On Petition for Enforcement of Order of National Labor Relations Board.
Before BUFFINGTON and BIGGS, Circuit Judges, and DICKINSON, District Judge.
BUFFINGTON, Circuit Judge.
In this case - a petition by the National Labor Relations Board to enforce an order to cease and desist - the initial and decisive question involved is whether under the proofs in the case the respondents are engaged in interstate commerce.
In that regard the Intermediate Report (Record, page 461) states: "The business of respondents is clearly of an interstate nature." If this statement is correct, the order should be enforced. On the other hand, if the Board has not shown that "the business of the respondents is clearly of an interstate nature", this Court should decline to enforce the proposed order.
Addressing ourselves to that controverted question, the proofs show that Benjamin Fainblatt, a respondent, is the sole owner of a small garment manufacturing plant in the village of Somerville, New Jersey, employing at times sixty persons, according to the manufacturing orders he receives from a partnership in New York called Lee Sportswear Company, which was composed of his sons, and which was engaged in marketing women's sports garments. Their father had no interest in the partnership, and the sons had no interest in the plant or business of their father. The New York Lee Sportswear Company, hereafter called Lee Company, as their business required, owned all the tailoring material here involved. Such material from time to time was cut in New York by Lee Company and shipped in trucks employed by it to respondent's factory, - hereafter called Somerville. At times, in order to avoid delay, Lee Company's material was shipped direct from mills to Somerville. All shipments were there cut, tailored, pressed by Somerville, and delivered to the trucks employed by Lee Company for delivery either to the New York partnership or its customers as directed by it. To that end Lee Company kept a representative in the factory. The material was owned by Le Company and respondent had no control, ownership or interest in the material sent by Lee Company or in the tailored article. He was paid for the tailoring work he did, no one but himself was interested in his factory and the profits arising therefrom were included in his personal income tax return. From the testimony produced by the Board, these facts are shown.
Bearing on the fact that respondent had no interest in the Lee Company, respondent's uncontroverted testimony was:
"Q. And you are not financially interested in the company? A. No, sir.
"Q. Is that a corporation? A. No, sir.
"Q. That, too, is just a business operating under a trade name? A. A partnership.
"Q. I see. You have no financial interest in it? A. No, sir.
"Q. Were you ever associated with that company? A. No, sir."
As to Lee Company paying no bills for or at Somerville, the proof is:
"Q. Well, does the Lee Sportswear Company pay any of the bills of the ...