Graphic Arts International

GRAPHIC ARTS INTERNATIONAL Graphic Arts International Union Local 262, AFL- CIO and London Press, Inc. Case 31-CC-397 December 28, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 29, 1973, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER KENNEDY, concurring: I concur in the conclusion of my colleagues that the complaint herein should be dismissed. I do so without reaching the merits of the case. In my view, Section 102.48 of the Rules and Regulations of the National Labor Relations Board requires us to adopt the Decision of the Administrative Law Judge because the General Counsel's exceptions and brief in support thereof were untimely filed. It is undisputed that General Counsel did not send to Respondent or its counsel a copy of his request for an extension of time to file exceptions and brief to the Decision of the Administrative Law Judge. Section 102.46(a) of our Rules requires that such requests be served promptly upon the other parties. Telephone advice to opposing counsel of an inten- tion to request an extension does not constitute substantial compliance with the rule, in my opinion. I am unwilling to ignore the fact that the extension here was obtained through an ex paste communica- tion to the Board in breach of our Rules. I do not believe the ex paste communications with the Board should be encouraged. I would grant Respondent's motion to strike the 37 exceptions and brief as untimely filed and adopt pro forma the Decision of the Administrative Law Judge. DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: This case was tried before me in Los Angeles, California, on May 29 and 30, 1973. The complaint, which issued on April 30, 1973, pursuant to a charge filed on April 3, 1973, alleges violations of Section 8(b)(4)(i) and (ii)(B) of the ' Act. Respondent's answer admits a number of the factual allegations in the complaint but denies the jurisdictional allegations and that the object of its picketing was illegal on the ground the primary and alleged secondary employ- ers are not unrelated business enterprises, but are in fact economic allies in an integrated "straight-line" business operation. Thus, the principal issue is whether London Press, Inc., Parliament News, Inc., American Art Enter-' prises, Inc., and World News, Inc., d/b/a Pacific News are separate and unrelated employers, or economic allies in an integrated "straight-line" business operation. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally on the record, and to file briefs. Briefs were filed by both Respondent and the General Counsel. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTION The London Press, Inc., herein called London, is engaged in printing adult materials in North Hollywood, California. London annually sells printed publications valued in excess of $50,000 directly to customers located outside the State of California. American Art Enterprises, Inc., herein called American, is engaged in the production and publication of adult materials. Parliament News, Inc., herein called Parliament, is engaged in the distribution of printed materials on a nationwide basis. World News, Inc., d/b/a Pacific News, herein called World, is engaged in the distribution of printed materials in the Los Angeles County, California, area. American, Parliament, and World are engaged in their respective business ventures in a single building located in Chatsworth, California. Parliament annually ships printed materials directly outside the State of California in an amount in excess of $50,000. Upon the entire record, I find that London, American, Parliament, and World are employers and/or persons engaged in commerce or in operations affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Graphic Arts International Union Local 262, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 208 NLRB No. 28 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES B. Relationship Among the Companies As stated above, American is engaged in producing and publishing adult materials at the Chatsworth location which it shares with Parliament and World. London is engaged in printing adult materials at its plant located in North Hollywood which is approximately 15 miles from Chatsworth. London is the exclusive printer of American's publications and Parliament is American's exclusive distributor on a nationwide basis. World is a local distributor to newstands and bookstores within the Los Angeles County area.4 London also does printing and bindery work for other publishers of adult materials. Last year London billed American for approximately 1-1/2 million dollars and the other publishers for a little over 4 million dollars. Thirteen publishers, other than American, were identified on the record by name as customers of London. All but one distribute their London printed publications through Parliment. All materials distributed by Parliament are printed by London.5 Oxford Bindery, a d/b/a [sic] of London,6 performs all of London's bindery operations at 7315 Fulton Street. Its office is located across the street at 7310 Fulton, which is also London's office address. The following are the officers of the respective compa- nies: A. The Labor Dispute The pleadings establish that at all material times Respondent has been engaged in a labor dispute with London' concerning wages, hours, and working condi- tions, and in support thereof picketed the premises of Parliament, American, and World from on or about March 1, 1973,2 to on or about April 26, 1973.3 The General Counsel contends that Parliament, Ameri- can, and World are neutrals to the dispute and that an object of the picketing was to force or require them, and other persons, to cease doing business with London, in violation of Section 8(b)(4)(i) and (ii)(B) of the Act. Respondent admits its responsibility for the picketing and the legend on the picket signs, but contends Parliament, American, and World are not neutrals, but are allies of London, and with London comprise a single, integrated, straight-line operation engaged in producing, printing, and distributing adult-oriented materials. The evidence estab- lished that the picketing had the effect of stopping all deliveries made by independent trucking concerns to, and pickups from, the Chatsworth premises occupied by American, Parliament, and World. President Vice President Secretary-'treasurer London Robert Accetta Michael Mahr Beatrice Luros Parliament Paul Wisner Howard Green Rita Grossman American Wilbur Hulsey Howard Green Rita Grossman World Howard Green (Open) Rita Grossman Five percent of the stock of each company is held by its respective president, and the remaining 95 percent is held in trust with the City National Bank as trustees and Milton and Beatrice Luros as the beneficiaries. Milton Luros is also London's manager, for which he receives a salary. No dividends have been paid on the stock held by the presidents of the various companies. While each of the companies maintains separate books and records, Parlia- ment, which has a system three IBM machine, performs the accounting functions for all of the companies on a daily basis, including billing customers, seeing that bills are paid, and processing the payrolls for each of the compa- nies. London rents space for, and employes a bookkeeper at, the Parliament offices. Rita Grossman, Parliament's office manager, assists London's bookkeeper. All of the employers involved herein share the cost of Harold Ross, a certified public accountant, and have the same corporate 1 Respondent and London were parties to a recently expired collective- bargaining agreement covering London's lithographic production employ- ees 2 All dates herein are 1973 unless otherwise stated. 3 The legend on the signs read: This plant does not meet prevailing wage standards, fringe benefits and working conditions established in So California for lithographic production employees. Graphic Arts International Union Local 262 protests these sub-standard conditions of employment at this plant From about April 16 to 26, the wording or. one of the picket signs was counsel. There is no eivdence of interchange or transfer of employees among the companies, and the president of each company is in charge of the labor relations matters covering his respective entity. Until the expiration of its collective-bargaining agreement with the Respondent, London's lithographic production employees were covered by employee benefit plans negotiated with Respondent. Its nonbargaining unit employees were included in the benefit plans which covered the employees of American, Parlia- ment, and World. Since the expiration of the contract, all of London's employees have been included within the fringe benefit plans covering the employees of the other companies involved herein. For a number of years, London's office has been located at 7310 Fulton Street, and its printing plant has been across the street at 7311 Fulton. Prior to January 1972, when Parliament, American, and World moved to the changed by substituting the words "Parliament News" in place of "This Plant." 4 The record does not disclose whether World's distribution is limited to American's publications or London printed materials. 5 Based upon the credited testimony of Rita Grossman , who, as Parliament's office manager, the secretary-treasurer of Parliament , Ameri- can, and World , performs accounting functions for all of the companies involved herein, including London. 6 Parliament Press is another d/b/a [sic ] of London Detaii •egardmg its operations were not elicited during the trial GRAPHIC ARTS INTERNATIONAL Chatsworth location, American occupied the front of the building at 7311 Fulton and London occupied the rear portion. While there was a wall between the two opera- tions, there were several connecting doors and it was common practice to keep at least one of the doors open during the day for traffic between the two. There was daily contact between personnel of both companies for the purpose of checking work.? At one time Parliament used one of the rooms at the rear of the building for storage purposes. For about 2 or 3 years prior to moving to the Chatsworth location, Parliament occupied premises on Wyandotte Street in North Hollywood, approximately four to six blocks from London's operations. Before that, Parliament occupied the building now occupied by Oxford Bindery at 7315 Fulton, next door to the London and American operations, and before that it shared the premises at 7311 Fulton. While each of the companies had its own phone number, there was a single telephone switchboard located at 7311 Fulton which served all three companies. The door to the premises at 7311 listed the names of London, Parliament, and American. After Parliament and American moved to Chatsworth in January 1972, a handmade sign was placed in the door beneath the three names, informing the public that American and Parliament had moved. The names of American and Parliament have more recently been deleted from the glass door. Accetta testified that Ross, the CPA for all four companies, attends meetings of London's corporate offi- cers, and that Milton Luros attended the last meeting.8 Hulsey testified' that the last meeting of the officers of American occurred in 1972 and dealt with production and sales. Wisner, president of Parliament, was present since he is involved in sales. The meeting was held in the Oxford Bindery offices at 7310 Fulton and Milton Luros was present. Hulsey further testified that he had known and worked for Mr. Luros in New York and that he moved to California in 1957 and joined Luros who had gone there earlier. American was founded by Luros, and Hulsey was employed as an artist with the company when it was first formed. Hulsey testified that late in the summer of 1971, he told Luros that ". . . I'd like to move up in the organization," and that Luros responded ". . . something to the effect, `It's about time.' " Hulsey further testified .. From there, things developed," and shortly thereafter he was informed by letter that he was the president. He did not own stock in the company at that time, but later received 5 percent of the stock as a gift from an unknown source. He sometimes discusses American's problems with Luros who gives him advice which he does not necessarily follow. Analysis and Conclusions The basic question in this case is whether in fact American, Parliament, and World are neutral third parties in the dispute between Respondent and London. "Allies" of a struck employer are not neutrals and are therefore not entitled to the protections of the secondary boycott 7 London now provides a delivery service between its Fulton Street plant and American's Chatsworth location. 8 As noted earlier, Milton and Beatrice Luros are the beneficiaries of the trusts which hold 95 percent of the stock of each of the corporations. Mr. 39 provisions of the Act. The "ally" principle has been applied where one employer is performing "struck work" for the primary employer, and,, where, as here, the relationship derives from a combination of circumstances indicating that the employers are engaged in an integrated, straight- line operation. Factors considered most persuasive by the Board and the courts in determining whether two or more corporations are engaged in an integrated, straight-line operation are the degree of common ownership of the employers involved, the common control of the day-to-day operations including labor relations, the extent of integra- tion of the business operations, and the dependence of one employer on the other for a substantial portion of the business .9 While it is not shown definitively that the labor relations or actual day-to-day operations of the respective employers is commonly controlled, a realistic evaluation of all the factors convinces me that London, American, Parliament, and World are engaged in an integrated, straight-line operation, and that American, Parliament, and World are not, therefore, neutrals within the secondary boycott provisions of the Act There is a high degree of common ownership in all of the four companies as shown by the fact that 95 percent of the stock of each is held in trust for the benefit of Beatrice and Milton Luros. The evidence convinces me that Milton Luros is not a passive beneficiary , but is in fact an active participant in the day-to-day operations of the employers involved herein. The evidence established that he is London's manager, for which he receives a salary, and although not an officer, that he attended the last meeting of London's officers. Although not an officer of American, he also attended the last meeting of the officers of that corporation, which also included Wisner, Parliament's president. Hulsey testified that Wisner attended because "the meeting had to do with production and sales and he was involved in sales." No explanation was given why the meeting was held in the Oxford Bindery office at 7310 Fulton Street, which is the location of Luros' office, instead of the Chatsworth premises where all of the officers of American and Parliament are located, nor why Luros attended.10 Additional evidence which convinces me Luros is active in the day-to-day operations and control of the companies is Hulsey's testimony regarding his elevation to the office of president of American shortly after informing Luros that he would ". . . like to move up in the organization," and Luros' response that "It's about time." Furthermore, Hulsey depends upon Luros for advice. The evidence established that until January 1972, when American, Parliament, and World moved the approximate 15 miles to the Chatsworth location, London, American, Parliament, and World occupied the same or adjacent buildings for approximately I1 years. During that time there was a common telephone switchboard and the names of London, American, and Parliament were listed on the door to the premises at 7311 Fulton. Although the companies maintain separate -books and records, the Luros is also London's manager. 9 N L.R B v. Local810, IBT (Sid Harvey, Inc), 460 F.2d I (C.A. 2, 1972). i0 The evidence does not disclose a representative of the trustee attends meetings of officers of any of the corporations. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accounting functions for each is handled by Parliament. There is a common certified public accountant and corporate counsel. Prior to the labor dispute between London and the Respondent Union, the nonbargaining unit employees of London and the employees of American, Parliament, and World participated in the same employees benefit plans. London's bargaining unit employees were added to the same plan following the expiration of the collective-bargaining agreement with the Respondent Union. London's exclusive punting, and Parliament's exclusive distribution of all of American's publications, and Parliament's exclusive distribution of virtually all other material printed by London, further convinces me that American, London, and Parliament are a part of a unified and economically integrated production, printing and sales effort which may be characterized as a "straight- line operation." In this vein, it is noted that American is entirely dependent upon London's printing and upon Parliament's distribution of its publications, while Parlia- ment is entirely dependent upon London's printed materi- als for distribution, and American's publications account for a substantial amount of London's printing.11 On the basis of these facts, I find that American, Parliament, and World are not neutrals or wholly uncon- 11 Accetta testified that approximately 60 to 80 percent of London's work was for American Rita Grossman testified that last year London billed American for approximately 1-1/2 million dollars and others for a little over 4 million dollars 12 Local No 235, Lithographers and Photoengravers International Union (Henry Wurst, Inc), 187 NLRB 490 See the Board's distinction of the newspaper and other cases at p 491, fn. 4 Cf Local 810, IBT (Sid Harvey, cerned persons to the labor dispute between the Respon- dent Union and London, within the meaning of Section 8(b)(4)(B) of the Act. I therefore conclude that by picketing the premises occupied by American, Parliament, and World, the Respondent Union did not violate Section 8(b)(4)(B) of the Act.12 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. London, American, Parliament, and World are employers and/or persons engaged in commerce or in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in any unfair labor practices. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 13 ORDER The complaint is dismissed in its entirety. Inc), 189 NLRB 612; enfd denied 460 F 2d I (C.A. 2, 1972). 13 In the event no exceptions are filed as provided by Sec 102 .46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.