National Labor Relations Board v. Hearst
| Decision Date | 28 April 1939 |
| Docket Number | No. 8451.,8451. |
| Citation | 102 F.2d 658 |
| Parties | NATIONAL LABOR RELATIONS BOARD v. HEARST et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Atty., National Labor Relations Board, all of Washington, D. C., G. L. Patterson, Atty. for N.L.R.B., of Seattle, Wash., and John T. McTernan, Atty. for N.L.R.B., of San Francisco, Cal., for petitioner.
Edward G. Woods, of Chicago, Ill., and Grove J. Fink, of San Francisco, Cal. (Edward G. Woods and E. D. Salinger, both of Chicago, Ill., of counsel), for respondents.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
We are petitioned for an order enforcing one made by the National Labor Relations Board.
Respondent William Randolph Hearst owns all stock of respondent American Newspapers, Inc.1, which owns2 all stock of respondent Hearst Corporation,3 which owns all stock of respondent King Features Syndicate, Inc.,4 and all common stock of respondent Hearst Consolidated Publications, Inc.5 The latter corporation owns6 all stock of respondent Hearst Publications, Inc.,7 which operates directly three newspapers, including the Seattle Post-Intelligencer.
William Randolph Hearst conducts his publishing activities throughout the United States by means of approximately 36 corporations owned by him directly, or indirectly through subsidiaries, hereinafter called the Hearst organization. The Hearst organization publishes a total of 29 newspapers in 18 cities in Georgia, Maryland, Massachusetts, Illinois, Michigan, California, Wisconsin, New York, Nebraska, Pennsylvania, Texas, Washington and the District of Columbia. It also engages in news service, feature service, newsprint, radio, magazine, news-film, motion picture and financial activities.
Respondent King Features Syndicate, Inc., supplies to the newspapers of the Hearst organization, and sells to other papers, a miscellany of newspaper features, such as comic strips, cartoons, feature articles, serial stories, and novelettes. It also supplies two wire services, International News Service and Universal Service, and a photograph service, International News Photos, which transmit news and photographs to and from all parts of the world. In the course of its business, it sells features and wire service to newspapers in 33 states, 2 territories and 6 foreign countries.
The Seattle Post-Intelligencer is a daily and Sunday newspaper published in Seattle, Washington. Its average circulation for 12 months ending March 21, 1936, is as follows:
State Daily Sunday
----------------------------------------
Washington 96,799 172,798
Idaho 2,375 7,532
Montana 2,813 15,523
Oregon 655 11,239
All other states 308 310
Alaska 108 2,399
British Columbia 1,201 12,000
_______ _______
Totals 104,259 221,801
From these figures it can be seen that 7.2% of its daily circulation, 22% of its Sunday circulation, and 17.3% of its total circulation is delivered outside the State of Washington.
The Seattle Post-Intelligencer publishes news and feature articles coming to it over teletype machines from the Associated Press, of which it is a member, International News Service and Universal Service. Advertising matter for the newspaper is supplied by a Hearst subsidiary representing all Hearst newspapers, with offices in a number of cities, including Seattle. Various material is supplied by King Features Syndicate, Inc. Two other subsidiaries in the Hearst organization supply supplements which are printed in California, and shipped to the newspaper for inclusion in its Sunday edition. Raw materials and machinery used in the publication of the newspaper, including ink, linotype machines and press parts are obtained in states other than Washington and shipped to it by train, boat and truck.
By the Board's findings, we learn that one Lynch "was employed as a photographer by the Seattle Post-Intelligencer in 1921, and was made manager of the photographic department in 1925". On July 6, 1936, he was discharged. By the Board's findings, we also learn that one Armstrong "was employed by the Seattle Post-Intelligencer in April, 1919, and was the dramatic editor at the time of his discharge on July 14, 1936".
On July 27, 1936, the American Newspaper Guild, Seattle Chapter, hereinafter called the Guild, filed with the Board's Regional Director a charge that respondents had engaged in, and were engaging in unfair labor practices affecting commerce, contrary to the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq. On August 13, 1936, the Board issued its complaint alleging that the discharges of Lynch and Armstrong and the refusal to reinstate them, were made "because they joined and assisted the" Guild "and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection" contrary to § 8(1) and (3) of the Act; and that respondents act, contrary to § 8(1) of the act.
The provisions alleged to be violated are:
"(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 * * *." 29 U.S.C.A. §§ 157, 158(1, 3).
Respondents William Randolph Hearst, American Newspapers, Inc., Hearst Corporation, and Hearst Consolidated Publications, Inc., filed a motion to quash service of process stating that the only service of process had was a pretended one made by mailing to each of them a copy of the complaint to offices outside the State of Washington, that none of such respondents at the time of the pretended service or since, resided in Washington, or maintained an office or place of business there, and that none of the respondents were within the State of Washington at the time of the pretended service, at the time the alleged unfair labor practice occurred, or at any time since. Respondent King Features Syndicate, Inc. filed a separate motion to like effect. All these respondents (excluding Hearst Publications, Inc., only) filed a motion to dismiss as to them on the grounds, among others, that Lynch and Armstrong were not alleged to be their employees, and were alleged to be employees of the Seattle Post-Intelligencer.
Respondent Hearst Publications, Inc., answered alleging that the discharges of Lynch and Armstrong were made for cause, and as an affirmative defense that it was not engaged in interstate commerce, but was engaged solely in intrastate commerce; that the Guild went on strike on August 13, 1936, engaged in unlawful acts forcing suspension of publication after the charge was filed and should be estopped from seeking relief because it appears before the Board with unclean hands, and that Lynch and Armstrong had joined in the unlawful acts, and that reinstatement could not be made to their positions which involved trust and confidence. It also filed a motion to dismiss alleging substantially the same facts regarding the misconduct and unlawful acts, including the fact that some 9 employees were beaten by pickets; and that because it had suspended publication it had no employment for either Lynch or Armstrong.
All the above mentioned motions were denied. Hearings were held from September 10, 1936 to September 29, 1936. On October 9, 1936, the Board ordered the proceeding transferred to it. On November 9, 1936 and the following day, additional evidence was presented to the Board. The Board's decision states: .
On January 13, 1937, the Board found the allegations of the complaint to be true, and entered an order requiring all respondents to cease and desist from violating § 8(1) and (3), and to offer Lynch and Armstrong reinstatement to their former positions "without prejudice to their seniority or other rights and privileges previously enjoyed", to make them whole for any losses of pay they suffered by reason of their discharge, and to post notices.
On March 18, 1937, Armstrong died without having been reinstated or paid back pay. The Board requests modification of its order, so that it will not require reinstatement of Armstrong, and modification of the order, so that back pay due to the time of his death be paid to Armstrong's personal representative or other person entitled thereto.
On February 3, 1937, respondents filed a petition to set aside the Board's order. On February 23, 1937, the Board filed an answer requesting enforcement of its order. On July 22, 1938, respondents moved that their petition to set aside the Board's order be dismissed, which was sustained by this court on August 1, 1938 "reserving however, to this Court, jurisdiction to proceed upon the cross-petition filed in this proceeding on ...
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