American Federation of Television and Radio Artists

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS American Federation of Television and Radio Artists Washington-Baltimore Local, AFL-CIO and Balti- more News American Division , The Hearst Corpo- ration . Case 5-CC-446 August 27, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH, BROWN, AND JENKINS On January 27, 1969, Trial Examiner Samuel M Singer issued his Decision in the above case, finding that the Respondent, American Federation of Televi- sion and Radio Artists Washington-Baltimore Local, AFL-CIO, had engaged in certain unfair labor prac- tices as alleged in the complaint , and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the General Counsel filed a memo- randum in support of the Trial Examiner's Decision, and the Charging Party filed its brief to the Trial Examiner as support for his Decision. The Respondent in the instant case, and the respondents in San Francisco Examiner Division of the Hearst Corporation , 185 NLRB No. 25, issued this day, filed a joint motion to consolidate these two cases for purposes of decision . The Charging Parties and the General Counsel in both cases have filed oppositions thereto in their answers and respon- ses. The parties and some of the issues are different and in our opinion no useful purpose would be served by consolidating the cases . The motion is therefore denied. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. They are hereby affirmed . The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case , and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner as modified ' See also San Francisco Examiner Division of The Hearst Corporation, 185 NLRB No 25 593 below, and hereby orders that the Respondent, Ameri- can Federation of Television and Radio Artists Wash- ington-Baltimore Local, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order as herein modified: 1. Substitute the following for footnote 26 of the Trial Examiner's Decision: "In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the National Labor Relations Board shall be changed to read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 2. Substitute the attached Appendix for the Trial Examiner's. MEMBER BROWN, dissenting: Contrary to the majority, I would reverse the Trial Examiner and dismiss the complaint in its entirety. In my opinion, Section 8(b)(4)(B) does not proscribe picketing of a corporate enterprise in furtherance of a basic economic dispute with a separate operating division of that corporation. Therefore I would hold that the picketing of Baltimore News American, a separate operating division of The Hearst Corporation, being in support of contract demands in negotiations with WBAL, also an operating division of Hearst, constituted legitimate primary activity. My position in this regard is based essentially upon the reasoning and conclusions of Trial Examiner Marx in Los Ange- les Newspaper Guild, Local 69, et al. (San Francisco Examiner, Division of The Hearst Corporation), 185 NLRB No. 25, issued simultaneously herewith, and my separate opinion in that case. However, I wish to emphasize that my difference with the majority lies squarely in my disagreement with their conclusion that the Hearst corporate enterprise is to be regarded as a neutral, unoffending employer with respect to labor disputes involving its various operating seg- ments. It is a fact that separate operating divisions of a single corporate enterprise do not qualify as a separate "person" within the meaning of Section 8(b)(4)(B) under a literal reading of the statutory definition of that term set forth in Section 2(1) of the Act.' Accordingly, unless that definition is broad- ened by interpretation, the entire Hearst corporation must be regarded as a single "person" for purposes of the secondary boycott provisions, and all pressures directed at any operating division thereof would clearly Sec. 2( 1) provides The term "person" includes one or more individuals, labor organiza- tions, partnerships, associations , corporations , legal representatives, trustees, trustees in bankruptcy , or receivers 185 NLRB No. 26 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute legitimate primary activity. Although, I might concede, for purposes of argument, that Section 2(1) might possibly be construed to regard the various segments of Hearst as separate persons, such an inter- pretation is hardly in keeping with the balance to be maintained between the conflicting policies underly- ing Section 8(b)(4)(B).' Thus, through Section 13 of the Act, Congress, in unmistakable terms, preserved a labor organiza- tion's right to strike, "except as specifically provided .. . [in the Act]."4 It would seem contrary to this mandate to extend by interpretation any statutory provision which impairs the right to strike, and, con- sistent with Section 13, the Supreme Court has repeat- edly cautioned against interpretations of Section 8(b)(4)(B) which restrict direct economic pressures in primary labor disputes.' In this case we are confronted by nothing more than a labor organization's attempt to apply strike pressures upon a single corporate enterprise to secure economic concessions in its dispute with a segment of that enterprise. Quite obviously, Respondent, in order to reach the Hearst enterprise, could only do so by imposing direct pressures on its other operating divisions such as the Baltimore News American. That Hearst is a direct party to labor disputes involving its separate divisions is not only inherent in the structure of the enterprise but is a matter of cold economic fact. As was so cogently stated by Trial Examiner Marx in the San Francisco Examiner case, supra: The "operating profits" made by the Hearst divi- sions are fuel for the total corporate body and, together with other economic resources of the Corporation, are available at its will to sustain any division in a contest of legitimate economic pressures involved in a labor dispute between a union and the management of the division or, in other words, with Hearst. The right and power of the Corporation to muster its economic resources to such an end, irrespective of their ' It is the duty of the Board to balance " the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own " NL R B v Denver Building and Construction Trades Council, et al (Gould & P r e i s n e r ) , 341 U S 675, 692. 'See 13 of the Act provides as follows Nothing in this Act except as specifically provided herein shall be construed so as to either interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifica- tions on that right See e g, Local 1976, Carpenters v N L R B (Sand Door & Plywood Co), 357 U S 93, 99, Local 761, International Union of Electrical, Radio and Machine Workers (General Electric Co) v NLR B, 366 U S 667 672, National Woodworkers Mfrgs Assn v N L R B, 386 U S 612, 625-627 divisional source, underscores the need for recog- nition of a correlative right in the union to engage in "otherwise" lawful picketing of premis- es of the Corporation other than the dispute situs. Section 8(b)(4)(B) in my opinion cannot be read as conferring neutral status upon such an overall corporate enterprise, or insulating Hearst from the lawful picketing in this case. That section was designed solely to condemn direct pressures against "unof- fending employers"6 or "some third party who has no concern in ... [the dispute]."' "Judicial decisions interpreting the broad language of Section 8(b)(4) . . . of the Act uniformly limited its application to such `secondary' situations." National Woodworkers Mfrs. Assn. v. N.L.R. B., 386 U.S. 612, 625 -627. To regard Hearst as a neutral party to the dispute involv- ing WBAL is to distort the balance to be maintained between the competing interests underlying Section 8(b)(4)(B) by shielding an offending employer from his own dispute . I cannot subscribe to such a result and accordingly would find that Respondent's picket- ing of Hearst constituted traditional primary activity and did not violate Section 8(b)(4)(B). 'See fn 2, supra ' International Brotherhood of Electrical Workers, Loca1501 v NL.R B, 181 F 2d 34, 37 (C A 2) senator Taft , who sponsored the former Sec 8 (b)(4)(A), defined its purpose as follows This provision makes it unlawful to resort to a secondary boycott to injure the Business of a third person who is wholly unconcerned in the disagreement between an employer and his employees 93 Cong Rec 4323, Ii Leg Hist LMRA 1106 APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An agency of the United States Government To all members of American Federation of Television and Radio Artists Washington -Baltimore Local, AFL-CIO WE WILL NOT induce or encourage any individ- ual employed by Baltimore News American Divi- sion , The Hearst Corporation, or any other person engaged in commerce or in an industry affecting commerce (other than WBAL Division, The Hearst Corporation), to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require persons engaged in commerce or in an industry affecting commerce, to cease doing business with Baltimore News American Division, The Hearst Corporation. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS WE WILL NOT threaten, coerce, or restrain Baltimore News American Division, The Hearst Corporation, or any other person engaged in commerce or in an industry affecting commerce (other than WBAL Division, The Hearst Corpo- ration), where an object thereof is to force or require persons engaged in commerce or in an industry affecting commerce, to cease doing busi- ness with Baltimore News American Division, The Hearst Corporation. AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS WASHINGTON- BALTIMORE LOCAL, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21202, Telephone 301-962- 2822. TRIAL EXAMINER'S DECISION SAMUEL M. SINGER , Trial Examiner: Upon a charge filed on September 23, 1968, by Baltimore News American Division, The Hearst Corporation (herein called News American), General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint on October 7, 1968, alleging that American Federation of Television and Radio Artists Washington- Baltimore Local, AFL-CIO (herein called AFTRA or the Union), had engaged in certain secondary boycott activities prohibited by Section 8(b)(4)(i ) and (ii)(B) of the National Labor Relations Act In general, the complaint alleged that in furtherance of its labor dispute with WBAL Division, The Hearst Corporation (herein called WBAL), AFTRA picketed the premises of News American (allegedly a second- ary or neutral employer) with objects of (a) inducing employ- ees of News American to strike or withhold their services; and (b) forcing or requiring News American to cease doing business with WBAL and customers and suppliers of News American. Pursuant to notice, a hearing was held before me in Baltimore, Maryland, on November 6, 1968. The parties 595 were represented by counsel and were afforded full opportu- nity to be heard and to introduce relevant evidence. Upon the entire record, the briefs received from the parties, and from my observation of the witnesses, I make the following- FINDINGS AND CONCLUSIONS I. JURISDICTION WBAL, a division of The Hearst Corporation (a Delaware corporation), maintains and operates radio and television stations in Baltimore, Maryland It is affiliated with the National Broadcasting Company radio and television net- works and has an annual gross revenue exceeding $1 million. News American prints, publishes, and distributes a daily and Sunday newspaper in Baltimore, Maryland, known as "News American." It subscribes to interstate news serv- ices and nationally syndicated features, and advertises prod- ucts sold in interstate commerce. News American's annual gross revenue exceeds $200,000. I find that WBAL and News American have at all times material been engaged in commerce or industries affecting commerce within the meaning of the Act, and that it is appropriate for the Board to assert jurisdiction. Ii. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction, the Issues The Union has represented WBAL's staff announcers and employees appearing before cameras and microphones for many years, its most recent collective agreements having expired on September 1, 1968' On September 21-after negotiations for a new contract were broken off-AFTRA struck and picketed WBAL in support of its contract demands. Two days later (September 23), pickets appeared at the News American premises, 6 miles away (also in Baltimore).2 As a result, News American employees, repre- sented by unions other than AFTRA, refused to report to work until 11 a m. on that day when WBAL officials prevailed upon the newspaper unions (Pressmen, Teamsters, ect.) to intervene and AFTRA withdrew its picket line from the News American premises. However, on October 2 and 3 AFTRA pickets reappeared at News American and newspaper employees again refused to cross the picket line The September 23 and October 2-3 picketing resulted in loss of circulation of some newspaper editions and curtail- ment of the size of other editions Unless other wise indicated, all references are to 1968 The picket signs carried the legend "Information to the public, Radio and TV performers on strike against WBAL, Division of The Hearst Corporation, Amencan Federation of TV and Radio Artists, AFL- CIO " 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon a petition of the regional Director filed on October 2-under Section 10(l) of the Act, the United States District Court for the District of Maryland granted and order temporarily enjoining the picketing at News American On October 21, the Court issued an opinion rejecting union contentions identical to those presented in the instant com- plaint proceeding. Penello v. American Federation of Televi- sion and Radio Artists Washington-Baltimore Local AFL- CIO, 69 LRRM 2517.' In essence, the Union contends that the extension of the picket line to News American was not secondary activity proscribed by Section 8(b)(4) of the Act, on the ground that News American was not a separate or neutral "person" entitled to the protection of that section. According to the Union, the picketing was "primary" since, as "division," of The Hearst Corporation ("Hearst"), News American and WBAL constituted one "person" or "part" of one person, namely, of The Hearst Corporation. On the other hand, General Counsel and the Charging Party contend that WBAL and News American are separate and autono- mous operations, both as between each other and as between each and Hearst, with no control over their day-to-day operations by Hearst; and, therefore, that News American is a neutral "person" entitled to the protection of the secondary boycott provisions of the Act The findings set forth below concerning the operations of Hearst, WBAL, and News American are based on largely undisputed evidence.' B. Operations of Hearst, WBAL, and News American The Hearst Corporation, with headquarters in New York City, owns 20 to 30 operating divisions comprising a widely diversified empire. These divisions operate such enterprises throughout the country as newspapers,' radio, television, motion pictures, real estate, timberland, and cattle ranches. Hearst's three executives in New York are its president, executive vice president, and treasurer. As chief executive, the president appoints division heads, including publishers of newspapers and general managers of television and radio stations During the period here involved, Brent Gunts was general manager of WBAL-TV, Alfred Burk, general manager of WBAL-Radio, and Mark Collins, publisher of News American.' None sits on Hearst's board of directors. However, each is responsible to Hearst's president and executive vice president Hearst President Berlin testified that he has instructed his division heads to "run it [the The transcript of the 10(1) proceeding forms a part of the record in this case by stipulation The District Court's findings and conclusions are not, of course, binding in this proceeding See W W Wallwork Fargo, Inc, 123 NLRB 91, 113, fn 33. The Union called no witnesses in this or in the Court proceeding, it did solicit and secure stipulations of fact and introduced documentary evidence The newspapers include the Seattle Post Intelligence , San Francisco Examiner, Los Angeles Examiner, San Antonio Light, Boston Record American, Albany Times Union, Knickerbacher News (Albany, New York), and Baltimore News American Television and radio stations are maintained in Pittsburgh , Milwaukee , Baltimore , and Puerto Rico ' " Each also has the corporate title "vice-president " For example, Gunts' complete title is Vice President and General Manager, WBAL Division , The Hearst Corporation The television and radio stations togeth- er compose one division (WBAL) division] as if they owned it," but that he has also advised them that "if the time came that they were not doing what I considered a satisfactory job . . then we would relieve them and put someone else in " The record establishes that in actual practice each division head has substantially complete authority in the day-to- day operations of his division. Hearst President Berlin emphasized that although a division head would occasionally contact Hearst executives, whom they regard as their superi- ors, it is only the "bottom line" (i.e , the financial success of the enterprise) that he was "interested in "' News Amen- can Publisher Collins has final authority in all matters relating to formulation and effectuation of policy covering news, editorials, production, advertising, and circulation. Collins, as well as the television and radio managers (Gunts and Burk), determine the size of their own staffs, hire and fire, fix employee salaries, set advertising rates and service charges, and formulate and implement labor relations policies. Each division subscribes separately to news services such as the Associated Press and United Press, is free to utilize any or none of Hearst-owned services and features (e g, Hearst Headline Service, King Features) or syndicated columns, and controls its own editorial policies I A short- lived arrangement for an exchange of news between Nevis American and WBAL some 2 or 3 years ago proved unsuc- cessful and never was revived There is, however, some day-to-day contact between the two divisions Thus, there is a direct line connecting them through commercial telephone communications. WBAL announces on the air that it is "the News American Station" or is "affiliated with the News American," and that it has a direct line "to the News Division and NBC."9 WBAL advertises in the News American and News American advertises over WBAL, but these transactions are at arm's length-at rates fixed by each medium for all advertisers.10 Furthermore, the two divisions "compete actively for the advertising dollar of the community." ' It is clear, however, that until 2 years ago (November 1966), a Hearst executive (Provost), with an office in Baltimore , possessed final responsibility over television and radio operations, including labor relations (Provost had countersigned and approved the last-September 1965- collective agreement on behalf of Hearst ) Hearst President Berlin indicated that Provost was given overall jurisdiction over these operations when Hearst embarked into the television and radio field and , not being "familiar" with these industries, needed someone to maintain "close contact" with Federal Communication Commission requirements It is undisputed however, that on Provost 's retirement in November 1966, Hearst "dissolved" its New York Radio and Television Division, headed by Provost, and that the WBAL television and radio managers were then instructed to operate the stations on their own It is to be noted that Provost never had any similar connection with News American Although News American may purchase newsprint from any source, it has apparently obtained it only from Hearst's newsprint division because of price considerations Similar economy considerations presumably account for the television and radio managers' engineering service purchas- es from Hearst's engineering office. ' WBAL Television Manager Gunts testified that it was "not unusual" for television stations, owned or affiliated with newspapers , to announce and identify their affiliations, pointing out that another Baltimore television station, connected with a Baltimore newspaper (presumably the "Sunpa- pers"), makes similar announcements 10 No cash passes between the divisions (the transaction is a "trade deal"), but this is not unique among advertising media WBAL and News American have similar arrangements with other non -Hearst advertis- ing media in Baltimore AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS Although there is no interchange of employees between the divisions, each contracts from time to time for services of certain personalities employed by the other. Thus, WBAL has engaged News American reporters and writers to broad- cast or serve on discussion panels and News American has engaged WBAL personnel (e.g., Melva Zaal known as "Mollie Martin") to write a column for News American. However, the individual involved enjoys the status of "inde- pendent contractor," unrelated to his employment by his own division. Thus, for example, WBAL pays News Ameri- can Sports Editor Steadman a price for each show he performs, does not clear its agreement with Steadman with Publisher Collins (nor Hearst), and each of the contracting parties (WBAL and Steadman) is free to terminate the arrangement at any time without reference to Collins or Hearst. WBAL has hired personnel employed by other newspapers and news services on a similar basis." As to fringe benefits, Hearst makes available to its divi- sions certain insurance, pension, and salary continuation plans or programs. Utilization of these, however, is left to the judgment and discretion of each division head, each division paying for operating expenses. One plan (the Broad- cast Pension Plan) is available only to Radio and television employees represented by labor unions. A major medical and hospitalization plan, in use at WBAL, has no relation- ship to Hearst. According to WBAL Manager Gunts, WBAL had rejected an alternate Hearst plan "which [it] didn't feel was quite rich enough for what we wanted in our division." Some of the plans in effect at News American were negotiated between it and labor organizations representing its employees. Each division maintains its own separate financial system, pays and collects its own bills, and has separate bank accounts from which it pays salaries and wages. It also prepares its own financial statements and budgets, but these are submitted to Hearst in New York, primarily for informational purposes 12 The division heads may incur operational expenses without limitation, but capital expendi- tures in excess of $10,000 require Hearst approval. Collective agreements between the divisions and labor organizations are administered by the division heads Each division negotiates its own labor agreements independently of the other and of Hearst. Gunts and Burk negotiated the last (1965) contract with AFTRA for WBAL," and " The above-described contractual arrangements between WBAL and Steadman (and other News American personalities) exist despite a provi- sion in Steadman's "personal service" contract with Publisher Collins (signed by Collins on behalf of "The Hearst Corporation (Baltimore News American Division)") that Hearst "shall have the right to transfer" Steadman to any of its divisions Hearst President Berlin testified that this transfer or assignment clause "has never been used , never been put in force " Publisher Collins' contract with Hearst contains the same provision, but in moving from one Hearst division to another he was never "transferred" under this clause, each of his assignments having been negotiated as if Collins were an applicant " WBAL and News American officials (Gunts, Street, and Collins) testified that in all of their years of employment, their budget submissions were never questioned by Hearst Hearst President Berlin likewise indicated that the division head had wide latitude on budget matters, but he also commented that "If he goes overboard he will hear from us " Gunts, in charge of television operations, and Burk, of radio operations, signed the AFTRA contract jointly on behalf of "WBAL Division, The Hearst Corporation " 597 Collins and Street (his subordinate) negotiated for News American with other unions '° While the last contract between AFTRA and WBAL (September 1965-September 1968) provided that it "shall not become binding and effec- tive . until it has been countersigned" by an "appropriate executive of the Hearst Corporation" (as well as by AFTRA's "National Executive Secretary"), no such provi- sion appeared in News American's contracts with any labor organization 15 Both WBAL and News American retain the same local (Baltimore) attorneys to handle legal matters, including labor relations problems. However, neither seeks nor obtains direction or guidance thereon from Hearst's New York legal department or labor relations staff. WBAL's applications for renewal of broadcast station license, filed with the Federal Communications Commission in June 1966 (the most current applications), were made in the name of Hearst as owner, but signed by the local manager as "Vice President for WBAL", the person to be communicated with was listed as D C. Provost in New York 16 Among other things, the applications listed the radio and television stations "owned and operated" by Hearst in other localities, described the type of coverage on the air (including its "featuring the best-known, best- qualified reporters, commentators") and, insofar as News American is concerned, stated that it had "direct wires" to it as well as to the National Broadcasting Company." C. Analysis and Conclusions 1. It is undisputed that in furtherance of its dispute with WBAL, the Union (AFTRA) picketed News American, whose employees were members of other unions. As a result, employees refused to cross the picket line and the newspaper was forced to curtail publication, distribution, and circulation There is no question that by its picketing, the Union induced and encouraged employees of News American to strike and withhold their services from their " News American has contractual relations with 11 labor organizations with whom it has 14 signed contracts, none of its employees are represented by AFTRA The negotiations with 6 of the 11 unions were conducted jointly with a non-Hearst newspaper, the Baltimore Sun ("Sunpapers") " The earlier WBAL-AFTRA contract (September 1963-September 1965) required only approval by the Union 's national executive secretary, none by Hearst It will be recalled that when the 1965 contract was executed WBAL's operations were still supervised by Hearst's Radio and Television Division, headed by Provost, which may account for addition of a line in the 1965 contract providing for execution by "Radio- TV Division-the Hearst Corporation " In the recent 1968 negotiations prior to the strike, the Union's draft proposals retained the 1965 contract language concerning need for Hearst approval, but this matter was not discussed in the negotiations WBAL Manager Gunts testified that he now has final authority to conclude and sign a collective agreement "without reference to New York " 16 As previously noted, Provost was head of'Hearst's Radio and Televi- sion Division and had overall supervision of WBAL's operations until his retirement (and dissolution of the Hearst division) in November 1966 " The application also stressed the station's other contacts for expedi- tious handling and processing of news from various sources, including "contact maintained with Baltimore News-Amencan daily newspaper, so that reporters can be dispatched to the scene of fast-breaking local news events " 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer, and, further, , that the Union restrained and coerced News American with an object of forcing it to cease doing business with WBAL and News American customers and suppliers I so find The sole question is whether News American is a "person" entitled to the protection of the secondary boycott provisions of Section 8(b)(4) As noted (supra, III,A), the Union contends that it is not-on the ground that News American and WBAL each constitutes "part" of one person (The Hearst Corpora- tion) or that the two divisions together compose a single "person " Accordingly, the Union contends the picketing was protected "primary" activity On the other hand, Gener- al Counsel and Charging Party contend that WBAL and News American are separate and autonomous operations, both as between each other and as between each and Hearst, with no control over their day-to-day operations by Hearst; that the two divisions constitute separate and distinct employing entities, and, therefore, that News Ameri- can is a neutral "person" entitled to the protection of the secondary boycott provisions Section 8(b)(4) provides, in relevant part, that it shall be an unfair labor practice for a labor organization: (i) to engage in, or to induce or encourage any individual employed by any person engaged in com- merce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to . . . transport, or otherwise handle or work on any goods . . . or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: (B) forcing or requiring any person to cease . . handling, transporting, or otherwise dealing in the products of any other producer or to cease doing business with any other person . . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. . . [Emphasis supplied ] Section 2(1) of the Act provides- The term "person" includes one or more individuals, labor organizations, partnerships, associations, corpora- tions, legal representatives, trustees, trustees in bank- ruptcy, or receivers As the Board and courts have repeatedly pointed out, Section 8(b)(4) was aimed at "shielding unoffending employ- ers and others from pressures in controversies not their own." N.L.R.B. v Denver Building and Construction Trades Council, et al [Gould & Preisner], 341 U S 675, 692 "It [was] aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread, and, as Congress evidently judged, dangerous practice of unions to widen that conflict." Local 1976, United Brotherhood of Carpenters and Joiners of American, AFL, etc. [Sand Door & Plywood Co ] v. N.L.R.B., 357 U.S. 93, 100 See also Local 761, International Union of Electrical, Radio and Machine Workers [General Electric Co ] v N.I,.R B., 366 U.S. 667, 672. In implement- ing Section 8(b)(4), the Board and courts have given broad meaning to the term "person" falling within the protective scope of the section. As stated in Department & Specialty Store Employees Union, Local 1265, R. C.I.A., AFL-CIO [Oakland G R Kinney Co ] v. Brown, 284 F.2d 619, 626 (C A 9), the statute is "to be broadly and liberally construed to accomplish its intended purpose," always bear- ing in mind "the mischief sought to be remedied." Although determination of which entity is the "primary" employer who may be picketed is not always easy to make (Cf. Local 761, I. U.E. v. N.L.R B., supra, 366 U S. at 673), the general rule is that the primary employer is the one with whom the union has its basic dispute; i.e., the one "with whom the union is principally at odds " Local 1976, Carpenters v. N.L.R.B., supra, 357 U.S. at 99. See also N.L.R B. v International Brotherhood of Team- sters, Local 294 [Island Dock Lumber, Inc ] 342 F 2d 18, 22 (C.A 2) Only the primary employer is in a position to grant the union's demands and to resolve the underlying dispute. To assist them in determining the primary employer who may be picketed, and the circumstances when he may be picketed in order not to enmesh a secondary employ- er in the dispute, the Board and courts have often found it necessary to set up guidelines;" and in doing this, they will look behind artificial "legal" persons and ignore corpo- rate structures to determine the true employer As the Supreme Court has said, whether or not picketing is protect- ed by Section 8(b)(4) is not "dependent on fortuitous arrangements that have no significance so far as the evils of the secondary boycott are concerned " NL.R.B. v Denver Building Trades Council, supra, 341 U S at 693." Thus, under the so-called "ally" doctrine two corporations, commonly controlled or engaged in closely integrated opera- tions, may be regarded as a single employing enterprise. Miami Newspaper Printing Pressmen's Local No. 46 [Knight Newspapers, Inc. ] v. N.L R.B., 322 F.2d 405, 409 (C A.D.C.), enfg 138 NLRB 1346 20 Although separate "legal entities," both are "allies" in, and parties to, the union's dispute with one of them, and both are vulnerable to union economic pressures and picketing. However, com- mon ownership alone is not sufficient, nor mere existence of a potential, for common control. Drivers, Chauffeurs and Helpers Local No. 639, etc. (Poole's Warehousing, Inc.), 158 NLRB 1281, 1286 Of paramount significance is the 1° See Sailors ' Union of Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549 ("common situs" picketing), , Local 761, 1 U E V NL R B, supra, 366 U S 672 ("reserved gate" picketing), International Hod Carriers, Building and Common Laborers' Union ofAmerican, Local No 41, AFL-CIO (Calument Contractors Association), 133 NLRB 512("area standard" picketing), NLR B v Business Machine and Office Appliance Mechanics Conference Board, Local 459, International Union of Electrical, Radio & Machine Workers, CIO [Royal Typewriter Co 1 228 F 2d 553, 555-559 (C A 2) (picketing directed at "struck work") " Cf NL R.B. v Hearst Publications, Inc, 322 U S 111, 129 [T]he broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as "employee," "employer," and "labor dispute," leaves no doubt that its applicability is to be determined broadly, in doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications See also J G Roy and Sons Company v NLRB, 251 F 2d 771 (C A 1), Bachman Machine Company v N.LR B, 266 F 2d 599, 603-605 (C A 8) AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS nature of the day-to-day operations and of labor policies in the entities in question 2. The instant case involves one corporation (Hearst) and two unincorporated divisions thereof, with one of which (WBAL) the Union had a dispute Apparently even under the Union's theory of the case, News American (which the Union picketed in furtherance of its dispute with WBAL) would qualify as a neutral, secondary employer under Sec- tion 8(b)(4) if the newspaper were incorporated as a separate legal entity. Cf. Miami Newspaper Printing Pressmen's Local No. 46 v. NL R.B., supra, 322 F.2d 405 (C.A.D.C) The Union frankly stated in the complaint hearing that it "make [s]no serious argument that theday-to-day operations of the News American and WBAL are so interwined as to represent one." That the two divisions, vis-a-vis each other, constitute separate employing entities, independent of each other, is established by the fact that they are engaged in two distinct and separate aspects of communica- tions media; that they establish their own advertising rates and service charges; that they are in daily competition wit:' each other for the advertising dollar; that they handle all matters of employment (hiring, firing, employee benefits, etc ) and effectuate labor relations policies and adminstration (e.g., collective agreements and matters arising thereunder) completely independent of each other; that they maintain separate financial systems and separate bank accounts from which they pay all salaries and wages, and that they pay and collect their own bills. There is, of course, some degree of cooperative contact between the two divisions, as where a News American personality is allowed to appear on WBAL, but such individual is engaged as an independent contractor (in the same way as WBAL engages personalities from other newspapers) and the individual appears independ- ently of the dictates of News American. The record further establishes, and I find, that each division constitutes a separate employing entity vis-a-vis Hearst. As shown, Hearst permits each division head to operate the division as if it were "his own." News American Publisher Collins exercises complete authority over the newspaper operations and General Managers Gunts and Burk over the television and radio operations. Although Hearst makes available certain news services (King Features, Hearst Headline Service, Hearst Newsprint), professional services (engineering), and benefit plants (pensions, insur- ance, etc.) to both divisions (as well as to other Hearst- owned divisions), use of these Hearst services is optional with each division head Similarly, the fact that both News American and WBAL use the same local (Baltimore) legal counsel is not determinative, since each division head estab- lishes his own labor-policy; and, significantly, neither avails himself of Hearst's New York advisory labor relations staff. contrary to the Union, I see nothing particularly significant in the fact that WBAL, in license renewal applica- tions with the Federal Communications Commission and in announcements on the air, holds itself out (to the public) as a Hearst instrumentality." As we have seen, common ownership alone does not establish a single employing entity. " As the Union points out, in its June 1966 application with FCC, WBAL stated that it was "owned and operated" by Hearst However, 599 To be sure, several other factors relied on by the Union raise more substantial questions. Thus, as the Union points out, both WBAL and News American are required to make periodic financial reports to Hearst, including profit- and-loss statements. Capital expenditures exceeding $10,000 must receive Hearst approval. Personal contracts with cer- tain personalities reserve to Hearst the right to transfer the individual to other Hearst divisions Finally, Hearst designates the division head who is answerable to Hearst. However, the record shows that the financial reports are basically routine and informational in nature, that Hearst has not actually vetoed capital expenditures, that it has not exercised its right to transfer or move individuals from division to division, and that the division heads exercise complete and final authority over day-to-day operations Hence, insofar as it appears, the Union established only the existence of "potential" control. However, the crucial test is not whether power to control exists. "There must be in addition such actual or active common control, as distinguished from merely a potential, as to denote an appreciable integration of operations and management poli- cies." Drivers, Chauffeurs and Helpers Local No. 639, etc. (Poole's Warehousing, Inc.), 158 NLRB 1281, 1286 See also Miami Newspaper Printing Pressmen's Local No. 46 v N.L.R.B., supra, 322 F.2d at 408-409; J. C. Roy and Sons Company v. N.L.R.B., supra, 251 F.2d at 774-775. It is difficult to believe that a three-man Hearst hierarchy could feasibly and effectively control from New York City the day-to-day operations of some 20 to 30 divisions of a widely diversified nature, situated throughout the country Practical and sound economic considerations alone would support Hearst President Berlin's statement that each divi- sion head is lodged with complete discretion and authority in operating his division. Nor would the result reached herein be altered by the fact that Hearst stands "in an advisory [as distinguished from] an executive capacity." Miami Newspaper Printing Pressmen Local No. 46, etc. (Knight Newspapers, Inc.), 138 NLRB at 1347. 3. The Union's basic contention is a legal one. It contends that while the integrated operation and common control test may be used to determine if two different corporations or legal entities constitute a single "person" or employing enterprise, this cannot be done where only one corporation or legal entity, such as Hearst, is involved. According to the Union, "Parts of the same entity [divisions of Hearst] cannot be considered as an innocent or genuinely third party" for which 8(b)(4) protection was designed. The Union points out that while the Board has sometimes "made one `person' out of two separate legal entities," this "is something different than making two persons out of one legal entity." "In short," as the United States District Court for the District of Maryland (supra, III, A) put it, "they [the Union] say under the definition of `persons' as previously noted, this application was filed prior to dissolution of Hearst's New York Radio and Television Division and retirement in November 1966 of its head (Provost) who until then supervised WBAL operations. As also noted, Provost had countersigned and approved WBAL's 1965 collective agreement prior to his retirement The record establishes that no such approval from any Hearst executive is presently required. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you can make many into `one person' but you cannot make one into many." (69 LRRM at 2519). I am no more persuaded by the Union's argument than was the United States District Court which held that the Union's "tenuous thread of legal oneness" theory was insufficient "to deny the News-American the protections of the Act." 69 LRRM at 2521. It appears, as the Union suggests, that the Board has not directly passed on the question whether an unincorporat- ed division, or part of a corporate entity, may constitute a "person" under Section 8(b)(4). The parties cite no case directly in point and my research has uncovered none. However, viewed in the light of the legislative history of the section, the breadth of protection offered by it, the liberal construction given to the term "person" by the Board and courts, and the fact that it is the substance and not form or structure of the employing entity to which the Board and courts look in determining obligations and benefits under the National Labor Relations Act, I see no reason in principle why the term "person" should not be interpreted to comprehend in circumstances such as here, a division of a corporation not itself qualifying as a "legal entity" under technical, common law concepts To begin with, contrary to the Union's contention, the categories listed in Section 2(1) of the Act as falling within the term "person," are not all-inclusive The section merely states that the term "includes" "individuals" and certain entities such as "partnerships, associations, corporations." Nothing in the literal reading of Section 2(1) precludes divisions or parts of "corporations from qualifying as "persons" if they constitute separate and autonomous employing entities. In other words, as the Supreme Court in effect held, Section- 2(1) is an open-end definition. This, in Local Union No. 25, International Brotherhood of Team- sters, etc. v. New York, New Haven & Hartford Railroad Co., 350 U.S. 155, decided before the 1959 amendments to the Act, the Supreme Court held that a railroad was protected against secondary pressures even though specifical- ly excluded from the reach of the National Labor Relations Act by virtue of the definition of "employer" (Section 2(2) of the Act). The court stated that "since railroads are not excluded from the Act's definition of `person,' they are entitled to Board protection, from the kind of unfair labor practice proscribed by Section 8(b)(4)(A)." 350- U.S. at 231. Applying this Supreme Court holding, the Board, in Local Union No. 313, I.B.E. W. (Peter D. Furness Electric Co.), 117 NLRB 437, enfd. 254 F.2d 221 (C.A. 3), extended the protection of Section 8(b)(4) to "political subdivisions" such as a county, even though such entities were likewise not enumerated in Section 2(1). The legislative history of the 1959 amendments to the Act made it crystal clear that Congress meant to expand the concept of "employer" as used in Section 8(b)(4) to its fullest scope, or as one leading exponent of the legislation put it, "t& its full dictionary meaning."22 In my view, such a comprehensive definition of "employer" readily encompasses a separate, autonomous, and independently operated division of a corporation, which is materiall3 " See, e.g , II Legislative History of the Labor-1vianagement Reporting and Disclosure Act of 1959, 1857 (GPO 1959). free from interference and control of its parent organization. In the instant case, WBAL and News American each constitutes such division WBAL-not News American or Hearst-is the employer with whom the striking AFTRA employees had the dispute. WBAL establishes their wages and working conditions and it alone is in a position to grant the Union's demands and to resolve the underlying dispute at the bargaining table. As in the typical secondary boycott, the picketed employer (News American) could help the primary employer (WBAL) only by ceasing to do business with it. Moreover, as the Supreme Court has stressed, a statute like the Taft-Hartley Act is not susceptible to "mechanical" application. Local 1976, Carpenters v. N.L.R.B., supra, 357 U.S. at 100. See also Local 761, I. U.E. v. N.L.R.B., supra, 366 U.S. at 672; National Woodwork Manufacturers Associa- tion, et al. v. N.L.R.B., 386 U.S. 612, 619. "[T]his section 8(b)(4)(A) and (B) cannot be read or applied literally; it must be construed ... applying the intent of the statute to the facts in the case." Local No. 24, International Brother- hood of Teamsters, etc. to C E. Transportation] v. N.L.R.B., 266 F 2d 675, 68t) (C.A.D.C.).23 To accept the Union's interpretation that a corporation can have no sepa. rate and independent employing entities within it would, as the Union frankly asserted at the hearing, legally sanction carrying its dispute with WBAL (and picketing) not only to News American (6 miles away in the same city), but to everyone of Hearst's numerous divisions (newspapers, radio and television stations, motion pictures, real estate facilities, etc.) in every part of the country. Such enlargement of the area of industrial conflict would create a situation whereby distant, diverse, and independently operated enter- prises of a conglomerate could be embroiled in labor disputes which they could not help resolve. It is no answer to say, as the Union suggests, that Hearst only had to incorpo- rate its divisions to escape disruptions. Such argument exalts form over substance and, if it were to prevail, would defeat the overall statutory objective to insulate employing entities from controversies not their own. As in other areas of industrial relations, the Board must look beyond "organizational form" and evaluate the nature and status of the enterprise in the light of industrial reality. Cf. N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 129.24 Although, as stated, the Board has not directly ruled on the question whether a division or unit of a corporate entity may qualify as a "person" under Section 8(b)(4), it did consider the legality of picketing one unit of a corporation where the dispute existed between the union and another unit, but the Board decided that case on grounds other than here advanced. In Alexander Warehouse & Sales Company," the union, in furtherance of a labor e3 See also N L R B v Fruit and Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations Committee, Inc ], 377 U S 58, 71-72 li]t is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of the makers " " See also, e g, N.LR B. v Condenser Corporation of America, 128 F 2d 67, 71-72 (C A 3), N.L R B v Gibraltar Industries, Inc., etaL, 307 F,2d%28iC A 4). " International Brotherhood of Teamsters, Chauffeurs, Wrrehousemen and Helpers of America, AFL-CIO, and Local 179, etc. (Alexander Ware- house & Sales Company), 128 NLRB 916 AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS dispute with a warehouse owned by a corporation, picketed two other warehouses maintained by that corporation in two other cities. The Board dismissed the 8(b)(4) charges not on the ground that the corporation was a single legal entity operating three warehouses which were not separate legal entities, but on the ground that the two allegedly neutral warehouses were sufficiently "allied" to the third (by virtue of common general supervision, central purchases, pooled shipments, and interchange of employees) to all constitute an integrated enterprise. 128 NLRB at 919 If, as the Union here contends, a single corporation cannot have more than one "person" within itself, or among its divisions, that simple pronouncement would have been a sufficient basis for dismissal without the need for examining the various factors of control, integration, day-to-day opera- tions, etc. The instant case is, as the Union concedes, strikingly similar to a case recently decided by the United States District Court for the Northern District of California (Ken- nedy v. San Francisco-Oakland Newspaper Guild, 69 LRRM 2301) which, as here, involved two divisions of Hearst. There, the Court enjoined picketing at one Hearst division (The San Francisco Examiner division) in furtherance of a dispute with another Hearst division (Los Angeles Herald division), holding that each constituted a "person" under the Act, since each operated as separate, autonomous enti- ties, free of control by Hearst in its day-to-day operations and in its labor relations policies For all of the foregoing reasons and on the entire record, I find and conclude that News American was a "person" under Section 8(b)(4) of the Act, entitled to protection against secondary pressures. I find that AFTRA's picketing of the News American premises in furtherance of its dispute with WBAL was in violation of Section 8(b)(4)(1) and (u)(B) of the Act CONCLUSIONS OF LAW 1. The Union (AFTRA) is a labor organization within the meaning of Section 2(5) of the Act 2. WBAL and News American are employers engaged in commerce or industries affecting commerce within the meaning of Sections 2(2), (6), (7) and 8(b)(4) of the Act 3. WBAL and News American are "persons" within the meaning of Sections 2(1) and 8(b)(4) of the Act. 4. By picketing the premises of News American, with which it had no labor dispute, the Union has engaged in, and has induced and encouraged individuals employed by News American to engage in a strike or refusal to perform services, and has threatened, coerced, and restrained News American, with an object in each case of forcing or requiring persons engaged in commerce or in an industry affecting commerce, to cease doing business with News American, and thereby has violated Section 8(b)(4)(i) and (n)(B) of the Act 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend the 601 customary cease-and-desist order and the usual affirmative relief ordered in cases of this nature, including posting of notices. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following- RECOMMENDED ORDER American Federation of Television and Radio Artists Washington-Baltimore Local, AFL-CIO, its officers, repre- sentatives, and agents, shall. I Cease and desist from- (a) Inducing or encouraging any individual employed by Baltimore News American Division, The Hearst Corpora- tion, or any other person engaged in commerce or in an industry affecting commerce (other than WBAL Division, The Hearst Corporation), to engage in a strike or a refusal in the course of his employment to use, manufacture, proc- ess, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any serv- ices, where an object thereof is to force or require persons engaged in commerce or in an industry affecting commerce, to cease doing business with Baltimore News American Division, The Hearst Corporation. (b) Threatening, coercing, or restraining Baltimore News American Division, The Hearst Corporation, or any other person engaged in commerce or in an industry affecting commerce (other than WBAL Division, The Hearst Corpo- ration), where an object thereof is to force or require persons engaged in commerce or in an industry affecting commerce, to cease doing business with Baltimore News American Division, The Hearst Corporation. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix "26 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director signed copies of the aforesaid notice for posting by WBAL Division, The Hearst Corporation, and by Baltimore News American Division, The Hearst Corporation, they being willing, at places where they customarily post notices to their employees." 'b In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith "