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Argument for Petitioner.

301 U.S.

4. Provisions of the National Labor Relations Act empowering the National Labor Relations Board, in protection of interstate commerce, to require that employees discharged for union activities and advocacy of collective bargaining be restored to employment and their losses of pay made good, held valid as applied to the Associated Press in the case of an employee whose duties were editorial, having to do with the preparation of news for transmission rather than its actual transmission in interstate commerce. Virginian Ry. Co. v. System Federation No. 40, 300 U. S. 515; Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548. P. 129.

5. The National Labor Relations Act, as so applied in this case, does not unconstitutionally abridge the freedom of the press. P. 130.

The Act does not compel the Associated Press to employ anyone, or to retain an incompetent editor, or one who fails faithfully to edit the news without bias. It does not interfere with the right to discharge any employee (including one who has been so reinstated by order of the Labor Board) for any cause deemed proper by the employer, save only the forbidden reasons of union activities and advocacy of collective bargaining.

6. The contentions that the National Labor Relations Act deprives petitioner of property without due process; that the order of the Board requiring restoration of lost pay deprives petitioner of the right to trial by jury; and that the Act is invalid on its face because it seeks to regulate both interstate and intrastate commerce, are rejected upon the authority of Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548, and National Labor Relations Board v. Jones & Laughlin Steel Corp., ante, p. 1. P. 133. 85 F. (2d) 56, affirmed.

CERTIORARI, 299 U. S. 532, to review a decree sustaining an order of the National Labor Relations Board. The case came before the court below on the Board's petition for enforcement of its order.

Mr. John W. Davis, with whom Messrs. William C. Cannon, Harold W. Bissell, and Edwin F. Blair were on the brief, for the petitioner.*

*Arguments in this case are summarized from the briefs. Extracts from the oral arguments in this and in the other Labor Act cases will appear in an appendix in the bound volume.

103

Argument for Petitioner.

I. The Act is void in its entirety as an unrestricted attempt to regulate the relationship between all industrial employers and employees by imposing "collective bargaining" in violation of the Tenth Amendment.

This sweeping purpose appears in the preamble and is even more clearly shown by the very provisions and definitions in the Act. The legislative history leaves no possible doubt.

In this respect the Act is inseverable, notwithstanding the separability clause. Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, 362.

The entire Act, therefore, is a patent violation of the Tenth Amendment. Carter v. Carter Coal Co., 298 U. S. 238; United States v. Butler, 297 U. S. 1; Jacobson v. Massachusetts, 197 U. S. 11, 22; Schechter Poultry Corp. v. United States, 295 U. S. 495; McCulloch v. Maryland, 4 Wheat. 316.

II. The relation between the Associated Press and its editorial employees is not interstate commerce, does not affect such commerce, and is not subject to federal control.

An interruption in the process of production or manufacture, although it may lessen the supply of goods available for commerce, is not, per se, an obstruction to commerce nor does it directly affect it.

It is direct causes operating directly with which Congress is empowered to deal. There may be borderline cases, but the principle is clear. United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 408; United Leather Workers v. Herkert, 265 U. S. 457.

The assertion that labor disputes between the editorial employees and their employer might or would directly affect interstate commerce, is incomprehensible in the light of this Court's decisions. Manifestly the effect would be quite as remote and no more direct than that produced by labor disputes in any producing industry.

Argument for Petitioner.

301 U.S.

Carter v. Carter Coal Co., 298 U. S. 238; Schechter Poultry Corp. v. United States, 295 U. S. 495; United Mine Workers v. Coronado Coal Co., 259 U. S. 344.

So far as this record shows, a walkout in the New York office would not of necessity materially affect the flow of

news.

If Congress can pass a law to compel collective bargaining and to forbid the discharge of employees, as prescribed by § 8, it can, when it chooses, go on to laws compelling in express terms the closed shop, the open shop, maximum and minimum wages, hours of employment, safety devices, sanitary arrangements, housing, the times and manner of payment-everything in short which by any possibility could be thought to promote the contentment of the laborer in any and every industry and thus lead to industrial peace.

The question of power does not turn upon the magnitude of the cause or of the effect, but entirely upon the manner in which the effect has been brought about. Carter v. Carter Coal Co., 298 U. S. 238, 307–308.

The Associated Press is in no sense an instrumentality of interstate commerce. Its editorial employees, including the complainant Morris Watson, are not engaged in interstate or foreign commerce.

Commerce means more than communication. The word "is the equivalent of the phrase 'intercourse for the purposes of trade.'" Carter v. Carter Coal Co., 298 U. S. 238, 303.

Basically, the Associated Press is an exchange of news system and nothing more. Even if this exchange were the equivalent of a sale, it would not amount to "trade," because the Associated Press does not exchange news with the public, but only with its own members and other news agencies. Private or intracorporate exchange is not interstate commerce. See Pipe Line Cases, 234 U. S.

103

Argument for Petitioner.

548, 561-562; Hopkins v. United States, 171 U. S. 578, 603; Anderson v. United States, 171 U. S. 604, 612. Distinguishing: International Textbook Co. v. Pigg, 217 U. S. 91; Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Publishing Co., 293 U. S. 268, 276.

It is well settled that the regulation of so much of a business as constitutes interstate commerce cannot be extended to embrace the rest. First Employers' Liability Cases, 207 U. S. 463, 502; Railroad Retirement Board v. Alton R. Co., 295 U. S. 330; United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311, 327; cf. Western Union v. Kansas, 216 U. S. 1.

The business of the Associated Press in its New York office consists of two distinct functions, namely, production and transmission. Editorial employees are engaged exclusively in production. In this sense the analogy is exact between these employees and the employees of a manufacturing plant engaged in transforming the raw materials into the completed article. The speed of their production, the shortness of the interval between production and transmission, do not change the essential character of either function. Utah Power & Light Co. v. Pfost, 286 U. S. 165. See First Employers' Liability Cases, 207 U. S. 463, 502.

In the so-called "throat," "current" or "flow" of commerce cases the persons and things regulated were necessary agencies of interstate commerce, affected with a national public interest, and therefore subject to the regulations in question, which related to matters in, directly affecting, or inextricably intermingled with, interstate commerce. Furthermore, the "flow" cases advance no new doctrine, but only hold that Congress may properly keep certain persons from obstructing or closing the avenues of commerce to other persons. Likewise, even when Congress does not act, the individual States are themselves.

Argument for Petitioner.

301 U.S.

prohibited from obstructing, burdening, or discriminating against interstate commerce. Cf. Tagg Bros. & Moorhead v. United States, 280 U. S. 420; Carter v. Carter Coal Co., 298 U. S. 238, 305.

The Railroad Cases. Such regulation as Congress has attempted of the relation between employer and employee on the railroads is bottomed on the fact that the railroads are the essential instrumentalities by which interstate commerce is carried on and may be compelled to furnish safe and continuous service of transportation. Railroad Retirement Board v. Alton R. Co., 295 U. S. 330, 376. Extensive as the power of Congress over the railroads may be, the regulation of the employer-employee relation on railroads has never been permitted to reach beyond (a) the removal of actual or immediately threatened obstructions to interstate transportation service, or (b) obvious measures for the promotion of the safety of such service. Employers' Liability Cases, 207 U. S. 463; Adair v. United States, 208 U. S. 161; Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1; Wilson v. New, 243 U. S. 332.

The mere circumstance of engaging in interstate commerce is not decisive. The two all important considerations are (1) the duty of both employer and employee to render the public reasonable transportation service, and (2) the obviously direct connection between the attempted regulation and the performance of that duty. Cf. Pennsylvania R. Co. v. Labor Board, 261 U. S. 72, 85; Pennsylvania Railroad System v. Pennsylvania R. Co., 267 U. S. 203, 217.

In Texas & N. O. R. Co. v. Railway Clerks, 281 U. S. 548, it was held that the Railway Labor Act of 1926, unlike its predecessor, imposed certain definite obligations enforceable by judicial proceedings, the "outstanding feature" being the provision for an enforceable award. The provision for free designation of representatives "for

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