American Federation of Television and Radio Artists

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 593 (N.L.R.B. 1970)

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 " NLR 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 "