National Labor Relations Board v. AS Abell Co.

Citation97 F.2d 951
Decision Date14 July 1938
Docket NumberNo. 4329.,4329.
PartiesNATIONAL LABOR RELATIONS BOARD v. A. S. ABELL CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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Lawrence Hunt, Senior Litigation Atty., National Labor Relations Board, of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, Robert S. Erdahl, and Samuel Edes, Attys., National Labor Relations Board, all of Washington, D. C., on the brief) for petitioner.

W. Randall Compton and William D. Macmillan, both of Baltimore, Md. (Semmes, Bowen & Semmes, of Baltimore, Md., on the brief) for respondent.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

National Labor Relations Board, pursuant to the controlling statute, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., prays the enforcement of its order directed to The A. S. Abell Company, owner and publisher of two newspapers printed in Baltimore, Maryland, called The Sun and The Evening Sun. International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union No. 31 had filed charges and the Board had found upon evidence presented to it that the publisher had engaged in unfair labor practices contrary to Sections 8(1) and 8(2) of the Act, 29 U.S.C.A. § 158(1, 2), by interfering with, restraining and coercing its employees in the exercise of their right to self organization guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157, in that the publisher had endeavored to dissuade them from joining the Union, and had interfered with the formation and administration of a Press Room Committee of its employees and had contributed to its support. The Board ordered the employer to cease and desist from such practices and to post in its press room notices to its employees stating that it would cease and desist as ordered. The Board, however, found that the publisher had not discouraged membership in the Union by discrimination in regard to hire or tenure or condition of employment contrary to Section 8(3) of the Act, 29 U.S.C.A. § 158(3), as charged by four of its employees.

Four questions have arisen upon the discussion in this court: (1) Has the Board jurisdiction over the business of the publisher as one which affects commerce among the several states within the meaning of the Act? (2) Did the employer engage in unfair labor practice by discouraging membership in the Union, or (3) by interfering with or encouraging the formation of the Press Room Committee? (4) Was that part of the order of the Board justified which required the employer to post in its press room notices to its employees stating that it would cease and desist in the manner aforesaid?

The stipulated facts with reference to the newspaper's business justify the findings of fact of the Board, which may be summarized as follows:

"The respondent, a Maryland corporation with its principal office and place of business at Baltimore, Maryland, owns, prints, and publishes The Sun, a daily morning paper with a Sunday edition called The Sunday Sun, and the Evening Sun, a weekday evening paper. * * * The paid circulation for August 1937 totaled 147,842 for the morning papers, 151,067 for the evening papers and 208,978 for the Sunday papers."

"During the month of May 1937, the peak production month for the period from January to September, 1937, 9,643,300 papers consisting of 347,755,560 pages were printed in the respondent's plant at a total pay roll cost of $192,071.46 and by a total employment roll of 1,120 persons. This does not include colored portions of the Photogravure Section, the Comic Supplement, and the Magazine `This Week', features of the Sunday edition, which are printed in New York State and shipped to Baltimore as railway baggage or freight, pursuant to purchase arrangements with the respondent."

"Seven and seventy-five hundredths per cent of the morning papers, 1.7 per cent of the evening papers, and 7.4 per cent of the Sunday papers are shipped to destinations outside the State."

"Widepread news-gathering, news-interchange, and news-distribution activities of the respondent, transcending the limits of the State of Maryland, are conducted through its branch offices in New York City, Washington, D. C., and London, England, through its correspondents in the principal foreign news centers, through its exclusive right in the United States to all the special correspondence and other material published in the Manchester Guardian of England, and through its direct wire, wirephoto, and teletypewriter arrangements with The Associated Press, the North American Newspaper Alliance, the New York Herald-Tribune, and Consolidated News Features, Inc. The respondent's membership in The Associated Press, a New York corporation engaged in the collection and interchange of information and intelligence for publication in newspapers in the United States and foreign countries, entitles that association to the exclusive use for publication of all local news and of certain types of news dispatches published in the respondent's papers. The respondent is also a member of the Newspaper Publisher's Association, a nation-wide organization."

"Advertising, representing a large variety of business interests, is solicited in a majority of the States for publication in the respondent's papers."

"The raw materials used in the publication of the respondent's papers, newsprint and news ink, are derived, predominantly, from sources outside the State; all newsprint, from Canada and New York; 78½ per cent of the news ink, from the District of Columbia and Pennsylvania. Machinery, supplies, repair and replacement parts are purchased within and without the State."

We are of opinion upon these facts that the business of the respondent falls within the purview of the Act. It is true that the circulation which goes outside the State of Maryland is a relatively small part of the whole, but it nevertheless constitutes in itself a substantial volume of business. With this exception the news-distributing activities are of small extent. But the news-gathering activities are far flung, advertising is generally solicited throughout the nation by "National Advertising Representatives" (non-employees), and occasionally by employees, large portions of the Sunday edition are printed outside the State and shipped to Baltimore, and the raw materials used in all of the publications are derived for the most part from sources outside the State. It is clear that the instrumentalities of interstate commerce are used to a very large extent and are affected by the extensive and important business which the publisher conducts.

The collection and dissemination by the Associated Press of information for publication in newspapers in the United States and foreign countries, which was considered in Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953, differs in the fact that the distribution of news in interstate commerce is as important a feature as its collection; but that case is not without its pertinence here, and see also Indiana Farmer's Guide Pub. Co. v. Prairie Pub. Co., 293 U.S. 268, 55 S.Ct. 182, 79 L.Ed. 356. There are a number of other decisions sustaining the jurisdiction of the Board over business activities of no greater effect upon interstate commerce than those now under consideration. National Labor Relations Board v. Friedman-Harry Marks Clothing Co., 301 U.S. 58, 57 S.Ct. 645, 630, 81 L.Ed. 921, 108 A.L.R. 1352; National Labor Relations Board v. Wallace Mfg. Co., Inc., 4 Cir., 95 F.2d 818; National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 94 F.2d 138; Mooresville Cotton Mills v. National Labor Relations Board, 4 Cir., 94 F.2d 61; Jeffery-De Witt Insulator Co. v. National Labor Relations Board, 4 Cir., 91 F.2d 134, 112 A.L.R. 948; cf. Consolidated Edison Co. v. National Labor Relations Board, 2 Cir., 95 F.2d 390. In view of this course of decision it is not reasonable to conclude that the respondent's business is not covered by the Act on the ground that the greater part of its interstate operations involves the receipt rather than the distribution of information and materials in interstate commerce. The distinction, insofar as the effect upon interstate commerce is concerned, appears to be irrelevant. The respondent emphasizes passages in Schechter Poultry Corp. v. United States, 295 U.S. 495, 543, 55 S.Ct. 837, 848, 79 L.Ed. 1570, 97 A.L.R. 947, wherein it was found that the effect of the flow of commodities into a State was so remote as to be beyond the federal power; but we do not regard those expressions as controlling under the circumstances of the pending litigation notwithstanding the subsequent citation of the case in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32, 36, 40, 41, 57 S.Ct. 615, 621, 623, 625, 626, 81 L.Ed. 893, 108 A.L.R. 1352, and Santa Cruz Fruit Packing Co. v. Labor Board, 58 S.Ct. 656, 660, 82 L.Ed. ___.

In the last cited case the Supreme Court considered the business of a packing company engaged in preparing for shipment fruits and vegetables grown in California of which a substantial percentage was then shipped in interstate or foreign commerce. It was held that in view of the interstate commerce actually carried on by the packer, the contention that the business was not covered by the Act because the raw materials of production were not brought into the State from the outside was without merit. The court said (page 659):

"The existence of a continuous flow of interstate commerce through the state may indeed readily show the intimate relation of particular transactions to that commerce. Stafford v. Wallace, 258 U.S. 495, 516, 42 S.Ct. 397, 402, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 33, 43 S.Ct. 470, 476, 67 L.Ed. 839. But, as we said in the Jones & Laughlin Case, the instances in which the metaphor of a `stream of...

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