The Evening News Association

THE EVENING NEWS ASSOCIATION The Evening News Association, Owner and Publisher of the Detroit News and Local 10, Detroit Paper & Plate Handlers Union, International Printing Pressmen and Assistants' Union of North America, AFL-CIO and Detroit Newspaper Printing Press- men's Union No. 13, International Printing Press- men and Assistants' Union of North America, AFL-CIO and Local 12, Detroit Photo-Engrav- ers' Union, International Photo-Engravers' Union of North America, AFL-CIO and Detroit Stereotypers' Union No. 9, International Stereo- typers' and Electrotypers' Union of North Amer- ica, AFL-CIO and Detroit Mailers Union #4, International Mailers Union and Newspaper Drivers & Handlers' Local Union No. 372, International Brotherhood of Teamsters , Chauf- feurs, Warehouseman and Helpers of America, Ind. Detroit Newspaper Publishers Association and Local 12, Detroit Photo-Engravers Union, International Photo-Engravers' Union of North America, AFL-CIO and Detroit Stereotypers' Union No. 9 International Stereotypers' and Electrotypers' Union of North America, AFL-CIO The Evening News Association, Owner and Publisher of the Detroit News; Knight Newspapers, Inc., Owner and Publisher of the Detroit Free Press; Detroit Newspaper Publishers Association and Newspaper Guild of Detroit, American News- paper Guild, AFL-CIO Knight Newspaper , Inc., Owner and Publisher of the Detroit Free Press and Detroit Mailers Union #4, International Mailers Union Detroit Newspaper Publishers Association and Local No. 58, International Brotherhood of Electrical Workers, AFL-CIO Knight Newspapers, Inc., Owner and Publisher of the Detroit Free Press; The Evening News Association, Owner and Publisher of the Detroit News and Local No. 58, International Brotherhood of Elec- trical Workers, AFL-CIO. Cases 7-CA-3683, 3683(2), 3683(3), 3683(4), 3683(5), 3683(6), 3683(7), 3683(8), 3683(9), 3695, 3695(2), and 3695(3) June 29, 1967 SUPPLEMENTAL DECISION AND ORDER On January 15, 1964, the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding, concluding, on the basis of the findings of fact set forth there and in the Trial 1145 NLRB 996. The Board dismissed other allegations of the com- plaint, they are not involved in the case at this point. 219 Examiner's Decision attached thereto, that the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by locking out certain of its employees.' The Board's Order required Respondent to cease and desist from the unfair labor practices found and to take certain affirmative action designed to remedy those unfair labor practices. While this case was pending before the Sixth Circuit, the Supreme Court handed down its decision in American Ship Building Com- pany v. N.L.R.B., 380 U.S. 300. The Board moved the Sixth Circuit to remand the instant case so that the Board might reconsider it in the light of American Ship, but the court denied the motion and reversed the Board's holding that the lockout had been unlawful. Subsequently, on January 17, 1966, the Supreme Court, pursuant to a petition for certiorari filed by the Teamsters, in which the Board joined to the extent of requesting a remand to the Board, vacated the judgment of the Sixth Cir- cuit and remanded the case to the court of appeals with instructions that the case be remanded to the Board for further consideration of the impact of American Ship. The court of appeals on February 28, 1966, remanded the case to the Board. On April 25, 1966, the Board invited the parties to file further briefs. Subsequently, briefs were filed by the General Counsel, by Respondent, and by Newspaper Drivers & Handlers' Local Union No. 372, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Ind. A joint brief was also filed by Local 10, Detroit Paper & Plate Handlers Union, Interna- tional Printing Pressmen and Assistants' Union of North America, AFL-CIO, and Detroit Newspaper Printing Pressmen's Union No. 13, In- ternational Printing Pressmen and Assistants' Union of North America, AFL-CIO. Pursuant to the court's remand, the Board has reconsidered its Decision and Order . In doing so, the Board has considered the Trial Examiner's Decision, the exceptions and briefs, the supplemen- tal briefs, and the record as a whole. For the reasons hereinafter set forth, the Board now finds that Respondent Evening News did not violate Sec- tion 8(a)(1) and (3) by locking out its employees. The relevant facts are as follows: The News, which publishes an afternoon and Sunday edition, and the Free Press, which publishes a morning and Sunday edition, are the only large daily newspapers in Detroit. They are also the only members of the Detroit Newspaper Publishers Association, which handles the publishers' labor relations. Some 14 labor organiza- tions represent employees of one or both papers. Bargaining with most of the unions had been con- ducted on a multiemployer basis through the As- 166 NLRB No. 6 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sociation. However, for about 20 years, each paper has bargained separately with the Teamsters as the representative of its distribution employees. In October 1961, Teamsters gave notice to the Free Press of its desire to revise its contract expir- ing November 15, 1961. After some 17 bargaining sessions , on April 6, 1962, the Teamsters presented a revised proposal to the Free Press and advised that strike action would be recommended to the membership on April 11 if a satisfactory offer was not received by that date. On April 11, the Free Press presented its "last best offer." The Teamsters members in the Free Press unit rejected the offer and voted to strike; a picket line was set up that af- ternoon and the Free Press suspended publication. In October 1961, the Teamsters also gave notice to the News of its desire for a revision of its con- tract, also due to expire on November 15, 1961, with that paper. Between October 17 and January 11, 1962, the Teamsters and the News held 13 bar- gaining sessions . Negotiations were then suspended until March 22, apparently due to the Teamsters desire to concentrate on negotiations with the Free Press, and notwithstanding the News' expressed desire that negotiations continue without interrup- tion. The parties met again on March 22 and the Teamsters agreed to submit revised contract proposal.2 These proposals were submitted to the News on April 12, the day following the com- mencement of the strike at the Free Press. Before the News received the revised Teamsters proposals, its officials met with officials of the Free Press on April 9 and 10 to discuss what they con- sidered to be their common problem vis-a-vis the Teamsters. The News concluded that of the 18 or so issues remaining between the Teamsters and the Free Press, 10 were also of interest to the News in its negotiations with the Teamsters. Of these 10 is- sues, the News considered 3 as being vital in its bar- gaining and urged the Free Press to maintain its position on these under all circumstances. The News agreed that if the Teamsters struck the Free Press over its refusal to accede to any of those three demands, "the News would support the Free Press and would not publish." The two publishers further agreed that "the Union should not be informed that a strike against one is a strike against both or what the position of the News would be in case of a strike at the Free Press." When Teamsters struck the Free Press on April 11, the News also ceased publication. It did not print or distribute any papers under dateline of April 12, 13, or 14, although all of its employees re- ported for work and were paid for those days. Under dateline of Sunday, April 15, the News published a "double-masthead" edition, called The Detroit News - The Detroit Free Press, "A tem• porarily Combined Edition", which was distributed to News and Free Press subscribers by the News distribution employees. When work on the "double-masthead" edition was completed on April 15, the News notified some of its employees that they should not report for work until further notice, stating that "there was no work available." Meanwhile, on April 13, Teamsters International President, James Hoffa telephoned Association Ex- ecutive-Secretary Robert Butz to arrange a meeting on the Free Press contract. He also told Butz that "the News had better be present or on a standby basis at the meeting because the issues at the News would have to be settled or they'd be on strike al- so." President Hoffa and local Teamsters officals met with the Free Press on the afternoon of April 13 and the morning of April 14; they met with the News in the afternoon of April 14. This meeting with the News was based on the Teamsters revised proposals submitted on April 12 to the News, which contained the identical demands made on the Free Press as to the three "vital issues." The pend- ing issues were not settled at these meetings. At the close of this meeting, according to Dorris, the News' negotiator, the following conversation oc- curred between him and Hoffa: He [Hoffa] said he wanted to inform us of a statement he had just given to the press, and radio. He said that he had informed them they they were going to call a union meeting and present to this meeting the company's last proposal. I corrected him that this was not the company's last proposal but it had been sub- mitted December 22nd and was still con- sidered the best offer at that time, we were still willing to continue negotiations. He replied in effect regardless of whether it is the best proposal-he paraphrased it-then this is your final best offer and it is going to be submitted to the union. According to Association Executive-Secretary Butz, the parties did not then set a date for a sub- sequent meeting. Teamster Local President O'Connor testified, without contradiction, that at the conclusion of the April 14 meeting he and Dorris had discussed the convening of a further meeting and that Dorris had told O'Connor that he wanted to take up with management the matters discussed at the meeting and that O'Connor should call him on the following day (April 15) "in regards to setting up another meeting . . . if we felt it would be of benefit." O'Connor further testified that he called Dorris on April 15, and Dorris said he had not yet had a chance to discuss the issues with management, but that O'Connor should call him back the follow- ing day. Finally, O'Connor testified, on April 16 2 Between January 11 and March 22, the News requested meetings, but the Teamsters did not honor the requests , assertedly because they were "too busy," were "making progress" on the Free Press negotiations, and for other reasons. THE EVENING NEWS ASSOCIATION 221 Dorris told him he had discussed the matter with management and "they couldn't see where there would be any benefit in setting up a meeting at that time." Negotiations were resumed on April 18 when a meeting was held at the offices of Detroit Police Commissioner Edwards. By the end of the meeting, which lasted 33 hours, Teamsters and the Free Press reached complete agreement on a new con- tract. The Teamsters and the News resolved some of their outstanding issues and agreed that all issues not resolved then or by further discussion were to be submitted to arbitration. On April 19, Teamsters ended its strike against the Free Press and the News ended its lockout. The sole issue before the Board at this juncture is whether Respondent Evening News' lockout of its Teamsters unit employees from April 16 to 19, 1962, violated Section 8(a)(1) and (3) of the Act.3 Until American Ship, the Board regarded a bar- gaining lockout as presumptively or prima facie unlawful, essentially on the theory that a lockout in effect punishes employees because their bar- gaining agent is seeking certain concessions and benefits at the bargaining table. Employers, in the Board's view, had no right to use the lockout as an offensive weapon, to foster their own bargaining proposals by putting this kind of economic pressure on the employees. On the other hand, the Board regarded lockouts as legitimate which were de- fensively motivated, e.g., N.L.R.B. v. Truck Drivers Local Union No. 449 [Buffalo Linen Supply Co.], 353 U.S. 87 (lockout by a multi- employer bargaining unit as a response to a whip- saw strike against one of its members); Interna- tional Shoe Co., 93 NLRB 907 (to forestall repetive disruptions of an integrated operation by quickie strikes); Betts Cadillac-Olds, 96 NLRB 268 (to avert immobilization of cars brought in for repair). There is no question but that the Supreme Court's American Ship decision has obliterated, as a matter of law, the line previously drawn by the Board between offensive and defensive lockouts. For the Supreme Court squarely held in American Ship that an employer could lock out, after an impasse in bargaining had been reached, for the sole purpose of bringing economic pressure to bear on the union to accept the em- ployer's legitimate bargaining position. We can no longer conclude, therefore, that a lockout is un- lawful solely because it is not defensive in nature. The Court's holding in American Ship, it is true, was explicitly stated to be a narrow one - the Court in its own words was "concerned with .. . the use of atemporary layoff of employees solely as a means to bring economic pressure to bear in sup- port of the employer's bargaining position after an impasse has been reached. This is the only issue be- fore us and all that we decide." 380 U.S. at 308. But, although the holding was thus confined, the reasoning of the Court must obviously be taken into account in deciding a case such as the instant one, even though it does not present the exact situation present in American Ship. The Court stated that the test of a lockout's legality, assuming no motive to discourage union activity or to evade bargaining ex- ists, is whether the lockout "is inherently so preju- dicial to union interest and so devoid of significant economic justification" that no evidence of intent is necessary. That test affords the basis for our determination here. Applying these principles to the instant case is not an easy task, particularly because the events oc- curred almost 5 years ago, at a time when the parties' positions were undoubtedly taken with re- gard to and influenced by the state of then extant Board law.4 While we cannot turn back the clock and speculate now what Respondent's position would have been had American Ship already been on the books, fairness requires that we consider this factor in evaluating Respondent's then asserted reason for the lockout. We believe the facts of this case plainly warrant the conclusion that Respon- dent's lockout was preponderantly designed to force the Union to accept the Company's bargain- ing proposals, and we so find. As shown by the facts, supra, the parties had been bargaining for an extensive period of time before the lockout oc- curred, and only because of the Union's refusal to honor the Company's request to meet was there any hiatus in the bargaining negotiations. Furthermore. the Teamsters had taken a position on certain is- sues- and struck the Free Press over those is- sues- which the News was determined to resist. Indeed. Teamster President Hoffa told News' Negotiator Dorris that he considered the News' offer as its "last proposal" and "final best offer." Hoffa also told Association Executive-Secretary Butz, while arranging a meeting on the Free Press contract, that "the News had better be present .. . because the issues at the News would have to be settled or they'd be on strike also." It is thus evident that, from the News' standpoint, the central issues dividing the parties were clearly identified, and Hoffa had threatened the News with a strike, stating also that he regarded the Company's proposal as a final offer. In these circumstances, we are satisfied that both parties viewed their negotia- tions as being deadlocked on key issues, and that 3 The Board found in its original decision in this case that the incidental it believed that an impasse had been reached in its bargaining negotiations layoffs of other employees during this period also violated Section 8(a)(1) with the Teamsters, and it wished to bring economic pressure to bear on and (3) of the Act In view of our decision herein, there is no occasion to the Union, it would have been conceding a violation of the Act under consider this aspect of the case. Board law 4 Thus, had Evening News locked out then for the stated purpose that 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD neither doubted that a work stoppage would be required to break the deadlock. Also pertinent to our consideration of this case at this stage is the impact of Respondent's agreement with the Free Press to lock out its own employees if the Union struck the Free Press, as well as the fact that the lockout itself had this stated purpose. The Board's earlier conclusion that Respondent violated the Act was predicated on the reasoning that a lockout could legally be utilized only as a de- fensive maneuver, and that the existence of a true multiemployer unit was a sine qua non to its utiliza- tion by a nonstruck employer when the Union struck another employer. The Board rejected Re- spondent's asserted defense, which argued for an extension of the Buffalo Linen principle to cover a situation such as existed here, where the employers involved, although not technically engaged in mul- tiemployer bargaining, were the only two daily newspapers in Detroit, were in direct competion with each other, were bargaining with the same Union, and were faced with virtually identical bar- gaining demands by that Union. Having rejected the Buffalo Linen defense. the Board thereupon viewed the situation as constituting a traditional of- fensive, and therefore unlawful, lockout under then existing decisions. American Ship, however, as we have pointed out, has changed the ground rules to some extent, so that the inquiry does,not end by concluding that a lockout is not wholly defensive in nature. Rather, as the Supreme Court stated, the test of a lockout's legality, assuming no motive to discourage union activity or to evade bargaining exists. is whether the lockout "is inherently so prejudicial to union in- terest and so devoid of significant economic justifi- cation" that no evidence of intent is necessary. We are convinced that the circumstances of this case show both a significant economic justification for the lockout, and a lack of conduct significantly prejudicial to union (or employee) interests. Here, Respondent News had bargained for many months with the Union, and the parties were deadlocked on significant issues. Apart from the interest of the News in supporting the Free Press, the News, like the Free Press, was engaged in bargaining at the same time, with its contract having expired on the same date, and with the key demands of the Union being pressed upon each employer simultaneously. The Union had suspended negotiations with the News, and Teamster President Hoffa had explicitly threatened a strike against the News, armed at the time with a strike authorization by the Teamsters membership against both papers. The interest of the News in using economic pressure to implement its own bargaining was thus grounded upon a very real, direct, and immediate bargaining motivation in its own behalf. Our determination is based on the facts of this case and is not meant to suggest either that all sup- portive lockouts are lawful, or that all lockouts which are intended to pressure a union into accept- ing an employer's legitimate proposals are neces- sarily lawful. Rather, the legality of any lockout must be determined with regard to the criteria laid down by the Supreme Court. American Ship cautions against the promulgation of any hard and fast rule for determining whether a particular lockout is lawful; it does not insulate all lockouts from illegality solely because no "bad" motive ex- ists. We conclude, for the reasons indicated, that the complaint in this case should be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER ZAGORIA concurring: I concur in the results. MEMBER BROWN, dissenting: In my view of the facts, this case involves a situa- tion where the Union was engaging in contem- poraneous but separate contract negotiations with the Free Press and Respondent Evening News, each publisher's employees constituting a separate unit. Unknown to the Union, the Detroit News agreed that it would lock out its employees in sup- port of the Free Press if the Free Press were struck by the Union for refusing to yield on three specific union demands in which the News was particularly interested. The Union did strike the Free Press, and the News thereupon locked out its employees pur- suant to the supportive lockout arrangement. At the time of the lockout there was no bargaining impasse between the Union and the News. I would reaffirm the Board's original conclusion in this case5 that, by locking out its employees, Respondent violated Section 8(a)(1) and (3) of the Act. As the case involves two separate units rather than a multiemployer unit, Buffalo Linens is no more applicable now than when the matter was first before us. Nor, in my judgment, does the Supreme Court's supervening American Ship decision' require otherwise. Quoting the Board's own lan- guage from another case, the opinion of the Court in American Ship sets forth the then Board law to be that "absent special circumstances, an employer may not during bargaining negotiations either threaten to lock out or lock out his employees in aid 5 145 NLRB 996. 6 N.L R.B. v. Truck Drivers Local Union No. 449, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,A.F.L, 353 U.S. 87. 7 American Ship Building Co. v. N L R.B., 380 U.S 300. THE EVENING NEWS ASSOCIATION of his bargaining position. Such conduct the Board has held presumptively infringes upon collective-bargaining rights of employees in viola- tion of Section 8(a)(1), and the lockout, with its con- sequent layoff, amounts to a discrimination within the meaning of Section 8(a)(3)" (380 U.S. at 306). Then after describing some of the special circum- stances wherein the Board exempted certain classes of lockouts from proscription, the Court began its analysis with the following statement of the precise issue presented in American Ship: "What we are here concerned with is the use of a temporary layoff of employees solely as a means to bring economic pressure to bear in support of the employer's bar- gaining position, after an impasse has been reached. This is the only issue before us, and all that we de- cide" [Emphasis supplied.] (380 U.S. at 308). The Court stated in concluding its opinion that "we hold 223 that an employer violates neither § 8(a)(1) nor § 8(a)(3) when, after a bargaining impasse has been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bring- ing economic pressure to bear in support of his legitimate bargaining position" (380 U.S. at 318). Since the Court has thus meticulously limited its decision to postimpasse lockouts, I perceive no justification for the Board now to extend such hold- ing to absolve an employer who locked out his em- ployees, not because of a bargaining impasse con- cerning his own employees, but to assist another employer in a labor dispute respecting terms and conditions of employment of the other employer's employees in their own separate unit. Accordingly, I would find that Respondent has violated Section 8(a)(1) and (3) of the Act.