National Labor Relations Board v. Associated Press

• Decision Date: 13 July 1936
• Docket Number: No. 460.,460.
• Citation: 85 F.2d 56
• Parties: NATIONAL LABOR RELATIONS BOARD v. ASSOCIATED PRESS.
• Court: U.S. Court of Appeals — Second Circuit

85 F.2d 56 (1936)

NATIONAL LABOR RELATIONS BOARD v. ASSOCIATED PRESS.^*

No. 460.

Circuit Court of Appeals, Second Circuit.

July 13, 1936.

Charles Fahy, Gen. Counsel, and Robert B. Watts, Associate Gen. Counsel, both of Washington, D. C. (Louis A. Jaffer and Philip Levy, both of New York City and David A. Moscovitz, of Washington, D. C., of counsel), for petitioner.

Davis, Polk, Wardwell, Gardiner & Reed, of New York City (John W. Davis, William C. Cannon, and Harold W. Bissell, all of New York City, of counsel), for respondent.

Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst and Callman Gottesman, both of New York City, of counsel), for American Newspaper Guild as amicus curiae.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

This petition seeks the enforcement of an order issued by the petitioner pursuant to section 10 of the National Labor Relations Act (July 5, 1935, 49 Stat. 449, 29 U.S.C.A. § 151 et seq.). Respondent is a New York corporation, with its principal office in New York City, where the alleged unfair labor practice occurred.

November 7, 1935, the American Newspaper Guild, a labor organization, filed charges against respondent with the National Labor Relations Board, which accordingly issued its complaint alleging that respondent was engaged in the purchase, collection, receipt, compilation, and formulation of intelligence from within and without the United States and in the sale, distribution, and transmission of the same throughout the United States; that, in violation of section 8 (1 and 3) of the act, 29 U.S.C.A. § 158 (1 and 3), it had discharged and refused to reinstate one Watson, employed by it in an editorial capacity, because of his membership and activity in the American Newspaper Guild. Respondent is alleged to have thereby engaged in unfair labor practices affecting commerce as defined in the act. Respondent by answer admitted the discharge of Watson, but denied that the reason therefor was his membership in the American Newspaper Guild. An examiner held hearings on the complaint, but respondent, after participating in so much of the hearings as established the nature of its business, when its motion to dismiss on constitutional grounds was denied, withdrew. After further hearings, the examiner recommended reinstatement of Watson and payment of lost wages. This report was confirmed by the board which set forth its findings of facts and order. The present proceeding is a petition for the enforcement of this order.

The act creates the National Labor Relations Board and provides administrative and court procedure for the prevention of certain listed unfair labor practices "affecting commerce." Section 10 (a), 29 U.S.C.A. § 160 (a). "Affecting commerce" is defined as meaning "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce." Section 2 (7), 29 U.S. C.A. § 152 (7).

And "commerce" means "trade, traffic, commerce, transportation, or communication among the several States." Section 2 (6), 29 U.S.C.A. § 152 (6). Section 7 of the act, 29 U.S.C.A. § 157, proclaims the right of employees to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection. Section 8 gives specific content to the principles declared in section 7 and lists five unfair labor practices on the part of employers. It is an unfair labor practice for an employer "(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 section 157 of this title," or "(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."

General rules and regulations later adopted incorporated in detail the board's procedure.

The board found respondent, a membership corporation, to be a co-operative association of persons representing newspapers, with about 1,350 members, 1,200 of them daily newspapers. It receives information and gathers intelligence and information from members and other sources in all parts of the United States and in foreign countries, and formulates and distributes this to its members. It is affiliated with the Associated Press of Great Britain, which has a branch office in Paris, and news agencies associated with it are located in Berlin, Canada, and Japan. Respondent has division points throughout the United States for the collection of news. Each division has regional offices and membership newspapers reporting to it. Control over news is decentralized. Each collecting agent — regional office, member newspaper, division point — determines the value to other regions, divisions, and members of each item of news collected by or coming to it, and after editing, sends it along to other points or distributes it throughout the territory of which it is the key point according to its judgment of its interests for those points. The individual editorial employee preparing each particular item assumes a measure of responsibility for the effective functioning of the entire system. The method of communication is through the communication companies' telephone and telegraph trunk wires running from each division point.

As news is received in New York City, it is revised by editorial employees under the direction of supervising editors and then transmitted throughout the division and to the headquarters of other division to the extent warranted by the news. Each trunk line is controlled by a filing editor, who necessarily must be aware of the capacity of his line. During his shift, he is responsible for sending out — filing — over his line a "balanced" news report. Thus the editor and editorial employees are trained to be able to determine the news value of items and to rewrite copy with speed and accuracy so that in the case of important news all the work on a particular item may be completed within a few minutes.

All those employees who are directly engaged in the transmission or distribution of news are in a "traffic department." The editorial employees are in the "news department," which includes the filing editors who determine what news is to go out on particular wires and who hand the typed items so prepared to members of the "traffic department" for transmission.

Watson was a member of the "news department." For a time he was a filing editor, but at the time of his discharge he was engaged in the revision or rewriting of news coming in over the wires prior to its distribution and filing as outgoing news.

The board's finding recites that "the operations of the respondent and of its editorial employees occur in the course and current of commerce among the several States and with foreign countries; are an integral part of the operations of the instrumentalities of such commerce; and constitute commerce among the several States and with foreign countries."

In its treatment of Watson, the respondent was found to have engaged in an unfair labor practice, which occurred in the course and current of commerce among the states and with foreign nations, and tended to lead to labor disputes burdening and obstructing commerce and the free flow of commerce.

The order issued directed the respondent to cease and desist from discouraging membership in the American Newspaper Guild or in any other organization of its employees by discharging, threatening to discharge, or refusing to reinstate any of its employees for joining the guild or any other labor organization of its employees, and from in any other manner discriminating against any of its employees in regard to hire or tenure of employment or any term or condition of employment for joining the guild or any other labor organization of its employees, and from in any manner interfering with, restraining, or coercing its employees in the exercise of their rights as guaranteed in section 7 of the National Labor Relations Act (29 U.S.C.A. § 157). Notice of compliance with the order was to be posted in the New York office. Respondent was also ordered to offer full reinstatement to Watson and to make up his lost pay.

The findings of the board as to the facts, if supported by evidence, are made conclusive by section 10 (c), 29 U.S.C.A. § 160 (c). See, also, Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 79 L.Ed. 1343; Florida v. United States, 292 U.S. 1, 12, 54 S.Ct. 603, 78 L.Ed. 1077; Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S.Ct. 315, 78 L.Ed. 655. We must accept the fact that Watson was discharged because of his labor activities.

The relation of employer and employee in local industries, not directly affecting interstate commerce, is not subject to federal regulation under the commerce clause (Const. art. 1, § 8, cl. 3). Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947; Carter v. Carter Coal Co., 56 S.Ct. 855, 869, 80 L.Ed. 1160. In United States v. E. C. Knight Co., 156 U.S. 1, 12, 13, 15 S.Ct. 249, 253, 39 L.Ed. 325, the court said: "Doubtless the power to control the manufacture of a given thing involves, in a certain sense, the control of its disposition, but this is a secondary, and not the primary, sense; and, although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly. Commerce succeeds to manufacture, and is not a part of it. * * * The fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce, and the intent of the manufacturer does not determine the time when the article or...