Wilkes-Barre Publishing Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 929 (N.L.R.B. 1979)

WILKES-BARRE PUBLISHING CO. 929
Wilkes-Bane Publishing Co. Employer-Petitioner and
Newspaper Guild of Wilkes-Barre, Local 120, affili-
ated with The Newspaper Guild, AFL-CIO;'
Wilkes-Barre Typographical Union, h a 1 187, af-
filiated with International Typographical Union,
AFL-CIO;Z Wilkes-Barre Printing Pressmen and
Assistants Union, Local 137, affiliated with Interna-
tional Printing Pressmen and Graphic Communica-
tions Union, AFL-CIO;3 Wilkes-Barre Stereotyp-
ers and Electrotypes Union, h a 1 139, affiliated
with International Printing Pressmen and Graphic
Communications Union, AFL-C10.4 Petition under
5 U.S.C. 9554(e)
September 28, 1979
DECISION AND ORDER DISMISSING
PETITION FOR DECLARATORY ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
This is a petition filed on May 10, 1979, by Wilkes-
Bane Publishing Co., herein called the Employer-Pe-
titioner, for a declaratory order pursuant to 5 U.S.C.
Section 554(e).' Thereafter, the Unions involved filed
a motion to dismiss the Employer-Petitioner's peti-
tion for a declaratory order. Finally, the Employer-
Petitioner filed a response to the Unions' motion to
dismiss the petition and further filed a motion re-
questing oral argumenL6
The allegations set forth in the submissions of the
parties may be summarized as follows:
1. Wilkes-Barre Publishing Co., is, and has been at
all times material hereto, a corporation duly orga-
nized under, and existing by virtue of, the laws of the
Commonwealth of Pennsylvania. The Employer-Peti-
tioner is engaged in the publication of a newspaper,
the Times Leader, at its Wilkes-Barre premises. The
Employer-Petitioner is, and has been at all times ma-
terial herein, an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended.
2. The Unions involved are the collective-bargain-
ing agents of respective units of employees of the Em-
' Herein called Guild Local 120. ' H m i n called Typograph~cal Local 187
' Herein called Rasmen b l 137.
' Herein called Stercotypen Local 139.
' Petition under 5 U S C. rcc. 554(e) whlch prov~des:
Tbe agency. with like efkct as in the case of other orders, and In 11s
sound dirrct~on, may issue a declaratory order to determine a contra.
vemy or remove uncertainty.
' Inasmuch as the submrsslons of the parties adequately set forth the Issues
and positions of the priles. the Employer-Pet~t~oner's request for oral argu-
ment is hereby denled.
ployer-Petitioner. None of the Unions involved has
ever been certified as a representative of its respective
unit of employees by the National Labor Relations
Board. All Unions involved are, and have been at all
times material hereto, labor organizations within the
meaning of Section 2(5) of the National Labor Rela-
tions Act, as amended.
3. Wilkes-Barre Council of Newspaper Unions,
Inc., herein Council of Unions, is, and has been at all
tiines material herein, a corporation organized under,
and existing by virtue of, the laws of the Common-
wealth of Pennsylvania. Council of Unions was
formed by, and on behalf of, and is directly controlled
and operated by the Unions involved, and their re-
spective officers, agents, and representatives. Council
of Unions was formed for the purpose of engaging in,
and is and has at all times material herein engaged in,
the publication of a daily newspaper, the Citizens
Voice, in Wilkes-Barre, Pennsylvania. Council of
Unions has taken the express legal position that it is
not, nor was it intended to be, a labor organization
within the meaning of the National Labor Relations
Act, as amended, or the Labor-Management Report-
ing and Disclosure Act.
4. The Employer-Petitioner has engaged in collec-
tive-bargaining negotiations with Guild Local 120
since August 29, 1978; with Typographical Local 187
since September 26, 1978; and with Pressmen Local
137 and Stereotypers Local 139 since June 19, 1978.
In mid-September 1978 signs were posted in the win-
dows of premises leased by the foregoing Unions or
their agents, officers, or representatives advising the
community to "watch for the Citizens Voice-coming
soon."
5. Council of Unions was incorporated on or about
September 27, 1978. With the exception of the agree-
ment with Guild Local 120, all other collective-bar-
gaining agreements between the Employer-Petitioner
and Typographical Local 187, Pressmen Local 137,
and Stereotypers Local 139 had expired as of October
1, 1978. On October 6, 1978, Guild Local 120, Typo-
graphical Local 187. Pressmen Local 137, and Stereo-
typers Local 139 commenced a strike against the Em-
ployer-Petitioner. On or about October 9, 1978,
Council of Unions began publication of the Citizens
Voice with William M. Brown, an International rep-
resentative of the Newspaper Guild, as the publisher.
6. The Citizens Voice is an independent newspaper
published daily, except Sunday, in Wilkes-Barre,
Pennsylvania. The Citizens Voice and its publisher,
Council of Unions are, and have been at all times
material hereto, engaged in open and direct competi-
tion with the Times Leader and the Employer-Peti-
tioner with respect to retail and subscription sales,
news coverage, and advertising revenue. In addition,
245 NLRB No. 117
111.c ISIONS OF NATIONAL
I I I L . c , , ~ ~ ~ l x ~ ~ i ~ ~ n regarding news coverage and adver-
tlslng revenue is occuring on both a local and na-
tional level.
7. The Employer-Petitioner alleges that the Citi-
zens Voice is intended to become a permanent and
ongoing newspaper in Wilkes-Barre, Pennsylvania.
Council of Unions initially stated that the Citizens
Voice was intended to be an interim newspaper oper-
ated only during the current labor dispute, and it has
subsequently attempted to reaffirm this alleged inten-
tion.
8. According to the Employer-Petitioner, evidence
indicates that the Council of Unions does not intend
for the Citizens Voice to be merely an interim news-
paper. The Employer-Petitioner contends that the
evolution of a permanent daily newspaper from an
allegedly interim strike newspaper is not new to the
lnternational unions with which Guild Local 120, Ty-
pographical Local 187, Pressmen Local 137, and Ste-
reotypers Local 139 are affiliated. According to the
Employer-Petitioner, a labor dispute in Madison,
Wisconsin, resulted in local unions affiliated with the
Internationals of the Unions involved in this case
commencing publication of an "interim strike news-
paper" which eventually became a permanent daily
newspaper. Further, the Employer-Petitioner states
that Council of Unions has openly and publicly
stated that Wilkes-Barre may become a two-newspa-
per town. The Employer-Petitioner asserts that Coun-
cil of Unions and the Citizens Voice have undertaken
numerous and substantial long-term commitments in-
cluding:
(a) Leasing office space in downtown Wilkes-
Barre.
(b) Obtaining formal letterhead stationery.
(c) Employing the services of a certified public ac-
countant to examine and verify the circulation of
Citizens Voice.
(d) Engaging in promotional activities to promote
the sale of the Citizens Voice including the use of
circulars and billboards.
(e) Offering and soliciting monthly and yearly sub-
scriptions to the Citizens Voice by mail as well as
through its camer distribution system.
(f) Subscribing to the Washington Post News Ser-
vice and Press Associates, Inc., to obtain public arti-
cles for publication in the Citizens Voice.
(g) Entering into a 2-year contract for a total cost
in excess of $90,000 with United Press International
to obtain that organization's photo and news services
for publication in the Citizens Voice.
0) Applying for membership for the Citizens
Voice with the Audit Bureau of Circulation, which is
a leader in the newspaper industry in certifying circu-
lation figures for daily newspapers throughout the
country.
LABOR RELATIONS BOARD
9. The Employer-Petitioner contends, in effect.
that the Unions involved have. through their found-
ing and control of, and continued involvement in,
Council of Unions and the Citizens Voice. necessarily
acquired special interests in these entities. Thus, ar-
gues the Employer-Petitioner, the circumstances give
rise to the situation in which the Unions involved are
both business competitors of the Employer-Petitioner
and collective-bargaining representatives of the Em-
ployer-Petitioner's employees.
10. The Employer-Petitioner states that the instant
facts and circumstances give rise to a controversy be-
tween the parties concerning the extent of its statu-
tory obligation to bargain with the Unions involved.
The Employer-Petitioner contends that the instant
facts and circumstances pose legal issues regarding
the statutory duty to bargain about which the state of
the law is uncertain. Finally, the Employer-Petitioner
argues that the instant facts and circumstances pose
legal issues as to whether the Unions involved may
properly continue to retain their status as the recog-
nized bargaining representative of the Employer-Peti-
tioner's employees.
11. The Employer-Petitioner requests the Board to
issue a declaratory order clarifying the state of the
law and removing any uncertainty with respect to the
legal issues posed by its petition. The Employer-Peti-
tioner acknowledges that it has filed unfair labor
practice charges with regard to one aspect of the con-
troversy arising between it and the Unions involved.
However, the Employer-Petitioner contends that the
unfair labor practice charges address only the issue of
the existence of a violation of Section 8(b)(3) of the
Act and leave other legal issues unresolved.
12. In their motion to dismiss, the Unions involved
argue that the matters in dispute should be resolved
pursuant to the unfair labor practice charges filed by
the Employer-Petitioner. According to the Unions in-
volved, the unfair labor practice charges filed by the
Employer-Petitioner deal specifically with the same
allegations raised by the Employer-Petitioner in its
petition. The Unions involved submit that, even if the
Employer-Petitioner's unfair labor practice charges
do not encompass all the issues in dispute, the
extraordinary procedure of having the Board issue a
declaratory order is not warranted in the instant case.
Based on the foregoing, we conclude that the in-
stant petition filed under 5 U.S.C. §554(e) to issue
declaratory order must be dismissed. In regard to the
petition, it is clear that at least some of the matters
sought to be decided here were raised by the unfair
labor practice charges filed by the Employer-Peti-
tioner. Even assuming, as contended by the Em-
ployer-Petitioner, that the petition here seeks resolu-
WILKES-BARRE PUBLISHING CO. 93 1
tion of certain controversies not within the scope of
the unfair labor practice charges, we nonetheless
must decline to resolve those issues. We find no valid
justification for bifurcating decision of certain issues
where all those issues had their genesis in the same
events and labor dispute. The Employer-Petitioner
has in no way demonstrated that it could not have
raised all the issues in dispute when it initially filed its
unfair labor practice charges. Under these circum-
stances, we find it inappropriate to resolve the issues
raised by the petition.
Further, the types of issues involved herein, involv-
ing matters such as the bargaining obligations of the
parties under a complex set of facts, would be best
resolved after a full hearing before an administrative
law judge. We cannot find-based on the submissions
of the parties-that sufficient undisputed facts are set
forth to make possible and appropriate the issuance
of a declaratory order.
Accordingly, and without deciding the issue as to
the power and jurisdiction of the Board to issue a
declaratory order,' we will dismiss the instant peti-
tion.
ORDER
It is hereby ordered that the petition herein be, and
it hereby is, dismissed.
CHAIRMAN FANNING, concurring:
For reasons set forth in my concurrence in Ameri-
can Federation of Television and Radio Artists, supra, I
agree with my colleagues that the Employer-Petition-
er's petition for a declaratory order must be dis-
missed. The issues raised by the Employer-Petitioner
can properly be resolved only pursuant to Section
3(d) of the Act which places in the General Counsel
the final authority over the investigation of charges
and the issuance of complaints based on such
charges. Inasmuch as the petition in this matter seeks
to circumvent the procedural requirements of Section
3(d) of the Act, it must be dismissed.
'See Amencan Federation of Television and Radio Arrisrs, A FL-CIO (Wit-
1;am F. B w k b and hi. SIan~on E v a ) , 222 NLRB 197 (1976).