Citizens Publ'g and Print'g Co. v. NLRB
| Citation | 263 F.3d 224 |
| Decision Date | 19 April 2001 |
| Docket Number | CROSS-PETITIONER,No. 00-2825,6-CA-28147-1,6-CA-28147-2,CA-27215,00-3758,6-CA-27832-2,CROSS-RESPONDENTS,00-2825 |
| Parties | (3rd Cir. 2001) CITIZENS PUBLISHING AND PRINTING COMPANY; W. RYAN KEGEL; SCOTT KEGEL, ALTER EGOS, PETITIONERS/, v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT/(Cases 6-) Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Attorneys For Petitioners/cross-respondents: Robert E. Durrant (argued) Campbell, Durrant & Beatty, P.C. 555 Grant Street, Suite 120 Pittsburgh, PA 15219-4408, Philip L. Clark, Jr. Balph, Nicolls, Mitsos, Flannery & Clark 400 Sky Bank Building 14 North Mercer Street New Castle, PA 16101
Leonard R. Page Acting General Counsel John H. Ferguson Associate General Counsel Aileen A. Armstrong Deputy Associate General Counsel Meredith Jason Supervisory Attorney Charles P. Donnelly Attorney Rachel Gartner Lennie Attorney Fred B. Jacob (argued) Attorney National Labor Relations Board 1099 14th Street, N.W. Washington DC 20570, Attorneys For Respondent/cross-petitioner
Before: Sloviter, Rendell, and Fuentes, Circuit Judges
Citizens Publishing and Printing Company and the two brothers who operate it, W. Ryan Kegel ("RKegel") and Scott R. Kegel ("SKegel"), filed a Petition for Review of a final decision and order of the National Labor Relations Board ("Board"). The Board has filed a Cross-Application for Enforcement. We have been asked to review (1) whether Petitioners (collectively, "Citizens Publishing") committed an unfair labor practice by unilaterally subcontracting night and weekend photography work to independent contractors, and (2) whether the labor strike was an "unfair labor practice strike," rather than a mere economic strike. We conclude that substantial evidence supports the Board's affirmative findings as to both inquiries, as well as its additional finding that Citizens Publishing falsely informed the union that the striking employees had been permanently replaced, thereby failing to reinstate the strikers immediately upon their unconditional offer to return to work. Therefore, we will deny the petition and grant the cross-application. Further, because neither party challenges the propriety or scope of the relief ordered by the Board, we will enforce the Board's order in its entirety.
The facts germane to the issues on appeal are as follows. Citizens Publishing and Printing Company is a family-owned corporation, which publishes, circulates, and distributes the Ellwood City Ledger, a daily newspaper, and the Valley Tribune, a weekly newspaper. RKegel is the vice-president and publisher with overall responsibility for the company. SKegel is the general manager, who, together with RKegel, is responsible for all day-to-day operations. Each brother owns one-third of the company's stock.
Before 1993, Citizens Publishing had employed Bud Dimeo as its sole full-time photographer for over 35 years. Dimeo performed regular daytime photography work. To cover the night/weekend work, Citizens Publishing had used several stringers over the years, sometimes hiring three to four at a time. Stringers are independent contractors who contribute stories and/or who take photographs for the newspaper on an ad hoc basis. They are paid by-the-line for articles or a flat fee for each photo.
At some point in 1993, daytime photography work began to decline for Dimeo such that sufficient work to sustain a full-time photographer position no longer existed. As a result, in August 1993, Citizens Publishing assigned night/weekend work to Dimeo as part of his regular duties. From August 1993 until his retirement in January 1995, Dimeo was responsible for the majority of the newspaper's night/weekend work. Because the night/weekend work was part of his full-time duties, Dimeo did not receive any additional compensation for these photographs. During this same time, the full-time sports editor, Mark Crepp, also expressed an interest in earning extra money. Citizens Publishing thus assigned night/weekend work to him as well, paying him a per picture rate. Additionally, Citizens Publishing continued to hire stringers to perform night/weekend work.
On December 28, 1993, Teamsters Local Union No. 261 ("Union") was certified as the exclusive collective bargaining representative for certain employees of the company. This certified bargaining unit did not include stringers. In early 1994, the Union and Citizens Publishing began negotiating for an initial collective-bargaining agreement. During the negotiations, the parties discussed Citizens Publishing's use of stringers but did not resolve the matter. On June 3, 1994, the parties agreed that, while the negotiations progressed, Citizens Publishing would continue its past practice. The next day, the Union requested that Citizens Publishing hire a stringer to do night/weekend work in order to enable Dimeo to spend more time with his ailing wife. Citizens Publishing refused, insisting that it was not going to give Dimeo full-time pay to work part-time.
When Dimeo retired in January 1995, Citizens Publishing assigned Crepp to be the temporary full-time photographer. In addition to his new photography duties, Crepp also alternated as a weekend sports editor, writing sports stories and assisting with the layout of the sports section. He also worked on an annual business supplement published by Citizens Publishing. In March 1995, Crepp informed company management that he was having difficulty completing the night/weekend work that Dimeo had previously performed. In response, Citizens Publishing hired several stringers to cover the night/weekend work. Citizens Publishing informed Crepp that the stringers would perform most of the photography work, but that Crepp would continue to take sports photographs on nights and weekends. Citizens Publishing neither notified the Union of its decision to subcontract the night/weekend photography work previously assigned to Dimeo nor gave the Union the opportunity to bargain over this decision.
At the parties' next negotiating session, on April 11, 1995, the Union asserted that Citizens Publishing had unilaterally removed photography work from the bargaining unit by subcontracting the night/weekend work. The Union asked Citizens Publishing to rescind its action, but the company refused. On April 18, the Union filed an unfair labor practice charge with the Board, alleging that Citizens Publishing, in subcontracting night/weekend work, had unilaterally changed the terms and conditions of employment without bargaining, as required under federal labor law.
On July 21, 1995, the Union learned that the Board intended to issue a complaint based upon the Union's unfair labor practice charge. Two days later, the Union met with the employees and informed them of Citizens Publishing's unilateral change and its refusal to rescind its action, as well as the impending Board complaint. After learning of Citizens Publishing's unfair labor practice, numerous employees indicated their desire to go on strike, and the membership held a strike vote. The membership voted to strike and left work the next day, July 24.
After the bargaining unit employees went on strike, Citizens Publishing continued to publish its newspapers, relying on the assistance of family members, supervisory employees, and a few non-striking bargaining unit employees. Eventually, Citizens Publishing hired temporary replacement workers. On January 5, 1996, the Union contacted Citizens Publishing, seeking to resume bargaining and requesting information concerning the replacements. On February 22, the Union requested additional information, advising Citizens Publishing that the information was necessary "in the event that our members make an unconditional offer to return to work." By letter dated March 5, Citizens Publishing responded, asserting that "[n]one of the temporary replacements are considered to be permanent replacements."
The parties then scheduled a bargaining session for March 14, 1996. Two days earlier, RKegel and SKegel had met with Donald Smith, a management consultant representing Citizens Publishing in its negotiations with the Union. At that meeting, the Kegels had informed Smith that they were happy with the replacement employees' job performance and that, if he could not reach an agreement with the Union soon, they would favor the permanent replacement of the strikers. The next day, on March 13, the Kegels and Smith drafted a letter from RKegel to Smith, stating that Citizens Publishing believed the strike was an economic strike, and that the company considered the temporary replacements "to be regular permanent replacement employees," namely, that the strikers were being permanently replaced.
When the parties met on March 14, Smith began the session by stating that he understood that the Union planned to make an unconditional offer to return to work that day. The Union representative responded affirmatively but indicated that he also needed some additional information. The parties discussed several issues, including the wages that the strikers would receive upon their return. When the Union sought a list identifying the replacement workers and the jobs that they performed, Citizens Publishing requested a caucus to consider the Union's request.
During the caucus, Smith and SKegel met with RKegel at a nearby restaurant. When Smith and SKegel reported that the negotiations were not progressing, RKegel instructed them to give the Union the March 13 letter indicating that the replacements were considered permanent. When Smith and SKegel returned to the bargaining session, they gave the Union the March 13 letter. The bargaining session ended shortly...
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