Passaic Daily News v. N.L.R.B.
| Decision Date | 15 June 1984 |
| Docket Number | No. 83-1661,83-1661 |
| Citation | 736 F.2d 1543 |
| Parties | 116 L.R.R.M. (BNA) 2721, 237 U.S.App.D.C. 178, 101 Lab.Cas. P 11,084, 10 Media L. Rep. 1905 PASSAIC DAILY NEWS, t/a the Herald News, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the National Labor Relations Board and Cross-Application for Enforcement.
Henry I. Hamburger, New York City, for petitioner.
Abby Propis Simms, Atty., N.L.R.B. of the Bar of the District of Columbia Court of Appeals, Washington, D.C., pro hac vice by special leave of Court, with whom Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., was on the brief, for respondent.
W. Terry Maguire, Richard M. Schmidt, Jr., and N. Frank Wiggins, Washington, D.C., were on the brief for American Newspaper Publishers Ass'n, et al., amici curiae urging that the decision and order be vacated.
Before WALD and MIKVA, Circuit Judges, and VAN DUSEN, * Senior Circuit Judge for the United States Court of Appeals for the Third Circuit.
Opinion for the Court filed by Senior Circuit Judge VAN DUSEN.
Passaic Daily News, t/a The Herald News ("the Company"), has petitioned for review of an order of the National Labor Relations Board ("the Board"). 1 The Board has filed a cross-application for enforcement of its order. We have jurisdiction pursuant to sections 10(e) and 10(f) of the National Labor Relations Act ("the Act"). 29 U.S.C. Secs. 160(e), 160(f) (1976). For the reasons that follow, we will enforce part of the Board's order, deny enforcement of part of the order, and remand the case for further proceedings consistent with our decision.
The Company, a New Jersey corporation, is engaged in the business of publishing, selling, and distributing a daily newspaper, The Herald News. The Company maintains its principal office and place of business in Passaic, New Jersey. In addition to its facility in Passaic, the Company maintains other offices in New Jersey, including a Morris County bureau in Morristown, New Jersey.
In July 1977, the Company hired Joseph Lasica as a reporter covering municipalities in Bergen County. After an intermediary assignment, the Company assigned Lasica to the Morris County bureau. On January 15, 1979, Lasica notified The Herald News that he had formed a union organizing committee with some other editorial employees; the group hoped to gain union representation for all editorial employees. From January 1979 until August 1980, Lasica distributed union literature and held organizational meetings with editorial employees in an attempt to convince them to vote for the International Printing and Graphic Communications Union, Local 8 ("Local 8" or "the Union"). One editorial employee, Mitchell Stoddard, had been hired by the Company in October 1967. Stoddard served as the Company's Morris County bureau chief from October 1967 until March 1978. As bureau chief, Stoddard had several responsibilities, including administrative ones. 2 In addition to his administrative duties, Stoddard reported on Morris County stories and wrote a controversial weekly column that addressed issues affecting northern New Jersey. In March 1978, at the request of Coit Hendley, then the executive director of the Company, Stoddard agreed to and did serve as night editor of The Herald News.
Fifteen months later, in June 1979, Stoddard returned to the Morris County bureau. At that time Stoddard and Lasica were the only employees in the Morris County bureau; Stoddard was named bureau chief and nominally retained this position at all times relevant to this litigation. Although Stoddard considered himself as running the Morris County bureau after June 1979, the record includes credible testimony that Stoddard no longer performed the responsibilities that he had performed prior to his appointment as night editor.
Two Union representation elections were held, the first in May 1979 and the second in January 1980. After sustaining objections to these two elections, the Board directed that a third election be held in August 1980. During this period, Lasica was the driving force in the Union's organizational drive. Apart from Lasica's efforts on behalf of Local 8 in the first two elections, both Stoddard and Lasica continued to perform their normal duties in the Morris County bureau until June 1980. Moreover, despite the fact that Stoddard and Lasica were the only employees assigned to Morris County, the record is devoid of references to Stoddard's involvement with the Union until June 1980.
Stoddard testified that he approached Lasica in June 1980, inquiring what he could do to help the Union's efforts. Shortly thereafter, Lasica attempted to enlist Stoddard as a member of the Union's organizing committee; Stoddard, however, hesitated. Stoddard further testified that when he departed for vacation a few weeks later he still had reservations about permitting his name to be used as a member of the Union's organizing committee and communicated his reservations to Lasica. Nevertheless, in the Union's correspondence of July 28, 1980, while he was still on vacation, Stoddard's name appeared as one of twelve members of the organizing committee. 3 From July 28, 1980, until the election, Local 8 distributed ten campaign pamphlets, all of which listed the members of the organizing committee. Stoddard's name was on each pamphlet. Upon his return from vacation on August 4, Stoddard initially disclaimed the Union's use of his name in its literature. He, however, never asked Lasica to withdraw his name nor did he object to the repeated use of his name in subsequent publications. Instead, Stoddard testified that, because he was committed to the Union, he assisted with the organizing drive (127a).
The Company's writers, photographers, and editors selected Local 8 as their collective bargaining representative in the third representation election held on August 14-15, 1980. 4 Two days after the election, Stoddard's regular weekly column did not appear. In an affidavit, Stoddard recites that Jim Hile, the Sunday editor, "told me that within a half an hour of the election Hendley had come into where he [Hile] was, was madder than hell, had pulled out my column, and said that I was not going to have any more columns" (360a). The affidavit also recites that when Stoddard questioned Hendley about the weekly column, Hendley replied that it was the Company's new policy not to have reporters on the street write columns (360a). 5
In response to the Company's actions and charges initially filed by Lasica, the General Counsel filed a complaint. The complaint alleged, inter alia, that the Company's decision to cancel Stoddard's column constituted an unfair labor practice within the meaning of sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. Sec. 158(a)(1), 158(a)(3), and that the Company changed the conditions of employment of Stoddard in violation of sections 8(a)(1) and 8(a)(3). 6 The ALJ agreed. He concluded that the Company, "by ceasing the publication of Stoddard's weekly column, committed an unfair labor practice, in that it discouraged membership in the Union, in violation of Section 8(a)(3) and (1) of the Act" (20a). Moreover, the ALJ found that Stoddard was demoted due to his union activities (20a). The Board agreed; it affirmed the ALJ's rulings, findings, and conclusions and adopted his order, with a minor modification. The Board's order required the Company to cease and desist from engaging in the violation found and from engaging in any related manner designed to interfere with the employees' exercise of their section 7, 29 U.S.C. Sec. 157, rights. Affirmatively, the Board ordered the Company to restore Stoddard to his former position as weekly columnist and resume publication of Stoddard's weekly column, subject to the same lawful standards and requirements that the Company imposes or may impose on its employees; to expunge from its files any reference to the cancellation of Stoddard's column; to notify Stoddard in writing that the references have been expunged and that evidence of this unlawful action will not be used as a basis for future personnel actions; and to post an appropriate notice 7 (2a-7a).
The Company petitions for review of the Board's order on five grounds. The Company contends:
(1) that Stoddard was exempt from coverage under the Act because he was a supervisor within the meaning of section 2(11) of the Act, 29 U.S.C. Sec. 152(11);
(2) that Stoddard was exempt from coverage under the Act because he was a managerial employee;
(3) that substantial evidence did not support the Board's finding that the Company decided not to print Stoddard's weekly column because of his participation in protected, concerted activities (4) that the First Amendment to the United States Constitution precludes the Board from challenging the Company's decision not to print Stoddard's weekly columns or inquiring into the Company's motives for deciding not to print Stoddard's columns; and
(5) that the First Amendment precludes the Board from requiring the Company to resume printing Stoddard's columns subject to further and continued Board scrutiny.
Because we find that Stoddard was covered by the Act and that substantial evidence, based upon the record as a whole, supports the Board's finding that the Company discontinued Stoddard's weekly column because of his involvement in protected activities, we will enforce the Board's order, except that part of such order requiring the Company to resume publication of Stoddard's weekly column. We hold that the portion of the order requiring the Company to "resume publication of Stoddard's weekly column, subject to the same lawful standards and requirements" that the Company imposes, or may impose, on its employees, impermissibly attempts to compel the Company to publish what it prefers...
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