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National Labor Relations Board v. Roberts

decided: November 16, 1971.


Medina, Mansfield and Mulligan, Circuit Judges.

Author: Mulligan


This case is before this court upon the application of the National Labor Relations Board pursuant to Section 10(e), of the National Labor Relations Act (29 U.S.C. § 160(e)), for enforcement of its order issued against George J. Roberts & Sons, Inc., d/b/a The Roberts Press, on February 9, 1971 and reported at 188 NLRB No. 51.

The respondent is engaged in the publication and distribution of a classified directory called the "Handy Guide" in twenty trading areas in Nassau and Suffolk Counties on Long Island. The "Handy Guide" contains a listing of names, addresses and telephone numbers of individuals and business establishments. The publication is distributed without charge to residents of these areas, and revenue is substantially derived from the sale of commercial advertising. Respondent also publishes an Atlas, which is a supplement to the Guide; it lists by street address rather than by name. It is distributed at no cost and is financed by rentals to certain organizations. The respondent, which has its sole place of business in Patchogue, L.I., is essentially family operated: George J. Roberts, Sr. is president and owner; George Roberts, Jr. is vice president and plant manager; George Roberts, IV is in charge of the bindery. The company employs about 48 people exclusive of supervisory personnel. In the calendar year 1968 gross income was $525,000.


The threshold issue raised by respondent is the jurisdiction of the National Labor Relations Board. The respondent's business is local in the sense that its advertisers and subscribers are all located in Nassau and Suffolk Counties and its publications are not distributed elsewhere. While respondent's business itself may be intrastate, § 10(a) of the Act (29 U.S.C. § 160(a)) empowers the Board to assume jurisdiction over any person who engages in an unfair labor practice "affecting commerce". It is further noted that the Supreme Court "has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226, 9 L. Ed. 2d 279, 83 S. Ct. 312 (1963). See United States v. Ricciardi, 357 F.2d 91, 96 (2d Cir.), cert. denied, 384 U.S. 942, 16 L. Ed. 2d 540, 86 S. Ct. 1464 (1966); A. Cox & D. Bok, Cases and Materials on Labor Law 116 (7th ed. 1969). The Board has, for practical purposes, restricted its jurisdiction, in the case of nonretail establishments, to those enterprises which have an interstate inflow of materials in excess of $50,000 annually. Siemons Mailing Service, 122 NLRB 81, 85 (1958). Since in 1968 the respondent imported from outside the State of New York $51,941 in merchandise, primarily paper from one supplier in Maine, the Board has properly assumed jurisdiction. Respondent's contention that the Board should have used the 12 month period immediately preceding the issuance of the complaint, i.e., September 1, 1968 to August 31, 1969, during which period purchases originating outside New York were $13,000 less than that for the calendar year 1968, is unsupported and contrary to the usual practice of the Board. See Jos. McSweeney & Sons, Inc., 119 NLRB 1399, 1401 (1958); F. M. Reeves & Sons, Inc., 112 NLRB 295, 295-96 n. 1 (1955), enforced, 273 F.2d 710, 712 (10th Cir. 1959). The argument that respondent is publishing a newspaper and therefore escapes jurisdiction since it has no national syndication or national advertising is strained and is not supported by authority.


The Board found that the respondent violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (29 U.S.C. § 158(a)(1) and § 158(a)(3)) by coercively interrogating and threatening employees with respect to their union activities and by discharging and refusing to recall employees because of union activities. The underlying facts in support of such findings are as follows:

In April 1969, Herbert Moller, a compositor employed by respondent, contacted Jack Douglas, President of the Long Island Typographical Union No. 915, International Union, for the purpose of establishing an organization of respondent's composing room employees. Moller was provided with authorization cards, which were distributed to the employees in May; twelve were signed and returned to Douglas. On June 10, 1969 Douglas and Joseph Gagnon, a union vice president, visited the respondent's plant and presented Roberts with a letter advising that a substantial majority of the employees, who performed composing room operations, had authorized the union to represent them for the purpose of collective bargaining in all matters concerning wages, hours and working conditions. Roberts expressed shock, said he was not interested in the union and doubted that it had jurisdiction in Suffolk County. He was given and examined the authorization cards. He wanted a month to think the matter over but finally agreed to get in touch with them in two weeks. Roberts, who was obviously angry, visited the composing area later that afternoon and questioned employees Stekardis, Sinert and Moller as to whether they had signed cards. It is clear from the record that he expressed his disappointment at their desire to join a union and that he said if it were not for Moller's eye glasses he would punch him in the nose. He reminded employees Sinert and Bonanno of his past employment of members of their families. Later that same afternoon the foreman, Gallo, who had been with Roberts when he talked to the employees, personally advised Moller that, although he was a capable employee and Roberts would recommend him to other employers, he was discharged because he was disgruntled and discontented and Roberts did not feel safe with him in the plant. At the Board hearing, Roberts denied that Moller's union activity had motivated the firing.

On June 13, Roberts delivered a speech to an assembly of all 48 employees in which he reported that since October, 1968, he had been discussing with Videographic Systems, Inc. the prospect of computerizing the composing room operation. He explained that he had twice rejected offers made because of his concern for the employees who would be affected. He then recounted the visit of the union officials and read the letter they had delivered to him. He stated that his father had been a member of the union and that he had no bias against unionism. Roberts stated that reluctantly he had decided to purchase composition from outside sources, and then announced the closing of the composing room department. Its employees were terminated on June 19th. A picket line was established on June 20th.


We hold that the firing of Moller on June 10th violated Section 8(a)(3) of the Act as found by the Board. Respondent urges that Moller's firing was due to his insubordination, which he manifested by "smirking" at Roberts when he visited the composing room that afternoon and questioned the employees. He also removed his glasses when Roberts, aged 73, threatened to punch him, but this was hardly a display of truculence on the part of Moller. There is also a claim that Moller was disruptive in that he was obsessed with the necessity of being first in line checking out of the plant each night resulting in numerous altercations with other employees. This is a stale and flimsy pretext. The overriding consideration here is that Moller, concededly a capable employee with eight years experience, was summarily fired on the very day that the union officials, whom he had contacted, visited Roberts. His discharge was unquestionably due to his effort to bring in the union and is therefore violative of the Act. See NLRB v. Dorn's Transportation Co., 405 F.2d 706, 712-13 (2d Cir. 1969). Even if there were ample grounds to fire Moller, and none exist here, if his discharge was even partially motivated by his union activity, there is a violation of § 8(a)(3). NLRB v. Gladding Keystone Corp., 435 F.2d 129, 131-32 (2d Cir. 1970); NLRB v. Pembeck Oil Corp., 404 F.2d 105, 109 (2d Cir. 1968), vacated and remanded on other grounds, 395 U.S. 828, 89 S. Ct. 2125, 23 L. Ed. 2d 737 (1969); NLRB v. Milco, Inc., 388 F.2d 133, 138 (2d Cir. 1968).


We also hold that the discharge of the eleven composing room employees (Scott, Stekardis, Bonanno, Fawcett, J. Vedder, Otto, Rostocki, Leffert, Harris, R. Vedder, Sinert) violated Section 8(a)(3) of the Act as found by the Board.*fn* This is, in our view, a closer question than the firing of Moller, since an employer has the right to discontinue the operation of a department for financial rather than anti- union reasons. NLRB v. R. C. Mahon Co., 269 F.2d 44, 47 (6th Cir. 1959); see NLRB v. Dorn's Transportation Co., 405 F.2d at 712; NLRB v. Gopher Aviation, Inc., 402 F.2d 176, 183 (8th Cir. 1968). It is undisputed that prior to this layoff the respondent had been negotiating with Videograph regarding the computerization of its composition work. The question is whether the motive of respondent was financial or simply a desire to avoid unionization. NLRB v. Goya Foods, ...

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