National Labor Relations Board v. Star Pub. Co.

• Decision Date: 14 June 1938
• Docket Number: No. 8746.,8746.
• Citation: 97 F.2d 465
• Parties: NATIONAL LABOR RELATIONS BOARD v. STAR PUB. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

97 F.2d 465 (1938)

NATIONAL LABOR RELATIONS BOARD v. STAR PUB. CO.

No. 8746.

Circuit Court of Appeals, Ninth Circuit.

June 14, 1938.

Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, and Laurence A. Knapp, all of Washington, D. C., Allen Heald, of Chicago, Ill., and G. L. Patterson, of Seattle, Wash., for petitioner.

S. S. Hahn, of Los Angeles, Cal., and Bayley & Croson, of Seattle, Wash., for respondent.

Vanderveer & Bassett, of Seattle, Wash., for intervener.

Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.

HANEY, Circuit Judge.

The National Labor Relations Board has petitioned us for the enforcement of its order directing respondent, Star Publishing Company, to cease and desist from doing certain acts, and to take affirmative action.

Before relating the board's finding, certain facts appearing in a pleading filed with the Board will explain the relationship between the unions involved.

The American Federation of Labor, a voluntary association, hereinafter called the Federation, is a labor union. Its members, who are working men and women, adopted a constitution which provides that "all jurisdictional controversies which may arise between" unions affiliated with it, shall be submitted to, and determined by, its Executive Council, subject to the right to appeal to the Annual Convention. It issued charters to various international unions, including The American Newspaper Guild, hereinafter referred to as the Guild, and The International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, hereinafter referred to as the Teamsters. The charters of both the Guild and the Teamsters contained the same provision regarding settlement of jurisdictional disputes as is related above. The Teamsters had in turn, chartered a local union, known as Newspaper Drivers and Helpers, Local No. 763, hereinafter called the Drivers. The Guild had chartered a local union known as the Seattle Newspaper Guild, Local No. 82, hereinafter referred to as the Seattle Guild.

Respondent is a Washington corporation, and publishes the Seattle Star, a daily newspaper. Some of respondent's employees, including typographers, janitors, mailing room employees, press room employees, and stereotypers, were members of various labor unions, all affiliated with the American Federation of Labor. Some of such unions had been operating under contracts with the respondent for several years. In respondent's circulation department there were fourteen district managers, whose duties included instruction of carrier boys to properly deliver papers, in procuring new subscribers, and in making collections. In the same department, there were two branch managers, whose duties were similar to those of the district managers, in outlying points. There were also four verifiers, in the same department, who were engaged primarily in investigating complaints of subscribers.

Prior to April, 1937, the district and branch managers transported respondent's papers to the various stations throughout the City of Seattle in their automobiles. The Drivers in April, 1937, "prevailed upon the management to have the" transportation of the papers done by the City Transfer Company, which employed members of the Drivers. Shortly afterward the district and branch managers and the verifiers joined the Seattle Guild. About May 11, 1937, respondent agreed to recognize the Seattle Guild "as the exclusive representative of employees in the circulation department, business office, and classified advertising department," and thereafter bargained collectively with the Seattle Guild.

On May 17, 1937, Dave Beck, an international representative of the Teamsters, advised respondent that the Teamsters had jurisdiction over all circulation department employees. On May 22, 1937, William Green, president of the American Federation of Labor, advised respondent by telegram that the Seattle Guild's jurisdiction was limited to news writers and editorial departments by the charter granted to the Guild. On June 9, 1937, the general manager of respondent wrote to the Seattle Guild "stating that the respondent did not desire to enter into any agreement with the Seattle Guild which would conflict with the jurisdiction of any other" union affiliated with the Federation. The Board said that about that time respondent was familiar with reports that the Guild, at its convention early in June, 1937, had voted to affiliate with the Committee for Industrial Organization.

At 5:30 p. m. on July 1, 1937, Shaw, a representative of the Drivers, informed respondent's president, that beginning on the following day, the Drivers would not haul respondent's papers unless all respondent's employees in the circulation department, were either members of the Drivers or made application for such membership. The president of respondent requested time so that the jurisdictional dispute might be settled. The request was refused.

At 9:30 a. m. on July 2, 1937, Shaw, with the consent of respondent, addressed a meeting of the district and branch managers and verifiers. He "informed them that they must, in order to hold their jobs, join the" Drivers, and that they must reach a decision within fifteen minutes. The Board said that it "was made clear that he was appearing before them at his own request, not at the request of the respondent." Shaw then left the room, and all of the men voted to remain in the Seattle Guild, rather than to join the Drivers, and thereafter so informed respondent.

In the meantime, the papers already printed were not being moved, and the presses were stopped. Respondent asked the twenty Seattle Guild employees if they would guarantee delivery of the papers from the plant to the points throughout the city. The employees declined to make such a guaranty. Thereupon, respondent asked the Drivers the same question. The Drivers made the guaranty and in about twenty minutes produced its men to replace the twenty employees belonging to the Seattle Guild. The latter, upon inquiry as to whether or not they were discharged, were told that they would be kept on the payroll for at least two weeks.

In the afternoon on July 2, 1937, the Seattle Guild's members met and voted authority to a strike committee to call a strike unless a satisfactory adjustment could be made. The committee then conferred twice with respondent, but no satisfactory adjustment was made. On the same day the Seattle Guild filed a charge with the Board alleging that respondent had engaged in and was engaging in unfair labor practices affecting interstate and foreign commerce. At 10:30 a.m. on July 3, 1937, all respondent's employees who were members of the Seattle Guild went on strike. Publication was suspended until July 9, 1937, when the plant was reopened with police assistance furnished by the mayor of Seattle. The Board said that at "the time of the hearing, the plant had not been shut down again, although the Seattle Guild members remained on strike".

The Board issued its complaint on July 13, 1937. It alleged that on July 2, 1937, respondent transferred the twenty employees, who were members of the Seattle Guild "from their regular jobs in the circulation department to temporary positions in other departments because they joined and assisted and refused to give up their membership in the" Seattle Guild; that the "respondent refused and is refusing to reinstate such individuals to their regular positions or to assure them of regular employment"; that by such action the respondent discriminated and is discriminating against such individuals in regard to hire and tenure of employment and thereby discouraged and is discouraging membership of its employees in the Seattle Guild. Such acts were alleged to violate § 8(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3).

Respondent by answer, admitted transfer of the men, denied the unfair labor practices charged, and alleged that the Board had no jurisdiction because nothing was involved but a jurisdictional dispute between unions which was entirely within the jurisdiction of the Federation.

Hearings were held beginning July 27, 1937, and ending on July 30, 1937. On July 28, 1937, the twenty men who had been employed to take the places of the Seattle Guild employees, and the Drivers filed a petition seeking "leave to intervene * * * and to file the attached `Objections and Answer to the Complaint' * * *". The objections to the Board's jurisdiction were based on three grounds, one of which was that the dispute was within the jurisdiction of the Federation. The answer denied the unfair labor practices charged, admitted the transfer of the employees. As an affirmative defense, it was alleged that the dispute was within the Federation; that the Central Labor Council of Seattle is a voluntary association chartered by the Federation and is composed of delegates from all local unions affiliated with the Federation; that said Central Labor Council had, by resolution, prohibited any local union from calling a strike against an employer without first lodging a complaint with, and obtaining, after a hearing, consent of, the Executive Board of the Central Labor Council; and that the Seattle Guild went on strike in violation of such resolution.

The Board denied the petition for leave to intervene. On December 11, 1937, the Board filed its decision. The evidentiary facts recited above are taken from its findings. As ultimate facts, the Board found: "* * * The 20...