NLRB v. Fullerton Publishing Company

• Decision Date: 28 October 1960
• Docket Number: No. 16821.,16821.
• Citation: 283 F.2d 545
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FULLERTON PUBLISHING COMPANY, d/b/a Daily News Tribune, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 545 (1960)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FULLERTON PUBLISHING COMPANY, d/b/a Daily News Tribune, Respondent.

No. 16821.

United States Court of Appeals Ninth Circuit.

October 28, 1960.

Stuart Rothman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Melvin Pollack, James A. Ryan, Attorneys, N.L.R.B., Washington, D. C., for petitioner.

O'Melveny & Myers, Roy E. Potts and Marshall A. Rutter, Los Angeles, Cal., for respondent.

Before STEPHENS, BARNES and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Before us is a petition to enforce an order of the National Labor Relations Board. The order directed respondent to cease and desist from certain unfair labor practices, to reinstate former employee Fuller with back pay, and to post the usual notices. The hearing was initiated on charges filed with the Board by the Los Angeles Newspaper Guild, Local 69, American Newspaper Guild, AFL-CIO, acting on behalf of member Fuller. The trial examiner determined that respondent had committed unfair labor practices in the firing of Fuller because of his union activities, and in interrogating other newspaper employees as to their union membership. The findings and conclusions of the trial examiner were adopted by the Board in its formal decision, 125 N.L.R.B. No. 30 (1959), and this petition followed to enforce the Board's order. We have jurisdiction of this petition under Section 10 (e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e).

Respondent publishes an evening newspaper in Fullerton, California. One Andrew Fuller was employed as County Editor of the newspaper to head the county news department. As such he had the responsibility of filling the county news section of the paper, with the aim of getting the most important county news in that section. Under his direction were two fulltime reporters and three reporters on a regular part time basis.

Every morning when Fuller reported for work he was given a dummied-up county section from the advertising department to serve as a blueprint for the day's work. He had complete discretion to determine what county news to use to fill up his section. He assigned the reporters under him to cover county stories, and he was expected to criticize and advise the reporters in their work. He spent about half of his working hours editing the copy of the reporters under him, and the other half he acted as a reporter himself.

On one occasion when a reporter under the jurisdiction of the county editor did not properly perform his duties, Fuller was held responsible for the delinquent performance by the Managing Editor, Leif Johnson, and Fuller himself was required to complete the assignment. Further, the managing editor insisted that the reporter be reprimanded by Fuller.

Whenever a county news story appeared to merit a front page spread, Fuller notified Johnson and let him make that decision. But with this exception, the news that was placed in the county news section was solely Fuller's decision. The county coverage effected by Fuller was checked by Johnson by reading the final content in the published paper and comparing it with other newspapers in the area. Only in this way did Johnson check to see that Fuller had placed the most important county news in the county news section.

In October of 1958, the Los Angeles Newspaper Guild, Local No. 69, American Newspaper Guild, AFL-CIO, initiated a campaign to organize the employees in respondent's news department, all of whom were under the overall supervision of Managing Editor Johnson. Fuller attended several union meetings and joined on October 20, 1958. The next week Johnson heard a rumor of the organization drive, and began asking individual questions to the members of his department. He spoke to Fuller and five other department members, asking for the names of those who had joined the union, and asking one man to let him know if he heard anything. Fuller admitted his union membership to Johnson, but apparently no other fulltime employee of respondent had joined the union. Very shortly thereafter Fuller was summarily discharged by the respondent on the basis of an asserted economy measure.

In our view, the finding that Fuller was discharged because of his union activities is supported by substantial evidence on the record considered as a whole.

The Board concluded that since Fuller's discharge had been motivated by his union membership, it was an unfair labor practice, and concluded that the conduct of questioning the respondent's employees, followed by the discriminatory firing of Fuller, also constituted an unfair labor practice. Consequently, the Board ordered respondent to reinstate Fuller with back pay, and to cease and desist from further questioning of its employees concerning union membership.

In the petition to enforce its order, we are faced at the outset with the question of the Board's jurisdiction over this case. It is the contention of respondent that Fuller was a "supervisor" within the meaning of that term as it is employed in the National Labor Relations Act; and that therefore the Board had no jurisdiction to order Fuller's reinstatement or back pay allowances, and the Board had no jurisdiction to order respondent to cease and desist from questioning its employees concerning their union affiliation and the progress of the union's organizing efforts.

The statutory definitions of an employee¹ and a supervisor² in the National Labor Relations Act are set out in the margin. In dealing with the statutory term "supervisor" it is well settled that an employee must be classified as a supervisor if he exercises any one of the powers set forth in Section 2(11) of the Act. N. L. R. B. v. Edward G. Budd Manufacturing Co., 6 Cir., 1948, 169 F. 2d 571, certiorari denied Foreman's Ass'n of Amer. v. Edward G. Budd Mfg. Co., 1949, 335 U.S. 908, 69 S.Ct. 411, 93 L.Ed. 441; Ohio Power Company v. N. L. R. B., 6 Cir., 1949, 176 F.2d 385, 11 A.L.R.2d 243, certiorari denied 1949, 338 U.S. 899, 70 S.Ct. 249, 94 L.Ed. 553. As noted, respondent bottoms its case on the proposition that Fuller was a "supervisor". It is urged that he had authority "responsibly to direct" other employees, and that "in connection with the foregoing the exercise of such authority was not of a merely routine or clerical nature, but required the use of independent judgment." It is to be noted that the trial examiner, and the Board, determined as a fact that Fuller was not a supervisor, but was an ordinary employee. While this is a finding of fact, it is nevertheless subject to the scrutiny outlined in Universal Camera Corporation v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Thus we turn to the question whether the record, considered as a whole, supports the finding of the Board that Fuller was not a supervisor.

The "supervisory" status of a man in charge of a news department of a newspaper has apparently not been considered by an appellate court, but has received considerable attention from the National Labor Relations Board itself. In The Sun Papers, 81 N.L.R.B. 82 (1949), assistant city editors and assistant sports editors who had "considerable authority for the direction of their department" were classified as supervisors. In The Daily Review, 111 N.L.R.B. 763 (1955), it appeared that the city editor was in charge of three reporters. He had authority to assign regular and special news stories to them, as he saw fit. He edited the stories written by his reporters, and discussed the quality of their work with them, making suggestions for improvement where necessary. He also engaged in general reportorial work as time permitted. The Board held:

"We find that the record in this case clearly establishes that Grimm responsibly directs the work of the reporters under him and that such responsible direction requires the use of independent judgment. Accordingly, we will exclude him from the unit as a supervisor."

More recently, in The Dallas Times Herald, 126 N.L.R.B. No. 68 (1960), city, women's, sports, business and amusement editors who were in charge of the form and content of work emanating from their respective desks were held to be supervisors because of their responsible direction of the work of the employee reporter assigned to their respective desks. Thus, the circumstances of an editor being independently responsible for the output of his department, with authority to determine and control just what that output will be, has consistently been held sufficient to classify that editor as a supervisor exercising "responsible direction" over his department.

In other circumstances, however, where it appeared that the department editor merely gave out reportorial assignments without any independent responsibility for them, and had little or no authority to follow through on the work of his subordinate reporters, the Board has held that such editors were not supervisors, but were nothing more than leadmen. Thus, in Greensboro News Company, Inc., 58 N.L.R.B. 54 (1949), supervisory status was denied an assistant sports editor because there was no showing that he could responsibly direct or discipline his single assistant. Likewise, city editors in The Daily Press, Inc., 110 N.L.R.B. 573 (1954), were denied supervisory status because they had no authority to discipline employees, to make effective recommendations regarding them, or even to make assignments to them. This latter is most significant — the editors could transmit assignments to the reporters at the managing editor's request, but they lacked...