Newspaper Guild of Greater Philadelphia, Local 10 v. N.L.R.B.

Decision Date13 August 1980
Docket NumberNos. 78-1055,78-1204,s. 78-1055
Citation636 F.2d 550,204 U.S.App.D.C. 278
Parties105 L.R.R.M. (BNA) 2001, 204 U.S.App.D.C. 278, 89 Lab.Cas. P 12,207, 6 Media L. Rep. 2089 NEWSPAPER GUILD OF GREATER PHILADELPHIA, LOCAL 10, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Peerless Publications, Inc., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PEERLESS PUBLICATION, INC. (Pottstown Mercury), Respondent, Newspaper Guild of Greater Philadelphia, Local 10, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

David S. Barr, Washington, D. C., with whom Bernard N. Katz, Philadelphia, Pa., and George Kaufmann, Washington, D. C., were on brief for petitioner in No. 78-1055 and intervenor in No. 78-1204.

John D. Burgoyne, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., with whom John S. Irving, Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and David F. Zorensky, Atty., N. L. R. B., Washington, D. C., were on brief, for respondent in No. 78-1055 and petitioner in No. 78-1204.

Robert H. Jones, III, Albany, N. Y., for respondent in No. 78-1204 and intervenor in No. 78-1055.

Before McGOWAN and MacKINNON, Circuit Judges, and HAROLD H. GREENE, * U.S. District Judge for the District of Columbia.

Opinion for the court filed by District Court Judge HAROLD H. GREENE.

Opinion concurring filed by Circuit Judge MacKINNON.

HAROLD H. GREENE, District Court Judge:

These cases 1 involve the question whether the publisher of a newspaper may, consistently with the National Labor Relations Act, refuse to bargain collectively regarding a code of ethics and related work rules he has unilaterally adopted for his employees.

The Pottstown Mercury, a newspaper in suburban Philadelphia owned by Peerless Publications Inc. (both the newspaper and the publisher will generally be referred to herein as the Mercury), 2 operates under a collective bargaining agreement with the Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO, (hereinafter referred to as the Guild). 3 On July 1, 1968, the Mercury posted on its bulletin boards a list of twenty-five "General Office Rules," prepared by its publisher. At no time prior to the posting had he or any of his representatives given notice of the impending action to the Guild or its members, nor had there been any prior collective bargaining over The preamble to the Office Rules states that their "violation . . . may be deemed cause for discharge except in case of those rules where discharge is automatic." On May 10, 1972, the Mercury updated and amended the Rules and again posted them in the offices and distributed them to the employees. On April 3, 1974, all employees were given notice, through attachments to their paychecks, that the " . . . published and posted rules are, and always have been, in force . . . and will be enforced."

the formulation, effectuation, or impact of the Rules with the Guild.

The Office Rules concern a variety of employee conduct, including abuse of liquor, disorderly conduct, use of company equipment for private purposes, garnishment of wages for personal debts, posting of circulars, treatment of company property, solicitation of funds on company premises, and various reporting and recordkeeping procedures. 4 Furnishing of false or misleading information, intoxication or drinking liquor on the Mercury's premises or engaging in work-stoppages or slow-downs are deemed to be dischargeable offenses. In addition, Rule 11 provides that

All copy and proof, both news and advertising matter, must be treated as confidential. No information obtained by any employee by reason of his employment shall be made use of for himself or given out, or in any way made known prior to publication .... Employees must so conduct themselves outside of office hours as not to reflect adversely on the newspaper or cause loss of business or patronage. . . . 5

The Guild did not protest at the time the Office Rules were first posted, but it did object during the August 1968 bargaining session, and again at a session in October 1968, both times without success. After the Guild threatened a strike in October 1968, the Mercury nullified warning letters and the conditional discharges which had previously been issued. 6 In 1970 and 1973, the publisher sought to include in the contract a clause which would have authorized the Mercury to "make or change rules, policies, or practices, except for those specifically provided for in the agreement," but the Guild consistently took the position that it would ignore this "purely . . . unilateral declaration" of management prerogatives. 7

Notwithstanding this inconclusive bargaining history, the Mercury has enforced the Office Rules from the very beginning, and between 1968 and 1974 it issued approximately fifteen reprimands for alleged employee violations. 8 Disciplinary proceedings, including suspensions, discharges, and forced resignations, were begun against On April 15, 1974, the Mercury posted in its offices and published in its pages a "Code of Ethics," a copy of which was also distributed to each employee along with his paycheck for that date. 10 The Code is loosely based on an ethics code adopted by the Sigma Delta Chi national society of professional journalists. 11

                several employees, and the Guild has filed grievances against the Mercury pursuant to the collective bargaining agreement concerning these matters.  9 While some of these grievances were either withdrawn or settled, at least one-involving a discharge-was still pending before an arbitrator at the time of the National Labor Relations Board proceedings in this case

The stated purposes of the Code are to spell out the Mercury's standards of integrity, objectivity, and fairness, and to protect and enhance its quality and credibility. According to the publisher, it was promulgated because " . . . in today's atmosphere of deteriorating integrity in various sections of the country, including Watergate and other things, and other newspapers, we felt that it was time that we set up some goals for ourselves." He noted the likelihood of a Guild objection, but stated his determination to proceed because of his belief that it is "management's prerogative to set its own ethical standards . . . (which are) part of the quality of the newspaper. . . ." He further declared that the Code applied to all employees, that it was a mandatory standard of conduct, and that the employees were bound to adhere to it under penalty of discipline.

The Code contains a preliminary statement of general principles and four substantive sections designated Ethics, Accuracy and Objectivity, Fair Play, and Pledge. Primarily at issue here is the Ethics section, 12 which is said to be based on the principle that "newspaper people must be free of obligation to any interest other than the public's right to know the truth." That section prohibits, 13 first, acceptance of anything of value which could "compromise the integrity of newspaper people and their employers," including gifts, favors, free travel, special treatment or privileges; and second, conflicts of interest, real or apparent, including secondary employment, political involvement, holding of public office, and service in community organizations.

Prior to the posting of the Code in April 1974, there had been no formal policy concerning Beginning in May 1974, the publisher began to enforce the Code through verbal warnings, warning letters, and cease and desist orders 20 concerning outside activities which allegedly constituted conflicts of interest with employment.

                gifts of value, 14 popularly known as "freebies," and employees had been allowed 15 a wide range of gifts, including many which provided access to various types of events and functions.  16 Freebies were provided both by advertisers and non-advertisers, and their use by the staff was also varied.  Some of the gifts were used in connection with news coverage; 17 others were not.  18 Events which are covered by the Mercury, e. g., local sports, social and political events, were partially opened to admission by tickets mailed in to the editor, 19 by press passes, or simply by the showing of press cards at the door

On June 4, 1974, the Guild advised the Mercury that the Code of Ethics involved unilateral changes in terms and conditions of employment and was an unfair labor practice, and it requested that management engage in collective bargaining concerning the matter. 21 The Mercury refused, stating that it regarded its Code and the Office Rules as a management prerogative. The Guild thereupon filed charges with the Labor Board.


The Guild's charges were heard by an Administrative Law Judge who ruled on The Board affirmed part and rejected part of the ALJ's conclusions. It held that the Mercury had no duty to bargain with the Guild about the substantive provisions of the Ethics Code, 22 but that it did have such a duty with respect to its penalty provisions. The Board affirmed the ALJ's holding that the Office Rules are mandatory bargaining subjects, both substantively and with respect to penalties. 23

September 23, 1975, that the Code of Ethics and the General Office Rules, in toto, were mandatory bargaining subjects, and that the Mercury had failed to comply with its obligation in that regard. He also held that the Guild had not waived its right to bargain over these subjects, and he ordered the company to rescind the Office Rules and the Code and to bargain with the Guild over their applicability to the agreement then in effect.

Explaining its decision, the Board stated that the substantive provisions of the Code constitute a legitimate attempt by the publisher to protect and preserve the credibility and quality of his publication, and that they are for that reason beyond the scope of mandatory bargaining under the Act. In arriving at this...

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