News Union of Baltimore v. NLRB

• Decision Date: 09 February 1968
• Docket Number: 20787.,No. 20743,20743
• Citation: 393 F.2d 673
• Parties: The NEWS UNION OF BALTIMORE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Hearst Corp., News American Division, Intervenor. TRUCK DRIVERS AND HELPERS, LOCAL 355, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Hearst Corp., News American Division, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

393 F.2d 673 (1968)

The NEWS UNION OF BALTIMORE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Hearst Corp., News American Division, Intervenor.

TRUCK DRIVERS AND HELPERS, LOCAL 355, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Hearst Corp., News American Division, Intervenor.

Nos. 20743, 20787.

United States Court of Appeals District of Columbia Circuit.

Argued September 12, 1967.

Decided February 9, 1968.

Mr. Jacob B. Davis, Baltimore, Md., with whom Mr. George Cochran Doub, Baltimore, Md., was on the brief, for petitioner in No. 20,743.

Mr. Bernard W. Rubenstein, Baltimore, Md., with whom Mr. Jacob J. Edelman, Baltimore, Md., was on the brief, for petitioner in No. 20,787.

Mr. Solomon I. Hirsh, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, and Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, were on the brief, for respondent.

Mr. John B. Siefken, New York City, for intervenor.

Before BAZELON, Chief Judge, and McGOWAN, and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

These consolidated cases involve petitions by two labor unions ("News Union" and "Teamsters") to set aside an order of the National Labor Relations Board dismissing a complaint that the intervenor-newspaper ("Hearst") had violated Sections 8(a) (1) and (3) of the National Labor Relations Act. 29 U.S.C. § 151 et seq. The issue presented is whether a lock-out of all its employees by Hearst, including those represented by News Union and Teamsters, constituted the interference with Section 7 rights and the discrimination in derogation of union membership forbidden by the statute. The matter was explored in a full evidentiary hearing before an examiner, and the Board adopted his findings of fact and recommendation of dismissal. We do not interfere with this disposition by the Board.

I

Baltimore has two major newspaper companies — Hearst, which publishes the News American, and Abell, which publishes the Sunpapers. The two have functioned for many years as a multi-employer bargaining unit vis-a-vis several of the unions representing certain of their employees, and jointly bargained contracts with such unions were in effect at the time of the events here in question. Teamsters had such a contract, but News Union did not.

News Union represents editorial and other white-collar employees. Early in 1965 a rival union, the Washington Newspaper Guild, was certified as the bargaining agent of such employees on the Sunpapers. The Guild was unable to reach agreement on a contract, and on April 17, 1965, the Guild struck the Sunpapers at noon and set up a picket line. The Sunpapers, which had never missed publication in their history, made an effort to continue this tradition unbroken, aided by the fact that about one-third of the Guild members kept on working. Trouble came, however, from the Teamsters and the printers, these latter being members of Local 12 of the International Typographical Union ("ITU") with whom Hearst and Abell had a joint contract. After the first day of the strike, the Teamster employees to a man honored the picket line. The printers reported for work in part for two days, but on the third none appeared. All other Sun employees ignored the picket line; and thus it was that, in respect of a strike which began at noon on Saturday, Abell managed to get its papers out on Sunday and Monday but suspended on Tuesday.

Hearst and Abell had agreed long before that, if employees under a joint contract struck one paper contrary to that contract and caused a suspension, the other paper would cease publishing also. Accordingly, upon being notified by Abell that the condition of this understanding had happened, Hearst terminated publishing and instructed all of its employees, except those who could be used in maintenance work, to stop coming to work until further notice.¹ Approximately one month later, when all the printers returned to work at the Sun, Abell resumed publication, as did Hearst on the same day, recalling all its former employees who wished to return.

II

In its suspension notice to its employees, Hearst characterized the refusal of the printers and Teamsters to cross the picket lines as a violation of their joint contracts justifying the lock-out.² Thus we assume for present purposes, as have the parties before us, that the propriety of the lock-out must rest in the first instance on whether the contracts can be interpreted as covering a refusal to cross picket lines. Petitioners contend here, as they did before the Board, that no such interpretation can reasonably be made. We address ourselves to that issue principally by reference to the ITU contract since it was also argued to us that the defection of the Teamsters was not a contributing cause of the Sun's suspension. Although we do not necessarily accept this to have been the case,³ it is clear that, if the printers' contract is as broad as the Board finds it to be, the result here is the same whether the Teamsters' is or not.

The relevant language of the ITU contract is as follows:

The language and spirit of this Agreement guarantee the prompt and faithful performance by the Union and the Office of all obligations imposed by the terms of this Agreement. Both parties agree that whenever any differences of opinion as to the rights of either under the Agreement shall arise, or whenever any dispute as to the construction of the contract or any of its provisions takes place, such difference or dispute shall be promptly resolved in the manner provided in this contract without strike, lockout, diminution, or interruption of any kind, to the end that fruitless controversies shall be avoided, good feeling and harmonious relations be maintained, and the prosecution of the business in which the parties have a community of interest shall be assured.

Elsewhere in the contract the grievance procedure set up is characterized as to be invoked with reference to "differences in the interpretation and enforcement of the terms of this contract, including the question of whether * * the disputed issue is covered by the terms of the agreement, and including the interpretation of all language contained in this contract."⁴ Petitioners point out that there is no explicit reference to the crossing of picket lines and suggest initially that language which in terms inhibits only a strike is not to be read as restricting the observance of picket lines. But the practical relationship between work stoppages and the honoring of picket lines is so well understood in the industrial climate that we think that a clause of this kind using only the word "strike" includes plant suspensions resulting from refusals to report for work across picket lines. NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953).⁵

A more serious issue is tendered by the contention that the failure to cross picket lines here is not related in any way to the terms of the contract and that, accordingly, it does not involve "any differences of opinion as to the rights of either party under the Agreement," nor "any dispute as to the construction of the contract." The Trial Examiner was fully cognizant of the force of this point, and of the principle that statutorily protected rights to strike and to observe picket lines are not to be regarded as waived in the absence of a visible purpose to do so. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 283-284, 76 S.Ct. 349, 100 L.Ed. 309 (1956); Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 750-751, 2 L.R.A.3d 868 (6th Cir. 1963); Tide Water Associated Oil Company, 85 N.L.R.B. 1096, 1098 (1949). He expressed doubt that the contract terms themselves exhibited the "clear and unmistakable" language of waiver, because he thought the picket line issue would not normally be regarded as comprehended within the contract's characterization of the kinds of questions over which no strike or lock-out would occur.

In any event, the ambiguities with respect to the precise scope of the clause apprehended by the Examiner caused him to summon to his aid other evidence in the record which might shed light on this question of intention. He purported to find it in the attitudes and opinions expressed by the union leadership.⁶ When Abell learned that the Guild would strike on April 17 and put up picket lines, its business manager asked the other unions what they would do in such event. The president of the printers' local told him that the no-strike clause would be honored and the men would continue working.⁷ Two days before the strike started, the Sun's printers had a meeting at which the local's president and secretary-treasurer advised the men that "they had a contract and should continue working," and that this was the opinion of the president of the ITU. At a second meeting two days after the strike began, similar representations were made by the two officers of the local, and were supplemented by messages from the ITU that the men should remain at work and that, if they did not, the ITU would not provide strike benefits for them.⁸ A vice-president of the local and the chairman of the Sun printers said, however, that they would not cross the Guild picket lines as a matter of principle. After both papers had suspended, the local issued emergency travel cards which enabled the recipient members to work in other cities. When the ITU heard of this, it ordered the local to recall all such cards issued to Sun printers.

Petitioners urge that this evidence dehors the contract should not be considered since the contract language is clear in its failure to bar observance of the picket lines. In our view, however, the Board was not required to regard the contract language as free from doubt on its face and that, in the search for intention, it was...