International Typographical Union Local 38 v. NLRB

• Decision Date: 10 May 1960
• Docket Number: No. 5509,5510.,5509
• Citation: 278 F.2d 6
• Parties: INTERNATIONAL TYPOGRAPHICAL UNION LOCAL 38, AFL-CIO and International Typographical Union Local 165, AFL-CIO and its Scale Committee, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

278 F.2d 6 (1960)

INTERNATIONAL TYPOGRAPHICAL UNION LOCAL 38, AFL-CIO and International Typographical Union Local 165, AFL-CIO and its Scale Committee, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 5509, 5510.

United States Court of Appeals First Circuit.

Heard December 2, 1959.

Decided May 10, 1960.

Rehearing Denied June 10, 1960.

Robert M. Segal, Boston, Mass., and Gerhard Van Arkel, Washington, D. C., with whom Arthur J. Flamm, Boston, Mass., Henry Kaiser, George Kaufmann, Washington, D. C., Segal & Flamm, Boston, Mass., Van Arkel & Kaiser, Washington, D. C., and Dickstein, Shapiro & Galligan, New York City, were on brief, for petitioners.

Melvin Pollack, Washington, D. C., Atty., with whom Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, and Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., were on brief, for respondent.

Before WOODBURY, Chief Judge, HARTIGAN, Circuit Judge, and WYZANSKI, District Judge.

WOODBURY, Chief Judge.

The Haverhill Gazette Company and the Worcester Telegram Publishing Company, Inc., Haverhill and Worcester or collectively the employers hereinafter, are and for years have been engaged in the business of publishing daily newspapers in their respective Massachusetts communities. Both subscribe to interstate news services, advertise nationally sold products and enjoy annual gross revenues from their publishing operations in excess of $500,000. For a great many years the composing room employees, that is to say the printers, of Haverhill have been represented by Local 38 and the composing room employees of Worcester have been represented by Local 165 of International Typographical Union, AFL-CIO. Preexisting contracts between Haverhill and Worcester and the local unions representing their composing room employees having in each instance long expired, and in each instance attempts to negotiate new agreements having come to naught, strikes of the composing room employees of both employers ensued. At this juncture, on separate charges filed by Haverhill and Worcester, General Counsel for the National Labor Relations Board on February 6, 1958, filed separate complaints against the parent union, ITU hereinafter, and the local involved in each situation¹ alleging that the respondents had been and were engaging in various acts and conduct in violation of the Labor Management Relations Act, 1947, 29 U. S.C.A. § 141 et seq., 61 Stat. 136, as amended. The cases were consolidated for hearing by order of the Regional Director and hearings in the Worcester case were held in Worcester by a trial examiner in April, 1958. At those hearings evidence was introduced and counsel stipulated for the incorporation in the record in that case of the testimony of the president of ITU adduced in the New York Mailers Case, so called, Board Nos. 2-CB-4967, 2-CB-1769 and 2-CB-1807, and of the testimony in a proceeding under § 10(k) of the Act between ITU and Worcester. Counsel also stipulated that the record in a proceeding in the United States District Court for the District of Massachusetts for an injunction under § 10(j) of the Act entitled Alpert v. International Typographical Union, D.C.Mass.1958, 161 F.Supp. 427, should constitute the record in the Haverhill case.

On the evidence before him in both cases the trial examiner found that the respondents had engaged and were engaging in some of the unfair labor practices charged against them in the complaints but had not and were not engaging in others, and recommended an order which he thought appropriate to his findings. Exceptions to the trial examiner's intermediate report, with supporting briefs, were filed by the respondents but the Board, with an exception to be noted hereinafter, affirmed the trial examiner and adopted his findings, conclusions and recommendations as its own. The respondents thereupon filed a petition in this court to review that order and set it aside and the Board countered with a petition for enforcement of its order.

There is little dispute over the facts, and the facts and issues in both cases are essentially the same. In both cases protracted negotiations for new collective bargaining agreements, in which officers of ITU participated with representatives of the local unions and officials of the New England Daily Newspaper Association, Inc., participated with the employers, finally broke down and in consequence late in November, 1957, the locals with ITU sanction and approval called the composing room employees of both employers out on strike. In each instance the bones of contention were much the same. The representatives of the local unions backed by the representatives of ITU adamantly insisted upon the inclusion of three clauses in any new contract and the representatives of the employers as adamantly insisted that the clauses were illegal and that no contract would be entered into in which the clauses were included. Moreover, regarding inclusion of the clauses as "key" issues both the employers' and the unions' representatives declined seriously to explore economic issues such as hours, overtime, pensions, summer holidays,² etc., until agreement should be reached on the clauses they regarded as crucial.

The three clauses on which the negotiators deadlocked were the jurisdiction, foreman³ and general laws clauses which may as well be briefly described at this point.

The jurisdiction clause, on which the unions in both instances insisted, covered persons engaged in a number of new processes and operations, in addition to those covered by the jurisdiction clauses of the old contracts, which new processes and operations the unions considered substitutes for the processes and operations traditionally performed in the composing room by printers but which, with two exceptions, the employers were not using and did not contemplate installing in their plants.⁴ The foreman clause provided that the composing room foreman, who had the power to hire, fire and process grievances, had⁵ to be a member of the union although he would be exempt under certain circumstances from union discipline for activities on behalf of management. The general laws clauses provided that the General Laws of the International Typographical Union in effect on January 1, 1956 (or in another version at the time a contract was signed), if not in conflict with state or federal law, should govern relations between the parties on those subjects concerning which no provision was made in the contracts.

The trial examiner found that the unions were genuinely desirous of securing contracts with Worcester and Haverhill but that the evidence clearly showed that they insisted upon the acceptance of the jurisdiction, foreman and general laws clauses as written as a condition precedent to the execution of any collective bargaining agreements. But, believing the clauses illegal, the examiner concluded that by insisting that the employers agree to them the unions had refused to bargain collectively with the employers in violation of § 8(b) (3) of the Labor Management Relations Act, 1947.⁶ He also found that the primary object or purpose of the strikes called by the unions and their agents against the employers was to force the latter to accede to the unions' demand for inclusion of the three clauses he thought illegal and from that finding concluded that the unions had violated § 8(b) (2)⁷ of the Act in that they had attempted to cause the employers to encourage union membership by discrimination in regard to hire, tenure, terms or conditions of employment. As to the foreman clause, he thought they had also attempted to coerce the employers in the selection of their representatives for the purpose of adjusting grievances in violation of § 8 (b) (1) (B) to be considered hereinafter.

The Jurisdiction Clause

The Board neither agreed nor disagreed with the trial examiner's conclusion that the unions had violated § 8(b) (2) by striking for the inclusion of the jurisdiction clause in future collective bargaining agreements. It said in a footnote to its decision that while it agreed with the trial examiner that the unions had violated § 8(b) (2) by striking to force the employers to accede to the unions' demands for the illegal foreman and general laws clauses, it found it "unnecessary to pass upon his finding that the Respondents violated Section 8 (b) (2) by so striking also for the jurisdiction clause." Our consideration of this clause is, therefore, narrowed to the question whether by insisting upon its inclusion in the future contracts the unions refused to bargain collectively in violation of § 8(b) (3).

There is no dispute that in both cases the jurisdiction clauses on which the unions insisted covered not only work which the unions and the employers had regarded in the past as composing room work, but also a number of job processes and operations which the employers had not and did not contemplate installing in their plants.⁸ In the case of Worcester it also covered, as previously noted, paste-makeup work which for years had been done by artists who did not work in the composing room and who had never been included in the composing room bargaining unit.⁹

Both employers had for years recognized their composing room employees as forming appropriate units for collective bargaining purposes, but there had never been a Board determination to that effect. Nevertheless, the trial examiner, the Board concurring, had no difficulty in finding that the composing room employees of the employers in the classifications covered by the past agreements between the unions and the employers, subject to the statutory exclusion of foremen, constituted appropriate units for the purpose of collective bargaining within the meaning of § 9(a) of the Act. And it was similarly found that the respective unions represented a majority...