New York Typographical Union 6 (Thermo-Craft Press)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York Typographical Union No. 6, AFL-CIO and Thermo-Craft Press, Inc. Case 2-CC-1442 October 17, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 14, 1977, Administrative Law Judge Melvin J. Welles issued the attached Supplemental Decision in this proceeding. t Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. 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 Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge as modified herein. It is well settled that Section 8(b)(4)(B) proscribes only secondary picketing; that is, picketing "tactical- ly calculated to satisfy union objectives elsewhere." 2 Here, Local 6 was picketing with the objective of regaining the work formerly performed by its members. Although the dispute originally involved Thermo-Craft II, that company has ceased to exist. Thermo-Craft III has taken over Thermo-Craft II's name and is operating the same type of business at the same premises. Thermo-Craft III is now in control of the disputed jobs. The picketing by Local 6 - directed against Thermo-Craft III, with the objective of regaining jobs at Thermo-Craft III - can hardly be said to have the objective of satisfying objectives elsewhere. 3 The fact that Thermo-Craft III has contracted out the unit work to an ostensibly separate company does not compel a different result.4 Prestige is doing that work and therefore has involved itself in the dispute.5 Accordingly, we affirm Administrative Law Judge Welles' conclusion that Local 6 has not engaged in the unfair labor practices alleged in the complaint and adopt his recommended Order dismissing the complaint. 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 233 NLRB No. 14 hereby orders that the complaint is dismissed in its entirety. Contrary to Administrative Law Judge welles' interpretation, our earlier ruling, reported at 227 NLRB 1344 (1977), was not based solely on the fact that the requested adjournment was to last only 10 minutes. Rather, it was based on several considerations, including the duty of the Administrative Law Judge to "inquire fully into the facts" (Rule 102.35), the fact that the hearing was not yet closed, and the fact that no substantial delay was involved and no party would have been prejudiced. 2 National Woodwork Manufacturers Association v. N.LR.B., 386 U.S. 612,644 (1967). 3 As we have found that the picketing is not for a proscribed purpose, we find it unnecessary to reach the question of whether Thermo-Craft Ill is a successor to Thermo-Craft II. 4 Although Prestige claims to be an independent partnership, it does almost all of its work for Thermo-Craft III, must do Thermo-Craft Ill's work on a priority basis, pays no rent to Thermo-Craft III for use of its premises and equipment, and does not even have its own telephone, but rather uses Thermo-Craft Ill's. I Graphic Arts International Union, A FL-CIO ; and Local 277, Graphic Arts International Union AFL-CIO (Kable Printing Company), 225 NLRB 1253 (1976). SUPPLEMENTAL DECISION STATEMENT OF THE CASE MELVIN J. WELLES, Administrative Law Judge: The initial hearing in this proceeding was conducted on August 4, 1976. After all parties had rested, and the General Counsel and counsel for Respondent both indicated a desire to file briefs rather than argue orally before me, I indicated some concern about the question of jurisdiction, and that I would appreciate briefs on that question. At that point, counsel for the General Counsel stated that he "didn't see the problem originally," and asked that the hearing be "adjourned for one week or two weeks or a month and we'll get a few witnesses who can testify personally to where the paper comes from." I I indicated to counsel for the General Counsel and the Charging Party that I did not think it was fair to afford them an opportunity to prove jurisdiction, beyond the proof already adduced, on the basis of my having raised a question in that regard in connection with the briefs to be filed. Accordingly, I denied the request for an adjournment. At that point, counsel for the General Counsel requested an adjournment "for ten minutes," to get one witness to testify about the origin of the paper purchased by Thermo- Craft.2 I informed the parties that whether the request for an adjournment was for 2 weeks or 10 minutes, the question of fairness remained the same-had it not been for my comments regarding the briefs, neither the General Counsel nor the Charging Party had any intention of adducing any further evidence respecting jurisdiction. I also pointed out that it did not appear that a single witness could establish the requisite "indirect inflow," as based on the evidence already adduced, it took a combination of all the purchases by Thermo-Craft, and a projection of those purchases over a full 12-month period, to reach the $50,000 indirect inflow standard. Accordingly, I adhered to my denial of any request for an adjournment. I The problem that concerned me was whether there was any probative evidence of indirect inflow. 2 Or Raised Print Corporation. 6 NEW YORK TYPOGRAPHICAL UNION NO. 6 Neither the General Counsel nor the Charging Party (which adopted the General Counsel's brief) referred to this ruling in the brief filed with me. Rather, they argued that there was sufficient evidence in the record upon which to assert jurisdiction, essentially taking the position that the testimony establishing the requisite indirect inflow, al- though hearsay, was "admitted without objection" and hence could properly be used. For reasons fully expressed in my original decision, I rejected this argument, and dismissed the complaint. Thereafter, on January 21, 1977, the Board set aside the order dismissing the complaint, and directed that the record be reopened and a further hearing held before me to receive additional testimony on the issue of jurisdiction, to be followed by a decision on the record as a whole, including the evidence received at the reopened hearing. The entire rationale of the Board's decision is as follows: "The General Counsel excepted to this ruling on the basis, inter alia, that the Administrative Law Judge abused his discretion by refusing to grant a 10-minute adjournment for the purpose of obtaining witnesses to testify regarding the origin of the paper products purchased by Raised Print Corporation. [Footnote omitted.] The requested adjourn- ment would not have prejudiced anyone. We therefore agree with the General Counsel that, in the interest of justice, the case should be remanded for the purpose of taking additional testimony on the question of jurisdic- tion." I deem it necessary to go into this much detail about the history of this case for several reasons. In the first place, I did not have any occasion to explain my ruling in my initial decision, as the parties briefed the case to me on the record as it was made, and had not, although invited to do so at the hearing by me, filed an appeal with the Board from that procedural ruling. Secondly, the wording of the Board's decision, by making it appear that I denied a request of the General Counsel for a 10-minute adjourn- ment during the presentation of testimony, and by failing to recite the procedural basis for the ruling may be misleading if the case is further reviewed by higher authority. Finally, I suggest that the Board's result in this case will serve to deter Administrative Law Judges from commenting, at the close of a case, on matters they would like briefed. Suppose, for example, it is suggested by the Administrative Law Judge that the evidence of knowledge of an alleged discriminatee's union activity is thin, or insufficient, and that he hopes the General Counsel will brief the point. Does that automatically entitle the General Counsel, upon request, to reopen his case to bring in another witness on the point? And would not granting such a request, inspired solely by the Judge's comment, be prejudicial to the respondent as being tantamount to the Judge helping the General Counsel prosecute his case? In any event, the case was reopened on March 15, 1977, at New York City, New York. Upon the entire record, including my observation of the witnesses, I make the following: 3 For the sake of clarity, as the General Counsel states and does in his brief, I shall refer to Thermo-Craft up until September 1973 as Thermo- Craft I, between September 1973 and December 1975 as Thermo-Craft II, FINDINGS OF FACT I. THE BUSINESS OF THE CHARGING PARTY-EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Thermo-Craft Press, Inc., and Raised Print Corporation are New York State corporations, the latter being engaged in printing stationery, cards, announcements, and related products, with the former being its sales agent. The two corporations are, as Respondent Union admits, affiliated businesses, with common officers, ownership, and opera- tors, and constitute a single integrated business enterprise. Based on a stipulation entered into by the parties at the reopened hearing, it is also clear that Thermo-Craft and Raised Print annually purchased goods and materials valued in excess of $50,000 originating outside the State of New York. I find, accordingly, that they constitute an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. New York Typographical Union No. 6 is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Thermo-Craft Press, Inc., has been doing business at 160 Varick Street, New York City, for many years, since at least 1957, engaged in printing stationery, cards, and related products. Martin Melamed was secretary of Thermo-Craft 3 and owned 10 percent of its stock up until September 1973, when all the stock of Thermo-Craft I was purchased by Nu-Art, Inc., a Chicago corporation. Me- lamed remained at Thermo-Craft II as its plant superinten- dent, although he no longer owned any stock, and the business continued unchanged, with the same employees, and the same union contracts, including one with Respon- dent herein, Local 6 of the New York Typographical Union. Shortly after Nu-Art took over, the eight typo- graphical employees of Thermo-Craft II were laid off, following a dispute, details of which are not relevant here, concerning new methods of setting type. Sometime in February 1974, Respondent began picketing the premises of Thermo-Craft II, with signs reading "New York Typographical No. 6 is Locked Out by Thermo-Craft Press." This picketing continued until it was enjoined by the district court in July 1976. On December 1, 1975, Morton Zamore and Martin Melamed purchased Thermo-Craft II, with Zamore, who bought two-thirds of the stock, becoming president, and Melamed, who bought one-third, secretary. On the same date, the now Thermo-Craft III (which includes Raised Print, as noted above) executed an agreement with a newly formed "company" called Prestige, consisting of three typographers, for Prestige to run its composing room at 160 Varick Street, performing all the "hot metal" work that had and after that as Thermo-Craft III. Thermo-Craft III shall also be used to encompass Raised Print, which, as noted above, constitutes with Thermo- Craft III a single integrated business operation. 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD previously been performed by the Local 6 typographers who were laid off in February 1974.4 Although Zamore testified that Thermo-Craft III uses other companies for some of its typography work, there was no elaboration of this, or specific evidence to support it. Marchisella testified that Prestige performed work for other customers than Thermo-Craft III, but was able to name only one such customer. It is clear that the three typographers known as Prestige perform virtually all their work for Thermo-Craft III, and that virtually all of Thermo-Craft III's hot metal work is performed by those three individuals at Thermo-Craft III's premises at 160 Varick Street. On January 14, 1976, Zamore wrote to Respondent Union, informing the Union that Thermo-Craft III "does not employ any individuals who are engaged in the setting of type," that Thermo-Craft 1 no longer existed, and requesting that the Union cease picketing the premises at 160 Varick Street. As stated earlier, the Union continued to picket until the picketing was enjoined by the district court the following July. B. Discussion In determining whether particular union action, here, picketing of Thermo-Craft III, is permissible primary activity or forbidden secondary activity, it is necessary to inquire whether "under all the surrounding circumstances, the Union's objective was preservation of work . . . or whether the . . . boycott [was] tactically calculated to satisfy union objectives elsewhere," National Woodwork Manufacturers Assn. v. N.LR.B., 386 U.S. 612, 644. Reiterating its view of the law, the Supreme Court, in N.LRKB. v. Enterprise Association of Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice Machine & General Pipefitters of New York and Vicinity, Local Union No. 638, 429 U.S. 507, 510 (1977), pointed out, " ... it is not necessarily a violation of Section 8(bX4XB) for a union to picket its employer for the purpose of preserving work traditionally performed by union members even though in order to comply with the union's demand the employer would have to cease doing business with another employ- er." "All the surrounding circumstances" of the instant case establish, in my opinion, that the Union's objective was "preservation of work." Employees represented by Local 6 had been performing "hot metal" work at premises labeled Thermo-Craft for close to 20 years. When they were laid off by Thermo-Craft II in February 1974 they began to picket. This picketing was plainly, and concededly, primary and lawful vis-a-vis the provisions of Section 8(bX4XB) of the Act.5 The picketing continued, without any change in its objective, after Thermo-Craft II became Thermo-Craft III. Thus, Respondent Union was continuing to picket at 4 It is clear from the testimony of Frank Marchisella (one of the three "partners" of Prestige; the other two being Robert Sullivan and Robert Cassidy) that Zamore and Melamed must have made all arrangements short of executing the December I agreement with Thermo-Craft 11 some months before December I, for Marchisella was given a number to call Zamore in connection with seeking employment at Thermo-Craft III back in Septem- ber, and formed the partnership with Sullivan and Cassidy, all three having been employed at a company on Long Island that had closed down, before November 1975. the same premises, 160 Varick Street, that it had picketed since February 1974, with picket signs naming "Thermo- Craft," the same name used on the signs since the inception of the picketing, and with a company called Thermo-Craft still occupying those same premises, and still engaged in the same type of work, albeit with an ostensibly new company, Prestige, performing the precise work that had been done by the former employees. The change in the ownership of the picketed company, even assuming the effect of that change was to create a wholly new entity, rather than making Thermo-Craft III a successor to Thermo-Craft II, in no way affects the right of Local 6 to seek to regain the work for the employees who had performed it. As the Board stated in a somewhat analogous situation, "The fact that it [the alleged neutral in that case] has determined to subcontract all . . [the] work does not alter the fact that it is the work of the striking employees that has been contracted out." Graphic Arts International Union (Kable Printing Company), 225 NLRB 1253, 1254 (1976). Indeed, on the somewhat limited facts adduced at the hearing with respect to Thermo-Craft III's relationship to Thermo-Craft II, I believe that the former is the successor to the latter. As noted above, Thermo-Craft III performs the same kind of work, at the same location, and with the same machinery, and of course the same name, as did Thermo-Craft II. Melamed, who managed Thermo-Craft II for Nu-Art, is one-third owner and secretary of Thermo- Craft III. And apparently the employees who had contin- ued working for Thermo-Craft II after the Local 6 employees were laid off also worked for Thermo-Craft 111.6 Even this cursory evidence seems sufficient to establish Thermo-Craft III as a legal successor to Thermo-Craft II. That being so, there could, of course, be no question but that the picketing of Thermo-Craft III on and after December 1, 1975, was primary. Kable Printing; supra; National Woodwork, supra. The General Counsel's basis for finding a violation here is essentially to assert that "Respondent's dispute was only with Thermo-Craft II," that Thermo-Craft II having discontinued its typography operators, thereby terminating the employees represented by Local 6, Thermo-Craft III has no connection with the dispute, particularly since it employs none of the typographical employees who had been employed by Thermo-Craft II. For the reasons already stated, I conclude that the General Counsel's argument is without merit. The Union's attempt to get jobs at Thermo-Craft III for employees who lost their jobs at Thermo-Craft II is the dispute here involved, and is, with respect to Thermo-Craft III, which clearly has control over the work in question, a primary dispute. That Thermo- Craft II, rather than Thermo-Craft III, laid off the employees may make Thermo-Craft III blameless; it does 5 Whether it might have been "unprotected" for some other reason (and there is no such contention here) would not, of course, be germane to whether it was primary rather than secondary. 6 Zamore said "Yes" to the question "Does it employ any of the printing employees employed by Thermo-Craft while under the ownership of Nu- Art?" and added, "When we started printing we notified the Union we needed men and they sent the men down to us who happened to have previously worked for the other company." 8 NEW YORK TYPOGRAPHICAL UNION NO. 6 not make Thermo-Craft III "neutral." For all the foregoing reasons, I shall dismiss the complaint herein. CONCLUSION OF LAW Respondent has not engaged in the unfair labor practices alleged in the complaint. T 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. 9 Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The complaint is dismissed in its entirety. 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.