Press Co. v. National Labor Relations Board, No. 7482

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Citation118 F.2d 937
Decision Date09 December 1940
Docket Number7484.,No. 7482
PartiesPRESS CO., Inc., v. NATIONAL LABOR RELATIONS BOARD (TRI-CITY NEWSPAPER GUILD, et al., Interveners). GANNETT CO., Inc., v. NATIONAL LABOR RELATIONS BOARD.

118 F.2d 937 (1940)

PRESS CO., Inc.,
v.
NATIONAL LABOR RELATIONS BOARD (TRI-CITY NEWSPAPER GUILD, et al., Interveners).

GANNETT CO., Inc.,
v.
NATIONAL LABOR RELATIONS BOARD.

Nos. 7482, 7484.

United States Court of Appeals for the District of Columbia.

Decided December 9, 1940.

On Petition for Rehearing February 14, 1941.

Supplemental Opinion March 24, 1941.

Writ of Certiorari Denied June 2, 1941.


118 F.2d 938
COPYRIGHT MATERIAL OMITTED
118 F.2d 939
Elisha Hanson, of Washington, D.C., for petitioners Press Co., Inc., and Gannett Co., Inc

T. Carl Nixon, of Rochester, N. Y., for petitioner Gannett Co., Inc.

Charles Fahy, Robert B. Watts, and Mortimer B. Wolf, all of Washington, D. C., for respondent National Labor Relations Board.

Abraham J. Isserman, of Newark, N. J., for interveners.

Before GRONER, C. J., and STEPHENS and RUTLEDGE, JJ.

Writ of Certiorari Denied June 2, 1941. See 61 S.Ct. 1118, 85 L.Ed. ___.

GRONER, C. J.

In July, 1939, the National Labor Relations Board issued an order requiring petitioners, the Press Co., Inc., and Gannett Co., Inc., to cease and desist from engaging in certain unfair labor practices, to offer to Austin J. Scannell, John Wanhope, Henry E. Christman, and Raymond H. Mowers immediate reinstatement, with back pay, to the same or equivalent positions held by them when their connection with Press Co. was severed, and finally, to post the usual notice of intention to comply with the order.

Press Co. and Gannett Co. then filed in this court separate petitions for review. The Board answered each petition and prayed a decree enforcing its order.

In 1936, Press Co. was publishing two newspapers in Albany, N. Y., the "Knicker-bocker Press" in the morning, the "Albany Evening News" in the afternoon. Its common stock was owned by Gannett Co., a corporation with its principal office in Rochester, N. Y. Three of Press Co.'s directors were also directors of Gannett Co., and Frank E. Gannett was president of both corporations.

In November, 1935, B. J. Lewis was employed by Press Co. as editorial director of its morning and afternoon papers. In May, 1936, A. J. McDonald became its treasurer and general manager.

Tri-City Newspaper Guild is a labor organization affiliated with the Committee for Industrial Organization. Its membership consists of editorial employees of newspapers published in the cities of Albany, Troy, and Schenectady. It was organized in 1933 or 1934, and included a majority of the editorial employees of Press Co., but not until March, 1936, did it seek a collective contract with that company. Negotiations continued until February, 1937. At that time the president of the Guild was Zoe B. Fales, an employee of the rival Hearst paper in Albany and the wife of Henry E. Christman, a reporter on Press Co.'s afternoon paper. Press Co. was represented in the negotiations principally by McDonald and Lewis, and in February, 1937, a tentative agreement was reached which McDonald agreed "to submit to Rochester". Before it had been acted upon by Press Co.'s directors, the Guild entered into an agreement with Press Co.'s Hearst competitor on terms less advantageous to employees. When informed of this, McDonald offered on behalf of Press Co. the same terms, which were refused. A little later Press Co. made an agreement more favorable to the Guild than the one entered into with the competitor.

In June, 1937, Press Co. sold its morning and Sunday circulations to the Hearst paper in exchange for the evening circulation of the latter. The Hearst paper abandoned the evening field, and Press Co. abandoned the morning and Sunday fields and continued its afternoon paper, with the name changed to "Knickerbocker News". This resulted in a necessary reduction of Press Co.'s employees from 514 to 356.

The selection of the survivors in the editorial department was left to Lewis. When the list of those retained was posted with a notice that all others were dismissed, the Guild passed a provisional strike resolution and through its committee demanded reinstatement of Hyde, Scannell, Wanhope, Christman, Jackson, Andrews, and Mohan. The Guild took the position that these men had been discharged because of sympathy for or activities in behalf of the organization. The New York State Mediator was asked by the Guild to intervene, which he did. Hyde repudiated the action of the Guild in his behalf. Press Co. offered to submit the question of discrimination against the others to arbitration by the mediator, but the Guild rejected this offer and filed charges with the Labor Board.

The Board issued its complaint against both Press Co. and Gannett Co., and charged unfair labor practices affecting commerce within the meaning of Sec. 8(1)

118 F.2d 940
and (3) and Sec. 2(6) and (7)1 of the National Labor Relations Act, including alleged discrimination in the discharge and refusal to reinstate Scannell, Wanhope, Christman, Jackson, Andrews, and Mohan. Subsequently the complaint was amended by including Mowers and Leonard, and by eliminating Mohan, who testified at the hearings that there had been no discrimination against him and he had not authorized the Guild to file charges in his behalf. The trial examiner found the charges sustained as to Scannell, Wanhope, and Christman, and recommended dismissal as to Jackson, Andrews, Leonard, and Mowers. Jackson and Leonard took no exceptions and were dropped from the proceedings, and in the final decision, concurred in by two members of the Board, the examiner's findings were sustained as to all the persons named except Mowers, as to whom they were overruled, and the order followed

The grounds here urged by Press Co. are: (1) That the proceedings, findings, and order of the Board are repugnant to the due process clause of the Fifth Amendment of the Constitution; (2) that the order is an infringement of the freedom of the press; (3) that the Board was without jurisdiction because Press Co.'s operations did not directly and substantially affect interstate commerce; and (4) that the findings of the Board are not supported by substantial evidence.

First. Due Process.

It is argued that the Board had prejudged the case. Two witnesses testified to announcements at a Guild meeting that the Labor Board had given assurances of an open-and-shut case. And at the hearing, the trial attorney said: "The Board's position is that both companies have violated the National Labor Relations Act."

In the final argument, counsel for Press Co. cited these instances to show that the Board had violated due process. The Chairman asked counsel whether he believed that he or either of his two associates was guilty of making such commitments, and upon the reply of counsel that it was unnecessary to answer the question, the Chairman said: "* * * you know that is sheer demagoguery for the benefit of the small audience to your rear."

And finally, the Chairman stated to counsel upon his inquiry as to how much time he had left: "You have four minutes if you think it will do you any good".

As to all of this, it is sufficient to say that there was no showing from which we can or should infer that either the trial examiner or the Board members had made statements showing prejudgment of the case. If any statements made by the prosecuting arm of the Board created the unfortunate impression that the case was foreclosed before it was begun, this was the result of those provisions of the statute which combine in the same agency not only the power to investigate, initiate, and prosecute, but as well the power to hear and decide. But responsibility for such matters is with the legislature and not with us. What is complained of as later occurring in the argument, may reasonably be considered as having resulted from the implications of counsel's remarks, and we know of no rule of judicial conduct applicable either to court or board which requires silence in the face of an imputation of dishonorable conduct.

Second. Freedom of the press.

Petitioner's argument, that any legislative restriction of the authority of a publisher to discharge an editorial employee is an abridgment of the freedom of the press, was used unsuccessfully in Associated Press v. Labor Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953, in which the Supreme Court distinctly held that there was no such constitutional objection to an act of Congress making it unlawful to discharge an employee for union activity. That is the charge here, and it raises an issue of fact which, under the rule in the cited case, the Board is competent to hear and decide.

Third. Interstate Commerce.

The Board's findings of fact show that Press Co.'s afternoon newspaper had a circulation in excess of 45,000 copies, only 2,000 of which were circulated outside the State of New York; that 90 per cent of its raw material came from outside the State; that it is a member of the Associated Press and receives from and delivers to it news items for publication in the United States and foreign countries; and receives its syndicated articles, comic strips, and much of its advertising from outside the borders of its own State.

118 F.2d 941

This is a sufficient finding that Press Co.'s operations affect interstate commerce under the rule announced by the Supreme Court in Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L. Ed. 893, 108 A.L.R. 1352, and in Labor Board v. Fainblatt, 306 U.S. 601, 607, 59 S.Ct. 668, 83 L.Ed. 1014, in which it is said that the regulatory power of Congress over interstate commerce is not dependent upon whether the volume is great or small.

Fourth. The question of substantial evidence.

The Board has found that both petitioners interfered with Press Co.'s employees in the exercise of the rights guaranteed under Sec. 7 of the Act2 and engaged in an unfair labor practice within the meaning of Sec. 8(3) of the Act3 by discharging Scannell, Wanhope, and Christman, and by discriminating against Mowers in the...

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18 practice notes
  • May Department Stores Co v. National Labor Relations Board, No. 39
    • United States
    • United States Supreme Court
    • December 10, 1945
    ...141 (§ 8(1)). (d) Limiting a § 8(1) order where there was more than one unfair labor practice: Press Co., Inc. v. Board, 73 App.D.C. 103, 118 F.2d 937 (§§ 8(1), 8(3)); Labor Board v. Grower-Shipper Vegetable Ass'n, 9 Cir., 122 F.2d 368 (§§ 8(1), 8(3)); Wilson & Co. v. National Labor Relatio......
  • Bethlehem Steel Co. v. National Labor R. Board, No. 7503
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 12, 1941
    ...order is valid irrespective of that finding. In Gannett Company, Inc., v. National Labor Relations Board, Dec. 9, 1940, ___ App.D.C. ___, 118 F.2d 937, on which the Corporation relies, this court held that there was no evidence that the holding corporation had affirmatively participated in ......
  • National Labor Relations Board v. Air Associates, No. 292.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 15, 1941
    ...impropriety * * *"; N. L. R. B. v. Ford Motor Co., 6 Cir., 1940, 114 F.2d 905, 9092; cf. Press Co., Inc., v. N. L. R. B., App.D.C.1940, 118 F.2d 937. There was, at most, error without prejudice; such error is harmless and no ground for reversal.3 A harmless error is a blank Respondent argue......
  • National Lead Company v. Federal Trade Commission, No. 10839-10842.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 1, 1955
    ...and to compel the conclusion that the corporate identity of the subsidiary is a mere fiction. Press Co. v. N. L. R. B., 73 App.D.C. 103, 118 F.2d 937, at pages 946-947, certiorari denied 313 U.S. 595, 61 S.Ct. 1118, 85 L.Ed. 1548; Owl Fumigating Corp. v. California Cyanide Co., Inc., 3 Cir.......
  • Request a trial to view additional results
18 cases
  • May Department Stores Co v. National Labor Relations Board, No. 39
    • United States
    • United States Supreme Court
    • December 10, 1945
    ...141 (§ 8(1)). (d) Limiting a § 8(1) order where there was more than one unfair labor practice: Press Co., Inc. v. Board, 73 App.D.C. 103, 118 F.2d 937 (§§ 8(1), 8(3)); Labor Board v. Grower-Shipper Vegetable Ass'n, 9 Cir., 122 F.2d 368 (§§ 8(1), 8(3)); Wilson & Co. v. National Labor Relatio......
  • Bethlehem Steel Co. v. National Labor R. Board, No. 7503
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 12, 1941
    ...order is valid irrespective of that finding. In Gannett Company, Inc., v. National Labor Relations Board, Dec. 9, 1940, ___ App.D.C. ___, 118 F.2d 937, on which the Corporation relies, this court held that there was no evidence that the holding corporation had affirmatively participated in ......
  • National Labor Relations Board v. Air Associates, No. 292.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 15, 1941
    ...impropriety * * *"; N. L. R. B. v. Ford Motor Co., 6 Cir., 1940, 114 F.2d 905, 9092; cf. Press Co., Inc., v. N. L. R. B., App.D.C.1940, 118 F.2d 937. There was, at most, error without prejudice; such error is harmless and no ground for reversal.3 A harmless error is a blank Respondent argue......
  • National Lead Company v. Federal Trade Commission, No. 10839-10842.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 1, 1955
    ...and to compel the conclusion that the corporate identity of the subsidiary is a mere fiction. Press Co. v. N. L. R. B., 73 App.D.C. 103, 118 F.2d 937, at pages 946-947, certiorari denied 313 U.S. 595, 61 S.Ct. 1118, 85 L.Ed. 1548; Owl Fumigating Corp. v. California Cyanide Co., Inc., 3 Cir.......
  • Request a trial to view additional results

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