NEW YORK MAILERS'U. NUMBER SIX, INTER. TYPO. U. v. NLRB
| Decision Date | 28 January 1964 |
| Docket Number | Docket 27943.,No. 55,55 |
| Citation | 327 F.2d 292 |
| Parties | NEW YORK MAILERS' UNION NUMBER SIX, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Publishers' Association of New York City, Intervenor. |
| Court | U.S. Court of Appeals — Second Circuit |
Sidney Sugerman, New York City, for petitioner.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli and Marcel Mallet-Prevost, Asst. Gen. Counsel, Melvin J. Welles, Glen M. Bendixsen, Attys., NLRB, for respondent.
Townley, Updike, Carter & Rodgers, New York City (John R. Schoemer, Jr., New York City, of counsel) for intervenor.
Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.
This case is here upon a petition of the New York Mailers' Union Number Six, International Typographical Union, AFL-CIO, to review and set aside an order of the National Labor Relations Board issued on November 19, 1962, dismissing an unfair labor practice complaint against the Publishers' Association of New York City and ten of its members.1 The Publishers' Association has intervened in connection with the petition. Jurisdiction of this court to entertain the petition is based on Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(e), the alleged unfair labor practice having occurred in New York City, within this judicial circuit.
The Publishers' Association of New York City is an unincorporated association representing a group of leading New York City newspapers.2 The Association, on behalf of the publishers it represents, negotiates collective bargaining contracts with nine newspaper craft unions, including petitioner.3 Each of the nine contracts negotiated with these unions covers the employees of a given craft at all the newspapers, and every contract is signed by the Association as well as by all the publishers.4 During the period covering the relevant events in this case, all of the nine contracts contained provisions providing for final and binding arbitration of grievances and contract disputes, and several of them contained express no-strike clauses as well. In addition to negotiating these agreements the Association also participated in the handling of arbitration proceedings the contracts provided for. The relationship between all of the publishers and all of the unions is of long standing, and, as the Board noted, no anti-union animus in the ordinary sense is alleged or involved in this case.
Background evidence indicates that as early as 1950 the members of the Publishers' Association, plagued by work stoppages which they deemed to be contract violations, considered a "closing of ranks on the management side" to defend against such practices. It was not until 1958, however, that the publishers entered into the agreement which has been called into question in this case. Though the agreement was never incorporated into writing, it has been stipulated that the terms are fairly summarized in the following statement of the Executive Secretary of the Publishers' Association:
The publishers' suspension agreement was consummated well before the Section 10(b) period in this case,5 but it was reaffirmed and implemented on a number of occasions thereafter. The record indicates that, within the period covered by the complaint, resort was had to the agreement six times. Use of the agreement was four times threatened, and twice the agreement was actually implemented by the shutting down of publishing plants for brief periods. On the two occasions when shutdowns actually occurred no employee of any paper was told to leave the work premises and no employee lost any wages.
The circumstances surrounding the various resorts to the suspension agreement may be summarized briefly, beginning with the four occasions when plant shutdowns were only threatened. On January 15, 1961, during the course of a labor dispute at the Mirror, an official of that newspaper told the business agent of the Deliverers' Union that, in the event the union called a work stoppage at the Mirror, all the publishers in the City would shut down. On February 11, 1961, the stereotypers at the Herald Tribune engaged in a work stoppage because of a dispute between a company foreman and their union's "chapel chairman" over the assignment of a worker. After a Tribune official informed the Stereotypers' president that the stoppage was a contract violation and might result in a "city wide temporary suspension," the Stereotypers' president succeeded in getting work resumed. The third incident occurred on March 11, 1961, again at the Herald Tribune. The business agent of the Mailers' objected to the operation of a wire-tying machine without the use of certain safety devices, and he informed the company that failure to install the devices by the following afternoon would result in a refusal by the mailers to operate the machine. A Tribune official contacted the president of the Mailers' and told him that a refusal by workmen to operate the machine "might lead to a city-wide shutdown by the Publishers." No strike was called, and the company's position that the machines were safely operable without the devices was sustained by the Labor Department. The final instance of a use of the agreement that fell short of an actual shutdown took place on May 2, 1961, at the Times, when that paper's general manager issued a memorandum to all employees setting forth the Times's understanding of the publishers' agreement in which it was indicated that the purpose of the agreement was to defend against work stoppages that violated a collective bargaining contract.6
Two actual shutdowns, both of a temporary nature and of brief duration, were engaged in by the publishers pursuant to their agreement. On February 23, 1961, a foreman at the Times discharged a deliverer for refusing to perform an assignment, and the other deliverers at the Times engaged in a sudden strike during a press run. The Times shut down operations at its 43rd Street plant and notified the Publishers' Association of its difficulties. Three members of the Association which, like the Times, published morning papers, were also notified. The three papers so notified were all between editions, and, upon receiving word of the dispute at the Times, all of them ordered their staffs not to resume printing until the strike at the Times had ended. Officials of the union involved were contacted, and, shortly after the suspension of operations by the other publishers, work was resumed at the Times. It appears that no edition of any paper was delayed for more than thirty minutes. No employee of any paper was told to leave the premises as a result of the shutdown and no employee lost wages.
The second incident which brought about an actual shutdown also occurred at the Times. On April 26, 1961, employees of the Times represented by the Typographers engaged in a walkout and work stoppage in protest of the discharge of their union's "chapel chairman." Of the three other morning papers notified of the dispute two continued most of their operations but both delayed their press runs until it became evident that the Times would be able to publish. The third paper was not ready to publish until the Times declared it was able to go to press. Because of the strike the first edition of the Times was delayed three hours and was reduced in size by 60 per cent. The following day, under threat of disciplinary action by their International Union, the Times's striking employees returned to work, and the discharge of the union "chapel chairman" was subsequently submitted to arbitration and found justified. As was the case with the other shutdown, no employee of any paper was told to leave the premises and no employee lost wages.
As a result of these incidents, unfair labor practice charges were lodged against each of the publishers and against the Association. The Trial Examiner who originally heard the case found that, though no violation of Section 8(a) (3) of the Act7 had occurred, the publishers and the Association had violated Section 8(a) (1).8 The Board, in a unanimous decision, disagreed with the Trial Examiner with respect to the claimed 8(a) (1) violation and dismissed the complaint in its entirety. The decision of the Board is reported at 139 NLRB 1092 (1962).
It is our view that the decision of the Board, which characterized the conduct of the publishers as legitimate defensive activity, should be permitted to stand. The facts and circumstances developed by the Board and Trial Examiner, never seriously questioned by any party, place this case within the rule announced by the Supreme Court in the Buffalo Linen case, N. L. R. B. v. Truck Drivers Local Union etc., 353 U.S. 87, 77 S.Ct. 643, 1 L.Ed.2d 676 (1957).
In Buffalo Linen, a union, bargaining with a number of employers on a group basis, called a...
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