Hearst Publications v. National L. Relations Board

• Decision Date: 10 June 1943
• Docket Number: No. 10112,10123.,10114,10115,10112
• Citation: 136 F.2d 608
• Parties: HEARST PUBLICATIONS, Inc., v. NATIONAL LABOR RELATIONS BOARD, and three other cases.
• Court: U.S. Court of Appeals — Ninth Circuit

136 F.2d 608 (1943)

HEARST PUBLICATIONS, Inc., v. NATIONAL LABOR RELATIONS BOARD, and three other cases.

Nos. 10112, 10114, 10115, 10123.

Circuit Court of Appeals, Ninth Circuit.

June 10, 1943.

Oscar Lawler, John M. Hall, A. Laurence Mitchell, all of Los Angeles, Cal. (Lawler, Felix & Hall, of Los Angeles, Cal., of counsel), for petitioner Hearst Publication.

Binford & Binford, L. B. Binford, and Howard M. Binford, all of Los Angeles, Cal., for petitioner Stockholders Pub. Co., Inc.

Flint & MacKay, H. S. MacKay, Jr., and Edward L. Compton, all of Los Angeles, Cal., for Hearst Publications.

T. B. Cosgrove, F. J. O'Neil and F. B. Yoakum, Jr., all of Los Angeles, Cal., for petitioner Times-Mirror Co.

Robert R. Watts, Gen. Counsel, N.L.R.B., Ernest A. Gross, Associate Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, and Ruth Weyand, Louis Libbin, and Robert Todd McKinlay, Attys., N.L.R.B. all of Washington, D. C., and Richard A. Perkins, Regional Atty., N.L.R.B., of San Francisco, Cal., for respondent.

Arthur W. A. Cowan, of Philadelphia, Pa., for International Printing Pressmen and Assistants' Union of North America, A.F.L., as amicus curiae.

Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Four publishers of newspapers separately petition this court for the review of orders of the National Labor Relations Board, and the Board petitions this court for orders of enforcement. All of the petitions are considered and disposed of in this opinion.

Each of the four newspaper petitioners publishes a newspaper in Los Angeles, California. Hearst Publications, Incorporated, Los Angeles Examiner Department, publishes the "Examiner." Stockholders Publishing Company, Inc., publishes "The News." Hearst Publications, Incorporated, Los Angeles Evening Herald and Express Department, publishes the "Herald-Express," sometimes called the "Herald." The Times-Mirror Company publishes the "Times."

A petition for investigation and certification of representatives, under § 9(c) of the so-called Wagner Act, 29 U.S.C.A. § 159(c), was filed with the Board against each of petitioners by the Los Angeles Newsboys Local Industrial Union, No. 75, an affiliate of the Congress of Industrial Organizations. The proceedings in each case resulted in the Board's Decision and Direction of Elections on January 9, 1941, in which the Board found that questions affecting interstate commerce had arisen, and that designated newsboys were employees of the publisher within the meaning of § 2(3) of the Act, 29 U.S.C.A. § 152(3), and constituted appropriate units for the purposes of collective bargaining. As the outcome of the elections directed to be held, the Board certified the Union as the bargaining representative of the newsboys within each appropriate unit.¹

After the filing by the Union of a charge against each publisher alleging unfair labor practices, the Board issued a complaint against each stating that the Union was a labor organization within the meaning of the Act, that the publisher had refused to bargain collectively with the Union, which was the chosen representative of a defined appropriate unit of the publisher's employees, that by its refusal the publisher was engaging in unfair labor practices within the meaning of § 8(1) and (5) of the Act, 29 U.S.C.A. § 158(1) and (5), and that the said practices affected interstate commerce. The Board rendered its final decisions and orders on March 30, 1942, in each instance directing the publisher to cease and desist from its refusal to bargain collectively with the Union and, upon request to bargain collectively with such Union. These are the orders of which the Board seeks enforcement, and of which the publishers seek review on the ground that there is no substantial evidence to support the findings or conclusions of the Board.

Under §§ 9(c) and 10(a) of the Act, 29 U.S.C.A. §§ 159(c) and 160(a), the Board has jurisdiction over any unfair labor practice "affecting commerce." The Board found both in the certification case and in the complaint case that the unfair labor practices of each of the newspapers bore a close and substantial relation to interstate commerce and tended to lead to disputes burdening the free flow of commerce, and concluded that they affected commerce within the meaning of § 2(6) and (7) of the Act, 29 U.S.C.A. § 152(6) and (7). Each of the publishers distributes a small percentage of its newspapers outside the state, obtains its newsprint and mats, two of its principal raw materials, from outside the state, uses one or more of the National News and photographic wire services, publishes a number of nationally syndicated articles prepared outside the state, and devotes an appreciable percentage of its space to national advertising.

None of the publishers disputes the fact that it is engaged in interstate commerce, but each denies that any of its activities in connection with its newsboys could lead to any situation which would affect such commerce. Each advances the argument that when particular activities are intrastate in character, they are included within the scope of the Act only "if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions." National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 624, 81 L.Ed. 893, 108 A.L.R. 1352. See in accord: Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 222, 59 S.Ct. 206, 83 L.Ed. 126; Santa Cruz Fruit Packing Co. v. National Labor Relations Board, 303 U.S. 453, 467, 58 S.Ct. 656, 82 L.Ed. 954; National Labor Relations Board v. Hearst, 9 Cir., 102 F.2d 658, 662.

It seems clear that the very considerable factor of street sales in connection with the interstate business being carried on by each of the newspapers concerned herein cannot be separated from other phases of such business so as to distinguish this factor as intrastate business and some other factor as interstate business. It seems likewise clear that a disturbance in the street sales distribution of any one of these metropolitan dailies would materially affect the whole business and a fortiori would affect the free flow of interstate commerce. Such a conclusion was reached by this court in connection with drivers who transported newspapers to various stations throughout the city, National Labor Relations Board v. Star Pub. Co., 9 Cir., 97 F.2d 465. See in accord: Associated Press v. National Labor Relations Board, 301 U.S. 103, 129, 57 S.Ct. 650, 81 L.Ed. 953; Virginia Electric & Power Co. v. National Labor Relations Board, 4 Cir., 115 F.2d 414, 415, upheld on this point 314 U.S. 469, 476, 62 S.Ct. 344, 86 L.Ed. 348.

It should be mentioned here that the retail vendors of newspapers, described in the "appropriate units", are adult men, not boys, engaged in the street-vending of newspapers. The term "newsboys" is one of art. Although many schoolboys sell newspapers, they are not included in the "appropriate units" of employees as that term is used in these proceedings.

The Board's final decisions of March 30, 1942, were based upon its findings in an earlier decision and direction of elections. Therein, with respect to the status of newsboys within the described appropriate units, the Board found in effect: Circulation managers control the general execution of policies relating to newspaper distribution. District managers distribute the newspapers published by their respective companies in assigned geographical areas. Each district manager is admittedly an employee of the company whose paper he distributes. The newspapers are delivered to newsboys, who sell them to the public, or to so-called checkmen, who redistribute them to newsboys on neighboring corners. For their services the checkmen receive a small salary from the publisher. At least to the extent of such services, they are admittedly employees of the publisher. Aside from their wholesaling activities, the checkmen occupy positions similar to that of ordinary newsboys.

The district manager charges the newsboy or checkman for papers delivered an amount set by the publisher, except in the case of the News, in which instance the district manager himself fixes the amount. The checkman charges the newsboy the same amount he pays the district manager. At the end of the selling period the newsboys settle with the district manager or the checkman, and the checkmen settle with the district manager, for the newspapers distributed to them. Except the Herald under some circumstances, the newsboys are given credit for all unsold newspapers returned. The publisher determines the price to be charged the public, and the newsboys retain for themselves the difference between that sum and the amount they pay the publisher.

The district managers determine the number of newspapers in excess of the established order which the newsboys must try to sell. In practice, the newsboys cannot determine the size of their established orders without the cooperation of the district manager.

The newsboy customarily obtains his corner by applying at the plant of the publisher where he consults the district manager, who allocates the street corners in his district. The publishers furnish boxes, racks, money change aprons, and placards advertising special features contained in the newspapers; the equipment is distributed without charge to the newsboys by the district managers with instructions as to its use. Generally, the newsboy is required to be at his post from the time the newspapers customarily appear on the street to the time settlement is made.

The Board found that the record is "replete," with instances in which district managers have removed, permanently or temporarily, newsboys from their corners or transferred them from one location to another. The record also contains evidence with respect to the extent of...