Publishers' Association of New York City, et al.

1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECON, PRECAST, PRECRETE, AND CONCRETE CONDUIT Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the polices of the National Labor Rela- tions Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage employees of Precon , Precast, Precrete, and Concrete Conduit to engage in, a strike or threaten, restrain, or coerce the aforesaid employer where in either case an object is to force or require the aforesaid employer to enter into any agreement which is prohibited by Section 8(e) of the Act, or where an object thereof is to force or require the aforesaid employer to cease doing business with Consolidated Edison Company or any other person. LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Publishers' Association of New York City, et al. and New York Mailers Union No. 6 International Typographical Union, AFL- CIO and Newspaper and Mail Deliverers Union. Cases Nos. 2-CA-7863 and 2-CA-7884. November 19,1962 DECISION AND ORDER On April 19, 1962, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Intermediate Report. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices, and recommended that the allegations of the complaint per- taining thereto be dismissed. Exceptions to the Intermediate Report and supporting briefs were filed by the Respondents and the General Counsel; exceptions only were filed by New York Mailers Union No. 6 International Typographical Union, AFL-CIO, one of the Charging Parties herein. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and finds merit in the Respondents' exceptions. Accord- 1 Respondents' request for oral argument Is denied , as the record and briefs fully present the Issues and positions of the parties. 139 NLRB No. 107. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1093 ingly, the Board adopts the findings and conclusions of the Trial Examiner only to the extent they are consistent with the decision herein. The essential facts are not in dispute. Primarily at issue is the legality of a suspension agreement formulated by Respondent Pub- lishers' Association and its members prior to the Section 10(b) pe- riod,3 and reaffirmed and implemented on various occasions thereafter. Respondent Association represents a group of leading New York City newspapers 3 in multiemployer bargaining with nine craft unions. With minor exceptions, the Association negotiates 2-year contracts with each craft union, to expire in December of even-numbered years. Several of these contracts contain explicit no-strike, no-lockout com- mitments, while others provide only that the union shall furnish em- ployees to the publishers as required. All the contracts provide for final and binding arbitration of grievances and disputes arising under the contracts. Respondents' relationship with the craft unions is of long standing, and no union animus in the ordinary sense is alleged or involved. Evidence introduced as background shows that, as early as 1950, Respondent Association and its members considered "a closing of ranks on the management side" against craft work stoppages deemed to be in violation of contract. Several incidents in 1950 and 1953 are briefly described in the record. The problem reappeared in 1958, when the publishers were negotiating individual contracts with the Newspaper Guild of New York,4 and, thereafter, when the Association was negotiating associationwide contracts with the crafts. On several occasions during this period, the publishers announced and put into effect an informal agreement to suspend operations in the association- wide unit in the event of craft work stoppages in breach of contract at any individual newspaper. In at least one instance, the publishers' invocation of this agreement seemed to arrest the threatened work stoppage. Noting the apparent success of this agreement during 1958, Respondent Association and its members reaffirmed the agree- ment and put it into effect on other occasions, within the period cov- ered by Section 10(b) of the Act. The General Counsel alleges as violative of Section 8(a) (1) the Respondents' maintenance of the a Section 10(b) provides, in part, that "No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made . . . ." The Section 10(b) date in this case is September 16, 1960. 3 Both the Publishers' Association and its individual members are named as Respond- ents. The Publishers' Association will be known hereinafter as Association , the individual newspapers by their commonly known names . The newspapers involved as Respondents are The New York Times, The News , New York Post, Long Island Daily Press, Journal of Commerce, New York Herald Tribune, New York Journal-American , New York Mirror, New York World-Telegram and Sun, and Long Island Star-Journal. ' Unlike the craft unions, the Guild negotiated with members of the Association on an individual basis. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement during this period, and the threats made by the Associa- tion and its members to invoke the agreement . The General Counsel also alleges, as a violation of Section 8 (a) (3), the two occasions during the 10(b) period when the Association and its members actually put the agreement into effect, and suspended operations. The agreement itself was never formally embodied in a written instrument, but its terms are not seriously in dispute. The Associa- tion's executive secretary described the agreement as follows : In order to protect themselves from these wildcat activities by some of the unions, and in particular the Newspaper and Mail Deliverers Union, the members of the association have reached an understanding which may be expressed as follows : In the event that any union that is a party to associationwide contract engages in a work stoppage or threatens a work stoppage at the plant of any one of the publishers, the publisher involved will communicate the facts of the situation to each of the other mem- bers of the Association either directly or through the Association office. Each case will be considered on its individual merits but if the publishers operating at that time consider the conduct of the union to be a sufficiently serious violation of the associationwide contract and that the newspaper involved was justified or re- quired to suspend operations , each of the other publishers will suspend operations until the matter is adjusted at the plant of the paper involved because of the union's breach of the associa- tionwide contract. The circumstances surrounding the incidents in question are sub- stantially similar, and are set forth in detail in the Intermediate Report. Within the Section 10 (b) period, the publishers threatened resort to their suspension agreement on five or six occasions. For example, on February 11, 1961, the stereotypers at the Herald Tribune engaged in an unauthorized work stoppage over the positioning of a particular employee in the plant. Stereotyper President McMahon was at first unable to terminate the stoppage, and was warned by the business manager of the Herald Tribune that a "citywide temporary suspension" might result . McMahon finally succeeded in getting work resumed, with only a temporary delay in production . Another inci- dent occurred on March 11 , 1961, when the business agent of Mailers Union No. 6 objected to the use of a certain wire -tying machine in the absence of a safety device which he thought was necessary. The Herald Tribune told the business agent, McDonald , that he was mis- taken in his understanding of the purpose of the device , but McDonald stated the machine would not be operated until the device was used. Cameron, then vice president of the Herald Tribune, proceeded to PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1095 telephone the president of the Mailers, complaining of McDonald's demands, and stating, "If McDonald shuts down the wire-tying ma- chine this might lead to a City-wide shut-down by the Publishers." Mailers' president assured Cameron there would be no shutdown.' Similar incidents in 1961 involved the Mirror, the Times, and other craft unions. There were two instances of actual work suspension by the Re- spondents within the 10(b) period. On February 23,1961, the deliver- ers at the Times engaged in an unauthorized stoppage over the dis- charge of a deliverer for refusing to perform an assignment. The Times shut down its presses and reported the incident to the Associa- tion, at the same time threatening officers of the Deliverers with a city- wide shutdown. Pursuant to Respondents' informal agreement, the News, Herald Tribune, and Mirror delayed operations until they were advised that the Times' walkout had ended, which occurred about 30 minutes later. No employee was actually told to leave the premises, and none lost any wages or other compensation. The second incident occurred on April 26, 1961, about 3:30 p.m., when typographers at the Times engaged in an unauthorized work stoppage to protest the discharge of their "chapel chairman," Samuel Resnick. Publication of the first edition of the Times was conse- quently delayed 3 hours, until about 9:30 p.m., and the edition was reduced in size about 60 percent. In the meantime, the News, Mirror, and Herald Tribune had decided, pursuant to Respondents' agreement, to suspend operations until the Times was ready to publish. The News and Mirror delayed their press runs about 21/2 hours; the Tribune, as it happened, was not ready to publish until 9:30 p.m., when the Times' typographers returned to work under the threat of disciplinary ac- tion by their International. As with the other incidents, no employee was told to leave the premises, and none lost wages during the sus- pension. The Times' discharge of Resnick was subsequently submitted to arbitration, in accordance with the parties' contractual agreement, and upheld. The Trial Examiner found that Respondents' maintenance of their agreement, and the aforementioned threats and suspensions made thereunder, were violative of Section 8 (a) (1).1 Though the ques- tion posed is a difficult one, we have reached a contrary conclusion. We disagree initially with the Trial Examiner's finding that only some of the employee work stoppages were violative of the respective 5 The matter was eventually submitted to the Labor Department for resolution, and operation of the machine without the safety device was approved 6 The Trial Examiner dismissed the 8 ( a) (3) allegation , which involved the two in- stances of actual suspension , as he found neither discrimination nor discouragement of union membership For the reasons stated infra, we find that Respondents' maintenance and utilization of the suspension agreement were legally justified in the circumstances of this case. We therefore agree with the Trial Examiner 's dismissal of the 8(a) (3) allega- tion , though on essentially broader grounds. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD craft contracts.' Though only four of the contracts contained explicit no-strike, no-lockout commitments, all contained provisions for final and binding arbitration of grievances and disputes arising under the contracts. In the recent Lucas Flour Co." case, the Supreme Court held that, where the parties to a collective-bargaining agreement have provided for final and binding arbitration of certain disputes, the union has thereby committed itself not to strike over these disputes. Notwithstanding his brief reference in the Intermediate Report to Lucas Flour, the Trial Examiner was of the view that the craft con- tracts in this case must be read together, and, as some of the contracts were specific in containing a no-strike obligation, the parties' intent in the others must be deemed doubtful, or at least ambiguous. We believe this approach was foreclosed by the Lucas decision itself. In Lucas, as in this case, there was evidence indicating that the parties "knew how" to write an explicit no-strike clause had they desired. As Justice Black pointed out in his dissent, the arbitration clause there in issue was preceded by another arbitration clause, covering essentially nonfactual disputes, and providing specifically that "dur- ing such arbitration, there shall be no suspension of work." However, the majority concluded, as had the Board and courts in prior cases,9 that "a strike to settle a dispute which a collective bargaining agree- ment provides shall be settled exclusively and finally by compulsory arbitration constitutes a violation of the agreement." 10 We find in this case, contrary to the Trial Examiner, that the craft unions had uniformly committed themselves not to strike during the terms of their agreements.ll In passing, we also note our difficulty with another aspect of the Trial Examiner's analysis. Before a violation of Section 8(a) (1) can be found, it must be shown that Respondents interfered with some protected right or activity of employees guaranteed under Sec- tion 7. It seems clear in this case that Respondents' action was aimed ultimately at preventing the type of work stoppages here involved. Yet, as noted above, the striking employees themselves were engaged in activity prohibited by their collective-bargaining agreements. The Board and the Supreme Court have long held that strikes in violation of contract are unprotected, and that no violation can be found for interfering with such activity.12 4 Though reaching this conclusion at the outset, the Trial Examiner proceeded to analyze and decide the case on the alternative assumption that such violations had occurred 8 Local 174, Teamsters, Chauffeurs, Warehousemen h Helpers of America v. Lucas Flour Co., 369 U.S. 95. 8 See, W. L Mead, Inc., 113 NLRB 1040 ; N L.R B v. Sunset Minerals, Inc, 211 F 2d 224, 226 ( C.A. 9). '°Local 174, Teamsters, et al. v. Lucas Flour Co , supra, at 105. "'None of the strikes here involved was an unfair labor practice strike , and our finding has no bearing on such type of strike . Cf. Mastro Plastics Corp and French -American Reeds Mfg. Co., Inc v. N.L R.B., 350 U. S. 270. 19 See American ailsonite Company, 121 NLRB 1514 : N L R B v. Rockaway News Supply Company, Inc, 345 U S 71. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1097 It was apparently the Trial Examiner's theory that the suspension agreement was unlawful in its breadth, and hence constituted a viola- tion of Section 8 (a) (1) because of its interference with certain rights of nonstriking employees.13 However, the nonstriking employees did not themselves participate in the disputes of the strikers, or engage in any activity which can readily be characterized as protected or related to union membership or activities. In finding such rights or activities protected, the Trial Examiner's reasoning seems to us some- what elusive. Thus, he speculated at various points in the Intermedi- ate Report that Respondents' lockout agreement interfered with (a) the nonstrikers' right to refrain from the concerted activity of exert- ing pressure on the "wildcat" strikers; (b) the nonstrikers' right to refrain from banding together for their own economic welfare to put pressure on their striking brethren; and (c) the nonstrikers' right to remain members of the striking employees' craft unions. Granting that, in certain lockout cases, a Section 7 right can be found which has clearly been interfered with, we have difficulty in delineating such a right in this case.14 In reality, the suspension agreement was intended to discourage, and did discourage, not Section 7 activities, but rather the series of un- authorized work stoppages which experience had shown to pose a continuing threat to the publishers. Thus, the agreement was, in essence, not an offensive weapon utilized by the Respondents to punish or lessen the legitimate effectiveness of the unions, but rather a defen- sive measure utilized to combat unauthorized work stoppages in the plants of the publishers involved, and, in the long run, in the entire unit. In determining the legality of various types of defensive lockouts used by employers in the past, the Board and the courts have been guided by certain established general principles.15 Nonetheless, as the Trial Examiner himself pointed out, in the last analysis "there are no mathematical guides as to where the line is to be drawn. Wherever in an orderly society principles of equal merit converge priority as be- tween them may be a matter of time and circumstance. In an area of 13 Technically, the threats themselves were communicated only to members of the strik- ing group, and therefore could hardly be said to have interfered with rights of other employees The effects of the two suspensions were more broadly felt. 14In view of our conclusion that Respondents' suspension agreement was in any event a justified defensive measure, we do not find it necessary to reach a final resolution of this point. 15 For example , an employer may legitimately lock out employees where it is motivated by serious operating considerations . See Betts Cadillac Olds, Inc., et at., 96 NLRB 268. On the other hand, it may not do so where its considerations are merely those attendant upon any strike . See Quaker State Oil Refining Corporation , 121 NLRB 334 , enfd. 270 F 2d 40 (C.A. 3), cert. denied 361 U.S. 917; cf. Texas Gas Corporation, 136 NLRB 355. In N.L R.B. v. Truck Drivers Local Union No. 449, International Brotherhood of Team- sters, etc. (Buffalo Linen Supply Co ), 353 U.S. 87, the Supreme Court agreed with the Board that, where one employer in a multlemployer association was subjected to a whipsaw-type strike, the other employer members could lock out their employees as a de- fensive measure to protect the integrity of the multiemployer unit 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary imprecision general principles can only guide the judgment, they cannot make it." In making our judgment in this case, we are mindful particularly of the multiemployer nature of both the threat and the counteraction taken. In bargaining with the Association on a multiemployer basis, the craft unions obviously reaped certain benefits, but they also, we believe, necessarily subjected themselves to unitwide response, in the event of problems involving the entire unit.16 We do not agree with the Trial Examiner's observation that the disputes involved were solely of "individual" or "local" concern. For, while the particular stop- pages were limited in each instance to a single newspaper, the prob- lem of unauthorized strikes and of threats to the grievance and arbitra- tion procedures established by contract was common to all members of the Association, and affected different publishers on different oc- casions. Given the admitted fact of associationwide bargaining, and the unitwide nature of the problem, we think it reasonable that Re- spondents reacted to the series of illegal stoppages on an association- wide basis.17 At first blush, Respondents' agreement to suspend operations on an associationwide basis under the conditions there outlined might seem to extend significantly the parties' dispute to a broader geographical area. Yet, as the agreement developed and was utilized, this was neither its purpose nor its effect. The agreement was formulated to discourage at inception the series of breach-of-contract strikes which had repeatedly confronted the publishers, and thus reduce or eliminate the parties' original area of dispute, insofar as it involved such strike activity. In a literal sense, an "'ounce of prevention" proved its worth as a "pound of cure." In the half-dozen instances during the 10(b) period, in which resort to the agreement was threatened, the impend- ing work stoppages did not in fact take place. In the two instances of actual suspension, the matters in dispute were quickly resolved, with- out economic loss to either the employees or Respondents." We can- not say, in view of this experience, and the record made, that Respond- ents' agreement had the effect of broadening the impact of the parties' original dispute. 1s See Buffalo Linen Supply Co, supra. 14 Because of the integrated nature of the publishing industry, it seems clear that a unitwide lockout of one craft would necessarily result in a suspension of work for all crafts. We are therefore unwilling to engage in the impractical distinction that Respond- ents could have responded by locking out all members of the offending craft, but not members of other crafts. Note, for example, the Times' efforts in December 1958 to react to an apparent violation by typographers at the News, by continuing on its payroll all employees except members of Typographers The Times had to close down at once, and its payroll arrangement lasted only 1 day. 1s Among other things, the threat of concerted action eliminated the element of com- petitive disadvantage and consequent irreparable loss by which, it is presumed, the strik- ing employees hoped to cause the offending publisher or publishers to capitulate prior to press time. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1099 Nor are we willing to say that the stoppages were purely "wildcat" in nature, and therefore that the craft unions and other members of the crafts should not be "penalized" for these unauthorized activities. Aside from the fact that punishment was not Respondents' motive, we note that the stoppages here differed in several respects from those ordinarily classified as "wildcat." Sudden unauthorized work stop- pages recurred with annoying frequency against the Association's members, and might reasonably have alerted the craft unions to take special steps to avoid additional contract violations. Although it is clear from the record that the craft unions did not originate or en- courage these activities, several of the incidents involved a union steward or shop chairman. Moreover, when confronted ultimately with Respondent' threats of associationwide action, in virtually every instance the union officials were able to get the men back to work. As the Trial Examiner himself observed, though the craft unions' original efforts to stop the disputes were undoubtedly genuine, "... one may surmise that the publishers' warnings of general shut clown might have contributed to the warmth of the union officials' efforts to avoid or terminate the stoppages." Thus, though it is questionable whether the individual unions could be held "responsible" for the stoppages in a court of law, neither are we willing to insulate all employees, or members of the crafts, from a form of defensive action which reason- ably seemed necessary to halt the stoppages. In the last analysis, it is on the point of "reasonableness" that we rest our final conclusion. Respondents were admittedly faced with repeated contractual violations by various of the crafts. The mem- bers of the Association, the New York City newspapers, were par- ticularly vulnerable to such sudden unannounced stoppages because of the perishability of their commodity, and the strict time schedules necessary in the publishing business. In response to these repeated stoppages, respondents banded together in the existing association- wide unit, and threatened or put into effect unitwide suspensions which, as experience showed, proved effective in discouraging or stopping the unauthorized stoppages. As the record demonstrates, the agreement was not used indiscrim- inately. Indeed, when time and circumstances permitted, Respond- ents took their case to other forums, for more orderly-and perhaps, ultimately, more satisfactory-resolution. For example, in February 1961, when the mailers at the Herald Tribune refused, in apparent violation of their contract, to handle a certain Sunday supplement, charges were filed with the Board,19 and a court restraining order ob- tained. On other occasions, resort was made to impartial arbitrators.21 '9 See New York Mailers' Union No 6, International Typographical Union, AFL-CIO (New York Herald Tribune, Inc, et al.), 136 NLRB 196. 20 See, for example, the 1960 dispute between the Times and the Stereotypers, de- scribed in the Intermediate Report. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In these circumstances, we cannot say on balance that Respondents' suspension agreement, limited as it was to contract violations, and, as the record shows, selectively and carefully applied, exceeded permis- sible bounds of defensive conduct. Accordingly, we find that the main- tenance and use by Respondents of this agreement during the period here in question did not violate Section 8(a) (1) and (3) of the Act. Contrary to the Trial Examiner, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On March 16, 1961, New York Mailers Union No. 6 International Typographical Union, AFL-CIO, and on March 31, 1961, Newspaper and Mail Deliverers Union, unaffiliated, filed separate charges with the Board to the effect that the Publishers' Association of New York City and its members, herein called Respondents or Publisher-s, are maintaining and enforcing an agreement to lock out employees in connection with labor disputes involving Publishers. Service of each charge was duly made upon the Respondents. On July 27, 1961, the Regional Director issued a consolidated complaint and notice of hearing thereon alleging violations by the Respondents of Section 8(a)(1) and (3) of the National Labor Relations Act, 61 Stat. 136. Following service of the complaint, the Respondents duly filed their answer denying the commission of unfair labor practices. Upon due notice a hearing was held at New York, New York, on September 25, 26, and 27, 1961, before Trial Examiner Charles W. Schneider. The General Counsel, the Respondents, and the Charging Parties were represented at the hearing by counsel, participated therein, and were afforded full opportunity to present and to meet material and relevant evidence, to engage in oral argument, and to file briefs and proposed findings. On November 27, 1961, the General Counsel, and on November 29, 1961, the Respondents filed briefs, which have been considered. The General Counsel has filed a motion to correct the record. No objections having been received and the request appearing appropriate, the motion is granted. It is directed that the transcript be corrected accordingly. Upon the entire record in the case, and after consideration of the evidence and the contentions of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Publishers' Association of New York City, an unincorporated association, is an association of employers engaged in publishing daily and Sunday newspapers in and around New York City. Respondent Association performs the function, inter alia, of negotiating and executing collective-bargaining agreements on behalf of its employer- members, with labor organizations. As collective-bargaining agent for its members the Association is a party signatory to collective- bargaining agreements with various unions representing employees of the employer-members of the Association. The principal exception is that the individual newspapers separately conduct their respec- tive negotiations with, and enter into separate collective-bargaining agreements with, the Newspaper Guild of New York, herein called the Newspaper Guild. The com- panies represented by the Association publish the following newspapers: The New York Times, The News, New York Post, New York Herald-Tribune, New York Journal-American, New York Mirror, New York World-Telegram and Sun, Journal of Commerce, Long Island Daily Press, and Long Island Star-Journal. Of these, five are morning newspapers : Times, Tribune, News, Mirror, and Journal of Commerce. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1101 The Journal-American, Post, World-Telegram, and the two Long Island newspapers are afternoon or evening newspapers.' During the past year, a period representative of their operations, the Respondent members of the Association, in the course and conduct of their publishing opera- tions, held membership in and subscribed to various interstate news services, including the United Press International and the Associated Press, published various syndicated features, advertised various nationally sold products, caused newsprint, inks, and other goods and materials to be transported in interstate commerce directly from States of the United States other than the State of New York, published newspapers and caused them to be delivered in interstate commerce directly to purchasers in the States of the United States, other than the State of New York, and each derived gross revenues from said publishing operations in excess of $500,000. It is admitted that each of the aforesaid members of the Publishers' Association is an employer engaged in commerce within the meaning of the Act, and that the Publishers' Association is an employer as defined in the Act. II. THE LABOR ORGANIZATIONS The Charging Parties and other unions referred to hereinafter are labor organiza- tions within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts 1. The issue, in brief, is whether the New York City newspapers, members of a multiple employer bargaining group, the Publishers' Association of New York City, may concertedly lock out or threaten to lock out their employees in order to fore- stall or to compel the termination of a work stoppage by a union at one of the news- papers, relating to a labor dispute between that union and that newspaper, which stop- page is or is believed by the particular employer to be in violation of the union's collective-bargaining contract withthe employer. There is little substantial dispute as to the facts, which are the subject of admission and stipulation, as amplified by uncontradicted and credited testimony offered by the Respondents. The newspapers employ some 15,000 to 20,000 employees. No union animus is involved or alleged. 2. The unions: In the mechanical phase of publication the Publishers deal with nine mechanical or craft unions pursuant to collective-bargaining contract. These unions are Mailers No. 6 ITU, the Deliverers (or Drivers), the Printing Pressmen, the Machinists (IAM), the Photoengravers, the Paper Handlers, the Stereotypers, the Electrical Workers (IBEW), and Typographical Union ITU (Typographers). Though each employer enters into separate contracts with each union the agreements are negotiated by the Publishers' Association as agent for the papers. So far as material, the provisions of these contracts are given later. 3. The complaint alleges that: (a) The Association and its members maintain an agreement or understanding by which each member agrees to suspend publishing operations in the event that em- ployees of any member, represented by a labor organization other than the News- paper Guild, threaten to or engage in a strike or work stoppage or interruption, or honors a picket line at such members' premises. (b) On various dates from January 1961 to May 1961, in effectuation of the said agreement or understanding, the Respondents Mirror, Herald Tribune, Times, and 1 The Respondent members of the Association, specified in Appendix A of the com- plaint, are: The New York Times Co. (Times) News Syndicate Co. (News) New York Post Corp. (Post) Long Island Daily Press Publishing Co., Inc. (Long Island Daily Press) Twin Coast Enterprises , Inc. (Journal of Commerce) N.Y. Herald Tribune, Inc. (Herald Tribune) Hearst Consolidated Publications, Inc. (Journal-American) New York Mirror Div., Hearst Corp. ( Mirror) New York World-Telegram Corp. (World-Telegram and Sun) Newspaper Enterprises, Inc. (Long Island Star-Journal) 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Publishers' Association warned employees to refrain from work stoppages or strikes and from giving assistance or support on particular occasions to certain of the labor organizations. (c) About February 22, 1961, the Herald Tribune and the News, and about April 26, 1961, the Herald Tribune, the News, and the Mirror, in pursuance of the aforesaid understanding or agreement suspended operations as a consequence of work stoppages or strikes by unions at the plant of the Times. 4. The contracts: A pivotal contention of the Respondents is that the collective- bargaining contracts forbid work interruptions by the mechanical unions. Though they concede that perhaps a majority of the agreements do not contain traditional no- strike language, the Respondents nevertheless contend that the agreements are to be read as containing such a warranty because they provide for binding arbitration of disputes. The contracts do not contain uniform provisions, in this regard, except in one respect: all provide a procedure terminating in final and binding arbitration for the adjustment of grievances or disputes arising under the agreements. In addition, four of the contracts (Mailers, Typographers, Deliverers, Pressmen) contain varying pro- visions against strikes, lockouts, or similar interference with employment. In the case of two of these four (Deliverers and Pressmen) the commitment is uncon- ditional. The clauses in the contracts of the Mailers and the Typographers reserve to the union the right to support a strike authorized under the laws of the I.T.U. against any signatory publisher. A fifth contract, that of the Stereotypers, pro- vides that no member of the union shall be required to perform struck work under certain described circumstances. Thus, five of the nine contracts contain no express commitment not to strike over grievances or other disputes (JAM, IBEW, Photo- engravers, Paper Handlers, and Stereotypers), and three of them expressly authorize strikes under certain circumstances. Six of the contracts provide in some fashion for the maintenance of existing condi- tions pending final determination of the dispute. These are the Mailers, Deliverers, Typographers, Pressmen, Stereotypers, and PaperhandIers. However, only the latter three do so unconditionally. The agreements of the Mailers, the Deliverers, and of the Typographers except discharge cases from the operation of this provision. The contracts of the JAM, the IBEW, and the Photoengravers contain no requirement for the maintenance of existing conditions pending grievance resolutions. Five of the contracts contain clauses, in varying language, the effect of which is that the union offers to supply such employees covered by the agreement as the publishers require. (Stereotypers, Paperhandlers, Photoengravers, Machinists, IBEW.) 5. The development of the suspension agreement- The craft or mechanical con- tracts, though negotiated by the Publishers' Association for the respective employers, are signed separately by each publisher. The Association does not act for the pub- lishers in negotiating contracts with the Newspaper Guild; each publisher negotiates his own agreement with the Guild. However, the publishers confer concerning Guild demands, presumably with a view of coordinating their responses. All the contracts, both craft and Guild, are for stated 2-year terms, expiring in even-numbered years, the Guild contract in October, the craft agreements generally in December. The Guild negotiations, ordinarily the first to be disposed of, usually set the money pattern for the settlements with the crafts. The events which preceded, accompanied. and provided the motivation for the creation of the suspension or lockout agreement, as given in the stipulations of the parties and the testimony of the publishers, are as follows. As early as 1950 the publishers began, in their words, to consider a "closing of ranks on the management side" in defense against craft union action deemed to be in violation of contract. Thus in 1950, during the course of a strike by the Newspaper Guild against the World-Telegram, several employees, members of craft unions having contracts with the Respondents, did not cross the picket line at that paper. The record does not disclose whether the contracts authorized such action. In 1953 the Photoengravers conducted a strike in the course of which it picketed all the Association members except the Tribune, which did not employ any photo- engravers. Some employees did not cross the picket lines The Tribune continued to publish for several days and then closed, although its operations were not affected or threatened by the strike. The 1958 contract negotiations: In 1958 the Guild contracts with the several papers were due to expire on October 31. Prior to the negotiations the publishers agreed in caucus upon a $7 package as the maximum limit of their concessions in the new contract. During the negotiations the Guild suggested to the publishers the possibility of a strike against less than all of the papers. Confident that in the 'event of a strike, PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1103 either general or piecemeal, the papers could publish if the crafts continued to report for work, the Publishers' Association sent telegrams on October 30 to the craft unions urging them to work as usual during any Guild strike, and warning that failure to do so at any paper would be regarded as a breach of contract against all papers. In the event of a failure to work, the Association said, all papers would suspend employ- ment.2 However, there was no strike by the Newspaper Guild; agreement was reached and a new contract executed providing for the $7 package. The craft negotiations of that year were not so successful, however, and inability to reach agreement ultimately resulted in a complete shutdown by the publishers for a period of several weeks. As the Guild agreement was being worked out the craft negotiations were in progress for renewal of the craft contracts, due to expire on December 7, 1958. Some 24 hours before the expiration, Dwyer, then president of the Pressmen's Union, stated that he would not settle for the $7 package accepted by the Guild and threatened to shut down the Times, which was about to go to press with a heavy Sunday edition. The Publishers informed Dwyer that if the Times were struck there would be no work for Pressmen at the other papers. There was no strike by the Pressmen. No agreement for renewal being reached by expiration time, all the contracts except that of the Deliverers union were extended. Upon expiration of its contract the Deliverers struck all the Association papers. Within a few hours, and before operations were substantially interrupted, settlement was reached between negotia- tors for the papers and for the Deliverers. However, the union membership rejected the settlement, the strike was resumed and continued for some 18 days. The publishers attempted to continue operations during the strike by selling papers at their respective plants. At the outset of the strike the Times adopted the policy .of paying all regular employees who "observed their contractual obligations with the Times or with the Publishers' Association and . . . reported for work provided that they were not members of unions striking elsewhere against another member of the Publishers' Association." Substantially all the crafts crossed the Deliverers' picket lines. However, on the evening of December 10 most of the printers, members of Typographical Union ITU, at the New York plant of the News stood outside the plant and did not enter. Typographical Union officials denounced the men's action and unsuccessfully sought to get them back to work. Nevertheless the em- ployers held the Typographical Union responsible.3 About midnight the News decided to close because of inability to print. On the next day, December 11, all the other major New York City papers also ceased publication. Except in the case of the Times the stated reasons for the shutdowns were economic: lack of advertising and delivery systems, and plant locations making sales difficult. The Times, however, was able to continue to publish had it desired to do so. Its reason for closing, as stated by Bradford, was that the printers "were not observing their contract with the News." There was one other significant difference between the action of the Times and that of the other papers. Except with respect to a few employees needed for essential operations, the other papers laid off all their employees, and terminated the compensation of all on December 11, generally as of the last shift worked. The Times, however, though also laying off all but essential employees, terminated the compensation of only the Typographical Union employees on December 11. As to its other employees the Times announced that, consistent with its policy, stated above, of paying employees who "observed their contract" and "were not members of unions striking elsewhere," it would continue to pay them until 2 p.m., Decem- ber 12, pending further developments in the negotiations with the Deliverers Union. 2 Thus the Association's telegram concluded: We have been advised by our seven [sic] members that if any of them are unable to publish because a craft union has not crossed a guild picket line this will be re- garded as a contract violation against all. If the craft unions report for work at all newspapers, there will be work for their employees so long as each paper can continue to publish. Conversely, if any craft union does not fully comply with its contract and publication of a newspaper is suspended, then employment will be suspended for all. DONALD R MCVAY, Executive Secretary, Publishers Association of NYC. 3 As Amory H. Bradford, general manager and vice president of the Times, and member and former chairman of the executive committee of the Publishers' Association testi- fied: ". . . we decided that we could judge [responsibility ] only by results. . . . 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its notice to the Typographical Union employees the Times gave the following reasons for its action: [The attempt of the newspapers to continue publishing during the strike and to sell papers at their plants] was frustrated at the plant of The News by the refusal of the Typographical Union to cross the Drivers' picket lines. Accord- ingly The News was forced to suspend publication. The refusal of members of the Typographical Union to cross the Drivers' picket lines and at The News to report to work violates the maintenance of existing conditions provision of the expiring contract to which this newspaper is a party. Such a refusal is the equivalent of a strike against The News as well as against this newspaper and all other members of the Publishers' Asso- ciation of New York City who are parties to the contract with the Typographical Union. It is obvious that this concerted refusal to work can be extended to us, or to other newspapers, at any time and without notice. We are convinced that our interests are as directly and adversely affected by the concerted refusal to cross picket lines at The News as if it were taking place at our own plant, and that we must so regard it. The papers remained closed until agreement was reached with the Deliverers, at which time they reopened. When operations were resumed the Times refused to reinstate certain inspectors (not in the jurisdiction of the Deliverers union) who had not crossed the picket line at the beginning of the strike. When the Deliverers threatened renewal of the strike unless these inspectors were reinstated, the Times' representative told the union that if it struck in place of submitting the issue to the contractual grievance machinery, "all the other papers would shut down." The strike was not resumed. After settlement with the Deliverers the Publishers reached agreement with the other crafts, though not until May or June in the case of some. There were no threats to operations by unions during that time in connection with renewal of these contracts. The apparent success of their course during the 1958 negotiations impelled the publishers to agree to extend their unity of action, that is, possible shutdown of all the papers, to situations involving work interruptions during the life of the contracts .4 After the 1958 shutdown several of the affected unions, claiming that the closings were in breach of contract, sought to secure monetary recovery from the publishers in arbitration proceedings under the contracts. These efforts were generally un- successful, although one such action appears to have been won by the JAM under circumstances not altogether clear. Restatement of the agreement in 1960: Following initial formulation in 1958. as described, the agreement was effectually restated on two occasions in 1960. The first of these occurred in July 1960 at the Times during the course of dispute with the Pressmen's union over the speed of new presses, which resulted in a work inter- ruption by the pressmen. After consultation with the other newspapers the Times informed the pressmen that if the situation was not "brought under control" it could "involve all the papers in the city." This announcement evoked protest from Mailers Union No. 6 and threats by that union to sue for breach of contract in the event of a citywide shutdown. However, the dispute was ironed out peaceably. This incident is referred to in more detail infra. The other 1960 incident occurred during the negotiations of that year with the Newspaper Guild. On October 25 the Times issued a written report, apparently reflective of the views of all the publishers, concerning the progress of the negotia- tions In part this report said: d Thus the testimony of Mr Bradford: . at the end of [the strike] we had a great deal of opportunity to think through some of our problems and all of the papers had agreed that the unity that we had shown earlier in the negotiations should be applied to quickie strikes and walkouts during the life of the contracts. See also the testimony of Charles C. Lane, then associate business manager of the Times and a member of the executive committee of the Publishers' Association, at an arbitration hearing in January 1960. His testimony was that after the strike the papers determined in a meeting of the Association's executive committee, that the failure of a craft to go through the picket line [of any newspaper] was a repudiation of the contracts which were had with the Association, and might involve cessation of publication because of a breach of contract. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1105 ... in the event of ... a strike, [by the Guild] The Times said it would continue to publish so long as the other unions honored their contracts and their mem- bers reported for work; if however, any of the newspapers was unable to publish because the members of another union did not cross a Guild picket line, such action would be regarded as a contract violation by all of the newspapers and all of them would suspend publication. It could not, The Times said, allow the other unions to place it in double jeopardy, first on November 1 as con- cerned a Guild strike, and then on December 8 with respect to their own wage settlements.... 6. The incidents covered by the complaint: The incidents which are the subject of the complaint occurred in 1961 during the term of the craft contracts. They con- sist of threats by the publishers to invoke citywide shutdowns, and actual suspen- sions of publication as a consequence of work interruptions or threats thereof by individual craft unions or employees in individual plants. These incidents are as follows: On or about January 15, 1961 Lawrence W. Kennelly, who was at that time manager of industrial relations for the Mirror, during the course of a labor dispute, told Emil Bonagura, a business agent of the Deliverers Union, that the entire city would be shut down by the Publishers if the Deliverers Union engaged in a work stoppage at the Mirror. The nature of the controversy is not disclosed. The evidence does not indicate whether the union threatened to strike during the incident. February 11: In connection with a dispute between the foreman and the chapel chairman of the Stereotypers' Union over the assignment of a stereotyper at the Herald Tribune, all stereotype work stopped at that paper for an undisclosed length of time. Stereotyper President McMahon sought in good faith to terminate the stoppage. During the course of the incident, Barney Cameron, who was at that time vice president and business manager of the Tribune, told Stereotyper President McMahon that the stoppage was in violation of contract and if continued might result in a "city wide temporary suspension." McMahon finally succeeded in getting work resumed, with some delay in the edition, and the dispute was resolved. February 23: This concerned an incident at the Times involving the Deliverers or Drivers Union. When the foreman discharged a deliverer for refusing an assign- ment the Times deliverers engaged in a wildcat stoppage during the course of a press run. The Times then shut down the presses at its 43d Street plant and did not resume operations until about 1 a.m. Some of the Times employees were idle during the period of the shutdown and as a consequence of it. During the course of the incident, pursuant to the understanding between the pub- lishers, the Times reported it to the Publishers' Association and the other morning papers.5 The Times also notified the chapel chairman, the business agent, and the president of the Deliverers Union that continuance of the stoppage might result in a citywide shutdown of all the newspapers. The business agent and the president of the union made efforts to get the men back to work. The Herald Tribune, the News and the Mirror were at that time between editions. Upon receipt of the information concerning the Times each of those papers issued instructions to its staff not to resume printing until the stoppage at the Times was ended. Sometime after news of this action was received at the Times the deliverers went back to work and the dispute was immediately submitted to the impartial chair- man for determination., Upon notification of the termination of the stoppage at the Times all the papers which had suspended resumed printing. At the News the suspension delayed the edition about 25 minutes, at the Herald Tribune about half an hour. The extent of the delay at the Mirror is not clear. None of the employees of the Herald Tribune or of the News lost any wages or compensation as a result of this shutdown, and none of those employees were directed to leave the premises. The situation at the Mirror is not clear. March 11: This incident involved a dispute at the Herald Tribune. At around suppertime on this day Business Agent McDonald of Mailers' Union No. 6 objected to the operation of the wire-tying machine without the use of certain safety devices. When Business Manager Cameron of the Tribune refused the demand McDonald said that if the devices were not installed by the next afternoon the mailers would not operate the machine. Cameron then spoke to Thomas Laura, president of Mailers' Union No. 6, and told him that if McDonald shut down the wire-tying 5 The afternoon papers were not at that time prepared to publish 9 The Deliverers' contract contains a clause, unique among the agreements , providing for a permanent chairman who is subject to call at all hours of the day or night to hear and determine disputes. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD machine it "might lead to a city-wide shutdown by the Publishers." Laura assured Cameron that there would be no strike and that the matter would be submitted to the Labor Department for investigation. This was done and official approval was secured for operation of the machine without the devices, thus sustaining the position of the Herald Tribune. April 26: On or about April 26, about 3:30 p.m., employees of the Times repre- sented by the Typographical Union engaged in a walkout and work stoppage to pro- test the discharge of the chapel chairman, Samuel Resnick. As a result of the work stoppage the first edition of the Times was delayed almost 3 hours. Publication did not begin until about 9:30 p.m., with the edition reduced in size almost 60 percent. Informed of the situation the News and the Mirror, which usually go to press about 7 p.m., continued their composing room and other operations but delayed the start of their press runs until the Times announced at 9:30 p.m. that it would be able to publish. The management of the Herald Tribune had made a decision not to commence publication while the Times was shut down but was not itself ready to print until after the Times had announced its ability to publish. During the stoppage, around 8:30 p.m., the Publishers ' Association issued a state- ment to the press in which, after describing the incident, it observed that the em- ployees' action was a "clear and direct violation of the contract" which required that "such disputes be resolved by arbitration, and not by work stoppages or other forms of self help." The statement further said that, These facts were presented to the other newspapers, all of whom agreed that this strike at the Times constituted a direct breach of contract. Those news- papers that were ready to publish while the strike was on decided to suspend publication until the Times employees again honored their contract obligations. The newspaper members of the Association are unanimously agreed that ir- responsible and unlawful conduct of this kind must be met by firm and united action on the part of the newspapers , any of whom might be singled out as the next victim. The full complement of typographical employees at the Times returned to work about 3 p m. on April 27 under threat of disciplinary action by the International Union if they did not terminate the strike. All the 1961 incidents described above were localized in the particularly paper involved and, with the possible exception of the controversy at the Tribune over the safety devices on the wire-tying machine, presented no likelihood or apprehension of spread to the other newspapers. In each case of work stoppage or threat thereof officials of the unions involved-other than the chapel chairmen who are full-time employees-attempted in apparent good faith to get their men to remain at work. On May 2, 1961, Times General Manager Bradford issued a memorandum to the Times' employees which, after restating the Times' understanding of the publishers' suspension agreement, said in part: Over 2 years ago the New York newspapers agreed that in order to stop certain union agents from breaking their contracts by using these tactics [threats of strike ] they should be ready to suspend publication of all newspapers until work was resumed and the dispute resolved in the orderly way provided by the contract. For several years'the Times and some other papers, though not all, have carried strike insurance . However its coverage is limited and there is a waiting period of 7 days. The extent of compensation may be gauged from the Times' experience in the 1958 strike when it recovered some $250 ,000 while incurring losses of about $1,500,000. 7. Other background conduct involving the unions: In addition to what has been recited, the publishers introduced other evidence of union action as "ample historical justification" for their suspension agreement , contending that "over the years, the New York City newspapers have been plagued with actual or threatened work stoppages , slowdowns or other self-help on the part of union members ." As sum- marized in the Respondents' brief these involve the following. Deliverers: Identified in publishers' testimony as one of the most "unruly" of the unions , in 1960 Deliverers was involved in five instances of actual or threatened interference with production . In 1961 , including the incident on February 23 previ- ously described, there were six such occurrences . Whether the union was the cul- pable offender in each case is not disclosed. Consequently the significance of all PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 11©7 the incidents cannot be assessed . However, the February 23 occurrence seems clearly to have been in violation of contract.? Mailers Union No. 6: The incident in March 1961 concerning the safety device dispute at the Herald Tribune has been described. In addition there was, at an undisclosed time, a dispute at the Times between the Mailers and the Deliverers Unions over certain equipment which the Times resolved by ceasing to use the equip- ment and taking the issue to the NLRB. Whether the actions of either union involved a violation or threatened violation of their contract or of the statute is not clear. In February 1961, mailers at the Herald Tribune, the Mirror, and the Journal- American refused to handle certain matter printed by a company against whom Mailers Union No. 6 was conducting a strike. The Board recently found that action of the union to be violative of Section 8(b)(4) of the Act. (New York Mailers' Union No. 6, International Typographical Union, AFL-CIO (New York Herald Tribune, Inc., et al.), 136 NLRB 196.) Pressmen: In 1959, there was a brief stoppage of pressmen at the Times, ap- parently in violation of the then-existing contract, ostensibly in protest of the observa- tion of their work by technical experts from outside the plant. And on an occasion in July 1960, referred to supra, the Times increased the speed of its presses, where- upon the president of the local union of the Pressmen shut the presses down. A protest was made to the president of the International Union and after consulta- tion between the newspapers, General Manager Bradford of the Times told the union that if the Times remained shut down, the other papers would be asked for support by closing down also. The International president assured General Man- ager Bradford that there would be no further trouble, and there was not. The Times lodged a grievance under the contract and was awarded damages by the arbitrator, prevailing against a counterclaim by the union based on excessive press speed. Typographers: On an occasion in 1959, the typographical employees at the Times held a special chapel meeting at a time inconvenient to management. The incident of April 26, 1961, which resulted in invocation of the publishers' agreement has been previously described. Stereotypers: In 1959 there was a series of slowdowns by the stereotypers at the Times, the News, and the Long Island Press over adoption of new equipment which eliminated certain operations, and a brief stoppage at the Times concern- ing the assignment of related work. In 1960, the Times contracted out to a firm in Albany, New York, the reproduc- tion of certain parts of its Sunday financial section. Several unions objected to the transfer of this work, the stereotypers saying that they would refuse to mold the necessary mats. The Times took the issue to arbitration and won the right to print in Albany. The Times did not call on the other papers for support because it believed it had an adequate remedy under the contract. The basis for the award is not disclosed. The then-current contract presumably contained clauses similar to the present one providing for mutual commitments to orderly settle- ment of disputes, and with final and binding arbitration and maintenance of the status quo in the interim, that is, that "conditions prevailing prior to a dispute shall be maintained pending final decision." It is not clear in this instance whether the action threatened by the stereotypers was designed to upset the predispute condition or to preserve it. During 1957 the Times experienced a series of slowdowns by the stereotypers after the discharge of some "unruly members " This action resulted in delaying the starting of the presses from 20 to 25 minutes. The contract then effective pro- vided for arbitration of disputes, but its other terms are not disclosed. The incident of February 1961 at the Tribune involving the Stereotypers has been set out above. Paper Handlers: In the summer of 1958 the Paper Handlers engaged in a brief work stoppage at the News in a dispute with the Teamsters union over which employees should perform a certain new operation. This dispute was referred to the NLRB where it was resolved. The facts are not further elaborated. 7 The Deliverers' contract contains a prohibition against interference with work by the employer as well as by the union, and also contains the clause providing for maintenance of existing conditions pending grievance disposition-with certain exceptions The nature of the disputes other than that on February 23, and who and what precipitated them, is not revealed. 672010-63-vol. 139 71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record does not reflect any conduct by the Photoengravers , the IAM, or the IBEW in the nature of work stoppages or threats thereof in violation of contract. Concluding Findings To recapitulate the complaint : the specific conduct of the publishers alleged as un- fair labor practices are: (7 ) maintenance of the lockout agreement since Septem- ber 16, 1960 ; (2) the threats of citywide shutdown in 1961 on January 15 by the Mirror, on February 11 and March 11 by the Herald Tribune, on February 23 by the Times , and on April 26 by the Publishers' Association; and (3 ) implementation of the lockout agreement by suspension of operations at the News and Herald Tribune on February 23, and at the News, Tribune, and Mirror on April 26. 1. Contentions of the General Counsel: Terming the publishers ' agreement a "lockout agreement," the General Counsel's basic, and substantiated, contention is that its substantial purpose is to deter all the craft unions from striking during the life of their contracts , regardless of whether or not the contracts contain specific no-strike clauses 9 The General Counsel further says that the suspension agreement and the threats to invoke it constitute threat of loss of wages as a penalty for engaging in concerted activity protected by Section 7, and thus are violative of Section 8(a)(1). In addition , the contention runs, the agreement and its effectuation by shutdown are violative of Section 8(a) (1) and Section 8(a) (3) because grounded in discrimination based on union membership, as exemplified in the Times ' policy, stated in its Decem- ber 11, 1958, suspension notice, of paying employees who reported for work "provided that they were not members of unions striking elsewhere against another member of the Publishers' Association." Continuing, the General Counsel says that not all the contracts prohibit strikes during their term, but the lockout agreement is nevertheless applicable in all cases, and, moreover, makes no exception for strikes otherwise protected by law-such as those to protest substantial employer unfair labor practices violative of the contracts.9 Thus, the General Counsel contends , employees are deterred from engagement in legal current or future activities protected by Section 7. There is no exception, he urges, for those unions-such as the Photoengravers, IAM, and IBEW-who have not en- gaged in or threatened any objectionable intereferences with production, but is applied indiscriminately to all. Finally, the General Counsel argues that the lockouts constituted breaches of contract by the publishers themselves, that the publishers had adequate relief in the arbitration procedures of the contract, strike insurance, disciplinary measures and legal remedies-and therefore no substantial need for extraordinary protective devices-and in conclusion that the true purpose of the lockout agreement was to freeze competitive positions among the publishers. 2. Contentions of the publishers - The basic defense is that the suspension agree- ment and its implementation are reasonable defensive measures designed to prevent illegal work stoppages in violation of contract, and to insure that all disputes are settled without such interruption . The publishers concede that a purpose of the agreement is to deter the crafts from striking during the life of the contracts. Their 8 Thus the testimony of General Manager Stephens of the Daily News: Q Your Pin pose, then was actually to deter everyone of the Craft Unions from striking during the life of the contract " [Emphasis supplied ] A I should say the answer to that is definitely yes And again . . we [the publishers ] would assume that whether there is a no -strike clause in the contract or not, that any of the stoppages like this are illegal . . . The testimony of General Manager Bradford of the Times is to the effect that the pub- lishers regard any strike by a craft union during the term of its contract as a breach of contract: . . so long as the contract is in effect and hasn't been terminated by the parties, then it would be regarded [ by the publishers] as breach of contract if they [the union] told their men not to work 9A no-strike provision of a labor agreement does not, absent explicit waiver, bar a strike in protest of substantial employer unfair labor practices violative of the agreement Mastro Plastics Corp and French-A mer ican Reeds Mfg Co , Inc. v. N L R R., 350 U S 270, Ford Motor Company ( Sterling Plant, Chassis Parts Division ), 131 NLRB 1462, Mid-West Metallic Products , Inc, 121 NLRB 1317 ; Arlan'e Department Store of Michigan Inc, 133 NLRB 802; N L R B v Thayer Company and H N Thayer Company, 213 F 2d 748 (C A. 1) , ef. National Electric Products Corporation, 80 NLRB 995. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1109 primary premise is that all the contracts contain the equivalent of a no-strike covenant, even though perhaps not in specific language, because of the arbitration provisions. The suspension agreement, they say, is not an absolute commitment requiring each publisher to close, but merely an arrangement to confer concerning, and to consider, voluntary concerted action as a defense to illegal self-help by the unions. This course of action, the publishers assert, is compelled by the actions of the unions over past years, previously described, in engaging in or threatening inter- ferences with production. This type of sanction is required, the publishers say, by the nature of their operations. A newspaper is fearful of damage to its com- petitive position by strike. News is a perishable commodity; its merchantability is regulated by time, its useful life is limited, it cannot be preserved, its value dete- riorates rapidly with exposure, and its lost revenues are not recoverable. News- papers are thus particularly vulnerable to work stoppages at crucial moments in the publishing process. The collective-bargaining contracts, with their arbitration or no-strike clauses were devised to require disputes to be resolved peacefully free of the compulsion of moment-to-moment threat to operations. Nevertheless, the publishers say, unions have taken advantage by threatening or engaging in stoppages at critical moments when the papers are most defenseless. By so doing, it is con- tended, the unions deprive the publishers of the fruits of their joint collective bargain, and threaten the operations of all the papers and the integrity of the multiple bar- gaining unit. Consequently, the Respondents assert, protection of the bargaining unit was also an object of their action. Proof of the value of the suspension policy, it is said, is that it has worked: statement of intention to invoke it has generally inhibited strike threat or strike action, or modified their duration or effectiveness. The agreement has not been freely invoked, the publishers say; in any situation in which adequate relief can be secured without it, the publishers have avoided its use. Thus in the July 1960 dispute with the Pressmen the Times merely shut down the affected presses, transferred production to another plant, and filed a grievance under the contract. Similarly the News, in the jurisdictional dispute between the Teamsters and the Paper Handlers, in the summer of 1958, did not ask for a citywide shutdown, nor the Herald Tribune when the Mailers, and the Times when the Stereotypers, refused to work on sections printed outside. The issues were taken by the publishers to the NLRB or to arbitrators under the contract for resolution. As to the General Counsel's objection that the agreement is applicable indiscriminately to all unions, whether they have engaged in reprehensible activity or not, such as the Photo- engravers, the publishers say that "the Photo Engravers knew well that if, as for the past many years, they avoid the use of self-help as a means of compelling settlement of any disputes they may have with the Publishers, the agreement will not be applicable against them." Proceeding, the publishers say, the 1961 strikes at the Times were not protected activity because they were in breach of the no-strike commitment. Citing N.L.R.B. v. Great Falls Employers' Council, Inc., et al, 277 F. 2d 772, 776 (C.A. 9), and N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Insur- ance Co.), 361 U.S. 477, 489, they contend that it is not the business of the Board to define what economic sanctions may be used by parties to collective bargaining and that the publishers are free to adopt "any approach or technique which has not been specifically banned from the contests of power between parties to a labor dispute." Finally the publishers contend that their action is a form of protection against union attempts at destruction of the multiple-employer bargaining unit, a shutdown for such purpose being authorized by the principle of Buffalo Linen Supply Company, et al., 109 NLRB 447, affg. subnom. N.L.R.B. v. Truck Drivers Local Union No. 449, International Brotherhood of Teamsters, etc., 353 U.S. 87. In summary, they say, "It is by now well established that members of an employer association may, without being charged with unfair labor practices, lock out their employees in response to a strike against one employer." We turn now to a consideration of these contentions. 3. Whether there was a lockout agreement: The Respondents do not seriously quarrel with the General Counsel's characterization of their arrangement as a "lock- out agreement," though they say that no lockout in the general meaning of the word has as yet occurred because of it. In this respect the Respondents point out that in the instances in which the agreement was actually invoked no employee lost wages or was told to leave the premises. However the Respondents concede that there could be a "lockout" and loss of compensation under the agreement in the future. These assumptions may be accepted. Though there is no statutory definition of the term "lockout," despite the fact that the Act itself and Board and court decisions thereunder use the word, it no doubt at least comprehends, as at common law, a temporary denial or withholding of work from employees by an employer for the 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of compelling or penalizing a concerted action by the employees with re- spect to employment. The suspension of operations on February 23 and April 26 constituted acts of such character. They were therefore lockouts. There is thus no need to attempt at this time a comprehensive definition of the term "lockout" within the meaning of this Act.10 The next question is, what was the nature of the lockout agreement? The specific nature of the agreement: That the Respondents entered into an under- standing to consult and advise with each other in the event of a strike threat at any Association newspaper if deemed by the Respondents to be in breach of contract, is admitted. That this consultation was with the view of securing the voluntary shutdown of all the newspapers, if necessary to compel the offending union to termi- nate its threat and submit the controversy to contractual adjustment, is an inescapable conclusion from the admitted facts. As the Respondents say in their brief, they "have readily conceded that they adopted a program which envisions the possibility of concerted action on their part, although in each instance dependent upon the decision of the individual newspapers, as a defense against illegal strikes or other forms of self-help on the part of any mechanical unions." The Respondents contest only the allegation that there was an "agreement" to shut down, and this because each publisher was "left to its own decision in that regard." So far as responsibility under this Act is concerned, the Respondents' distinction is not of substantial importance. For it is clear that the agreement contemplated general shutdown of all the newspapers as a possible course of action. The sub- stance of the agreement is, I believe, fairly reflected in the following excerpts from the statement of Donald R. McVay, executive secretary of the Association: In the event that any union that is a party to an Associationwide contract engages in . . . or threatens a work stoppage at the plant of any one of the publishers [if the breach is serious and suspension of the involved paper] justified or required . . . each publisher . . . will suspend operations. . . . On each occasion that the agreement was invoked by a paper threatened with a work interruption, each of the publishers then prepared to publish suspended publi- cation upon request or notification, until informed by the affected paper that the threat had been lifted. In no instance has a publisher refused to suspend when asked to do so. That none of the publishers formally committed himself in ad- vance to take such action in each situation which might arise, and that the affected paper did not in each instance ask for a general shutdown, does not change the essential character of the arrangement. It contemplates concerted plant shutdown because of employee engagement in certain concerted activity. It is therefore found that the Respondent Publishers and Association have entered into and maintained an agreement or understanding to suspend, or to consider sus- pending, publishing operations, that is to lock out all craft employees, upon request in the event that employees covered by an associationwide contract threaten a strike or work interruption against any member of the Publishers' Association. Whether as thus framed the agreement is illegal is the basic element of dispute. 4. The legality of multiple employer lockouts: ii There are a number of Board cases dealing with the legality of multiple-employer lockouts. All occurred in a context of negotiations for a collective-bargaining contract.iz 11 For comment as to the meaning and use of the expression at common law and under the Act, see Betts-Cadillac-Olds, Inc., at at., 96 NLRB 268, 282-283. For an earlier definition see Restatement of the Law of Torts, Section 787, Comment a The Board and the Supreme Court more recently used the word without definition in the case of Buffalo Lsnen Supply Company, et at., supra 11 The subject of lockouts has provoked extensive comment. See, for example, Koretz, "Legality of the Lockout," 4 Syracuse Law Review 251 ; Koretz, "The Lockout Revisited," 7 Syracuse Law Review 263; Koretz, "The Multi-Employer Lockout Vindicated," 9 Syra- cuse Law Review 40 See also Meltzer, "Single Employer and Multi-Employer Lockouts Under the Taft-Hartley Act," 24 University of Chicago Law Review 70; Meltzer, "Lock- outs Under the LMRA: New Shadows on an Old Terrain," 28 University of Chicago Law Review 614; Sweetal and Aiges, "Lockouts," 9 Labor Law Journal 43; Dayken, "Legality of Lockouts Under the Taft-Hartley Act," 9 Labor Law Journal 136 ; see also Note, 73 Harvard Law Review 787. 12 Morand Brothers Beverage Co, at at, 91 NLRB 409, remanded 190 F. 2d 576 (CA. 7) ; 99 NLRB 1448, enfd. 204 F. 2d 529 (C.A. 7), cert. denied 346 U.S. 909, re- hearing denied 346 U.S. 940; Betts Cadillac Olds, Inc, et at, 96 NLRB 268; Albert Leonard, et at, Co-partners, jointly and severally d/b/a Davis Furniture Co. at at, 94 NLRB 279, remanded 197 F. 2d 435 (C.A 9) ; 100 NLRB 1016, set aside 205 F. 2d 355 PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1111 The lockout is not per se unlawful under this Act. Its legality depends upon the circumstances, and may involve the balancing of substantial legitimate and conflict- ing interests. Betts Cadillac Olds, Inc., et al., supra at 283; Bugalo Linen Supply Company, et al., supra at 92-93; Texas Gas Corporation, 136 NLRB 355. The prob- lem of resolving and accommodating these divergent claims, so far as the National Labor Relations Act and multiple-employer bargaining are concerned, is in large measure committed primarily to the discretion of the Board, subject to limited judicial review. (Buffalo Linen Supply Company, et al., supra, at 96.) The prin- ciples thus far marked out by the Board may be stated as follows. An employer may lawfully suspend operations for reasons unrelated to the exercise of rights protected by the National Labor Relations Act. Pepsi Cola Bottling Com- pany of Montgomery, 72 NLRB 601; N.L.R.B. v. The Houston Chronicle Publishing Company, 211 F. 2d 848 (C.A. 5). He may not, however, lock out or lay off employees in derogation of such rights. Thus a lockout to frustrate organizational efforts, to destroy or undermine bargaining representation, or to evade the duty to bargain is unlawful. N.L.R.B. v. Wallick and Schwalm Company, et al., 198 F. 2d 477 (C A. 3); N.L.R.B. v. Somerset Classics, Inc. and Modern Mfg. Co., Inc., 193 F. 2d 613 (C.A. 2), cert. denied 344 U.S. 816; Olin Industries, Inc., Winchester Repeating Arms Company Division v. N.L R.B., 191 F. 2d 613 (C.A. 5). Equally illegal are lockouts discriminating on the basis of union membership (Anchorage Businessmen's Association, supra), and lockouts designed to compel a union to accede to the employer's bargaining demands. Quaker State Oil Refining Corporation, supra; Dalton Brick & Tile Corporation, supra. Actual animus or hostility to unions or organizational activity is not essential to a finding of violation. Interference, restraint, or coercion of the right of self-organization and the right to bargain collectively and to engage in concerted action for mutual aid or protection is like- wise unlawful. However, certain lockouts are lawful: (1) those genuinely and reasonably moti- vated by desire to avoid economic loss of unusual character flowing from strike action, actual or imminent. Betts Cadillac Olds, Inc., supra; cf. American Brake Shoe Company, supra; (2) those in which a union seeks to disrupt multiple-employer unit bargaining by piecemeal strike action or threat thereof against individual members of the bargaining unit in order to compel employers to accede to the union's bar- gaining demands. Buffalo Linen Supply Company, supra; Great Falls Employers' Council, Inc., supra.13 Neither the employees' right to engage in concerted activity helpful to their ends nor the employer's right to counter it by the most effective measures are absolute. Where these conflict the Board must find a balance between the competing interests- a balance generally expressed in an empiric. judgment based on sometimes subtle (CA. 9) , Continental Baking Company, et al , 104 NLRB 143, set aside 221 F. 2d 427 (CA. 8) ; Buffalo Linen Supply Company, et al , supra , Great Falls Employers' Council, Inc, at al, 123 NLRB 974, set aside 277 F 2d 772 (CA. 9) ; Anchorage Businessmen's Association, et al, 124 NLRB 662, enfd. 289 F. 2d 619 (C.A 9) ; Utah Plumbing and Heat- ing Contractors Association, etc, 126 NLRB 973, enfd 294 E. 2d 165 (C.A. 10) ; Dalton Brick & Tile Corporation, 126 NLRB 473 (pending in Fifth Circuit Court on Board peti- tion for enforcement) [set aside 301 F 2d 886]. Other illustrative recent cases dealing with lockouts, such as American Brake Shoe Company, Ramapo Ayas Division, 116 NLRD 820, set aside 244 F. 2d 489 (C A 7) ; Quaker State Oil Refining Corporation, 121 NLRB 334, enfd 270 F 2d 40 (CA 3), cert. denied 361 U.S. 917, and Iercules Powder Company, 127 NLRB 333, enforcement refused other grounds 297 F. 2d 424 (C A. 5), did not involve multiple-employer situa- tions. They dealt with the legality of lockouts by single employers in anticipation of a bargaining strike 13 Whether an employer may lock out to compel employees to accept his contract terms has received mixed response. The Board has answered the question in the negative (Continental Baking Company, supra, Quaker State Oil Refining Corporation, supra; Utah Plumbing and Heating Contractors Association, supra ; Dalton Brick & Tile Corpora- tion, supra; cf. Great Falls Employers' Council, Inc, supra; Hercules Powder Company, supra) with the apparent approval of the Third and Tenth Circuit Courts of Appeal (Quaker State Oil Refining Corporation, Utah Plumbing and Heating Contractors Associa- tion). The Ninth Circuit, citing the Supreme Court decision in the Prudential Insurance case, supra, intimated the contrary in Great Falls Employers' Council, Inc, supra The question was specifically reserved by the Supreme Court in Buffalo Linen Supply Company, supra, at 93 . In Morand Brothers Beverage Co , supra, the Seventh Circuit indicated that a bargaining lockout would be legal after impasse is reached in the bargaining. The question is presently pending before the Fifth Circuit in the Dalton Brick case. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distinctions in which the context of the conduct rather than its intrinsic quality may be the predominant force.14 There are no mathematical guides as to where the line is to be drawn. Wherever in an orderly society principles of equal merit con- verge priority as between them may be a matter of time and circumstance. In an area of necessary imprecision general principles can only guide the judgment, they cannot make it. There is no precise precedent governing the instant problem. Each of the pre- vious cases cited in footnote 12, supra, dealing with employer lockouts occurred in a context of collective bargaining in which the lockout was used to checkmate legal union activity, actual or prospective, designed to compel the employers to agree to bargaining demands. The instant case involves lockouts used to check- mate union activity occurring during the term of the collective-bargaining contract and designed to compel the employer to acquiesce to union grievances. Some of this activity seems clearly to have been contrary to contract, and all the disputes were resolvable by arbitration. The present case further differs in other respects: (1) the union activity was not in the nature of an attack upon the collective- bargaining unit, (2) the dispute presented no threat to the operations of the em- ployers not immediately involved, (3) most of the employees locked out neither engaged in nor threatened to engage in any concerted activity, and (4) no wages or thing of value was lost by any employee as a consequence of the lockouts. We turn next to the question as to whether all the mechanical contracts contain no-strike clauses. The specific provisions have been set out supra. 5. Whether all the contracts forbid strikes: Ordinarily a strike in violation of a valid contractual no-strike commitment is not a protected concerted activity (N.L.R.B. v. Sands Manufacturing Co., 306 U.S. 322) though it may be privileged if provoked by serious unfair labor practices (footnote 9, supra). Necessarily, in similar circumstances, concerted employer conduct in the nature of interruption of employment violative of contractual commitment is also not an activity protected or privileged by this statute. A strike to enforce a grievance claim where the contract provides for submission to an arbitration panel as the exclusive means of adjudicating disputes may con- stitute a material breach of the agreement and an unprotected concerted activity, even though the contract may lack an explicit no-strike clause. W L. Mead, Inc., 113 NLRB 1040; Boone County Coal Corporation, et al., 117 NLRB 1095, set aside sub nom. International Union, United Mine Workers of America, et al. V. N.L.R.B., 257 F. 2d 211 (C.A.D.C.). Such provisions imply a covenant not to strike in substitution for resort to the grievance and arbitration procedures. United Construction Workers v. Haislip Baking Co., 223 F. 2d 872, 876-877 (C.A. 4), cert. denied 350 U.S. 847; Teamsters V. W L. Mead Co., 230 F. 2d 576, 583 (C.A. 1); United Mine Workers v. Benedict Coal Corp., 259 F. 2d 346 (C.A 6), 361 U.S. 459. See also Hazel Atlas Glass Company, 34 NLRB 346, 414, footnote 99, enfd. 127 F. 2d 109, 111, 117-119 (C A. 4); Dorsey Trailere, Inc, 80 NLRB 478, enfd. 179 F 2d 589 (C.A. 5); Sunset Minerals, Inc., 100 NLRB 1457, 1467, set aside 211 F. 2d 224 (C A. 9). The principle of these cases was recently approved by the United States Supreme Court in the case of Local 174, Teamsters, Chauffeurs, Ware- housemen & Helpers of America v. Lucas Flour Co., 369 U.S 91.15 This is not to say that wherever a collective-bargaining contract contains an arbitra- tion clause there is automatically and per se a covenant not to strike. The matter 14 Thus an employer cannot legally discharge an employee for engaging in a protected economic strike, but he can terminate the employment of such a striker by replacing him (N L R B v. Mackay Radio & Telegraph Co , 304 U S 333). He may not normally pro- hibit union solicitation on the employee's time on the plant premises, but he may by valid union contract forbid such activity (The May Department Stores Company, et at , 59 NLRB 976) We have seen that an employer may close his plant to avoid economic loss but may not do it to discourage legal union activity 15 This doctrine evolved over a period of years. Originally the Board had substantially held that a strike over a dispute subject to contractual arbitration was protected in the absence of a specific commitment not to strike The courts of appeals in the Hazel Atlas, Dorsey Trailers, and Sunset Minerals cases disagreed with this position, a view to which the Board acquiesced in the W. L Mead case and followed in Boone County However, in the latter case the Court of Appeals for the District of Columbia set aside the Board's order on the ground that the contract obligation did not constitute a no-strike clause. The later Benedict case involved a suit for damages over the same controversy. The Sixth Court of Appeals, disagreeing with the District of Columbia Court, found the con- tract to contain such a commitment. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1113 is always one of contractual interpretation for the intent of the parties as manifested in their agreement. The decision of the Court in the Local 174 case appears to make this clear. It is true that ordinarily an undertaking to arbitrate and one not to strike are "the quid pro quo for leach] other." United Steelworkers v. Amer- ican Mfg. Co., 363 U.S. 564; see also Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Alabama, 353 U.S. 448, 455 This is a rule of construction, however, and not of law, for a waiver of the right to strike is "not be inferred" in the absence of express language (N.L.R.B. v. Lion Oil Company, 352 U.S. 282, 293), and always narrowly construed (Mastro Plastics Corp., and French-American Reeds Mfg. Co., Inc. v. N.L.RB., 350 U.S. 270, 279-284). As the Board has said, "The question is, what was the agreement of the parties with respect to strikes as reflected in the terms of the . . . agreement" Fafnir Bearing Co., 73 NLRB 1008, 1009; Illinois Bell Telephone Company, 88 NLRB 1171, 1173-1175, enforce- ment denied on other grounds 189 F. 2d 124 (C.A. 7). As to what principle of law is to be derived from the cases, no doubt various views are possible. That which appears to me the most reasonable is that where a valid collective-bargaining contract contains an unconditional commitment to sub- mit disputes to final and binding arbitration as the exclusive method for resolution, without express or implied reservation of right to take other action, the agreement is to be interpreted as incorporating a pledge not to strike or lockout over such issues. However, where the agreement, distributively and contextually read, in- dicates a contrary or doubtful intent, such a waiver of statutory right is not to be inferred. We turn now to the question of the construction of the present contracts Meaningful scope must be given, if possible, to all parts of a contract as reflective of intent of the contracting parties The agreements here must also be considered in their context, that is, their relation to each other. Most were negotiated about the same time, for the same basic employment operation, and with the same central objective: the regularization of employment conditions in the publishers' shops. However, their provisions relating to the resolution of disputes have significant differences, as we have seen. To summarize, while all nine provide for final and binding arbitration, several additionally contain modifying clauses relating to strikes and lockouts, to the end that only two contain unconditional commitments against such action Two expressly permit strikes under certain circumstances and a third binds the employer not to require work upon some struck goods. These varying treatments militate against the conclusion that all the agreements embody a uniform covenant governing work interruptions at any time during the life of the contract. Substantial differences of language in contemporaneous agreements covering the same subject matter presumably reflect difference in intent. Diverse dispositions of an issue, each susceptible of a particularized and differing interpretation do not resolve themselves into the same thing. Words, like matter, take their meaning from their environment 16 An agreement to arbitrate disputes cannot mean the same in like context as an agreement to arbitrate disputes and not to strike. By itself a commitment (such as the IAM's) to accept binding arbitration would be interpretable as importing a warranty not to strike, but when considered against a contemporaneously executed agreement (such as the Pressmen's) providing for the furnishing of such workmen as the employer shall require, reference of all disputes to arbitration, specific covenant not to strike, and the maintenance of ex- isting conditions while the dispute is being resolved, it is scarcely susceptible of the same construction. It is not to be presumed that the additional provisions in other contracts are sur- plusage. It may be argued that the absence of some clauses in one contract merely reflect a failure to secure the unessential. This, however, both assumes the point at issue and is speculative. To me the more reasonable conclusion in the circumstances is that if the extra clauses had no significance they would not be there. The provision in some of the contracts to the effect that the union agrees to supply men seems no more a no-strike commitment than an employer's agree- ment to employ union members is a guarantee of work. 1s "Words are not pebbles In alien juxtaposition ; they have only a communal existence ; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used (N L It B v Federbush Company, Inc, 121 F. 2d 954, 957 (C.A. 2).) "A word is not a crystal, transparent and unchanged, It is the skin of a living thought and may vary greatly In color and content according to the circumstances and the time In which it is used " (Towne v. Eisner, 245 U 8 418, 425.) 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the basis of the foregoing considerations it is found that not all the craft or mechanical unions have bound themselves in all circumstances not to engage in work interruptions with respect to disputes adjudicable under the collective- bargaining contracts. The publishers' admitted effort to deter all the crafts from striking during the term of their contracts therefore interfered with the rights of employees, not con- tractually bound not to strike, to engage in concerted activity protected by Section 7. If this is a construction of the contracts contrary to the publishers' intent they are free to propose removal of the ambiguity in their next contracts. However, my finding that not all the contracts forbid strikes during their term is not an indispensable premise to my disposition of the case. For reasons indicated hereinafter I would reach the same ultimate conclusion as to the legality of the publishers' actions if I found that all the mechanical contracts contained no-strike, no-lockout clauses. The discussion in the following sections is therefore based on the assumption that each of the contracts is to be construed as containing such a commitment. The burden of factual establishment that the conduct of the unions was in violation of contractual commitments is on the Respondents, as the persons affirmatively assert- ing it. However, of the five incidents in 1961 charged in the complaint, only two appear clearly from the submitted evidence to have involved employee action violat- ive of their contractual obligations. The Stereotypers' contract is one of those which provide that "conditions pre- vailing prior to a dispute shall be maintained pending final decision" in arbitration. There is further provision requiring that employees obey any order of a foreman, with right of appeal to the grievance procedure. As has been seen this contract does not contain a specific no-strike clause. Whether in view of these provisions, the action of the stereotypers in the February 11 incident at the Herald Tribune was in violation of the contract, may depend upon a determination as to what the condi- tion was which prevailed "prior to [the] dispute"-the foreman's assignment or the condition prior to the assignment. That fact is not disclosed. In the absence of such information-even assuming the stoppage to be one for which the union is responsible (an issue later discussed)-I am unable to say that its action was violative of its contract. As to the January 15, 1961, incident at the Mirror, the evidence does not disclose that the Deliverers threatened to strike, though-in the view I take of the case, and for reasons later stated-my ultimate conclusion would be the same even if it had. It is possible that the March 11 dispute at the Herald Tribune was protected by Section 502 of the statute-a question not necessary to decide (see discussion, infra). B. Alleged violation of Section 8(a)(3) The first question is whether lockouts of the kind here could be violative of Sec- tion 8(a)(1) and (3) in any circumstances. If the answer to that question is in the affirmative we must then consider the Respondents' defenses. We begin with three factual premises. The first is that the Respondents were not animated by considerations of hostility to unions or unionization; second, their ultimate object was to compel the offending union in each case to resort to the grievance and arbitration procedures of the bargaining contracts for resolution of the disputes, rather than to engage in work interruptions or threats thereof; third, the action which the Respondents took, though in some cases constituting an interruption of operations, withdrawal of work, and lockout, did not result in any impairment of employment status of any person or loss or deprivation of any privilege, benefit, or thing of recognizable value Upon these facts there was no violation of Section 8(a) (3). That section inter alia prohibits "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in a labor organization." The complaint in this respect is that the publishers discriminated in such fashion as to discourage union membership. How- ever, what occurred in the 1961 lockouts was, in sum, that employees were per- mitted to remain on the premises but were not permitted to work, though continuing to receive their customary remuneration and other beneficial emoluments of em- ployment. In fact, some employees earned overtime pay as a consequence of pub- lishing delays. I do not conceive that action of such kind and context, if it consti- tutes discrimination, is of a sort calculated or likely to discourage union membership. Whether it might be under other circumstances need not be deter- mined Cf. General Motors Corporation, 59 NLRB 1143; Allis-Chalmers Manu- facturing Company, 70 NLRB 348. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1115 C. Interference, restraint, and coercion The next, and more difficult, question is whether the Respondents' actions were of a character to be violative of Section 8(a) (1)-that is, could interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7, quoted below.17 An employer is free to take reasonable measures not otherwise inconsistent with the statute where designed in good faith to maintain operations, even though the action may incidentally affect concerted or union activity. Action by unions or employees in the nature of strikes or threats to strike in violation of their contractual commitments is, as we have seen, conduct not protected by this statute. Reprisals in employment, in the nature of a lockout, imposed by the employer upon the offending employees because of their participation in or responsibility for such activity therefore do not constitute unfair labor practices. Similarly a threat by the employer to impose appropriate reprisals upon employees who threaten to strike in violation of contract would also appear not to be a violation. Likewise a threat to lock out employees in case they fail, in violation of their contractual obligation, to perform their normal employment duties in connection with a controversy be- tween the employer and another union, where the warning is issued in good faith for the genuine purpose of insuring compliance with the commitment, may perhaps be equally privileged. The likelihood of such a violation occurring would no doubt be material to the question of the employers' motivation and his good faith. And if, reasonably believing that a strike which will cause unusual loss will occur the employer closes down his entire operation-the exigencies of his business requiring it-in order to avoid such loss, there would also appear to be no violation, even though innocent employees thereby lose wages. Legitimate modifications of opera- tions caused by the concerted activity of one group of employees may necessitate stoppage of all operations. In such a situation the employees not involved in the activity are really laid off for bona fide economic reasons-lack of work for them to do i8 Where, however, employees not responsible for the strike threat are laid off, as here, in reprisal for the actions of other employees, a different question is presented. For lack of a better term those laid-off employees may be described as neutrals. They have not in connection with the controversy supported or engaged in any un- protected concerted activities. Reprisals on them cannot therefore be defended on the ground that they have disqualified themselves from invoking the protection of the statute. The question then is-what right can the neutrals invoke? Is there a statutory claim which the Respondents have impaired? The neutrals are not engaging in a specific union or concerted activity. They are not locked out because they are engaging in or threatening to engage in such activity or to inhibit them from so doing. The answer to this query involves a determination as to how the publishers' object--discouragement of wildcat or illegal strikes-was intended or could reason- ably be anticipated to be, implemented my the publishers' action. How did the pub- lishers contemplate that the threat of lockout of the neutrals would discourage unprotected strikes or avert the current one? 17 Section 7 of the Act reads as follows: SEC 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8(a) (3). "This was the situation in N L R.B v. Continental Baking Company, et at., 221 F 2d 427 (CA. 8), where a general shutdown by bakery employers, caused by a piecemeal strike by the bakers, resulted in a lack of work for the truckdrivers. The present case, of course, does not involve economic layoff, exemplified by the Betts Cadillac Olds and American Brake Shoe line of cases The newspapers not immediately concerned were not threatened with or apprehended probable interruption of their operations in connection with the dispute And the papers which were immediately involved were not motivated by considerations of avoiding proximate loss Some of the closedowns in the 1958 strike are perhaps instances of economic layoff similar to that in the Continental Baking case. Except in the case of the Times, the sus- pension notices issued by the papers on that occasion asserted inability to continue publi- cation as a reason for the action. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Obviously it was envisioned that somehow the action would result in influence on the offending union or employees to abandon or refrain from improper conduct. But precisely how this was to be achieved is not clear. Inquiry at the hearing elicited little that was informative in this regard-whether the neutrals would im- portune the delinquents to spare them the employers' blow, or whether the mere prospect of havoc to the neutrals could be expected to shock the offenders into abandonment of their conduct; or whether both were contemplated. Whatever the intent, it seems apparent that a probable effect of general lockout would be to induce the neutrals to influence the offending group to alter or abandon its concerted activity. The consequence is that the employer compulsorily enlists or impresses the neutral employees as his allies in the labor dispute. This is suggestive of a kind of second- ary boycott with the classical roles reversed. When the action is extended to em- ployers not involved in the controversy it constitutes a sympathetic lockout. If a craft union at one newspaper, faced with a breach of contract by that publisher, threatened employees at other papers with reprisals if they did not engage in a sympathy strike to deter the breach, there would seem little doubt that such action would constitute a restraint upon the statutory right of the neutral employees to refrain from engaging in a concerted activity. Similarly, when the publishers in the instant case, by threats of and deprivation of employment, bring concerted pressure to bear upon employees unconnected with a dispute to compel solution of the em- ployers' controversy with another union, the effect-irrespective of the design- is to compel such employees to assist in the employers' concerted activity (resistance to the union demand) and to oppose the union's activity. These are Section 7 activities, from which employees have the right to refrain. Consequently, unless privileged, the publishers' action constituted a restraint upon a Section 7 right of the neutral employees. It would also be restraintful for another reason: Securing abandonment of the offensive union activity would be in the interests of the neutrals; it would avoid their layoff and potential loss of benefit. That the lockouts and threats to lock out did not result in actual loss of employee benefits does not affect this conclusion. Implicit in the employer's action was the menace of such injury; it is not likely that the publishers thought as a long-term proposition to discourage strikes by enforced vacations with pay. Moreover, the employees were not aware that the employers would continue their remuneration. And in future cases they concededly may not. The Respondents' conduct therefore tended to coerce neutral employees to engage in a concerted activity (opposition to the disputing union's activity) for their own mutual aid and protection. The restraints intended by and inherent in the Respondents' action are thus ap- parent. They seem to make it quite clear that the publishers' assurances that the agreement will not be invoked against unions which honor their obligations, are not quite accurate. For despite their apparent record of complying with their commit- ments there is no indication in the evidence that the Photoengravers, the LAM, or the IBEW were spared the application of either the lockouts or the threats. 1. Whether a lockout was privileged: Having determined that a lockout of neutral employees may operate as a restraint upon rights protected by Section 7, the next question is whether such restraint, like that involved in the replacement of an eco- nomic striker, or the application of a valid contractual provision forbidding union solicitation on an employee's free time, may nevertheless be privileged. This re- quires a balancing of the competing interests. In such an assessment the nature of the nroblem and the availability and character of other remedies are relevant. The intentional infliction of harm upon another person is normally tortious, though it may at times be privileged as against an aggressor or offender against legally protected interests , as in defense of person or property. Restatement, Torts, sec. 63. sec 871, comment b. Except in the case of extraordinary public need, however. such right does not extend to the infliction of advertent, willful. and sub- stantial damage upon innocent third persons for the protection of the actor's interest. Id. sec. 890, comment a. One may not sacrifice another and disinterested person to protect oneself from harm Id. sec. 73. And even the privilege to resist an aggressor does not necessarily imply license to use force, or if force is warranted to employ it in unnecessary or excessive measure. Id. sec. 71. The privilege of interference with legally protected interests is special , extraordinary, and highly circum^crihed. These principles weigh heavily against the Respondents' method of meeting their exigencies here. That the publishers in good faith believed their problem to be substantial and their solution reasonable I do not doubt. Good faith will not avail, however, against an unexcused invasion of statutory right. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1117 We have already discussed the general proposition that the Respondents' object was to secure resolution of disputes by use of the contractual machinery rather than by work interruption. The Respondents also assert that they sought to maintain the integrity of the bargaining unit against piecemeal attack, as in the Buffalo Linen Supply case, and that this is a privileged object-as indeed it is. The question is whether the principle is applicable. The publishers have a legitimate interest in the maintenance of the collective- bargaining contracts and the contractual machinery for the orderly settlement of disputes. The refusal of a union at one newspaper to abide by its commitments in this regard is properly a matter of concern for all papers. As each employer in a multiple-employer bargaining unit has a stake in the maintenance of the integrity of the unit so may he have a proper concern in maintaining the contract. Indeed securement of the contract is a primary reason for the existence of the bargaining umt. The agreement is the fruit for which the vine is cultivated. It would therefore not be unreasonable to argue that where the actions of a contracting party demon- strate a purpose to deprive the entire unit of employers of the benefits of the contract, the employers would be warranted in locking out the offending group if such action would effectively checkmate the employee activity-as in the Buffalo Linen Supply case where the general shutdown of employers canceled out the union's attempt to fragmentize the bargaining unit. However, this is not that kind of problem. In the Buffalo Linen Supply case the union sought to achieve a limited shutdown in order to compel the employers to engage in a new and different type of bargain- ing, with the aim of coercing them, one-by-one, to agree to the union's demands. In the instant situation the employees' action was not such an attack upon the joint interest of the employers, their solidarity, or their form of organization. The unions were not attempting to impair the effectiveness of the publishers' joint resistance to union proposals or the publishers' concerted insistence upon their own In sum, the employers were not here repelling a union attack upon the integrity of their bargaining position-as in the Buffalo Linen line of cases-or upon their bargain. I am not prepared to extrapolate the principle of concerted defense of a joint bar- gaining unit or bargain by lockout to the authorization of joint lockout in defense of an individual position. For to do so would convert the multiple employer bar- gaining unit from an instrument for the maintenance of labor peace to a weapon for its unsettlement; to extend the disturbance of a local grievance from a compos- ing room to an entire city. As was said in the Morand Brothers Beverage case, 91 NLRB 409, 413, "An isolated skirmish would become a civil war." For what was involved were purely local grievances with individual employers over individual differences with their own employees. There was no apprehension among the other publishers that the dispute would spread to or affect their own operations-other than the remote conjecture that if a contract violation occurred at one paper it might happen at another. Valid though such anticipation may be as a philosophical proposition, it does not constitute adequate justification for in- vasion of a legally protected right. In a grievance dispute between an individual employer and a segment of his employees, part of a multiple employer bargaining unit, other unit employers not individually involved in the particular controversy and not threatened by interrup- tion of their own operations, may not close down for the purpose of compelling the disputant employees to observe the terms of the joint unit contract. Though it is not always so, a grievance is normally a controversy confined to a particular employer and his employees Where it is so, union pressure on that employer does not constitute an attack upon the integrity of a multiple-employer unit justifying a general lockout by the employers. Otherwise every minor local dispute could become a vehicle for the closedown of an entire industry. I do not read the Buffalo Linen Supply case as authorizing such a result. This is so even though the union pressure may be a violation of the unit contract. That the lockout is over observance of the contract grievance procedure rather than some other contractual provision does not change the situation. The nature of the contractual right which is being enforced is not a distinguishing characteristic That the employers would not close down in all or any particular instance does not meet the issue. The question posed by the Respondents is one of the existence of legal right to take the action. In such a context it is of no moment whether in a particular circumstance the right is likely to be exercised. An employer may take reasonable measures designed to prevent disruption of his business in advance of any such disturbance, where the likelihood of interference is strong. Betts Cadillac Olds, Inc., supra; Cleaver-Brooks Mfg. Corporation v. N L R.B , 264 F. 2d 637 (C.A. 7); Caterpillar Tractor Company, a Corporation v. NLRB., 230 F. 2d 357 (C.A. 7); American Brake Shoe Co., supra. This is much like the right of self-defense. The apprehension of strike, if it is to serve as proper 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis for an anticipatory lockout, like the apprehension of assault in connection with self-defense, must be reasonable and envision immediate unwarranted attack upon a substantial right of the defender. Mere intuitive fear, however genuinely enter- tained, that one may be "next in line" is not sufficient excuse. The self-defense permitted an employer under Section 8 does not include a right to wage war or to engage in a punitive expedition. Nothing in the Supreme Court's opinion in the Prudential Insurance case (361 U.S. 477) suggests the contrary.19 In the light of the circumstances here, the publishers' measures reflect the exercise of unreasonable force. This does not proscribe employer use of economic sanctions and weapons in the process of collective bargaining, for the employer remains free to exert the ultimate and decisive sanction-one denied unions and employees-the imposition of his own lawful demands if bargaining results in an impasse. N L.R.B. v. Crompton-High- land Mills, Inc., 337 U S. 217 20 2. The publishers' breach of contract: Having assumed for this portion of the discussion that all the mechanical contracts contain no-strike, no-lockout provisions, it must be found that the publishers' lockout of neutral employees was in breach of contract, and for that reason also not privileged action under this Act. For if it is a violation of their contractual obligations for employees or unions to strike, it is equally so for the publishers to lock out-unless for economic reasons or to defend against contract violations by the locked-out employees. Neither defense being applicable against the neutral employees, their lockout was in breach of contract 21 3. Union responsibility: In considering the permissible extent of the use or threat of lockout under the particular circumstances, the responsibility of union officials for the union activity which provoked the reprisal, and their effort, or lack of it, to secure cessation of the activity must also be weighed. For if responsibility can- not fairly be imputed to the union, self-help by the publisher would additionally appear to be inconsistent with his own contractual obligation to refer the dispute to arbitration before resorting to lockout. The work stoppages or threats which gave rise to the incidents alleged in the complaint were mostly wildcat in nature. Where they were supported by a union official, they were repudiated by more responsible union officers. Thus in the February 11 dispute at the Herald Tribune, Stereotyper President McMahon sought to terminate the stoppage, and it was ended with slight delay to the edition. In the February 23 incident at the Times the business agent and the president of the Deliverers made efforts to get the men back to work. In the March 11 dispute at the Tribune over safety devices the union president assured the Tribune that there would be no strike over the issue. During the April 26 stoppage at the Times in protest of the discharge of the chapel chairman, the presi- dent of the local union sought to get the men back to work. When that effort was unsuccessful officers of the International union threatened their members with loss of union membership and privileges unless the stoppage was terminated. Good faith of conduct is not always readily assessable and may be dissembled. However, there is neither evidence nor contention that such was the case here. "'In that case the Court said • "The presence of economic weapons in reserve, and their actual exercise on occasion by the parties is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized " (Id 489 ) And see Great Falls Employers' Council, supra; "It is not the business of the Board 'to define through its processes what economic sanctions might be permitted negotiating parties in an ideal or balanced state of collective bargaining'" Recognition of the legitimacy of force in one circumstance is not an affirmation of its validity in all situations. 20 This authority is not because the lockout is the correlative of the strike, for it is not, despite occasional comment to that effect The equivalent of the strike is the em- ployer's authority to set the conditions of employment; not his power to lock out the employees, but his capacity to resist by rejecting their demands The strike is but a device to compel the employer to establish an employment practice It is the ultimate employee weapon only because, having no power to set terms of hire, employees have no better But the employer is not so restricted Once he had bargained the issue to the point of impasse he is free to impose his own employment requirements. The employees must then either strike, submit and accept the situation, or discontinue their employ- ment Given equivalent power in employees to prescribe terms of employment there would be no necessity for-and presumably no use of-the strike. The lockout is thus not the employer's counterpart of the strike 21 This conclusion is for the purposes of this Act and this proceeding only. It is not to say that a similar opinion must (or must not) follow in arbitration under the con- tracts, or in a suit at law. That question is not presented and I express no opinion on it. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1119 While one may surmise that the publishers' warnings of general shutdown might have contributed to the warmth of the union officials' effort to avoid or terminate stoppages, there is no apparent ground for questioning its genuineness . In such circumstances infliction upon the entire union, and indeed upon the whole body of employees, of punishment for the perhaps irresponsible act of a minority seems severe. In the absence of authorization, adoption, or ratification the action of in- dividual members of a class is not ordinarily imputable to all in the class. Associa- tive or mass guilt are concepts not favored in our law. This view is incorporated in the Norris-LaGuardia Act, section 6, of which states (129 U.S.C.A. 106): No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute shall be held re- sponsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof. If members or organizations interested in a labor dispute are not to be held responsible for unlawful acts which they did not authorize, ratify, or participate in, it seems unlikely that those not involved in the dispute would be. See N.L R.B. v. Ohio Calcium Company, 133 F. 2d 721, 726 (C.A. 6); Marshall Car Wheel and Foundry Co. of Marshall, Texas, Inc., 218 F. 2d 409, 417-418 (C.A. 5). As the court of appeals said in the Marshall Car Wheel case at 418 in refusing to authorize reprisals against all strikers because of the unlawful acts of some strikers : the Board has the initial duty and responsibility, in the exercise of its broad statutory discretion, to fashion an order which, while deterring irrespon- sible dereliction of duty either by unions or individual members thereof by refusing them all remedial relief, nevertheless would not tend to penalize those individual employees, if any, who may not fairly be charged with any respon- sibility therefor. Confirmatory of these principles in another context is the recent case of F. McKenzie Davison, W. J. Hardy, Sr. and W. J. Hardy, Jr., d/b/a Arlington Asphalt Com- pany, 136 NLRB 742, in which the Board held that it is a refusal to bargain for an employer to insist in bargaining negotiations upon the union providing him an indemnity agreement for damages to the employer caused by labor organizations and employers beyond the union's control. The rejoinder of the Respondents to the effect that they could judge performance only by results, is not likely to encourage no-strike commitments. If by acceptance of an arbitration clause every union and employee in the establishment becomes the insurer of the conduct of every other union and employee, the premium for the policy will no doubt have to reflect the increased risk-or the coverage with- drawn. For these reasons the Respondents' actions are additionally inconsonant with the statutory objectives of encouraging the peaceful resolution of labor con- troversies and protection of the organizational rights of employees. 4. The existence of other remedies: Additional ground for conclusion that the Publishers' lockout policy exceeds permissible limits in the circumstances is the availability of other remedies which, on balance and in the light of the problem, render the publishers' action excessive and nonprivileged. This is an additional substantial element of difference between the problem of the publishers here and that of the employers in the previous cases where lockout action has been sustained. In the latter lockout was substantially the only defensive or redressive weapon available. On occasion the publishers have secured money awards in arbitration proceedings under the contracts as damages for violation of agreement. Though the Respond- ents seem to suggest that arbitration and damages are not satisfactory remedies it is not apparent why that should be so. Moreover, if there is substance to the con- tention there would appear to be an inconsistency between the Respondents' in- sistence that the unions must use the contract machinery for rectification of their grievances but that the publishers are not required to. Principles of mutuality would seem to make inadequacy of remedy a defense equally available to both parties. It may be that because of the nature of newspaper publishing-involving deadlines and a perishable product-the publisher is more sensitive to pressure than employees. But such disparity can be true in any legal relationship. It is why there are such things as contracts, legal procedures for their enforcement and damages for their violation. Moreover, a fair mind might in some cases deem the employees' claim more urgent than the employer's. This is where the em- 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployee complaint involves an assertion of dangerous working conditions-the stated, but unfounded, assertion in the March 11 dispute at the Herald Tribune concern- ing safety devices on the wire-tying machine. Section 502 of the Act states that, the quitting of labor by an employee or employees in good faith because of abnor- mally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike under this Act." If the condition is abnormally dangerous it would thus not be within the scope of a no-strike agree- ment. But even if it is not so dangerous in fact, if it is in good faith and upon apparently reasonable grounds believed to be so, I would have doubt that refusal to accept the condition would be a violation of a no-strike commitment. In the light of Section 502, I do not conceive that an employee or union representative act- ing in good faith upon ground not patently unreasonable is required by this Act to risk honestly apprehended injury or else be held to have violated his contract. Cf. Knight Morley Corporation, 116 NLRB 140, enfd. 251 F. 2d 753 (C.A. 6), cert. denied 357 U.S. 927.22 Other remedies-some of which they have used on occasions-are also avail- able to he publishers to deter action violative of the contracts or the law: dis- charge or other disciplinary action against the offending employees; damage or injunction suits at law or equity, and if applicable unfair labor practice charges. The most obvious of these-disciplinary or discharge action-is said to be ineffec- tive for the reason that, as one witness for the Publishers stated, it will "not get your paper out" and will likely provoke more serious interruptions. This, while no doubt true, is not enlightening: it does not explain how the situation is improved by ceasing publication altogether. The thesis that deserved discipline will incite further stoppages would seem as applicable to unwarranted reprisals. The availability of these remedies makes inappropriate the Respondents' method of solution of their problem. What the Board said in F. McKenzie Davison, W. J. Hardy, Sr. and W. J. Hardy, Jr., d/b/a Arlington Asphalt Company, 136 NLRB 742, in recognizing the situation which faced the employer there, might well be said of some union action here: . . , we have no doubt but what unlawful activities of the foregoing classes could well result in an effective curtailment of Respondent's operations. But Congress provided, and has placed at Respondent's disposal, adequate statutory remedies to alleviate the pressures which such activities produce. See also Plumbers Union of Nassau County, Local 457, United Association of Journeymen etc. (Jerry Bady, d/b/a Bomat Plumbing and Heating), 131 NLRB 1243, enfd. 299 F. 2d 497 (C.A. 2). No doubt the publishers have not used the lockout on all possible occasions but have, as they put it, used the weapon "sparingly" or with "restraint." That one has observed the law where he might have broken it, though perhaps cognizable in mitigation, is scarcely a matter of defense. That a lockout may be an effective deterrent to breach of contract strikes or threats, as the Respondents say has been their experience here, I have no doubt. As Mailers' counsel somewhat wryly ob- served, disposal of the union leaders would perhaps also be effectual. The test of the legality of conduct is not exclusively its effectiveness, however-though of course that is a factor to be weighed-but its consonance with law. 5. Strike insurance: I do not find that strike insurance is a substantial element of compensation to the publisher in case of strike. Some, but not all of the papers carry such insurance. However, as we have seen, the coverage is limited, and the waiting period of 7 days would presumably make the policy inapplicable in all but extraordinary situations. I therefore do not regard insurance protection of such circumscribed scope as an adequate remedy for potential strike losses. 6. The lockout policy as based upon union membership and affiliation: A gen- eral lockout by employers in a multiple-employer bareaining unit is unlawful where based on consideration of union membership or affiliation. Anchorage Business- men's Association, et at., 124 NLRB 662, enfd 289 F. 2d 619 (C.A. 9). The lockout policy and agreement here were substantially so based. During the 1958 strike the Times, as we have seen, paid all employees who reported for work, "provided they were not members of unions striking elsewhere against another member of the Publishers' Association." Thus some employees of the Times, not themselves acting in breach of any contractual obligation, were as This is not to suggest that the March 11 dispute was of such character On my dis- position of the case I do not reach that question. PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1121 deprived of pay because of their membership in a union engaged in a strike against another employer. In my view, such a policy is prohibited by the statute. However, no finding of unfair labor practice is made on that action, first be- cause it is not alleged in the complaint, and secondly, because now barred by Sec- tion 10(b) of the Act. In addition, individual action of the Times cannot be imputed to the other publishers, who are not shown to have authorized, adopted, or ratified it. However, when the current lockout agreement came into existence in its present form, it was based upon union action: Neutral employees were made subject to possible lockout in case of a strike by any contracting union because the employees were members of unions having contracts with the publishers. Moreover, the simple occurrence of strike or threat was made attributable to the union of which the strikers were members, regardless of authorization or ratification by the union, its senior officers or members, or the efforts of responsible union officials to have the activity terminated. Thus, if employees struck an employer their union was re- sponsible; for union action union members of all mechanical unions could be laid off by all the employers. The agreement was applicable only if a union or union members struck; presumably not if nonunion employees struck. In addition, an object of the lockout agreement was to discourage breach of contract strikes by all unions. Thus, again, employees were singled out for lockout threat because they were members of unions having contracts with the employers. That the publisher may by proper means in appropriate circumstances warn contracting employees of the consequences of breach of contract strikes does not meet the issue. It was not permissible to do it by improper means. It is therefore found that the lockout agreement, as it existed in the period of time alleged in the complaint, contemplated the lockout of employees because of their union membership or affiliation. This, of course is not to suggest that the publishers were animated by antiunion considerations or animus against employee organization, for I have specifically found that they were not. However, motive or animus are not the tests of whether conduct may reasonably tend to restrain union membership or affiliation or the exercise of statutory rights. American Freighttivays Co., Inc., 124 NLRB 146; N.L.R.B. v. Star Publishing Co., 97 F. 2d 465 (C.A. 9); General Motors Corporation, 59 NLRB 1143; Allis-Chalmers Manufacturing Com- pany, 70 NLRB 348. Upon the basis of the foregoing considerations I am of the opinion that the lock- out agreement, the 1961 threats to lockout, and the lockouts of that year by the publisher Respondents were violative of Section 8(a) (1) of the Act. Summary An employer may take reasonable measures to avoid a breach of contract strike, including warning employees of the consequences of such activity. It is a quite different thing, however, for him to throw them out of employment or to threaten to do so for the purpose of conveying or emphasizing such a warning, when he has no reason to apprehend imminent action by them in breach of their employment obligations. If employees threaten his continued operation, he may shut down to avoid unusual loss; if they seek to atomize his multiple-employer bargaining unit by piecemeal strikes to compel resolution of a bargaining dispute, he may close to avoid destruction of the unit. But on the present state of the law I do not believe that he can legally lock out employees to provide them with an object lesson as to what will happen if they do not observe their contracts. Neither do I believe that he can suspend operations to compel or induce employees to oppose or support the con- certed activity, lawful or unlawful, of other employees. For this is to involve neutral employees in a labor dispute, to enlarge the area of the dispute, and to make it secondary in character. Additionally, I am of the opinion that an employer may not deprive neutral employees of employment, or threaten to, in order to induce other employees to refrain from concerted activities, regardless of whether the con- certed activities are lawful or unlawful; for to do so is to seize the employment of neutral employees as an item of bargaining with the disputing employees and to seek to trade it for a resolution of the controversy. Perhaps an employer may seek to induce neutral unions or employees on a voluntary basis to take appropriate and lawful measures-secondary though this inducement may be-to secure the termina- tion of concerted activity by other employees or unions. This issue is not presented mid not decided. Even if such a right exists it does not extend to a compulsory draft. Impressment is not enlistment. 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I conclude that employers in a multiple-employer bargaining unit may not engage in a sympathetic lockout in support of one of their number threatened with a breach of contract strike over a grievance dispute in the latter 's plant. Finally, we reach the most sensitive point in the controversy-the effect of the disputes and the parties' conduct on the flow of news , a current vital to the function- ing of a democratic society. It was to maintain this flow that the publishers ' efforts were primarily directed ; it was its disruption that disputing employee groups threat- ened. That the publishers should not have been subjected to such improper pressure where there were peaceful alternatives cannot be overstressed. It was their right and duty to combat it appropriately . What compromised their worthy end was the remedy they chose to avert the evil. To rescue one paper from involuntary close- down or delay they voluntarily suspended or threatened to suspend publication of every paper. Heroic medicines may be suitable in time of desperate need, but the total blackout of perhaps the greatest single collection of competitive news media in the world in order to frustrate interruption of a segment of the enterprise, seems to be to compound the disease . This is not to question the good faith of the pub- lishers, for they had a private interest in maintaining publication , quite apart from impulses of public service . But the voluntary and concerted suppression, even tem- porarily and with the best of motives , of such important vehicles of public informa- tion is a responsibility fraught with more than ordinary consequence-whosoever the original fault. This is a principle applicable to employers , unions, and employees. Where there are reasonably adequate peaceful alternatives, the use of disruptive self- help by either side of a labor dispute in so important an enterprise contributes neither to the public convenience nor to the long-term interest of the participants. For if they are unable to resolve their differences by their own restraints and inven- tions, other and more impatient forces may provide brusquer machinery. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section IH, above, occurring in con- nection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have interfered with , restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, it will be recommended that the Respondents cease and desist therefrom and take certain action to effectuate the policies of the Act. Since it has been found that the Respondents did not engage in violations of Section 8(a)(3) of the Act it will be recommended that such allegations of the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents violated Section 8 (a) (1) of the Act by: (a) Maintaining an agreement or understanding by which a publisher agrees to suspend or to consider suspending publishing operations or to lock out neutral em- ployees in the event that employees ccvered by an associationwide contract threaten or engage in a strike or work interruption against any member of the Publishers' Association. (b) Threatening citywide shutdown by all the publishers pursuant to the aforesaid agreement or understanding. (c) Engaging in suspension of publication and locking out or laying off neutral employees pursuant to such agreement or understanding. (d) Locking out or laying off, and threatening to lock out or lay off, employees on the basis of union membership or affiliation , or because other employees have engaged in concerted activity as defined in the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. 3. The Respondents have not committed unfair labor practices within the mean- ing of Section 8(a) (3) of the Act. [Recommendations omitted from publication.]