Blankenship and Associates, Inc. v. N.L.R.B.

• Decision Date: 15 July 1993
• Docket Number: Nos. 92-2777,92-3142,s. 92-2777
• Citation: 999 F.2d 248
• Parties: 143 L.R.R.M. (BNA) 2817, 62 USLW 2080, 125 Lab.Cas. P 10,767 BLANKENSHIP AND ASSOCIATES, INC. and Rayford T. Blankenship, Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 248

999 F.2d 248

143 L.R.R.M. (BNA) 2817, 62 USLW 2080,

125 Lab.Cas. P 10,767

BLANKENSHIP AND ASSOCIATES, INC. and Rayford T. Blankenship Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 92-2777, 92-3142.

United States Court of Appeals Seventh Circuit.

Argued April 13, 1993.

Decided July 15, 1993.

Joel H. Kaplan, Carl E. Johnson (argued), Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Rayford T. Blankenship, Greenwood, IN, for Blankenship and Associates, Inc. in No. 92-277.

Charles P. Donnelly, Jr., N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, David A. Fleischer (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, Richard P. Heller, N.L.R.B., Region 4, Philadelphia, PA, for N.L.R.B. in No. 93-3142.

Joel H. Kaplan, Carl E. Johnson, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, IL, Rayford T. Blankenship, Robert T. Anderson, Greenwood, IN, Tom G. Jones, Jones, Johnson & Gray, Franklin, IN, for Blankenship and Associates, Inc. and Rayford T. Blankenship in No. 92-3142.

Before POSNER and FLAUM, Circuit Judges, and RONEY, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

Before us are cross-petitions to enforce and to set aside a remedial order of the National Labor Relations Board directed, unusually, against a consultant to an employer rather than against the employer itself. The consultant is Rayford Blankenship, whose headquarters is in Indiana. He assisted Gress Poultry, Inc., a poultry processor in Pennsylvania (these geographical details are pertinent), in a successful effort to defeat a union campaign to organize Gress's workers. The Board's General Counsel instituted an unfair labor proceeding against both Gress and Blankenship (and Blankenship's company, but we shall ignore that detail for the moment). Gress settled. The proceeding continued against Blankenship and resulted in a decision in which the Board found that Blankenship had committed unfair labor practices as Gress's agent and ordered him to cease and desist from such conduct in the future on behalf of any employer.

The conduct in which the Board found that Blankenship had engaged on behalf of Gress was gross. At one meeting with workers Blankenship mentioned an employer who, he said, had closed its plant when its employees voted in the union--in fact had put a large padlock on the plant the day after the representation election. Blankenship then brandished a large padlock and said it would be put on the doors to Gress's plant if the union won the election. He repeatedly told other workers that Gress had hired him not to keep the union out but to close the plant legally. He told one union organizer that the organizer was fat because he made good money working for the union and told another that he had a nice leather jacket because he made lots of money working for the union--and then added that although Blankenship might be an old man "if you take that coat off I'll kick the shit out of you." On the day of the election he asked union organizers in the presence of employees what they would do about getting work for the employees when the plant closed. Also on that climactic day of the organizing campaign he took photographs of employees and union organizers, removed a sign that said "Vote Yes" from the windshield of a union organizer's car and tore it up in the presence of employees, displayed in their presence a picture of a lock and key, and told union organizers, again in the presence of employees, that Gress had given him a padlock the shaft of which was the size of his thumb to put on the door of the plant when he closed it. He denied doing these things, but the administrative law judge disbelieved his testimony.

Blankenship does not deny that the conduct that we have summarized violated the National Labor Relations Act, but he argues on a variety of grounds that the Board should not have issued a broad, or for that matter any, cease and desist order against him. He denies to begin with that the conduct brought him under the Board's jurisdiction. Yet he admits that Gress was within that jurisdiction because it engaged in interstate commerce in the amount that the Board requires before it will assert jurisdiction. The Act defines the term "employer" to include "any person acting as an agent of an employer." 29 U.S.C. § 152(2). See, e.g., National Lime & Stone Co., 62 N.L.R.B. 282, 298 n. 26 (1945). Once Gress was within the Board's jurisdictional reach, any agent of his who committed unfair labor practices on Gress's behalf was within that reach as well, regardless of the agent's own commerce. So the Board assumed in Chalk Metal Co., 197 N.L.R.B. 1133, 1134, 1148 (1972); cf. National Welders Supply Co., 132 N.L.R.B. 660, 667 (1961). But in St. Francis Hospital, 263 N.L.R.B. 834, 847 (1982), enforced, 729 F.2d 844 (D.C.Cir.1984), it assumed that the relevant commerce was that of the agent. In none of the cases we have cited was the issue actually discussed. In a case in which the Board exonerated Blankenship from charges similar to those in this case, the administrative law judge mentioned both approaches but did not have to choose between them because (as here) there was jurisdiction under either. Blankenship & Associates, Inc., 290 N.L.R.B. 557, 560 (1988). They could be regarded as alternative tests of jurisdiction, and then no choice between them would be necessary; but the Board hasn't discussed that possibility either.

Basing the Board's jurisdiction on the employer's involvement in interstate commerce not only is the natural inference from the statutory definition of "employer" but also is readily justified on practical grounds. Both the effect on interstate commerce, and the amount of interstate commerce affected, are the same whether an employer commits unfair labor practices directly or an agent commits the same unfair labor practices on the employer's behalf. To confine attention to the agent's direct involvement in interstate commerce could have the consequence of excluding most unfair labor practices from the Board's jurisdiction, because most are committed by individual employees who are not engaged in interstate commerce other than as their employer's agent. So Blankenship was within the Board's jurisdiction under the first approach but it was also within that jurisdiction under the second approach, which looks at the agent's involvement in commerce. Blankenship, headquartered in Indiana, rendered services to Gress in Pennsylvania; and no more was required to put Blankenship's own activities within interstate commerce. NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226-27, 83 S.Ct. 312, 313-14, 9 L.Ed.2d 279 (1963) (per curiam); see NLRB v. Mars Sales & Equipment Co., 626 F.2d 567, 575 (7th Cir.1980); NLRB v. National Survey Service, Inc., 361 F.2d 199, 204 (7th Cir.1966). It is true that the Board has adopted a rule that it will not assert jurisdiction over nonretail enterprises, including labor-management consultants, unless they have annual sales of at least $50,000 to firms engaged in interstate commerce. Siemons Mailing Service, 122 N.L.R.B. 81, 85 (1958); St. Francis Hospital, supra, 263 N.L.R.B. at 839. But Blankenship crossed that threshold. The Board has a higher threshold for law firms, $250,000, Camden Regional Legal Services, Inc., 231 N.L.R.B. 224 (1977); Kaplan, Sicking, Hessen, Sugarman, Rosenthal & Zientz, 250 N.L.R.B. 483, 484 (1980), which neither Blankenship nor his company reached. But he...