Dayton Newspapers, Inc. v. N.L.R.B.

• Citation: 402 F.3d 651
• Decision Date: 23 March 2005
• Docket Number: No. 03-2110.,No. 03-1981.,03-1981.,03-2110.
• Parties: DAYTON NEWSPAPERS, INC., d/b/a Cox Publishing of Ohio, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local Union No. 957, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

402 F.3d 651

DAYTON NEWSPAPERS, INC., d/b/a Cox Publishing of Ohio, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner, General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local Union No. 957, Intervenor.

No. 03-1981.

No. 03-2110.

United States Court of Appeals, Sixth Circuit.

Argued: September 14, 2004.

Decided and Filed: March 23, 2005.

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ARGUED: Brett L. Thurman, Dayton, Ohio, for Petitioner. Steven B. Goldstein, National Labor Relations Board, Washington, D.C., for Respondent. John R. Doll, Logothetis, Pence & Doll, Dayton, Ohio, for Intervenor. ON BRIEF: James M. Hill, McNamee & Hill, Beavercreek, Ohio, Leslie H. Wiesenfelder, Dow, Lohnes & Albertson, Washington, D.C., for Petitioner. Steven B. Goldstein, Margaret A. Gaines, National Labor Relations Board, Washington, D.C., for Respondent. John R. Doll, Logothetis, Pence & Doll, Dayton, Ohio, for Intervenor.

Before: BOGGS, Chief Judge; GUY, Circuit Judge; and STEEH, District Judge.^*

OPINION

BOGGS, Chief Judge.

This is a case of one-upmanship gone wrong. A union called a one-day strike in order to push management into more active bargaining, and the management reacted by locking out the union and laying off some of its members. The lockout dragged on for months, resulting in a finding by the NLRB that the company had committed multiple unfair labor practices including threatening the strikers with loss of their jobs, dealing directly with the strikers, failing to reinstate the strikers after an unconditional offer to return, failing to pay a bonus, and laying-off and failing to recall the laid-off workers. Appellant seeks review of the NLRB order; the NLRB seeks enforcement. We affirm the NLRB with regard to the unfair labor practices stemming from the strike and lockout and the failure to pay the bonus but reverse the NLRB's holdings regarding the laid-off workers.

I

Appellant, Dayton News, Incorporated (DNI), is the publisher of the Dayton (Ohio) Daily News. The Charging Party, Local 957 of the Teamsters-affiliated General Truck Drivers, Chauffeurs, Warehousemen and Helpers Union (the Union), is a bargaining unit made up of drivers and maintenance workers. The drivers' job is to pick up the newly-printed newspapers at the Daily News facility and deliver them to various distribution points in the area. A daily newspaper is a highly perishable commodity. If it is not delivered on time, it becomes worthless.

On the night of Saturday, June 26, 1999, the Union called a one-day "quickie" strike. DNI managed to get the Sunday paper out that night, but it refused the Union's subsequent offer to return to work Sunday night and locked the drivers out. The lockout continued into 2000, despite an additional Union offer to return to work in late December 1999. The unfair labor practices charged by the Union all stem from the strike and lockout.

Prior to and after the strike, the relationship between the newspaper and the Union was affected by two important developments. First, DNI was building a new printing facility outside Dayton to replace its downtown building. In the Spring of 1998, DNI notified the Union that the new facility would necessitate some changes in operations and in the number of drivers needed. In the old facility, the dock area only had space to load 12-foot trucks. The new facility would be able to handle 45-foot trucks, so delivery runs could be consolidated. As a consequence, DNI planned to lay off the thirteen least-senior drivers, retaining eighteen drivers. DNI notified the Union of these layoffs on January 18, 1999.

Also in early 1999, DNI offered all of its employees who would lose their jobs as a result of the move to the new facility, including the thirteen least-senior drivers, a Stay-to-the-End Bonus of up to $10,000. The Bonus was contingent on the employees "staying actively at work, and in good standing, until their release date." The company tentatively planned to begin laying off workers in July 1999 and intended to release employees gradually.

The second important development that affected labor-management relations was unfruitful negotiations over a new contract. The Union's collective bargaining agreement with DNI expired on November 15, 1998. The two sides had been in talks since August 1998 and appeared to have reached an agreement by the end of November. The Union scheduled a ratification vote for November 30, 1998, but at the last minute, and despite promises made to DNI by lead negotiator John Burns, Vice President of the Union's Executive Committee and Local 957's business representative, the Union's Executive Committee cancelled the vote. The record does not indicate why the vote was cancelled, although apparently Burns told the drivers that DNI had "changed the deal," a claim the ALJ later found to be untrue. After this, the two sides continued to negotiate but only in a desultory manner-meetings were scheduled once a month but many were cancelled.

In May 1999, the Union voted to authorize a strike but did not notify DNI of this. DNI Operations Manager, Michael Joseph, only found out about the possibility of a strike in mid-June when a driver "blurted" it out during a meeting about the transition to the new facility. There is some dispute about how Joseph reacted. One driver, Tim Hehemann, testified that Joseph threatened the drivers with the loss of their jobs if they went on strike,¹ but another driver testified differently:

Q. And you said that Mike responded that that [striking] would be a mistake?

A. Yes, sir.

Q. Okay. And isn't it true that at no time did Mr. Joseph say that striking employees would be fired?

A. Yes.

Q. That's correct?

A. He did not say that. I did not hear nothing about any threats, or anything.

The ALJ, however, chose to credit Hehemann's statement.

At 10:00 p.m. on Saturday, June 26, 1999, without notifying DNI, the Union went on strike, setting up picket lines at the DNI headquarters downtown, at the new printing facility, and at the Penske lot where the delivery trucks were parked when not in use. Most of the drivers scheduled to work that night were the least senior ones; the three senior drivers who were scheduled all crossed the picket line. John Burns, the Union business representative, testified that he timed the strike with an eye toward maximum impact, because the Sunday paper is DNI's most profitable of the week. The Union's stated intent was to prevent the newspapers from going out, and to this end picketers blocked the exits at the Penske lot and the entry to the downtown building with their bodies. DNI had to call the police to clear the picketers away, and after each truck left, the picketers returned, and the police had to clear them out again. The paper got out, but the deliveries were delayed. According to the testimony of several drivers and other Union representatives present at the picket lines, a furious Michael Joseph told the drivers that the Union had "cost all you guys your jobs."

On Sunday, June 27, the Union sent notice to DNI indicating the drivers' unconditional intention to return to work that evening. As each driver showed up for his shift, however, Joseph sent him home, saying that DNI was "not in need of 957's services," and that the drivers would be contacted about when they should return to work. When drivers asked if their work was unsatisfactory, Joseph told them he was happy with them, it was the Union and its representatives with which he had the problem.

During the week following the strike, Joseph contacted the eighteen drivers who would be employed at the new printing facility and asked to speak to each of them individually. About a dozen drivers accepted his offer. In the meetings, he explained that he would welcome back any driver who promised to show up for work, i.e., not to strike. He also discussed the contract negotiations and the fact that working drivers might have to cross the picket line. Nine drivers eventually went back to work. DNI did not notify the Union that it was holding these meetings, did not permit a Union representative to be present, and did not first discuss with the Union the issues to be raised in the meetings.

On July 1, 1999, DNI declined the Union's June 27 offer to return to work and formally notified the Union and the drivers that it was putting the eighteen senior drivers on unpaid leave and laying off the thirteen least-senior drivers. The senior drivers who accepted DNI's conditions were permitted to return to work. DNI also eventually refused to pay the Stay-to-the-End bonus to the laid-off drivers.

Simultaneously, DNI expedited the transfer to the new printing facility. The strike forced it immediately to find a way to reduce its routes down to the eighteen it had planned to implement after the transition. Among other efficiency measures, DNI began to use the 45-foot trucks for some of its deliveries. These trucks required drivers to have a Class A Commercial Driver's License, which had not been necessary to drive the older 12-foot trucks. To cope with the lockout, DNI also hired replacement drivers. Although it did not recall any of the least-senior, laid-off drivers, it did rehire at least one of them as a new employee.

On July 19 and again on August 9, 1999, DNI met with the Union to try to negotiate an end to the lockout and a new contract. DNI demanded that the Union give "work assurances" until the transition to the new facility was complete. Not even DNI officials seemed completely sure what they were asking for. DNI told the Union, "[f]or now, as an opening proposition, we are asking for some assurances that work and new plant transition can continue with little or no interruption until the transition is complete-after that, some type of advance notice (a few weeks might be enough, maybe less) before striking would be required." In addition, DNI asked the Union to accept the...