NEWSPAPER GUILD, ERIE NEWS. GUILD, LOCAL 187 v. NLRB

• Decision Date: 30 November 1973
• Docket Number: No. 72-1521,72-1633.,72-1521
• Citation: 489 F.2d 416
• Parties: The NEWSPAPER GUILD, ERIE NEWSPAPER GUILD, LOCAL 187 AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Times Publishing Company, Intervenor. TIMES PUBLISHING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Newspaper Guild, Erie Newspaper Guild, Local 187, Intervenor.
• Court: U.S. Court of Appeals — Third Circuit

489 F.2d 416 (1973)

The NEWSPAPER GUILD, ERIE NEWSPAPER GUILD, LOCAL 187 AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Times Publishing Company, Intervenor.

TIMES PUBLISHING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Newspaper Guild, Erie Newspaper Guild, Local 187, Intervenor.

Nos. 72-1521, 72-1633.

United States Court of Appeals, Third Circuit.

Argued March 8, 1973.

Decided November 30, 1973.

John M. McLaughlin, William C. Sennett, Knox, Graham, Pearson, McLaughlin & Sennett, Erie, Pa., for petitioner in No. 72-1521.

Richard H. Zamboldi, Elderkin, Martin & Kelly, Erie, Pa., for petitioner in No. 73-1633.

Elliot Moore, Deputy Associate Gen. Counsel, Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Joseph E. Mayer, William H. DuRoss, III, Attys., N.L.R.B., Washington, D.C., for respondent.

Before FORMAN, VAN DUSEN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

This case represents a consolidation of two petitions to review a determination by the National Labor Relations Board (the "Board") and a cross-application by the Board for enforcement of the challenged order.¹ At our No. 72-1521, the Newspaper Guild (the "Union") seeks a reversal of the Board's determination that the Union committed an unfair labor practice under § 8(b) (1)(B) of the National Labor Relations Act² (the "Act") by disciplining four supervisors who crossed a picket line and performed allegedly struck work. At our No. 72-1633, the Times Publishing Company (the "Employer") requests this Court to compel the Board to reverse its denial of the company's motion to reinstate a § 8(b)(1)(A) complaint³ and thus open up an inquiry into the reasonableness of the fines levied against the supervisors. By way of cross-petition, the Board seeks enforcement of its order.

The Employer publishes three newspapers in Erie, Pennsylvania.⁴ The Union is the collective bargaining agent for the employees of all three. On August 31, 1968, the collective bargaining agreement between the Employer and the Union expired. On March 6, 1969, after unsuccessful negotiations, the Union went on strike. A new contract was executed on July 16, 1969. This contract was retroactive to September 1, 1968, and included in its union security provisions all employees except those in top management.⁵

At least ten employees worked during the strike.⁶ None of these employees was exempt from the union security provisions. Several had roles of an apparently supervisory nature.⁷ Other members filed charges against all ten with the Union in October 1969.⁸ After Union trial board proceedings, fines were levied in February 1970. These fines represented the Union's approximation of the employees' earnings during the period of the strike.⁹

On July 28, 1970, the Employer filed unfair labor practice charges with the National Labor Relations Board. The charges alleged a § 8(b)(1)(A)¹⁰ violation of the Act: "the Union ... has, by trial proceedings, threats of excessive fines and the imposition of excessive fines and by other acts and conduct, restrained and coerced employees of Times Publishing Co. in the exercise of the rights guaranteed in Section 7 of the Act."¹¹ The Employer also alleged a § 8(b)(1)(B) violation of the Act,¹² claiming that the Union had restrained and coerced the Employer "in the selection of its representatives for the purposes of collective bargaining or the adjustment of grievances." The § 8(b)(1)(A) charge was deleted on April 21, 1971 at the suggestion of the Regional Director of the Board. On April 30, 1971, a complaint signed by the Director of Region Six on behalf of the General Counsel was issued against the Union based on § 8(b)(1)(B).

The Trial Examiner conducted hearings in June and July 1971. On October 28, 1971, the Examiner decided that fines against four Union members¹³ were § 8(b)(1)(B) violations. A fine against a fifth member¹⁴ was upheld because he was not a supervisor.

The Employer subsequently filed a motion for leave to file a second amended charge and to stay proceedings to permit the General Counsel to amend the Complaint. The amendment would have been a reinstatement of the § 8(b)(1)(A) charge. The Board denied this motion in its May 18, 1972 decision upholding the findings of the Trial Examiner. The Employer's motion for reconsideration of its ruling was denied by the Board on June 22, 1972. This petition to review followed.

The Union opposes the decision of the Trial Examiner and the Board that there was an unfair labor practice under § 8(b)(1)(B). The Union also opposes on both procedural and substantive grounds the introduction of the § 8(b)(1)(A) complaint.

The Board requests that the petitions to review the Board's order should be denied, and a judgment should be issued enforcing the Board's order.

There are two principal questions in this case.

The first (No. 72-1521) is: Has the Union committed an unfair labor practice under § 8(b)(1)(B) of the Act by disciplining supervisor-members for crossing a picket line during an economic strike? The Board's affirmative answer is based upon the rationale that under the Act a § 2(11)¹⁵ supervisor is also a § 8(b)(1)(B) representative for the purposes of collective bargaining or the adjustment of grievances whether or not formally designated as such.

The second question (No. 72-1633) is: Did the Board err in refusing to determine the reasonableness of fines assessed by the Union against its members? The Board has answered negatively.

I

No. 72-1521.

The elements of a § 8(b)(1)(B) violation are: (1) that the disciplined employee have § 2(11) supervisory status and (2) § 8(b)(1)(B) status as a representative for the purposes of collective bargaining or the adjustment of grievances; and (3) a showing of restraint or coercion in the selection of such a representative. In the instant case, most of the Examiner's opinion is directed toward establishing the first element, supervisory status. The Examiner decided and the Board affirmed that four of the disciplined employees were supervisors and one was not. The Union disputes the findings with respect to the four.

The first employee, City Editor Janice Hauserman, has seven employees under her direction, and assigns them to specific "beats." A second employee, Society Page Editor Betty Peebles, has one assistant whose work she oversees. A third employee, Telegraph Editor Richard Kubeja, has hierarchical if not experiential superiority over at least one employee with whom he works and who follows Kubeja's instructions. Kubeja also exercises independent judgment by substituting for the Managing Editor. A fourth employee, Assistant Circulation Manager Gerald Szoszorek, had the day-to-day supervision of some 30 to 35 employees until November 1968. Subsequently, his job function was somewhat changed to the supervision of 15 district managers. From evidence such as the foregoing, the Examiner concluded that the four employees were § 2(11) supervisors. This Court is of the opinion that there is sufficient evidence in the record to justify the Examiner's conclusion that the four were § 2(11) supervisors.

A more difficult question is posed by the Examiner's approach to the second element of a § 8(b)(1)(B) violation: status as a representative for the purposes of collective bargaining or the adjustment of grievances. The Examiner stated: "All persons who are `supervisors' within the meaning of Section 2(11) of the Act are employers' `representatives for the purposes of collective bargaining or the adjustment of grievances' within the purview of Section 8(b)(1)(B) of the Act."¹⁶ The Examiner then cited three cases as authority for what has come to be labeled the "reservoir doctrine."¹⁷

In Toledo Blade,¹⁸ the Board embraced a version of the reservoir doctrine which holds that where the record discloses by way of substantial evidence that certain supervisors are natural and likely choices for collective bargaining or grievance adjustment responsibilities in the future they therefore presently qualify under § 8(b)(1)(B). However, the Board in the instant case presents a more sweeping version of the doctrine, that § 2(11) supervisors automatically become § 8(b)(1)(B) representatives because they are a reservoir of manpower available and likely to be chosen for such duties at some future date. The Board contends that once these supervisors were disciplined by the union, they could no longer be fully loyal to the employer who would be coerced in his future selection of representatives. The word "selection" in § 8(b)(1)(B) has, according to the Board, both a prospective and a retrospective meaning. No inferences from evidence are necessary, the Board appears to be saying, to justify this second approach.

As heretofore indicated, elements of the reservoir doctrine first appeared in Toledo Blade, where the Board found a § 8(b) (1)(B) violation after determining that the evidence justified the separate conclusions that the employees in question were both supervisors and representatives. The Board then stated that even if the employees were not actually grievance representatives, "their status and roles" made them "such natural and potential representatives of the Blade for the handling and settlement of grievances because of their day-to-day supervision and contacts with the employees in matters that spawn grievances, that the Blade should be entitled to rely upon them, and therefore to select them, as its representatives in handling and settling grievances whenever the occasion might arise."¹⁹ The Court of Appeals for the Sixth Circuit affirmed. It did not specifically approve the "reservoir doctrine" but stated: "This conduct of the union would further operate to make the employees reluctant in the future to take a position adverse to the union, and their usefulness to their employer would thereby be impaired."²⁰ The ...