Miami Newspaper Pressmen's Local No. 46 v. NLRB, 17416.

• Decision Date: 27 June 1963
• Docket Number: No. 17416.,17416.
• Parties: MIAMI NEWSPAPER PRESSMEN'S LOCAL NO. 46, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

322 F.2d 405 (1963)

MIAMI NEWSPAPER PRESSMEN'S LOCAL NO. 46, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17416.

United States Court of Appeals District of Columbia Circuit.

Argued May 28, 1963.

Decided June 27, 1963.

Mr. John S. McLellan, Kingsport, Tenn., of the bar of the Supreme Court of Tennessee, pro hac vice, by special leave of court, with whom Messrs. Neal Rutledge, Miami, Fla., Herbert S. Thatcher and David S. Barr, Washington, D. C., were on the brief, for petitioner.

Mr. Warren M. Davison, Attorney, National Labor Relations Board, with whom Messrs. Stuart Rothman, General Counsel, National Labor Relations Board at the time the brief was filed, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Gary Green, Attorney, National Labor Relations Board, were on the brief, for respondent.

Mr. Edward L. Weber, Detroit, Mich., filed a brief on behalf of Knight News papers, Inc., as amicus curiae, urging enforcement of the Respondent's order.

Before WILBUR K. MILLER, FAHY and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

Before us for review at the instance of Miami Newpaper Pressmen's Local No. 46 is an order of the National Labor Relations Board directing it to abstain from certain conduct found to be in violation of Section 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act.¹ These statutory provisions reflect the congressional purpose to prevent strikes from spreading beyond the primary employer; and the issue here is whether the seemingly secondary employer was such in fact. The Board has found that it was. We sustain the order, and grant the Board's request for its enforcement.

I

In 1961 the Union was negotiating a now collective bargaining agreement with the Miami Herald Publishing Company, a Florida corporation which publishes a daily newspaper, the Miami Herald. There was a failure to reach agreement, apparently over the terms of the manning arrangements in respect of new presses being installed as part of a major expansion program. Picketing began August 1, 1961, but the Herald was able to continue publishing. The Union thereupon, on August 19, 1961, picketed another newspaper in another city — the Detroit Free Press, in Detroit, Michigan, causing the employees of the Free Press to leave their work, and resulting in a complete shut-down until August 24, when an injunction was issued by a federal court in Detroit at the behest of the Board's Regional Director. The suspension of publication forced the Free Press to discontinue its purchases, averaging $25,000 per day, of newsprint and ink from nonaffiliated suppliers.

Knight Newspapers, Inc., an Ohio corporation which publishes the Free Press, filed charges of unfair labor practices with the Board and, on August 29, 1961, a complaint issued. Hearings were held before a Trial Examiner, whose findings and recommendations were adopted by the Board.

The facts found with respect to the inter-corporate relationships of the Free Press and the Herald may be summarized as follows: Knight Newspapers, Inc., owns all the stock of the Florida corporation which publishes the Herald.² The stock of Knight is owned by three individuals, James, John, and Clara Knight. James Knight is the general manager of the Herald and for 25 years has exercised authority over all aspects of its operations, including labor relations. Henry Weidler for 20 years has performed a similar function for the Free Press. The two corporations have a number of common officers and directors, as witness the fact that John Knight is president and a director of both, and Clara and James Knight serve on both boards as directors. The Herald and the Free Press each annually make certain purchases of services from the other, but these are not so substantial as to indicate any degree of mutual dependence.³ Of the 1700 employees of the Free Press and 1200 of the Herald, only two individuals are shown to have worked for both at different times.⁴

In the field of labor relations, the pattern of independence persists. Primary responsibility in this area is vested in, and exercised by, James Knight for the Herald and by Henry Weidler for the Free Press, and there is no coordination of policy between them. Each paper has its own collective bargaining agreements. The 1961 negotiations between the Union and the Herald were conducted in the first instance by Arthur Gucker, the business manager of the Herald, who was assigned to this task by James Knight. Throughout these negotiations, James Knight and Gucker consulted no one but their subordinates with respect to the formulation of the management position.⁵ In the case of the Free Press, Weidler has for many years caused it to engage in joint bargaining through the Detroit Newspaper Publishers Association, which is made up of all of Detroit's major newspapers. No instructions have ever been issued by John Knight, or by Knight Newspapers, Inc., with respect to the labor policies to be followed by either the Free Press or the Herald.

II

The principal issue presented by the Union to us upon this review turns upon the conclusions to be drawn from the foregoing facts. It is asserted that Knight Newspapers, Inc., is not a truly neutral or unallied employer within the meaning of the statute. The Union points first to the circumstance of common ownership. This, of course, appears clearly from the record. But both the Board⁶ and the courts⁷ have consistently and repeatedly held that common ownership alone does not suffice for this purpose. There must be something more in the form of common control, as it is usually phrased, denoting an actual, as distinct from merely a potential, integration of operations and management policies. Two business enterprises, although commonly owned, do not for that reason alone become so allied with each other as to lift the congressional ban upon the extension of labor strife from the one to the other.

Although the Union argues that common ownership alone is sufficient to justify its bringing the Free Press within the orbit of its legitimate strike pressure, it does not — as it cannot — rest, in the last analysis, on this claim. It asserts that the facts as found by the Board disclose what it calls "common management," so sweeping in scope as to warrant the direction of the Union's force against the Free Press for the purpose of forcing the Herald to accede to its demands.

We think, however, that the Board has clearly found the facts to the contrary, and that the inference it has drawn from those facts of a lack of common control is fully justified. Congress has committed this function to the Board in the first instance as the expert body created by it to deal with these matters. Our function is a more limited one. We are not to overturn the Board's findings and conclusions in this regard if they are based upon substantial evidence in the record as a whole and have "a reasonable basis in law." NLRB v. Hearst Publications, Inc., 322 U.S. 111, 131, 64 S. Ct. 851, 860, 88 L.Ed. 1170 (1944). From our reading of the record, this is not a proper occasion for judicial correction.

These two metropolitan daily newspapers appear to have had separate and largely unrelated lives of their own, despite their common ownership. Published hundreds of miles apart in two distinctive urban communities of the United States, each paper went its way under independent direction supplied locally, as they must have done in order to be successfully responsive to the varying needs of their two unrelated readerships. A newspaper reflects in significant measure the peculiar personality of its locale. To the extent that it does so in fact, its commercial success is to that degree correspondingly assured. Wise publishers know this to be true and shape their arrangements and policies accordingly. This appears to be the case here.

In originally enacting the statute here involved, Congress sought to confine labor strife to the employer immediately involved. It made a legislative judgment that it was not in the public interest for one business enterprise to be halted because of the unrelated problems of another.⁸ Only when the two businesses were in fact one was there to be any breaching of this barrier. The allied employer doctrine, necessitating actual common control in addition to common ownership, followed closely upon the heels of the first formulation of congressional policy in this field. This gloss upon the statute was fully familiar to the Congress when, in the 1959 amendments to the Act, it addressed itself again to the area of the regulation of labor relations. The legislative record shows that the changes then made were expressly without purpose to alter the "common control" approach.⁹ We believe that, in the action it has taken here, the Board was well within the range of the power entrusted to it to effectuate the congressional intent.

III

The Union's second contention is that, since the statutory prohibition upon secondary picketing is made to depend upon the object specified in the statute, the Board's order must fall because the requisite purpose has not been shown. The statutory language is that the "object" is the "forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person * * *." (Emphasis added). The Union argues that this means interference with the business relationships between the primary and secondary employers only. It characterizes these relationships on this record as de minimis, and thus concludes that the unlawful object required by the statute has not been made out.¹⁰

The Board did not accept this characterization of the purely business dealings between the Herald and the Free Press, inasmuch as the record showed that, in the seven months preceding the strike, the Free Press had...