceded, for the sake of argument only, that there are cases to which the act is not applicable and that the "question concerning the representation of employees of" plaintiff may be one of such cases, yet there are cases to which the act is applicable, and the court must assume that the board, and if not the board then the reviewing court, will decide that there is no jurisdiction in the instant case, and that, accordingly, the plaintiff has an adequate remedy at law and this court may not restrain the action of the board. The board has already decided the question of jurisdiction, and adversely to the contentions of the plaintiff. The board's order of January 29, 1936, recites "The Board, having found [66] that a question affecting commerce has arisen concerning the representation of employees of the Bendix Products Corporation * it is hereby directed, etc." But, the defendants say, the court must assume that the board, or the Circuit Court of Appeals on review, will correct this error, if it be an error, and, accordingly, the plaintiff has an adequate remedy at law.

It has been noted that the board has heretofore considered and decided, adversely to plaintiff, the question of jurisdiction. It is now to be noted that the Board has considered and decided, adversely to plaintiff, another question, namely, "Whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision

14 F. Supp. 58

thereof." By its order of January 29, 1936, the board directs that an election be conducted "among all employees of the Bendix Products Corporation paid on an hourly basis, except supervisory employees having authority to hire or discharge, clerical employees, policemen and nurses." The board has, accordingly, pursuant to section 9 (b) of the act, determined the unit appropriate for the purposes of collective bargaining, and has apparently determined that that unit is a subdivision of the employer unit or plant unit. It will be observed that this unit will presumably, because of the nature of plaintiff's enterprise, comprise a large number of highly skilled craftsmen and also a large number of unskilled workers. Whether the determination is wise, the court does not know, and is probably unqualified to decide. But the plaintiff says the determinations of the board, in respect of jurisdiction and in respect of the extent of the unit for collective bargaining, are both erroneous, unwise, and unjust.

Implicit in the question of jurisdiction is the question as to whether all enterprise in this country is hereafter to be under the supervision of federal courts as to rates of pay, wages, hours of employment, and other conditions of employment of the workers engaged therein, or is to remain free from the interference of courts in these and other matters, except when extraordinary conditions exist. Implicit in the power to determine the unit appropriate for the purposes of collective bargaining is the power to gerrymander, and thereby to aggrandize or crush a labor organization. These observations are made merely to indicate the importance of the questions. And yet the act makes no provision for judicial review of the action of the board on these questions. Incidentally, it is observed that the court cannot find in the act any provision for the preservation in writing of the testimony taken by or on behalf of the board on these questions. The act, in section 10 (e) and (f), makes express provisions for judicial review of the cease and desist orders of the board relating to unfair labor practices, and in section 9 (d) makes provision for a belated judicial review of the action of the board in certifying, pursuant to section 9 (c) of the act, the names of the representatives designated or selected for the purposes of collective bargaining by the majority of the employees, but only whenever an order of the board made pursuant to section 10 (c) is called in question. (There are but two kinds of orders of the board made pursuant to section 10 (c)-orders directing persons to cease and desist from unfair labor practices as defined in the act, and orders dismissing petitions for such cease and desist orders.) This action of the Congress, which indicates that it had judicial review in mind and provided for it in certain cases and refrained from providing for it in others, leads to the conclusion that no judicial review was intended in these other