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

• Decision Date: 27 June 1975
• Docket Number: No. 74-3004,74-3004
• Citation: 515 F.2d 334
• Parties: 89 L.R.R.M. (BNA) 2715, 77 Lab.Cas. P 10,955 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWSPAPERS, INC., Publisher of the Austin American and the Austin Statesman, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 334

515 F.2d 334

89 L.R.R.M. (BNA) 2715, 77 Lab.Cas. P 10,955

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NEWSPAPERS, INC., Publisher of the Austin American and the Austin Statesman, Respondent.

No. 74-3004.

United States Court of Appeals Fifth Circuit.

June 27, 1975.

Elliott Moore, Deputy Assoc. Gen. Counsel, John F. Depenbrock, Jr., N. L. R. B., Washington, D. C., Louis V. Baldovin, Jr., Reg. Director, Region 23, N. L. R. B., Houston, Tex., for petitioner.

Robert L. Ballow, Nashville, Tenn., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board (Texas Case).

Before TUTTLE, GODBOLD and MORGAN, Circuit Judges:

TUTTLE, Circuit Judge:

The National Labor Relations Board found the Respondent, Newspapers, Inc., guilty of a violation of § 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq., when it refused to bargain with a representative of its pressroom employees. The Board issued a bargaining order and now seeks enforcement. We grant enforcement.

The facts of this case are essentially undisputed. The Respondent is the publisher of two newspapers in Austin, Texas. For over 70 years it voluntarily recognized Austin Printing Pressmen and Assistants Union No. 143 (Austin Local 143). On September 30, 1971 the Employer and Austin Local 143 executed a collective bargaining agreement effective for one year, thereafter automatically renewable unless either party gave written notice 60 days prior to the expiration of the contract that it intended to renegotiate. This collective bargaining agreement was in effect throughout this dispute.

Austin Local 143 was found by the Board ¹ to be composed of two separate divisions, the Web Division composed of the printing pressmen and assistants of the Respondent's two newspapers, and the Commercial Division composed of all commercial pressmen and their assistants in Austin. These two divisions conducted their affairs entirely separately: they held separate meetings, and elected separate officers. ² A bargaining committee of the Web Division negotiated with the Respondent on behalf of Austin Local 143. Of the employer's 20 pressroom employees in 1971, 19 belonged to the Web Division of Austin Local 143 (one employee not being a member of any union.) These 19 employees of the Respondent comprised the entire membership of the Web Division of Austin Local 143.

On September 11, 1971 notice was sent to these 19 members of the Web Division, as well as to the one non-union employee of Newspapers, Inc., notifying them that a meeting was to be held on October 5, 1971 at which time a vote would be conducted as to whether the Web Division should merge with Houston Newspaper Printing Pressmen's Union No. 43 (hereinafter Houston Local 43.) ³ The members of the Web Division met as scheduled on October 5. All 19 of its members attended. These 19 employees of the Respondent voted unanimously to merge with Houston Local 43. ⁴

Austin Local 143 notified the International Union that this vote had been taken, and requested formal permission for the merger. Houston Local 43 shortly thereafter also notified the International that it agreed to the merger, and also requested approval. The International Union on December 10, 1971 notified the two locals that the Board of Directors of the International had "approved the request of the Web members of your local union transferring to Houston Newspaper Local No. 43."

The Respondent was notified of the imminent merger in separate letters from Houston Local 43 on January 7, 1972 and from Austin Local 143 on January 27, 1972. Both letters advised the employer that the merger would occur on February 1, 1972. ⁵ In preparation for the February 1, 1972 merger Austin Local 143 divided its assets, and on February 1 Houston Local 43 acquired the Web Division's assets, and assumed all its liabilities. All 19 members of the Web Division transferred to Houston Local 43 on that date, and thereafter paid their dues to the Houston Local.

Following the merger Houston Local 43 was found by the administrative law judge to have permitted its new Web Division to function essentially as it had in the past when it constituted a separate Web Division of Austin Local 143. Despite its change of affiliation from one local to another, the Web Division continued to be composed solely of the employees of the Respondent and it continued to function as a separate organization. The former President of Austin Local 143 became the Chairman or (as he was also called) the "Area Representative" of the Austin Web Division of Houston Local 43; while none of the former officers of Austin Local 143's Web Division served as constitutional officers of Houston Local 43, most retained their positions as officers of the Austin Web Division of Houston Local 43. The bargaining committee for the Web Division members remained unchanged.

On July 10, 1972 the Austin Web Division of Houston Local 43 gave notice to the Respondent of its intent to renegotiate a collective bargaining agreement on behalf of its pressroom employees; this letter was sent by one L. B. Dyer, signed as Secretary of the "Austin Division" of Houston Local 43. ⁶ This July 10, 1972 letter also notified the Employer that a bargaining committee would represent the Web Division members in collective bargaining negotiations. ⁷

On July 13, 1972 the Employer responded that it refused to bargain with Houston Local 43, as "Local 143 is the certified representative of our pressroom employees." ⁸

Thereafter on August 8, 1972 the bargaining committee for the Web Division requested a meeting to discuss a new contract; when the Employer learned that they intended to negotiate as members of Houston Local 43, it refused to bargain.

In response to this refusal Houston Local 43 secured new authorization cards from the pressroom employees of the Respondent; the record shows at this time that the Respondent had 44 employees in its pressroom, and that either 42 or 44 of them signed cards evidencing their wish that they be represented by Houston Local 43. ⁹ The employer refused to look at these cards and thereafter refused to bargain with any of the members of the Web Division of Houston Local 43.

Based on these facts the Board found that the Web Division of Houston Local 43 was the successor to the Web Division of Austin Local 143, and that accordingly the Employer's duty to bargain with Austin Local 143 carried over to the Houston Local. The Board held that the Employer violated § 8(a)(5) and (1) of the Act when it refused to bargain with the Web Division of Houston Local 43.

I. WAS HOUSTON LOCAL 43 THE SUCCESSOR OF AUSTIN LOCAL 143?

Whether the Houston Local 43 was the successor to the Web Division of Austin Local 143 normally "depends on a factual determination is it a continuation of the old union under a new name or is it a substantially different organization?" NLRB v. Commercial Letter, Inc., 496 F.2d 35, 39 (8th Cir. 1974). Although the Board's union successorship doctrine has been invoked far less frequently than its employer successorship doctrine, ¹⁰ the union successorship doctrine has been upheld in a number of cases. NLRB v. Commercial Letter, Inc., supra ; Supak & Sons Manufacturing Corp., 1972 NLRB 1228 (1971) enforced 470 F.2d 998 (4th Cir. 1973); Canton Sign Co., 174 NLRB 906 (1969) enforcement denied on other grounds, 457 F.2d 832 (6th Cir. 1972); Retail Clerk's International Assoc. v. NLRB, 125 U.S.App.D.C. 389, 373 F.2d 655 (1967); NLRB v. Weyerhaeuser Co., 276 F.2d 865 (7th Cir. 1960) cert. denied 364 U.S. 879, 81 S.Ct. 168, 5 L.Ed.2d 102 (1960); Union Carbide & Carbon Corp. v. NLRB, 244 F.2d 672 (6th Cir. 1957); Carpinteria Lemon Assoc. v. NLRB, 240 F.2d 554 (9th Cir. 1957) cert. denied 354 U.S. 909, 77 S.Ct. 1295, 1 L.Ed.2d 1427 (1957).

"The test of survival bargaining obligation in each case is whether the successor organization continues to constitute, in the words of the statute, the 'representative(s) of (the employees') own choosing.' (§ 7 of the Act.) The industrial stability sought by the Act would unnecessarily be disrupted if every union organizational adjustment were to result in displacement of the employer-bargaining representative relationship."

Canton Sign Co., supra, 174 NLRB 908-909. ¹¹

A refusal to apply the successorship doctrine in many cases could easily result in a denial of the employees' rights to be represented by a union of their choice: here, for example, were Austin Local 143 to be held to be the only authorized representative of the Respondent's pressroom employees, as Respondent contends, the Employer would be obliged to bargain with the union to which none of its employees belonged indeed, a union which its employees unanimously voted to leave.

While the Board has not adopted any rigid requirements as to the method of the merger election, it has held that the election must be conducted under democratic procedures, with fair notice to all concerned employees; the election procedures must not be so "lax" or "substantially irregular" as to "negate the validity of the election," NLRB v. Commercial Letter, Inc., supra, 496 F.2d at 42. The principal question is whether in fact the election represents the majority view of the members of the union. See Fall River House, Inc., 198 NLRB No. 164 (1972); Hamilton Tool Co., 190 NLRB No. 114 (1971). The Respondent does not dispute the fact that the election was conducted with fair notice to every member of the Web Division of Austin Local 143, and the vote taken was unanimous to merge with the Houston Local. Rather the Respondent argues that notice ought to have been given to every member of Austin Local 143, including the members of the Commercial Division.

This argument essentially overlaps with the Respondent's principal claim that the Board's successorship doctrine cannot apply to cases such as this one where only a section of a union merges with another, rather than...