National Labor Relations Board v. Knoxville Pub. Co., 8658.

• Decision Date: 16 January 1942
• Docket Number: No. 8658.,8658.
• Citation: 124 F.2d 875
• Parties: NATIONAL LABOR RELATIONS BOARD v. KNOXVILLE PUB. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

124 F.2d 875 (1942)

NATIONAL LABOR RELATIONS BOARD v. KNOXVILLE PUB. CO.

No. 8658.

Circuit Court of Appeals, Sixth Circuit.

January 16, 1942.

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Robert B. Watts, of Washington, D. C., and Philip G. Phillips, of Cincinnati, Ohio, for National Labor Relations Board.

Frantz, McConnell & Seymour, of Knoxville, Tenn., for Knoxville Pub. Co.

Before HAMILTON, MARTIN, and McALLISTER, Circuit Judges.

HAMILTON, Circuit Judge.

Petitioner, the National Labor Relations Board, asks that respondent, Knoxville Publishing Company, and its officers and agents, be adjudged in contempt for failure to comply with the consent decree entered by this court on November 8, 1940, wherein enforcement of an order of the Board with respect to respondent, Knoxville Publishing Company, was decreed. The decree inter alia required that respondent, Knoxville Publishing Company, cease and desist from discouraging membership of its employees in the Knoxville Newspaper Guild by discriminating against them in regard to hire or tenure of employment or any term or condition of employment and upon request to bargain collectively with the Knoxville Newspaper Guild as the exclusive representative of all respondent's employees who devote all, or a substantial portion, of their time to editorial or reportorial work, excluding clerical and supervisory employees, in respect to rates of pay, wages, hours and other conditions of employment.

The Board claims that respondent has failed to comply with, and has disobeyed and resisted compliance with, the part of the decree outlined and prays that respondent and Roy N. Lotspeich, Henry C. Page, Guy L. Smith, President, General Manager and Editor respectively, be adjudged in contempt. In support of its petition, the Board presents the affidavit of Albert B. Manola, President of the Knoxville Newspaper Guild. In opposition, the respondents have filed a joint and several verified answer, each denying that either has disobeyed or failed to comply with the decree and affirmatively alleging that the respondent, the Knoxville Publishing Company, has bargained in good faith with the Guild in respect to all matters provided in the decree.

The affidavit of Henry C. Page is filed in support of respondents' answer. The parties have stipulated that the cause may be submitted on the pleadings and the affidavits of Manola and Page respectively.

The present proceedings for enforcement of the court's decree are appropriate. Amalgamated Utility Workers v. Consolidated Edison Company of New York, 309 U.S. 261, 270, 60 S.Ct. 561, 84 L.Ed. 738. The burden of proof rests on petitioner and the action being one of original jurisdiction, it is necessary to state the ultimate facts gleaned from the agreed evidence.

Respondent, the Knoxville Publishing Company, is engaged in the business of publishing a newspaper in Knoxville, Tennessee. Complainant, the Knoxville Newspaper Guild, is a labor organization as defined under the National Labor Relations Act, 29 U. S.C.A. § 151 et seq., and is an affiliate of the Congress of Industrial Organization. The employees of respondent in its editorial and reportorial departments have selected the Knoxville Newspaper Guild as their exclusive bargaining representative.

On November 8, 1940, Albert B. Manola and B. F. Henry, Jr., representing the Guild, and Henry C. Page and Guy L. Smith, representing respondent, conferred about the matters covered by the decree. Subsequently these parties and others, acting in a representative capacity, held ten conferences. Page requested that some of the employees of the respondent, the Knoxville Publishing Company, who were members of the Guild also attend the conferences, but there is nothing in the record showing any one of them did so, but members of the Guild from a rival newspaper attended some, but not all, of them. At the first conference, the Guild submitted a conventional bargaining contract, which it later amended eliminating some of the controversial features. The detailed provisions of the respective contracts were discussed by the conferees but, until the institution of these proceedings, no agreement had been reached. The failure of respondent to agree to certain provisions of the contracts is the basis of the lack of good faith here charged and, in order to decide correctly the present issues, it is necessary to examine them in some detail.

The preamble of the instrument had in it "This agreement, * * * hereinafter known as the Guild for itself and on behalf of all the editorial employees of the publisher." Respondents insisted that the phrase "for itself" should be stricken as the contract was on behalf of respondent's employees and not for the benefit of the Guild. This objection is without merit.

Article XIII (3) of the agreement provided that the Unit Comptroller was to collect dues for the Guild on paydays in respondent's plant. At least to this extent, the Guild was a principal.

Article III excluded from the terms of the agreement the news editor and city editors. Respondent insisted that the exception also include the editor, assistant news editor, assistant city editors, society editor and confidential secretary. Manola, in his affidavit, states that the request for the inclusion of these additional employees was in bad faith, because the positions are not fixed ones and the respective duties are performed by respondent's employees indiscriminately. Page, in his affidavit, denies this and says these positions were filled by employees specially selected and there was no indiscriminate transfer. The burden of proof being on petitioner, and it having failed to carry it, we conclude there is no inference of bad faith on the part of respondent because of its insistence on this amendment.

Article IV (1) provided for a minimum wage schedule. Respondent wished to lower it. There is no inference to be drawn from this fact that respondent failed to bargain in good faith. Section (2) of Article IV provided that in applying the minimum wage scale to editorial classifications, other than an office boy, all regular employment so classified on any daily newspaper, news or feature syndicate or recognized news magazine should be included. Respondent rejected this entire paragraph of the contract and petitioner urges on us that such rejection gives rise to an inference of bad faith. In the absence of any evidence of recent usage or custom prevailing in respondent's business or in other business of like character classifying employees as enumerated in this section of the article, we are unable to say that its rejection inherently raises the inference of a lack of good faith. Section 3 of Article IV provided that the term "reporter" should include all editorial work including librarian and photographer, but not the office boy. Respondent insisted on the elimination of the librarian from this section, because combined with the position of confidential secretary to the editor. No inference of bad faith can be drawn from this rejection.

Section 6 of Article IV provided that salaries should be paid weekly and in United States currency. Respondent refused to agree to this section of the article and in its counter affidavit stated its payrolls are made on a semi-monthly basis and by check. The Guild offered to modify this section by providing "if payment is made in office vouchers or checks same shall be cashed same day" which respondent also rejected. No inference of bad faith may be drawn from this rejection or respondent's failure to agree to the original Article.

Article V provided that as of the date of the contract, the salary of any employee which is not increased by 10% through the application of the minimum salary provisions in Article IV (1) shall be increased ten per cent. Respondent rejected this article in its entirety. It was not compelled to contract for an increase in the salary of its employees and no inference of bad faith can be drawn from this rejection.

Article VI related to hours of employment and overtime pay which was agreed to by respondent except for the inclusion as to hours of work of the editor, news editor, assistant news editor, city editor, assistant city editors, society editor, Sunday editor and confidential secretaries, and the overtime provision for editorial employees, which it insisted was to be at its option.

In the absence of evidence of any general and continuous practice of respondent or that prevailing among those engaged in the conduct of similar business in regard to overtime pay for such employees, we cannot say the modification insisted on by respondent is within itself evidence from which an inference of bad faith might be drawn.

Article IX related to the payment of expenses incurred by employees in the discharge of their duties and included an item of not less than ten cents per mile to an employee for the use of his automobile. Respondent agreed to compensate editorial employees for expenses incurred when properly accounted for on expense accounts provided for that purpose, and at a rate mutually satisfactory to the employee and the management, which was the usual practice and custom of respondent in the conduct of its business.

Failure of respondent to agree to this article as originally drawn lacks probative weight of bad faith.

Article X related to the editorial and reportorial activities of respondent's employees outside working hours where such work was not done for publications in direct competition with respondent and...