Graphic Arts International Union

National Labor Relations Board - Board Decisions

Jun 20, 1977

230 N.L.R.B. 1219 (N.L.R.B. 1977)

GRAPHIC ARTS INTERNATIONAL UNION
Graphic Arts International Union, AFL-CIO &
Graphic Arts International Union Local #277
(Mueller Color Plate Co. & S & M Rotogravure
Service, Inc.) and Kable Printing Company
Graphic Arts International Union #91-P (Blackhawk
Engraving Co.) and Kable Printing Company.
Cases 30-CC-285, 30-CC-286, and 38-CC-329
June 20, 1978
DECISION ON REVIEW
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Pursuant to remand, by direction of the National
Labor Relations Board,1 a further hearing was held
in the instant proceeding before Administrative Law
Judge Charles W. Schneider on November 5, 1976,
with all parties represented and participating. At the
hearing, the General Counsel reasserted his motion
to withdraw the complaint, the matter was argued
orally, and the motion was thereupon taken under
advisement.
Thereafter, on November 22, 1976, the Administra-
tive Law Judge issued the attached Decision on
Motion to Withdraw Complaint in which he granted
the aforesaid motion on the ground that the
"additional facts," which the General Counsel
asserted he is otherwise prepared to prove, do not
support a finding of unlawful conduct. In this
respect, the Administrative Law Judge viewed the
Board's decision in S & M Rotogravure Service,2
which he found controlling, as holding that so long
as Kable Printing Company continued, during the
labor dispute with the Respondent Unions, to
obligate itself to provide its cusomers an integrated
(complete) final product, which includes rotogravure
preparatory work, the latter continues to be struck
work to which the ally doctrine is applicable,
notwithstanding that the General Counsel is other-
wise prepared to prove that certain changes have
occurred in Kable's arrangements for subcontracting
the rotogravure preparatory work.
Thereafter, pursuant to Section 102.27 of the
Board's Rules and Regulations, Series 8, as amended,
the Charging Party filed with the Board a request for
review of the Administrative Law Judge's Decision,
and a supplement thereto, the Respondent Unions
filed an opposition to the Charging Party's request,
and the General Counsel filed a statement in support
of the Administrative Law Judge's Decision.
The Board has reviewed the Decision of the
Administrative Law Judge in light of the Charging
Party's request, and the entire record in this
proceeding, and, without passing on the correctness
230 NLRB No. 49
of the Administrative Law Judge's interpretation of S
& M 11,3 has decided to affirm the aforementioned
Decision, granting the General Counsel's motion to
withdraw the complaint herein. 4
Interlocutory Board order, dated October 4. 1976.
2 Graphic Arts International Union, AFL-CIO, and Local #277. Graphic
Arts International Union, AFL-CIO (S & M Rotogravure Service, Inc.,
Mueller Color Plate Co.), 225 NLRB 1253 (1976), affd. sub nom Kable
Printing Co. v. N.LR B., 540 F.2d 1304(C.A.7. 1976). hereinaftercalled S &
M II.
3 Chairman Fanning perceives no clear error in the interpretation of S &
M II, and therefore no basis for rejecting the Administrative Law Judge's
Decision herein granting the General Counsel's motion to withdraw the
complaint.
4 The Board notes, in this respect, that the Administrative Law Judge did
not peremptorily grant the General Counsel's motion, but decided the
questions presented to him using his judicial discretion. General Mainte-
nance Engineers, Inc., 142 NLRB 295 (1963). There is no evidence that the
Administrative Law Judge acted arbitrarily or capriciously in deciding those
questions or that his Decision otherwise amounts to an abuse of discretion.
DECISION ON MOTION TO WITHDRAW
COMPLAINT
CHARLES W. SCHNEIDER, Administrative Law Judge: The
General Counsel, joined by the Respondents, has moved to
withdraw the consolidated complaint. The Charging Party
opposes the motion. The motion to withdraw is a
reiteration of one made by the General Counsel in the
course of a prior hearing on the complaint, and there
granted by the presiding Administrative Law Judge on the
ground that the General Counsel has absolute authority
under Section 3(d) of the Act to secure the withdrawal of a
complaint during hearing without review by an Adminis-
trative Law Judge.'
On review of the order of the Administrative Law Judge
granting the motion to withdraw, the Board found that the
Judge had erred in peremptorily granting the motion to
withdraw the complaint. The Board held that where, as
here, relevant evidence has been adduced at a hearing, the
General Counsel no longer retains absolute control over a
complaint, and a subsequent motion to dismiss any portion
of the complaint is within the discretionary authority of the
Administrative Law Judge. Accordingly, the Board direct-
ed that the Administrative Law Judge reconsider the
motion and rule on it using his judicial discretion.2
The presiding Administrative Law Judge thereafter
withdrew from further participation in the case and was
designated in his stead for the purpose of further hearing or
other appropriate action.
Pursuant to the designation, a further hearing was held
before me in Milwaukee, Wisconsin, on November 5, 1976,
with all parties represented and participating. At that
hearing the General Counsel reiterated his motion to
withdraw the complaint, and the matter was argued orally,
following which I took the motion under advisement.
Upon the basis of the argument, and the record thus far
So far as pertinent here, Sec. 3(d) provides:
. . . [the General Counsel ] shall have final authority, on behalf of the
Board, in respect of the investigation of charges and issuance of
complaints under section 10, and in respect of the prosecution of such
complaints before the Board, and shall have such other duties as the
Board may prescribe or as may be provided by law.
2 Interlocutory Board order. October 4, 1976.
1219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made, the General Counsel's motion to withdraw the
complaint is granted for the reasons hereafter stated.
The case arises out of a strike by Local 91-P of the
Graphic Arts International Union, one of the Respondents,
against Kable Printing Company. During the course of the
strike, some of the photoengraving preparatory work
essential to Kable's work for its customers, which had
heretofore been performed by Kable, was contracted to
various independent photoengraving employers known as
front-end shops. The purchase orders for this work were
signed by Kable's customers. Local 91-P and other locals
of the International Union sought to induce refusals by
employees of the front-end shops (many of them members
of locals of the International and covered by collective-
bargaining contracts with their employers which exempted
them from performing struck work) to refuse to perform
the contracted work. These efforts, in part successful, were
alleged by Kable and the General Counsel, in a series of
cases, to constitute illegal secondary boycotting. However,
the Board held in each case that the Unions' actions were
legal, in that Kable's arrangements with the front-end
shops constituted an "ally" relationship, thus permitting
the shops to be subjected to the same union action as
Kable. 3
The gist of holdings in those cases was that the device of
having Kable's customers sign the purchasing orders to the
front-end shops for work formerly done by Kable did not
insulate the work from attack as primary under the "ally"
doctrine.
During the strike and the contracting referred to above,
Kable decided to discontinue permanently the perfor-
mance of rotogravure preparatory work, to the extent
possible. Kable then began to contract directly with the
front-end shops. The General Counsel thereupon issued a
fourth complaint in the case of Graphic Arts International
Union, AFL-CIO, and Local #277, Graphic Arts Interna-
tional Union, AFL-CIO (S & M Rotogravure Service, Inc;
Mueller Color Plate Co.), 222 NLRB 280 (1976) (Judge
Blackburn), herein called S&M II. That complaint pro-
ceeded on a different theory from the prior complaints, the
new theory being that the evidence revealed that Kable had
now permanently ceased to do any photoengraving
preparatory work. S&M II was decided by the Board on
January 14, 1976. In the interim a fifth complaint was
issued by the General Counsel in the case of Local No. 245,
Graphic Arts International Union et al. (Graphicscans Corp.),
Cases 13-CC-864, 866, and 867, herein referred to as
"Graphicscans 11," on substantially the same theory as
S&M II. At the time of issuance of the Board's decision in
S&M 11, the hearing had been completed in Graphicscans
11 and the case was pending before Administrative Law
Judge Rosenberg for decision.
In S&M II a majority of the Board members participat-
ing in the January 14, 1976, decision again sustained the
ally defense, on the ground that the General Counsel had
failed to adduce "clear and convincing" proof as to the
:' The initial three cases were: Mount Morris Graphic Arts International
Union Local No. 91-P (G.A.l.U.)(Blackhawk Engraving Co.), 219 NLRB
1030 (1975), affd. sub nom. Blackhawk Engraving v. N.L.R.B., 540 F.2d 1296
(C.A. 7. 1976) (Judge Dixon); Graphic Arts International Union (G.A.I.U)
Local #277 and Graphic Arts International Union, AFL-CIO (S&M
permanency of Kable's announced closing of its rotogra-
vure preparatory operations.
Following issuance of the Board's January 14, 1976,
decision in S&M II, Kable moved in Graphicscans II to
reopen the record in that case to adduce additional
evidence. The General Counsel opposed Kable's motion to
reopen, and additionally moved to withdraw the consoli-
dated complaint in Graphicscans II. The General Counsel's
ground was that, although the record in Graphicscans II
contained evidence beyond that in the S&M II record, the
General Counsel did not believe it to meet the standard of
evidence required by S&M II. The General Counsel further
stated that this was not to say that the evidence in the
Graphicscans II record, plus the additional evidence Kable
proposed to prove, would not meet the S&M II standard.
However, the General Counsel felt that the Graphicscans II
case was not the proper vehicle for litigating that standard.
On February 20, 1976, Judge Rosenberg denied Kable's
motion to reopen the Graphicscans 11 record, and granted
the General Counsel's motion to withdraw that complaint.
On March 25, 1976, 1 month later, the Court of Appeals
for the Seventh Circuit remanded S&M II to the Board for
further findings and clarification. [Unpublished Order sub
nom. Kable Printing Co. v. N.LR.B. ] The court directed the
Board to apply a "preponderance" test of proof rather than
the "clear and convincing" test applied by the Board. In
addition, the court directed the Board to state express
findings as to Kable's intent and good faith, and "clearly
set forth its analysis" if it found the ally doctrine
applicable.
On April 28, 1976, I month after the remand of S&M 11
by the circuit court, the General Counsel filed a motion
with the Board indicating a change of his position in
Graphicscans II, and requesting that the Board reinstate the
complaint in Graphicscans II and reopen that record.
In the meantime, hearing had begun on the instant
complaint on March 10, 1976. Because of the remand by
the Seventh Circuit of S&M 11, and other matters, the
hearing was in adjournment thereafter until September 13,
1976, when it was reopened under circumstances to be
described.
On September 9, 1976, the Board issued its Supplemental
Decision in S&M 11 (225 NLRB 1253). After reconsider-
ation, in accordance with the Circuit Court's demand, a
majority of the Board members participating in the
decision reaffirmed their prior conclusion that the General
Counsel had not overcome the ally defense, and the Board
therefore reaffirmed dismissal of the complaint.
On September 13, 1976, the hearing reconvened on the
instant complaint, at which time, as recited above, it was
dismissed upon motion of the General Counsel by the
presiding Administrative Law Judge, that ruling vacated
on review, and the matter reargued before me on
November 5, 1976.
In the meantime, on November 2, 1976, the Board issued
its order on Kable's appeal from Administrative Law Judge
Rosenberg's order on the various motions regarding
Rotogravure Services, Inc.), 219 NLRB 1053 (1975XJudge Lieberman); and
Local No. 245, Graphic Arts International Union, AFL-CIO (Graphicscans
Corporation), 220 NLRB 407 (1975XJudge Ladwig). Both of the latter two
cases were affirmed sub nom. Kable Printing Company v. N. L. R. B., 540 F.2d
1304 (C.A. 7, 1976).
1220
GRAPHIC ARTS INTERNATIONAL UNION
withdrawal of the complaint and reopening of the hearing
in Graphicscans 11. The Board stayed Judge Rosenberg's
order and remanded Graphicscans II to him to consider, in
the light of the intervening events involving S&M II,
whether the complaint in Graphicscans II should be
reinstated and the record reopened.
And, on November 4, 1976, S&M 11 was reargued before
the Seventh Circuit. It is the view of all counsel here that
that decision in the instant matter should not await
disposition of S&M II1 by the circuit court.
Conclusions
The basis for the General Counsel's motion to withdraw
the complaint is that the Board's Supplemental Decision in
S&M 11 leaves no basis for a finding of violation on the
facts in possession of the General Counsel. The motion is
not based on the General Counsel's discretionary authority
under Section 3(d) of the Act to refuse to process a
complaint. The situation thus is analogous to that of a
demurrer at common law, or a motion to dismiss at the
conclusion of the evidence, on the ground that the facts
alleged or proved do not make out a violation of law. The
novel feature in the procedure is that the motion emanates
from the prosecuting authority and not from the Respon-
dents.
The record contains no new evidence substantially
altering the facts which the Board in the prior cases found
inadequate to establish a violation of the Act. However, the
General Counsel states that he is prepared to prove several
new and additional changes in Kable's subcontracting
arrangements, but that in his view those changes are
insufficient, in the light of the Board's Supplemental
Decision in S&M II, to remove the ally relationship.
Thus, the General Counsel has stated the following:
... the evidence to be adduced by the General
Counsel in these cases would show that Kable's current
method of doing business as compared with its earlier
methods at the time of the previous S&M cases has
changed in the following respects:
A. Kable no longer has the equipment necessary to
engrave rotogravure cylinders.
B. Kable has entered into three and five-year con-
tracts with front end shops to purchase etched
rotogravure cylinders, and these contracts contain
specific yearly production requirements.
C. After the markup process, Kable no longer makes
the corrections on the cylinders supplied by the
front end shops; but, instead, ships the cylinders
back to the suppliers for the correction work.
And-
D. Engravers are no longer sent to the supplier shops
to oversee quality control, nor are other Kable
employees sent to the suppliers to supervise
production of the cylinders.
Point 4: Although we believe that the aforemen-
tioned changes in Kable's method of doing business are
substantial, we are also of the view that the Board's
supplemental decision which I've already referred to is
controlling in the instant case, notwithstanding the four
changes that I've mentioned above. In all of its briefs
and arguments, Kable has not denied that there is any
[sic]4 change in the relationship between itself, Kable,
and its customers.
It is our view that that relationship is the significant
factor relied upon by the Board in finding that Kable is
not permanently out of the rotogravure processing
portion of its business.
Accordingly, based upon the aforementioned consid-
erations and notwithstanding the substantial nature of
the changes above, General Counsel is compelled to
conclude that the supplemental decision in the S&M
Rotogravure case is controlling herein. For this reason
and not because of the exercise of prosecutorial
discretion, we hereby move for leave to withdraw the
complaint in the above-captioned cases. In fact, its a
consolidated complaint.
However, if the Board is of the view that its
supplemental decision in the prior S&M case is not
controlling because of the four points, A., B., C., and
D., that I had mentioned earlier, the General Counsel
would be prepared to continue prosecution of the
outstanding consolidated complaint in the captioned
cases before your honor.
The critical question here is thus whether, assuming the
additional facts related by the General Counsel to be
established, the ally relationship may be found to have
disappeared and a finding of a violation of the Act now
possible. Resolution of that question depends on the
principles stated by the Board in the supplemental S&M II
decision. Like the General Counsel, I conclude that the
additional facts which the General Counsel is prepared to
prove in the instant case will not permit a conclusion
different from that reached in the prior cases.
I interpet the Board's Supplemental Decision in S&M II
(225 NLRB at 1253-54) to state that, so long as Kable
continues during the duration of the labor dispute to
obligate itself to provide its customers an integrated
(complete) final product which includes rotogravure
preparation work, the latter work continues to be struck
work, to which the ally doctrine is applicable. Thus, the
majority opinion said:
. . . we are satisfied that Kable has not gone out of
the business of furnishing finished rotogravure work to
its customers. Significant in our view is the fact that
throughout this controversy, Kable has maintained in
all its essential characteristics the same relationships
with its customers as it had previously, under contrac-
tual arrangements which establish Kable as the sole
producer of its customers' printed materials. In the
beginning, Kable authored arrangements, nominally
between its customers and front-end shops, in an
attempt to have the struck work performed without
drawing those shops into the controversy as allies of
Kable. Those efforts proved unsuccessful. Thereafter,
Kable dealt directly with the front-end shops as
subcontractors, while maintaining the traditional form
The word "any" should be "no."
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and content of its contracts with customers. These
contracts call for the production of finished materials,
and encompass all phases of the work entailed in the
production of same, including rotogravure preparatory
work, printing, binding, and distribution. Clearly, by so
contracting, Kable assumes liability for any failure in
contract performance. It can hardly be said in such
circumstances that Kable, which continues to contract
for the performance of rotogravure preparatory work
with customers seeking this service and stands ready to
assume the risks attendant upon failure to perform such
contracts, has hired additional engravers for quality
control purposes, and continues to chrome and strip
cylinders and to mark up proofs, has permanently gone
out of the rotogravure preparatory portion of its
business. It still sells and furnishes rotogravure services
and products to its customers. The fact that it has
determined to subcontract all or substantially [all] of
the rotogravure production work does not alter the fact
that it is the work of the striking employees that has
been contracted out. The fact that the decision to do so,
and do so on a permanent basis, was a good-faith
business decision necessitated in part or in whole as a
response to conditions growing out of the Unions'
strike in support of their refusal to accept Kable's
bargaining proposals concerning terms and conditions
under which such work would be performed by Kable's
employees, can hardly take it out of the category of
struck work, at least during the time the labor dispute
between Kable and Respondents continues.
The facts, if they be facts, that Kable no longer has the
equipment to engrave cylinders, that its contracts with the
shops are now longer and contain specific yearly produc-
tion requirements, that the actual corrections to cylinders
required by Kable's markup are now performed by the
shops rather than by Kable, and that Kable employees no
longer physically supervise production in the shops, do not
affect the application of what I deem to be the Board's
basic principle; namely, that so long as Kable, during the
duration of the labor dispute, continues to contract with its
customers to deliver a completed product to them, all
phases of the rotogravure preparatory work involved in
that product which were performed by Kable at the time
the labor dispute arose, are subject to the ally defense. If
my conclusion in that regard is correct, the additional
changes in the subcontracting arrangements which the
General Counsel is prepared to show do not change the
result, for Kable still continues during the strike to provide
its customers with the completed struck work. As the Board
said, the fact that Kable has determined to subcontract "all
or substantially [all]" of the work "does not alter the fact
that it is the work of the striking employees that has been
contracted out." I interpret that statement to mean that
even if Kable subcontracts all of the work, the ally defense
would still be applicable during the labor dispute.
As I construe the dissenting opinion of Chairman
Murphy, she reads the majority opinion the same way I do.
While ordinarily a dissent is not necessarily a reliable
interpretation of a majority opinion, it would seem
reasonable to infer in this instance that if the Chairman's
interpretation was incorrect, the majority would have
noted it.
It is true that in S&M 11 the contracts were of short
duration and lacked specificity, and that Kable there
continued to supervise the work of the subcontractor's
employees in the latters' plants ((225 NLRB at 1254; 222
NLRB at 282), and that, according to the General
Counsel's statement, those things are no longer true. I do
not believe that discontinuance of those functions by
Kable constitutes substantial change in the significant
factual situation. For, as the Board noted in the Supple-
mental Decision (225 NLRB 1254), Kable continued to
perform other work necessary to the completion of the
photoengraving process formerly done by the strikers, such
as "continued chroming and stripping of cylinders at
Kable's facility and the marking up of proofs .... " There
is no apparent contention that Kable has abandoned or
subcontracted such work.
Where trial may produce elucidative facts or circum-
stances of possible bearing on the ultimate conclusion,
dismissal as on demurrer is not to be encouraged. Where,
however, the facts to be adduced are established, and trial
will be of no conceivable help in resolving the problem, the
ends of justice are better served by prompt disposition of
the issue. It is true that a trial that establishes the inability
of the General Counsel to prove the additional facts he has
asserted will make it unnecessary to decide the hard legal
question which the case poses. I do not view that possibility
as adequate ground to avoid deciding the issue now. If it be
thought that there is sufficient doubt as to the result as to
make denial of the General Counsel's motion not improper
as a matter of discretion, on balance I deem its granting a
more likely contribution to the expeditious disposition of
the litigation. For if my view as to the meaning of the
majority opinion of the Board is correct, a perhaps lengthy
trial, and subsequent time-consuming procedural steps,
may be avoided. If my interpretation is incorrect, resolu-
tion of the legal question will clarify the issues for trial.
The fact that the Board remanded the case to the
Administrative Law Judge for determination of the
correctness of the ruling permitting withdrawal, and that it
similarly remanded Graphicscans II, is not indication that
the rulings of the judges in those cases were based on
incorrect premises as to the substantive law-on the theory
that the Board would not go through the time-wasting
procedure of remanding where ultimately it will dismiss
anyway on the law. Procedural correctness is a matter of
due process. If remand by the Board for improper
procedure is indication of its view as to the ultimate merits
of the dispute, I would suppose that a similar conclusion
should be drawn as to the Circuit Court's remand of S&M
1I. The Board does not appear to have drawn such an
inference there, and I am consequently not impelled to
draw one here.
The General Counsel's motion to withdraw the com-
plaint is granted.
:r U.S. Government Printing Office: 1977-261-294/4
1222