The Evening News Association

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 219 (N.L.R.B. 1967)

THE EVENING NEWS ASSOCIATION
The Evening News Association , Owner and Publisher
of the Detroit News and Local 10, Detroit Paper
& Plate Handlers Union , International Printing
Pressmen and Assistants' Union of North America,
AFL-CIO and Detroit Newspaper Printing Press-
men's Union No. 13, International Printing Press-
men and Assistants ' Union of North America,
AFL-CIO and Local 12, Detroit Photo-Engrav-
ers' Union , International Photo-Engravers'
Union of North America , AFL-CIO and Detroit
Stereotypers' Union No. 9, International Stereo-
typers' and Electrotypers ' Union of North Amer-
ica, AFL-CIO and Detroit Mailers Union #4,
International Mailers Union and Newspaper
Drivers & Handlers ' Local Union No. 372,
International Brotherhood of Teamsters , Chauf-
feurs, Warehouseman and Helpers of America,
Ind.
Detroit Newspaper Publishers Association and Local
12, Detroit Photo-Engravers Union , International
Photo-Engravers ' Union of North America,
AFL-CIO and Detroit Stereotypers' Union No. 9
International Stereotypers ' and Electrotypers'
Union of North America, AFL-CIO
The Evening News Association , Owner and Publisher
of the Detroit News; Knight Newspapers, Inc.,
Owner and Publisher of the Detroit Free Press;
Detroit Newspaper Publishers Association and
Newspaper Guild of Detroit, American News-
paper Guild, AFL-CIO
Knight Newspaper , Inc., Owner and Publisher of the
Detroit Free Press and Detroit Mailers Union #4,
International Mailers Union
Detroit Newspaper Publishers Association and Local
No. 58, International Brotherhood of Electrical
Workers, AFL-CIO
Knight Newspapers, Inc., Owner and Publisher of the
Detroit Free Press; The Evening News Association,
Owner and Publisher of the Detroit News and
Local No. 58 , International Brotherhood of Elec-
trical Workers, AFL-CIO. Cases 7-CA-3683,
3683(2), 3683(3), 3683(4), 3683(5), 3683(6),
3683(7), 3683(8), 3683(9), 3695, 3695(2),
and 3695(3)
June 29, 1967
SUPPLEMENTAL DECISION AND ORDER
On January 15, 1964, the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding, concluding, on the basis
of the findings of fact set forth there and in the Trial
1145 NLRB 996. The Board dismissed other allegations of the com-
plaint , they are not involved in the case at this point.
219
Examiner' s Decision attached thereto, that the
Respondent violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, by
locking out certain of its employees.' The Board's
Order required Respondent to cease and desist
from the unfair labor practices found and to take
certain affirmative action designed to remedy those
unfair labor practices. While this case was pending
before the Sixth Circuit, the Supreme Court handed
down its decision in American Ship Building Com-
pany v. N.L.R.B., 380 U.S. 300. The Board moved
the Sixth Circuit to remand the instant case so that
the Board might reconsider it in the light of
American Ship, but the court denied the motion
and reversed the Board's holding that the lockout
had been unlawful. Subsequently, on January 17,
1966, the Supreme Court, pursuant to a petition for
certiorari filed by the Teamsters, in which the
Board joined to the extent of requesting a remand
to the Board, vacated the judgment of the Sixth Cir-
cuit and remanded the case to the court of appeals
with instructions that the case be remanded to the
Board for further consideration of the impact of
American Ship. The court of appeals on February
28, 1966, remanded the case to the Board. On April
25, 1966, the Board invited the parties to file
further briefs. Subsequently, briefs were filed by the
General Counsel, by Respondent, and by
Newspaper Drivers & Handlers' Local Union No.
372, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Ind. A joint brief was also filed by Local 10,
Detroit Paper & Plate Handlers Union, Interna-
tional Printing Pressmen and Assistants' Union of
North America, AFL-CIO, and Detroit
Newspaper Printing Pressmen's Union No. 13, In-
ternational Printing Pressmen and Assistants'
Union of North America, AFL-CIO.
Pursuant to the court's remand, the Board has
reconsidered its Decision and Order . In doing so,
the Board has considered the Trial Examiner's
Decision, the exceptions and briefs, the supplemen-
tal briefs, and the record as a whole. For the
reasons hereinafter set forth, the Board now finds
that Respondent Evening News did not violate Sec-
tion 8(a)(1) and (3) by locking out its employees.
The relevant facts are as follows:
The News, which publishes an afternoon and
Sunday edition, and the Free Press, which
publishes a morning and Sunday edition, are the
only large daily newspapers in Detroit. They are
also the only members of the Detroit Newspaper
Publishers Association, which handles the
publishers' labor relations. Some 14 labor organiza-
tions represent employees of one or both papers.
Bargaining with most of the unions had been con-
ducted on a multiemployer basis through the As-
166 NLRB No. 6
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sociation. However, for about 20 years, each paper
has bargained separately with the Teamsters as the
representative of its distribution employees.
In October 1961, Teamsters gave notice to the
Free Press of its desire to revise its contract expir-
ing November 15, 1961. After some 17 bargaining
sessions , on April 6, 1962, the Teamsters presented
a revised proposal to the Free Press and advised
that strike action would be recommended to the
membership on April 11 if a satisfactory offer was
not received by that date. On April 11, the Free
Press presented its "last best offer." The Teamsters
members in the Free Press unit rejected the offer
and voted to strike; a picket line was set up that af-
ternoon and the Free Press suspended publication.
In October 1961, the Teamsters also gave notice
to the News of its desire for a revision of its con-
tract, also due to expire on November 15, 1961,
with that paper. Between October 17 and January
11, 1962, the Teamsters and the News held 13 bar-
gaining sessions . Negotiations were then suspended
until March 22, apparently due to the Teamsters
desire to concentrate on negotiations with the Free
Press, and notwithstanding the News' expressed
desire that negotiations continue without interrup-
tion. The parties met again on March 22 and the
Teamsters agreed to submit revised contract
proposal.2 These proposals were submitted to the
News on April 12, the day following the com-
mencement of the strike at the Free Press.
Before the News received the revised Teamsters
proposals, its officials met with officials of the Free
Press on April 9 and 10 to discuss what they con-
sidered to be their common problem vis-a-vis the
Teamsters. The News concluded that of the 18 or
so issues remaining between the Teamsters and the
Free Press, 10 were also of interest to the News in
its negotiations with the Teamsters. Of these 10 is-
sues, the News considered 3 as being vital in its bar-
gaining and urged the Free Press to maintain its
position on these under all circumstances. The
News agreed that if the Teamsters struck the Free
Press over its refusal to accede to any of those three
demands, "the News would support the Free Press
and would not publish." The two publishers further
agreed that "the Union should not be informed that
a strike against one is a strike against both or what
the position of the News would be in case of a strike
at the Free Press."
When Teamsters struck the Free Press on April
11, the News also ceased publication. It did not
print or distribute any papers under dateline of
April 12, 13, or 14, although all of its employees re-
ported for work and were paid for those days.
Under dateline of Sunday, April 15, the News
published a "double-masthead" edition, called The
Detroit News - The Detroit Free Press, "A tem•
porarily Combined Edition", which was distributed
to News and Free Press subscribers by the News
distribution employees. When work on the
"double-masthead" edition was completed on April
15, the News notified some of its employees that
they should not report for work until further notice,
stating that "there was no work available."
Meanwhile, on April 13, Teamsters International
President, James Hoffa telephoned Association Ex-
ecutive-Secretary Robert Butz to arrange a meeting
on the Free Press contract. He also told Butz that
"the News had better be present or on a standby
basis at the meeting because the issues at the News
would have to be settled or they'd be on strike al-
so." President Hoffa and local Teamsters officals
met with the Free Press on the afternoon of April
13 and the morning of April 14; they met with the
News in the afternoon of April 14. This meeting
with the News was based on the Teamsters revised
proposals submitted on April 12 to the News,
which contained the identical demands made on the
Free Press as to the three "vital issues." The pend-
ing issues were not settled at these meetings. At the
close of this meeting, according to Dorris, the
News' negotiator, the following conversation oc-
curred between him and Hoffa:
He [Hoffa] said he wanted to inform us of
a statement he had just given to the press, and
radio. He said that he had informed them they
they were going to call a union meeting and
present to this meeting the company's last
proposal. I corrected him that this was not the
company's last proposal but it had been sub-
mitted December 22nd and was still con-
sidered the best offer at that time, we were still
willing to continue negotiations. He replied in
effect regardless of whether it is the best
proposal-he paraphrased it-then this is your
final best offer and it is going to be submitted
to the union.
According to Association Executive-Secretary
Butz, the parties did not then set a date for a sub-
sequent meeting.
Teamster Local President O'Connor testified,
without contradiction, that at the conclusion
of the April 14 meeting he and Dorris had discussed
the convening of a further meeting and that Dorris
had told O'Connor that he wanted to take up with
management the matters discussed at the meeting
and that O'Connor should call him on the following
day (April 15) "in regards to setting up another
meeting . . . if we felt it would be of benefit."
O'Connor further testified that he called Dorris
on April 15, and Dorris said he had not yet had a
chance to discuss the issues with management,
but that O'Connor should call him back the follow-
ing day. Finally, O'Connor testified, on April 16
2 Between January 11 and March 22, the News requested meetings,
but the Teamsters did not honor the requests , assertedly because they
were "too busy ," were "making progress" on the Free Press negotiations,
and for other reasons.
THE EVENING NEWS ASSOCIATION 221
Dorris told him he had discussed the matter with
management and "they couldn't see where there
would be any benefit in setting up a meeting at
that time."
Negotiations were resumed on April 18 when a
meeting was held at the offices of Detroit Police
Commissioner Edwards. By the end of the meeting,
which lasted 33 hours, Teamsters and the Free
Press reached complete agreement on a new con-
tract. The Teamsters and the News resolved
some of their outstanding issues and agreed
that all issues not resolved then or by further
discussion were to be submitted to arbitration. On
April 19, Teamsters ended its strike against the
Free Press and the News ended its lockout.
The sole issue before the Board at this juncture is
whether Respondent Evening News' lockout of its
Teamsters unit employees from April 16 to 19,
1962, violated Section 8(a)(1) and (3) of the Act.3
Until American Ship, the Board regarded a bar-
gaining lockout as presumptively or prima facie
unlawful, essentially on the theory that a lockout
in effect punishes employees because their bar-
gaining agent is seeking certain concessions and
benefits at the bargaining table. Employers, in the
Board's view, had no right to use the lockout as
an offensive weapon, to foster their own bargaining
proposals by putting this kind of economic pressure
on the employees. On the other hand, the Board
regarded lockouts as legitimate which were de-
fensively motivated, e.g., N.L.R.B. v. Truck
Drivers Local Union No. 449 [Buffalo Linen
Supply Co.], 353 U.S. 87 (lockout by a multi-
employer bargaining unit as a response to a whip-
saw strike against one of its members); Interna-
tional Shoe Co., 93 NLRB 907 (to forestall
repetive disruptions of an integrated operation
by quickie strikes); Betts Cadillac-Olds, 96
NLRB 268 (to avert immobilization of cars brought
in for repair).
There is no question but that the Supreme
Court's American Ship decision has obliterated,
as a matter of law, the line previously drawn by
the Board between offensive and defensive
lockouts. For the Supreme Court squarely held
in American Ship that an employer could lock
out, after an impasse in bargaining had been
reached, for the sole purpose of bringing economic
pressure to bear on the union to accept the em-
ployer's legitimate bargaining position. We can no
longer conclude, therefore, that a lockout is un-
lawful solely because it is not defensive in nature.
The Court's holding in American Ship, it is
true, was explicitly stated to be a narrow one - the
Court in its own words was "concerned with .. .
the use of atemporary layoff of employees solely as
a means to bring economic pressure to bear in sup-
port of the employer's bargaining position after an
impasse has been reached. This is the only issue be-
fore us and all that we decide." 380 U.S. at 308.
But, although the holding was thus confined, the
reasoning of the Court must obviously be taken into
account in deciding a case such as the instant one,
even though it does not present the exact situation
present in American Ship. The Court stated that the
test of a lockout's legality, assuming no motive to
discourage union activity or to evade bargaining ex-
ists, is whether the lockout "is inherently so preju-
dicial to union interest and so devoid of significant
economic justification" that no evidence of intent
is necessary. That test affords the basis for our
determination here.
Applying these principles to the instant case is
not an easy task, particularly because the events oc-
curred almost 5 years ago, at a time when the
parties' positions were undoubtedly taken with re-
gard to and influenced by the state of then extant
Board law.4 While we cannot turn back the clock
and speculate now what Respondent's position
would have been had American Ship already been
on the books, fairness requires that we consider this
factor in evaluating Respondent's then asserted
reason for the lockout. We believe the facts of this
case plainly warrant the conclusion that Respon-
dent's lockout was preponderantly designed to
force the Union to accept the Company's bargain-
ing proposals, and we so find. As shown by the
facts, supra, the parties had been bargaining for an
extensive period of time before the lockout oc-
curred, and only because of the Union's refusal to
honor the Company's request to meet was there any
hiatus in the bargaining negotiations. Furthermore.
the Teamsters had taken a position on certain is-
sues- and struck the Free Press over those is-
sues- which the News was determined to resist.
Indeed. Teamster President Hoffa told News'
Negotiator Dorris that he considered the News'
offer as its "last proposal" and "final best offer."
Hoffa also told Association Executive-Secretary
Butz, while arranging a meeting on the Free Press
contract, that "the News had better be present .. .
because the issues at the News would have to be
settled or they'd be on strike also." It is thus
evident that, from the News' standpoint, the central
issues dividing the parties were clearly identified,
and Hoffa had threatened the News with a strike,
stating also that he regarded the Company's
proposal as a final offer. In these circumstances, we
are satisfied that both parties viewed their negotia-
tions as being deadlocked on key issues, and that
3 The Board found in its original decision in this case that the incidental it believed that an impasse had been reached in its bargaining negotiations
layoffs of other employees during this period also violated Section 8(a)(1) with the Teamsters, and it wished to bring economic pressure to bear on
and (3) of the Act In view of our decision herein, there is no occasion to the Union, it would have been conceding a violation of the Act under
consider this aspect of the case. Board law
4 Thus, had Evening News locked out then for the stated purpose that
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither doubted that a work stoppage would be
required to break the deadlock.
Also pertinent to our consideration of this case at
this stage is the impact of Respondent's agreement
with the Free Press to lock out its own employees
if the Union struck the Free Press, as well as the
fact that the lockout itself had this stated purpose.
The Board's earlier conclusion that Respondent
violated the Act was predicated on the reasoning
that a lockout could legally be utilized only as a de-
fensive maneuver, and that the existence of a true
multiemployer unit was a sine qua non to its utiliza-
tion by a nonstruck employer when the Union
struck another employer. The Board rejected Re-
spondent's asserted defense, which argued for an
extension of the Buffalo Linen principle to cover a
situation such as existed here, where the employers
involved, although not technically engaged in mul-
tiemployer bargaining, were the only two daily
newspapers in Detroit, were in direct competion
with each other, were bargaining with the same
Union, and were faced with virtually identical bar-
gaining demands by that Union. Having rejected
the Buffalo Linen defense. the Board thereupon
viewed the situation as constituting a traditional of-
fensive, and therefore unlawful, lockout under then
existing decisions.
American Ship, however, as we have pointed out,
has changed the ground rules to some extent, so
that the inquiry does,not end by concluding that a
lockout is not wholly defensive in nature. Rather,
as the Supreme Court stated, the test of a lockout's
legality, assuming no motive to discourage union
activity or to evade bargaining exists. is whether the
lockout "is inherently so prejudicial to union in-
terest and so devoid of significant economic justifi-
cation" that no evidence of intent is necessary.
We are convinced that the circumstances of this
case show both a significant economic justification
for the lockout, and a lack of conduct significantly
prejudicial to union (or employee) interests. Here,
Respondent News had bargained for many months
with the Union, and the parties were deadlocked on
significant issues. Apart from the interest of the
News in supporting the Free Press, the News, like
the Free Press, was engaged in bargaining at the
same time, with its contract having expired on the
same date, and with the key demands of the Union
being pressed upon each employer simultaneously.
The Union had suspended negotiations with the
News, and Teamster President Hoffa had explicitly
threatened a strike against the News, armed at the
time with a strike authorization by the Teamsters
membership against both papers. The interest of the
News in using economic pressure to implement its
own bargaining was thus grounded upon a very real,
direct, and immediate bargaining motivation in its
own behalf.
Our determination is based on the facts of this
case and is not meant to suggest either that all sup-
portive lockouts are lawful, or that all lockouts
which are intended to pressure a union into accept-
ing an employer's legitimate proposals are neces-
sarily lawful. Rather, the legality of any lockout
must be determined with regard to the criteria laid
down by the Supreme Court. American Ship
cautions against the promulgation of any hard and
fast rule for determining whether a particular
lockout is lawful; it does not insulate all lockouts
from illegality solely because no "bad" motive ex-
ists. We conclude, for the reasons indicated, that
the complaint in this case should be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER ZAGORIA concurring:
I concur in the results.
MEMBER BROWN, dissenting:
In my view of the facts, this case involves a situa-
tion where the Union was engaging in contem-
poraneous but separate contract negotiations with
the Free Press and Respondent Evening News,
each publisher's employees constituting a separate
unit. Unknown to the Union, the Detroit News
agreed that it would lock out its employees in sup-
port of the Free Press if the Free Press were struck
by the Union for refusing to yield on three specific
union demands in which the News was particularly
interested. The Union did strike the Free Press, and
the News thereupon locked out its employees pur-
suant to the supportive lockout arrangement. At the
time of the lockout there was no bargaining impasse
between the Union and the News.
I would reaffirm the Board's original conclusion
in this case5 that, by locking out its employees,
Respondent violated Section 8(a)(1) and (3) of the
Act. As the case involves two separate units rather
than a multiemployer unit , Buffalo Linens is no
more applicable now than when the matter was first
before us. Nor, in my judgment, does the Supreme
Court's supervening American Ship decision'
require otherwise. Quoting the Board's own lan-
guage from another case, the opinion of the Court
in American Ship sets forth the then Board law to
be that "absent special circumstances, an employer
may not during bargaining negotiations either
threaten to lock out or lock out his employees in aid
5 145 NLRB 996.
6 N.L R.B. v. Truck Drivers Local Union No. 449, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America,A.F.L, 353 U.S. 87.
7 American Ship Building Co. v. N L R.B., 380 U.S 300.
THE EVENING NEWS ASSOCIATION
of his bargaining position. Such conduct the Board
has held presumptively infringes upon
collective-bargaining rights of employees in viola-
tion of Section 8(a)(1), and the lockout, with its con-
sequent layoff, amounts to a discrimination within
the meaning of Section 8(a)(3)" (380 U.S. at 306).
Then after describing some of the special circum-
stances wherein the Board exempted certain classes
of lockouts from proscription, the Court began its
analysis with the following statement of the precise
issue presented in American Ship: "What we are
here concerned with is the use of a temporary layoff
of employees solely as a means to bring economic
pressure to bear in support of the employer's bar-
gaining position, after an impasse has been reached.
This is the only issue before us, and all that we de-
cide" [Emphasis supplied.] (380 U.S. at 308). The
Court stated in concluding its opinion that "we hold
223
that an employer violates neither § 8(a)(1) nor §
8(a)(3) when, after a bargaining impasse has been
reached, he temporarily shuts down his plant and
lays off his employees for the sole purpose of bring-
ing economic pressure to bear in support of his
legitimate bargaining position" (380 U.S. at 318).
Since the Court has thus meticulously limited its
decision to postimpasse lockouts, I perceive no
justification for the Board now to extend such hold-
ing to absolve an employer who locked out his em-
ployees, not because of a bargaining impasse con-
cerning his own employees, but to assist another
employer in a labor dispute respecting terms and
conditions of employment of the other employer's
employees in their own separate unit.
Accordingly, I would find that Respondent has
violated Section 8(a)(1) and (3) of the Act.