Wave Publications, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1953

106 N.L.R.B. 1064 (N.L.R.B. 1953)

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WAVE PUBLICATIONS, INC. and MRS. EDWIN SELVIN
LOS ANGELES TYPOGRAPHICAL UNION NO. 174 and MRS.
EDWIN SELVIN. Cases Nos . 21-CA-1243 and 21-CB-388.
August 28, 1953
DECISION AND ORDER
On June 25, 1953, Trial Examiner Maurice M. Miller
is sued his Intermediate Report in the above -entitled proceeding,
finding that the Respondents had engaged in and were engaging
in certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action.
Thereafter , the Respondents filed exceptions to the Intermediate
Report and supporting briefs.
The Respondent Union's request for oral argument is hereby
denied because the record , including the exceptions and
briefs, adequately presents the issues and positions of the
parties.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed . The rulings are hereby affirmed . The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and finds merit in the
contention that the complaint should be dismissed on the
ground that it would not effectuate the policies of the Act for
the Board to assert jurisdiction in this case.
The commerce facts are detailed in the Intermediate
Report . Briefly, they are as follows. i
The Respondent , a California corporation , herein called the
Company, prints and publishes 6 community newspapers, hav-
ing a total circulation of about 111,000 , in Los Angeles County.
In addition , it engages in an unstated amount of commercial
printing , which is small in amount . Four of the newspapers,
having a total circulation of about 81 , 000, are published
twice a week , the remaining 2 newspapers , having a total
circulation of about 30,000, are published once a week.
The newspapers are "throwaways ," that is, the Company
gives them away without charge ; the subscribers do not pay
for the newspapers .' The Company' s revenue is derived almost
entirely from advertising.I
The Company has no out - of-State subscribers , circulation
being confined to Los Angeles County. The Company is not a
member of any interstate wire service.
1 Neither the General Counsel nor the charging party filed exceptions to the Trial Ex-
aminer 's findings as to commerce facts.
2 Except for an unstated amount of newspapers placed on sale at drug stores and other
stands, which is small in amount.
31n addition to its commercial printing business, the Company accepts Western Union
telegrams on a dealer discount basis . The income from these two sources is negligible.
106 NLRB No. 167.
WAVE PUBLICATIONS, INC. 1065
For a 12-month period ending in November 1949, the
Company purchased materials and supplies valued at $ 255,000,
of which approximately 70 percent was shipped directly to the
Company from outside California. In addition, the Company
paid about $ 3,000 annually for syndicated cartoons , columns,
and advertising mat services distributed from outside Cali-
fornia.
For the same 12-month period mentioned above, the
Company's gross income was approximately $ 875,000, almost
all of which represented advertising revenue . About $10,0'00
worth of this advertising was placed with the Company by
national advertising agencies , located outside California, on
behalf of national product advertisers. Another $10,000 rep-
resented locally placed advertising for such advertisers.
National chain store advertising , handled either by the local
outlet or by national advertising agencies , accounted for
$78,000 during this period. The record does not show (1) the
volume of interstate transactions of any local outlet of any one
of the national chains; or (2) whether any such local outlet, or
combination of such outlets , purchased $ 50,000 worth of
advertising from the Company. The bulk of the Company's
advertising income, amounting to over $500 , 000, was the
result of cooperative advertising . These advertisements, which
include advertising of local and national products, are placed
by local merchants who are reimbursed, in part, for the
expense involved in advertising the national product, by the
national manufacturer . The record does not show what portion
of the $ 500,000 is allocable to advertising national products.
On the basis of the facts indicated above, the Trial Examiner
concluded that the Company is engaged in commerce within the
meaning of the Act and that , because the Company " functions
as an instrumentality and channel of commerce ," the Board
should assert jurisdiction.
We agree with the Trial Examiner that the Company is
engaged in commerce within the meaning of the Act and, thus,
the Board has jurisdiction in the sense that the Board has
power or authority to act in this case . However, the record
does not support the Trial Examiner's conclusion that the
Board should assert its jurisdiction here.4
The facts established here do not show that the Company's
operations meet any of the announced requirements for the
assertion of jurisdiction. The Company is neither a public
utility nor a transit system;' it does not operate as an
integral part of a multistate enterprise; 6 it does not produce
41n a prior decertification case involving the same employer, the Board held that it had
jurisdiction in the power sense based upon the same commerce facts presented here. 90
NLRB 274. That case, however, was decided in June 1950, before adoption by the Board of
its present jurisdiction plan, and thus the Board had no occasion in that proceeding to con-
sider whether the requirements of the jurisdiction plan were met.
5 W C King d/b/a Local Transit Lines, 91 NLRB 623.
6 The Borden Company, Southern Division, 92 NLRB 628
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or handle goods destined for out-of-State shipment or perform
services outside California;? it has neither a direct inflow of
$500,000 a year or an indirect inflow of $1,000,000 a year,
or a combined percentage of any outflow or inflow requirement
totaling 100 percent;8 and it has no particular connection with
national defense.9 Nor is the Company an enterprise furnish-
ing service or materials which are valued at $50,000 or more
per annum and are necessary to the operation of (a) instru-
mentalities and channels of interstate and foreign commerce;
(b) public utilities or transit systems; or (c) enterprises
engaged in producing or handling goods destined for out-of-
State shipment, or performing services outside the State, in
the value of $ 25,000 or more per annum. 18
As indicated above, the Trial Examiner concluded that it
would be appropriate for the Board to assert jurisdiction here
on the ground that the Company operates as "an instru-
mentality and channel of commerce." It is true that the
Board has asserted jurisdiction on this ground over news-
papers which were members of interstate news services. 11 But
here, as the Trial Examiner recognizes, the Company is not
a member of any interstate news service. The Board has also
asserted jurisdiction over news agencies which distribute
newspapers and magazines, but--and this the Trial Examiner
also recognizes- -under the categories relative to inflow and
outflow of goods rather than as an instrumentality or channel
of commerce.' Notwithstanding this, the Trial Examiner has
offered no explanation as to why the principle underlying these
newspaper and news agency cases should be applied to the
instant case . In fact, the Board has declined to assert juris-
diction over a company engaged in printing newspapers of the
neighborhood, shopping guide type, not making use of any of
the national news services, where neither inflow nor outflow,
singly or in combination, was sufficient to meet the Board's
jurisdictional standards, notwithstanding the fact that the
newspapers carried advertisements of nationally known prod-
7Stanislaus Implement and Hardware Company, Ltd., 91 NLRB 618.
8 Federal Dairy Co., Inc , 91 NLRB 638; Dorn's House of Miracles, Inc , 91 NLRB 632;
The Rutledge Paper Products Co., 91 NLRB 625.
9 Westport Moving and Storage Co , 91 NLRB 902.
10 Hollow Tree Lumber Company, 91 NLRB 635. In the instant case, the Company sold
advertising in the total sum of approxunately $78,000 to local outlets of national chain
stores. However, the record does not show any data as to the inflow or outflow of any of
these local outlets or as to whether the Company sold in value $50,000 or more advertising
to any local outlet of such national chains, or combination of such outlets, shipping outstate
goods valued at $25,000 or more a year In this connection, the Board has excluded sales to
local units operating as integral parts of multistate enterprises from the type of sales to be
taken into account, except where such a local unit itself has sufficient inflow or outflow
which would warrant asserting jurisdiction over it. National Gas Co , 99 NLRB 273 at page
276; Frank Smith & Sons, 100 NLRB 1382.
"Press, Incorporated, 91 NLRB 1360; Tampa Times Company, 93 NLRB 224.
SManson News, 93 NLRB 1112; Rockaway News Supply, 94 NLRB 1056; Newark News-
dealer Supply, 94 NLRB 1667.
NORTHWESTERN PHOTO ENGRAVING COMPANY 1067
ucts and of public utility companies . J. Weiss Printers, 92
NLRB 993.
On the basis of the foregoing , we conclude that the Company's
operations do not meet the Board' s jurisdictional standards.
Accordingly, consistent with such standards , the Board has
no alternative but to dismiss the complaint in its entirety,
which we shall do. 13
[The Board dismissed the complaint.]
Members Murdock and Rodgers took no part in the con-
sideration of the above Decision and Order.
13Chairman Farmer agrees with the dismissal on jurisdictional grounds. This is not to be
taken, however, as reaffirming the previously established jurisdictional plan.
IRVING Z. LEE, ANNE E. LEE AND J. J. ERLICH, TRUSTEE,
CO- PARTNERS d/b/a NORTHWESTERN PHOTOENGRAV-
ING COMPANY and WILLARD G. LEPINS,' Petitioner and
CHICAGO PHOTOENGRAVERS UNION, LOCAL NO. 5. Case
No. 13-RD-187. August 28, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Richard B.
Simon , hearing officer . The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three - member panel [Chairman Farmer and Members
Styles and Peterson].
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. The Union moved to dismiss the petition upon the
grounds that (a) a court decree ordering the Employer to
bargain with the Union was entered less than 1 year before the
filing of the decertification petition, (b) unfair labor practice
charges are pending against the Employer , and (c ) the Em-
ployer assisted the Petitioner in connection with this proceed-
ing.
'After the close of the hearing, the Petitioner died. The employees involved have requested,
however, that the Board proceed with the processing of the petition. In view of the fact that
the individual Petitioner was acting in behalf of these employees, the Union's request that
the petition be dismissed is hereby denied.
106 NLRB No. 168.