New York Typographical Union 6 (Thermo-Craft Press)

National Labor Relations Board - Board Decisions

Oct 17, 1977

233 N.L.R.B. 6 (N.L.R.B. 1977)

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.