Newspaper Production Co. v. N.L.R.B.

• Decision Date: 06 November 1974
• Docket Number: Nos. 73-3093,73-3094,s. 73-3093
• Citation: 503 F.2d 821
• Parties: 87 L.R.R.M. (BNA) 2650, 75 Lab.Cas. P 10,433 NEWSPAPER PRODUCTION COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. SHREVEPORT ENGRAVING COMPANY, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 821

503 F.2d 821

87 L.R.R.M. (BNA) 2650, 75 Lab.Cas. P 10,433

NEWSPAPER PRODUCTION COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

SHREVEPORT ENGRAVING COMPANY, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

Nos. 73-3093, 73-3094.

United States Court of Appeals, Fifth Circuit.

Nov. 6, 1974.

Andrew C. Partee, Jr., New Orleans, La., for petitioners.

Elliott Moore, Deputy Associate Gen. Counsel, Jay E. Shanklin, Atty., N.L.R.B., Washington, D.C., Charles M. Paschal, Jr., Regional Director, Region 15, N.L.R.B., New Orleans, La., for respondent.

John S. McLellan, Jr., D. Bruce Shine, Kingsport, Tenn., for intervenor Shreveport Printing Pressmen's Local Union No. 181.

Before MOORE, ¹ AINSWORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

These cases are before this Court upon the petitions of Newspaper Production Company (NPC) and Shreveport Engraving Company, Inc. (Engraving) pursuant to section 10(f) of the National Labor Relations Act, 29 U.S.C.A. 160(f), to review and set aside an order of the National Labor Relations Board issued on August 27, 1973, in a consolidated proceeding against them. The Board has cross-applied for enforcement of its order which is reported at 205 NLRB No. 113 (1973).

In this case, we push the law concerning the ability of a union to bargain to impasse slightly ahead of where we found it, but the remainder of the issues are controlled by the application of settled law to the facts. Contrary to the arguments of NPC and Engraving, we uphold the Board's determination (1) that the two constituted a single employer for purposes of collective bargaining, (2) that a striking union was entitled under the circumstances here to insist on bargaining to the point of impasse for a larger appropriate bargaining unit, (3) that the Companies violated sections 8(a)(3) and (1) of the Act, 29 U.S.C.A. 158(a)(3) and (1), by failing to reinstate the strikers after they unconditionally offered to work and by discharging the NPC strikers. We therefore deny the petitions for review and enforce the order on the Board's application.

The conflict which led to the serious repercussions of this case started innocently enough when the general production workers of Engraving, three in number, chose Local 214 of the Lithographers and Photoengravers International Union (the Union) as their bargaining representative. The same Union had previously represented the eight to eleven skilled photoengravers which comprised the other significant group of Engraving's employees. The photoengravers' contract had expired and was up for renewal at the same time the Union was negotiating on behalf of the newly represented general production employees. The Union took the position that the photoengravers and the general production workers should be included in one bargaining unit and should be the subject of one contract. The Union secretary asserted that since there were so few general production workers he did not want to bother with two contracts. Engraving resisted, apparently on the ground that it did not want skilled and unskilled workers in the same contract. For reasons that do not appear in the record and that we are unable to discern from written and oral argument, positions hardened to the point of total disagreement, and the Union struck.

Up to this point only Engraving and its workers were involved. Upon striking, however, the Union threw a picket line around the building which, in addition to Engraving, also housed the offices and plant of NPC, the other petitioner in this proceeding. At the same time the Union successfully urged certain NPC employees, members of the International Stereotypers and Electrotypers Union Local No. 132 (Stereotypers) and Shreveport Printing Pressmen's Local Union No. 181 (Pressmen), to refuse to cross the picket line. The picket line was dropped a few days later when it was learned that members of still another union had entered the building despite the picketing. Thereupon a Union official informed Engraving's manager that its employees were ready to return to work and resume negotiations, and the NPC employees who had honored the picket line showed up en masse at the building to reclaim their jobs. When NPC and Engraving did not reinstate these employees, members of all three unions resumed picketing, claiming a lockout. NPC discharged the Pressmen and Stereotypers for violating alleged no-strike clauses in their contracts.

These facts raise the issue of whether or not the employees of Engraving were entitled to bargain to impasse, i.e., to bring strike pressure on the Company when it failed to agree to treat the two groups of employees as a single unit.

The single employer issue is raised by the following facts: Times Publishing Company, Ltd. and the Journal Publishing Company, Inc., separately owned, publish two daily newspapers in Shreveport, Louisiana, out of the same plant. While the editorial and reporting operations of each are separate, NPC handles the mechanics of publication of both newspapers, including sales of subscriptions and advertising, circulation and printing. NPC is a joint venture of both newspapers, being owned 62 1/2 percent by the Times, and 37 1/2 percent by the Journal. NPC obtains its photoengraving work for both newspapers from Engraving which is owned equally by the Times, the Journal, and an unrelated third party. This sets the backdrop for the claim that NPC and Engraving are a single employer for collective bargaining purposes. Additional facts will be developed as we explore each contention of the parties in this proceeding.

After an extensive hearing, the Administrative Law Judge recommended dismissal of the complaint filed by the unions against Engraving and NPC. He ruled that the Union had violated section 8(b)(3) of the Act by insisting to the point of impasse on expansion of the bargaining unit, a nonmandatory subject of collective bargaining. Then, deciding that the two concerns were separate employers for collective bargaining purposes, he ruled that the photoengravers' Union had violated section 8(b)(4) of the Act by inducing an illegal secondary boycott of NPC. Since the strike was not protected concerted activity, the Companies, in his view, committed no violation of the Act by refusing to reinstate the employees despite their unconditional requests for reinstatement.

The Board did not accept all of the Administrative Law Judge's conclusions. Contrary to his findings, it found that, under the circumstances of this case, the Union members were entitled to strike to bring pressure on Engraving to accept an expanded bargaining unit and that the two businesses did constitute a single employer for bargaining purposes. It also ruled that the Stereotypers and Pressmen, sympathy strikers honoring the Union's picket line, had not violated valid no-strike clauses, because there were, in fact, no such clauses in their contracts. It affirmed the finding that the strikers' requests for reinstatement were unconditional. It held that NPC and Engraving violated section 8(a)(3), and derivatively section 8(a)(1), in discharging or failing to reinstate employees engaged in protected concerted activity. The Board sustained the Law Judge's holding that Engraving had not violated its section 8(a)(5) obligation to bargain in good faith by insisting to impasse on separate contracts for the two units.

Accordingly, the Board issued a cease and desist and reinstatement order, requiring the Companies to offer the affected employees immediate reinstatement with backpay, discharging if necessary any replacement employees hired after August 22, 1969, (the date the strikers unconditionally applied for reinstatement). If the number of employees desiring reinstatement exceeds the number of available positions, the Companies are to place the remaining strikers on a preferential hiring list qualifying them for reinstatement and backpay as vacancies occur.

The Companies attack the Board's order on four grounds. They allege that (1) the Board's finding Engraving and NPC a single employer is not supported by substantial evidence, (2) the Board erred in holding the bargaining unit to be a mandatory issue on which the Union could insist to the point of impasse, (3) the Board's finding of employee unconditional requests for reinstatement is not supported by substantial evidence, and (4) the Board wrongfully interpreted the Stereotypers' and Pressmen's contracts as not including no-strike obligations.

I. SINGLE EMPLOYER ISSUE

The Companies first challenge the Board's conclusion, contrary to that of the Administrative Law Judge, that Engraving and NPC were a single employer for collective bargaining purposes. A successful challenge would require us to deny enforcement of the Board's order, since if the Companies were separate employers, their employees violated section 8(b)(4) of the Act-- the members of the photoengravers' Union by inducing, and the NPC employees by participating in an unlawful secondary boycott. If the employees violated the Act, they cannot invoke its protection and are not entitled to reinstatement upon request. NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 409 (5th Cir. 1955); National Packing Co. v. NLRB, 352 F.2d 482 (10th Cir. 1965), appeal after remand, 377 F.2d 800 (1967); NLRB v. Blades Manufacturing Corp., 344 F.2d 998 (8th Cir. 1965); United Furniture Workers v. NLRB, 118 U.S.App.D.C. 350, 336 F.2d 738, cert. denied, 379 U.S. 838, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); see Southern Steamship Co. v. NLRB, 316 U.S. 31, 62 S.Ct. 886, 86 L.Ed. 1246 (1942). On the other hand, if substantial evidence supports the Board's single employer finding, both groups of employees which engaged in the economic strike are entitled to reinstatement on request, subject to the rights of previously hired permanent replacements.

The central...