Publishers' Association of New York City, et al.

National Labor Relations Board - Board Decisions

Nov 19, 1962

139 N.L.R.B. 1092 (N.L.R.B. 1962)

1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECON , PRECAST,
PRECRETE , AND CONCRETE CONDUIT
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the polices of the National Labor Rela-
tions Act, we hereby give notice that:
WE WILL NOT engage in , or induce or encourage employees of Precon , Precast,
Precrete , and Concrete Conduit to engage in , a strike or threaten, restrain, or
coerce the aforesaid employer where in either case an object is to force or
require the aforesaid employer to enter into any agreement which is prohibited
by Section 8(e) of the Act, or where an object thereof is to force or require
the aforesaid employer to cease doing business with Consolidated Edison
Company or any other person.
LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Publishers' Association of New York City, et al. and New York
Mailers Union No. 6 International Typographical Union, AFL-
CIO and Newspaper and Mail Deliverers Union . Cases Nos.
2-CA-7863 and 2-CA-7884. November 19,1962
DECISION AND ORDER
On April 19, 1962, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices, and recommended that the allegations of the complaint per-
taining thereto be dismissed. Exceptions to the Intermediate Report
and supporting briefs were filed by the Respondents and the General
Counsel; exceptions only were filed by New York Mailers Union No. 6
International Typographical Union, AFL-CIO, one of the Charging
Parties herein.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,' and finds merit in the Respondents' exceptions. Accord-
1 Respondents ' request for oral argument Is denied , as the record and briefs fully
present the Issues and positions of the parties.
139 NLRB No. 107.
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1093
ingly, the Board adopts the findings and conclusions of the Trial
Examiner only to the extent they are consistent with the decision
herein.
The essential facts are not in dispute. Primarily at issue is the
legality of a suspension agreement formulated by Respondent Pub-
lishers' Association and its members prior to the Section 10(b) pe-
riod,3 and reaffirmed and implemented on various occasions thereafter.
Respondent Association represents a group of leading New York
City newspapers 3 in multiemployer bargaining with nine craft unions.
With minor exceptions, the Association negotiates 2-year contracts
with each craft union, to expire in December of even-numbered years.
Several of these contracts contain explicit no-strike, no-lockout com-
mitments, while others provide only that the union shall furnish em-
ployees to the publishers as required. All the contracts provide for
final and binding arbitration of grievances and disputes arising under
the contracts. Respondents' relationship with the craft unions is of
long standing, and no union animus in the ordinary sense is alleged
or involved.
Evidence introduced as background shows that, as early as 1950,
Respondent Association and its members considered "a closing of
ranks on the management side" against craft work stoppages deemed
to be in violation of contract. Several incidents in 1950 and 1953 are
briefly described in the record. The problem reappeared in 1958,
when the publishers were negotiating individual contracts with the
Newspaper Guild of New York,4 and, thereafter, when the Association
was negotiating associationwide contracts with the crafts. On several
occasions during this period, the publishers announced and put into
effect an informal agreement to suspend operations in the association-
wide unit in the event of craft work stoppages in breach of contract
at any individual newspaper. In at least one instance, the publishers'
invocation of this agreement seemed to arrest the threatened work
stoppage. Noting the apparent success of this agreement during
1958, Respondent Association and its members reaffirmed the agree-
ment and put it into effect on other occasions, within the period cov-
ered by Section 10(b) of the Act. The General Counsel alleges as
violative of Section 8(a) (1) the Respondents ' maintenance of the
a Section 10(b) provides , in part, that "No complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge with the
Board and the service of a copy thereof upon the person against whom such charge is
made . . . ." The Section 10(b) date in this case is September 16, 1960.
3 Both the Publishers ' Association and its individual members are named as Respond-
ents. The Publishers ' Association will be known hereinafter as Association , the individual
newspapers by their commonly known names . The newspapers involved as Respondents
are The New York Times , The News , New York Post, Long Island Daily Press, Journal
of Commerce , New York Herald Tribune, New York Journal-American , New York Mirror,
New York World-Telegram and Sun, and Long Island Star-Journal.
' Unlike the craft unions , the Guild negotiated with members of the Association on an
individual basis.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement during this period, and the threats made by the Associa-
tion and its members to invoke the agreement . The General Counsel
also alleges , as a violation of Section 8 (a) (3), the two occasions during
the 10(b) period when the Association and its members actually put
the agreement into effect , and suspended operations.
The agreement itself was never formally embodied in a written
instrument, but its terms are not seriously in dispute. The Associa-
tion's executive secretary described the agreement as follows :
In order to protect themselves from these wildcat activities
by some of the unions, and in particular the Newspaper and Mail
Deliverers Union, the members of the association have reached
an understanding which may be expressed as follows : In the
event that any union that is a party to associationwide contract
engages in a work stoppage or threatens a work stoppage at the
plant of any one of the publishers, the publisher involved will
communicate the facts of the situation to each of the other mem-
bers of the Association either directly or through the Association
office.
Each case will be considered on its individual merits but if the
publishers operating at that time consider the conduct of the
union to be a sufficiently serious violation of the associationwide
contract and that the newspaper involved was justified or re-
quired to suspend operations , each of the other publishers will
suspend operations until the matter is adjusted at the plant of
the paper involved because of the union 's breach of the associa-
tionwide contract.
The circumstances surrounding the incidents in question are sub-
stantially similar, and are set forth in detail in the Intermediate
Report. Within the Section 10 ( b) period, the publishers threatened
resort to their suspension agreement on five or six occasions. For
example, on February 11, 1961, the stereotypers at the Herald Tribune
engaged in an unauthorized work stoppage over the positioning of a
particular employee in the plant. Stereotyper President McMahon
was at first unable to terminate the stoppage, and was warned by the
business manager of the Herald Tribune that a "citywide temporary
suspension" might result . McMahon finally succeeded in getting work
resumed, with only a temporary delay in production . Another inci-
dent occurred on March 11 , 1961, when the business agent of Mailers
Union No. 6 objected to the use of a certain wire -tying machine in
the absence of a safety device which he thought was necessary. The
Herald Tribune told the business agent, McDonald , that he was mis-
taken in his understanding of the purpose of the device , but McDonald
stated the machine would not be operated until the device was used.
Cameron , then vice president of the Herald Tribune, proceeded to
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1095
telephone the president of the Mailers, complaining of McDonald's
demands, and stating, "If McDonald shuts down the wire-tying ma-
chine this might lead to a City-wide shut-down by the Publishers."
Mailers' president assured Cameron there would be no shutdown.'
Similar incidents in 1961 involved the Mirror, the Times, and other
craft unions.
There were two instances of actual work suspension by the Re-
spondents within the 10(b) period. On February 23,1961, the deliver-
ers at the Times engaged in an unauthorized stoppage over the dis-
charge of a deliverer for refusing to perform an assignment. The
Times shut down its presses and reported the incident to the Associa-
tion, at the same time threatening officers of the Deliverers with a city-
wide shutdown. Pursuant to Respondents' informal agreement, the
News, Herald Tribune, and Mirror delayed operations until they were
advised that the Times' walkout had ended, which occurred about 30
minutes later. No employee was actually told to leave the premises,
and none lost any wages or other compensation.
The second incident occurred on April 26, 1961, about 3:30 p.m.,
when typographers at the Times engaged in an unauthorized work
stoppage to protest the discharge of their "chapel chairman," Samuel
Resnick. Publication of the first edition of the Times was conse-
quently delayed 3 hours, until about 9:30 p.m., and the edition was
reduced in size about 60 percent. In the meantime, the News, Mirror,
and Herald Tribune had decided, pursuant to Respondents' agreement,
to suspend operations until the Times was ready to publish. The News
and Mirror delayed their press runs about 21/2 hours; the Tribune, as it
happened, was not ready to publish until 9:30 p.m., when the Times'
typographers returned to work under the threat of disciplinary ac-
tion by their International. As with the other incidents, no employee
was told to leave the premises, and none lost wages during the sus-
pension. The Times' discharge of Resnick was subsequently submitted
to arbitration, in accordance with the parties' contractual agreement,
and upheld.
The Trial Examiner found that Respondents' maintenance of their
agreement, and the aforementioned threats and suspensions made
thereunder, were violative of Section 8 (a) (1).1 Though the ques-
tion posed is a difficult one, we have reached a contrary conclusion.
We disagree initially with the Trial Examiner's finding that only
some of the employee work stoppages were violative of the respective
5 The matter was eventually submitted to the Labor Department for resolution, and
operation of the machine without the safety device was approved
6 The Trial Examiner dismissed the 8 ( a) (3) allegation , which involved the two in-
stances of actual suspension , as he found neither discrimination nor discouragement of
union membership For the reasons stated infra, we find that Respondents ' maintenance
and utilization of the suspension agreement were legally justified in the circumstances of
this case. We therefore agree with the Trial Examiner 's dismissal of the 8(a) (3) allega-
tion , though on essentially broader grounds.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
craft contracts.' Though only four of the contracts contained explicit
no-strike, no-lockout commitments, all contained provisions for final
and binding arbitration of grievances and disputes arising under the
contracts. In the recent Lucas Flour Co." case, the Supreme Court
held that, where the parties to a collective-bargaining agreement have
provided for final and binding arbitration of certain disputes, the
union has thereby committed itself not to strike over these disputes.
Notwithstanding his brief reference in the Intermediate Report to
Lucas Flour, the Trial Examiner was of the view that the craft con-
tracts in this case must be read together, and, as some of the contracts
were specific in containing a no-strike obligation, the parties' intent
in the others must be deemed doubtful, or at least ambiguous. We
believe this approach was foreclosed by the Lucas decision itself. In
Lucas, as in this case, there was evidence indicating that the parties
"knew how" to write an explicit no-strike clause had they desired.
As Justice Black pointed out in his dissent, the arbitration clause
there in issue was preceded by another arbitration clause, covering
essentially nonfactual disputes, and providing specifically that "dur-
ing such arbitration, there shall be no suspension of work." However,
the majority concluded, as had the Board and courts in prior cases,9
that "a strike to settle a dispute which a collective bargaining agree-
ment provides shall be settled exclusively and finally by compulsory
arbitration constitutes a violation of the agreement." 10 We find in
this case, contrary to the Trial Examiner, that the craft unions had
uniformly committed themselves not to strike during the terms of
their agreements.ll
In passing, we also note our difficulty with another aspect of the
Trial Examiner's analysis. Before a violation of Section 8(a) (1)
can be found, it must be shown that Respondents interfered with
some protected right or activity of employees guaranteed under Sec-
tion 7. It seems clear in this case that Respondents' action was aimed
ultimately at preventing the type of work stoppages here involved.
Yet, as noted above, the striking employees themselves were engaged
in activity prohibited by their collective-bargaining agreements. The
Board and the Supreme Court have long held that strikes in violation
of contract are unprotected, and that no violation can be found for
interfering with such activity.12
4 Though reaching this conclusion at the outset , the Trial Examiner proceeded to analyze
and decide the case on the alternative assumption that such violations had occurred
8 Local 174 , Teamsters , Chauffeurs, Warehousemen h Helpers of America v. Lucas Flour
Co., 369 U.S. 95.
8 See, W. L Mead, Inc., 113 NLRB 1040 ; N L.R B v . Sunset Minerals, Inc, 211 F 2d
224, 226 ( C.A. 9).
'°Local 174 , Teamsters, et al. v. Lucas Flour Co , supra , at 105.
"'None of the strikes here involved was an unfair labor practice strike , and our finding
has no bearing on such type of strike . Cf. Mastro Plastics Corp and French -American
Reeds Mfg . Co., Inc v. N.L R.B., 350 U . S. 270.
19 See American ailsonite Company, 121 NLRB 1514 : N L R B v. Rockaway News
Supply Company, Inc, 345 U S 71.
PUBLISHERS ' ASSOCIATION OF NEW YORK CITY, ET AL. 1097
It was apparently the Trial Examiner's theory that the suspension
agreement was unlawful in its breadth, and hence constituted a viola-
tion of Section 8 (a) (1) because of its interference with certain rights
of nonstriking employees.13 However, the nonstriking employees did
not themselves participate in the disputes of the strikers, or engage
in any activity which can readily be characterized as protected or
related to union membership or activities. In finding such rights or
activities protected, the Trial Examiner's reasoning seems to us some-
what elusive. Thus, he speculated at various points in the Intermedi-
ate Report that Respondents' lockout agreement interfered with (a)
the nonstrikers' right to refrain from the concerted activity of exert-
ing pressure on the "wildcat" strikers; (b) the nonstrikers' right to
refrain from banding together for their own economic welfare to put
pressure on their striking brethren; and (c) the nonstrikers' right to
remain members of the striking employees' craft unions. Granting
that, in certain lockout cases, a Section 7 right can be found which
has clearly been interfered with, we have difficulty in delineating such
a right in this case.14
In reality, the suspension agreement was intended to discourage,
and did discourage, not Section 7 activities, but rather the series of un-
authorized work stoppages which experience had shown to pose
a continuing threat to the publishers. Thus, the agreement was, in
essence, not an offensive weapon utilized by the Respondents to punish
or lessen the legitimate effectiveness of the unions, but rather a defen-
sive measure utilized to combat unauthorized work stoppages in the
plants of the publishers involved, and, in the long run, in the entire
unit.
In determining the legality of various types of defensive lockouts
used by employers in the past, the Board and the courts have been
guided by certain established general principles.15 Nonetheless, as the
Trial Examiner himself pointed out, in the last analysis "there are no
mathematical guides as to where the line is to be drawn. Wherever in
an orderly society principles of equal merit converge priority as be-
tween them may be a matter of time and circumstance. In an area of
13 Technically, the threats themselves were communicated only to members of the strik-
ing group , and therefore could hardly be said to have interfered with rights of other
employees The effects of the two suspensions were more broadly felt.
14In view of our conclusion that Respondents' suspension agreement was in any event
a justified defensive measure, we do not find it necessary to reach a final resolution of
this point.
15 For example , an employer may legitimately lock out employees where it is motivated
by serious operating considerations . See Betts Cadillac Olds, Inc., et at., 96 NLRB 268.
On the other hand, it may not do so where its considerations are merely those attendant
upon any strike . See Quaker State Oil Refining Corporation , 121 NLRB 334 , enfd. 270
F 2d 40 (C.A. 3), cert. denied 361 U.S. 917; cf. Texas Gas Corporation, 136 NLRB 355.
In N.L R .B. v. Truck Drivers Local Union No. 449, International Brotherhood of Team-
sters, etc. ( Buffalo Linen Supply Co ), 353 U.S. 87, the Supreme Court agreed with the
Board that, where one employer in a multlemployer association was subjected to a
whipsaw-type strike, the other employer members could lock out their employees as a de-
fensive measure to protect the integrity of the multiemployer unit
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary imprecision general principles can only guide the judgment,
they cannot make it."
In making our judgment in this case, we are mindful particularly
of the multiemployer nature of both the threat and the counteraction
taken. In bargaining with the Association on a multiemployer basis,
the craft unions obviously reaped certain benefits, but they also, we
believe, necessarily subjected themselves to unitwide response, in the
event of problems involving the entire unit.16 We do not agree with
the Trial Examiner's observation that the disputes involved were solely
of "individual" or "local" concern. For, while the particular stop-
pages were limited in each instance to a single newspaper, the prob-
lem of unauthorized strikes and of threats to the grievance and arbitra-
tion procedures established by contract was common to all members
of the Association, and affected different publishers on different oc-
casions. Given the admitted fact of associationwide bargaining, and
the unitwide nature of the problem, we think it reasonable that Re-
spondents reacted to the series of illegal stoppages on an association-
wide basis.17
At first blush, Respondents' agreement to suspend operations on an
associationwide basis under the conditions there outlined might seem
to extend significantly the parties' dispute to a broader geographical
area. Yet, as the agreement developed and was utilized, this was
neither its purpose nor its effect. The agreement was formulated
to discourage at inception the series of breach-of-contract strikes which
had repeatedly confronted the publishers, and thus reduce or eliminate
the parties' original area of dispute, insofar as it involved such strike
activity. In a literal sense, an "'ounce of prevention" proved its worth
as a "pound of cure." In the half-dozen instances during the 10(b)
period, in which resort to the agreement was threatened, the impend-
ing work stoppages did not in fact take place. In the two instances of
actual suspension, the matters in dispute were quickly resolved, with-
out economic loss to either the employees or Respondents." We can-
not say, in view of this experience, and the record made, that Respond-
ents' agreement had the effect of broadening the impact of the parties'
original dispute.
1s See Buffalo Linen Supply Co, supra.
14 Because of the integrated nature of the publishing industry, it seems clear that a
unitwide lockout of one craft would necessarily result in a suspension of work for all
crafts. We are therefore unwilling to engage in the impractical distinction that Respond-
ents could have responded by locking out all members of the offending craft, but not
members of other crafts. Note, for example, the Times' efforts in December 1958 to react
to an apparent violation by typographers at the News, by continuing on its payroll all
employees except members of Typographers The Times had to close down at once, and
its payroll arrangement lasted only 1 day.
1s Among other things, the threat of concerted action eliminated the element of com-
petitive disadvantage and consequent irreparable loss by which, it is presumed, the strik-
ing employees hoped to cause the offending publisher or publishers to capitulate prior to
press time.
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1099
Nor are we willing to say that the stoppages were purely "wildcat"
in nature, and therefore that the craft unions and other members of
the crafts should not be "penalized" for these unauthorized activities.
Aside from the fact that punishment was not Respondents' motive, we
note that the stoppages here differed in several respects from those
ordinarily classified as "wildcat." Sudden unauthorized work stop-
pages recurred with annoying frequency against the Association's
members, and might reasonably have alerted the craft unions to take
special steps to avoid additional contract violations. Although it is
clear from the record that the craft unions did not originate or en-
courage these activities, several of the incidents involved a union
steward or shop chairman. Moreover, when confronted ultimately
with Respondent' threats of associationwide action, in virtually every
instance the union officials were able to get the men back to work. As
the Trial Examiner himself observed, though the craft unions' original
efforts to stop the disputes were undoubtedly genuine, "... one may
surmise that the publishers' warnings of general shut clown might
have contributed to the warmth of the union officials' efforts to avoid
or terminate the stoppages." Thus, though it is questionable whether
the individual unions could be held "responsible" for the stoppages in
a court of law, neither are we willing to insulate all employees, or
members of the crafts, from a form of defensive action which reason-
ably seemed necessary to halt the stoppages.
In the last analysis, it is on the point of "reasonableness" that we
rest our final conclusion. Respondents were admittedly faced with
repeated contractual violations by various of the crafts. The mem-
bers of the Association, the New York City newspapers, were par-
ticularly vulnerable to such sudden unannounced stoppages because of
the perishability of their commodity, and the strict time schedules
necessary in the publishing business. In response to these repeated
stoppages, respondents banded together in the existing association-
wide unit, and threatened or put into effect unitwide suspensions which,
as experience showed, proved effective in discouraging or stopping
the unauthorized stoppages.
As the record demonstrates, the agreement was not used indiscrim-
inately. Indeed, when time and circumstances permitted, Respond-
ents took their case to other forums, for more orderly-and perhaps,
ultimately, more satisfactory-resolution. For example, in February
1961, when the mailers at the Herald Tribune refused, in apparent
violation of their contract, to handle a certain Sunday supplement,
charges were filed with the Board,19 and a court restraining order ob-
tained. On other occasions, resort was made to impartial arbitrators.21
'9 See New York Mailers' Union No 6, International Typographical Union, AFL-CIO
(New York Herald Tribune, Inc, et al.), 136 NLRB 196.
20 See, for example, the 1960 dispute between the Times and the Stereotypers, de-
scribed in the Intermediate Report.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances, we cannot say on balance that Respondents'
suspension agreement, limited as it was to contract violations, and, as
the record shows, selectively and carefully applied, exceeded permis-
sible bounds of defensive conduct. Accordingly, we find that the main-
tenance and use by Respondents of this agreement during the period
here in question did not violate Section 8(a) (1) and (3) of the Act.
Contrary to the Trial Examiner, we shall dismiss the complaint in
its entirety.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On March 16, 1961, New York Mailers Union No. 6 International Typographical
Union, AFL-CIO, and on March 31, 1961, Newspaper and Mail Deliverers Union,
unaffiliated, filed separate charges with the Board to the effect that the Publishers'
Association of New York City and its members, herein called Respondents or
Publisher-s, are maintaining and enforcing an agreement to lock out employees in
connection with labor disputes involving Publishers. Service of each charge was
duly made upon the Respondents. On July 27, 1961, the Regional Director issued
a consolidated complaint and notice of hearing thereon alleging violations by the
Respondents of Section 8(a)(1) and (3) of the National Labor Relations Act,
61 Stat. 136. Following service of the complaint, the Respondents duly filed their
answer denying the commission of unfair labor practices.
Upon due notice a hearing was held at New York, New York, on September 25, 26,
and 27, 1961, before Trial Examiner Charles W. Schneider. The General Counsel,
the Respondents, and the Charging Parties were represented at the hearing by counsel,
participated therein, and were afforded full opportunity to present and to meet
material and relevant evidence, to engage in oral argument, and to file briefs and
proposed findings. On November 27, 1961, the General Counsel, and on November
29, 1961, the Respondents filed briefs, which have been considered. The General
Counsel has filed a motion to correct the record. No objections having been
received and the request appearing appropriate, the motion is granted. It is directed
that the transcript be corrected accordingly.
Upon the entire record in the case, and after consideration of the evidence and
the contentions of the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Publishers' Association of New York City, an unincorporated association, is an
association of employers engaged in publishing daily and Sunday newspapers in and
around New York City. Respondent Association performs the function, inter alia, of
negotiating and executing collective-bargaining agreements on behalf of its employer-
members, with labor organizations. As collective-bargaining agent for its members
the Association is a party signatory to collective- bargaining agreements with various
unions representing employees of the employer-members of the Association. The
principal exception is that the individual newspapers separately conduct their respec-
tive negotiations with, and enter into separate collective-bargaining agreements with,
the Newspaper Guild of New York, herein called the Newspaper Guild. The com-
panies represented by the Association publish the following newspapers: The New
York Times, The News, New York Post, New York Herald-Tribune, New York
Journal-American, New York Mirror, New York World-Telegram and Sun, Journal
of Commerce, Long Island Daily Press, and Long Island Star-Journal. Of these, five
are morning newspapers : Times, Tribune, News, Mirror, and Journal of Commerce.
PUBLISHERS ' ASSOCIATION OF NEW YORK CITY, ET AL. 1101
The Journal-American, Post, World-Telegram, and the two Long Island newspapers
are afternoon or evening newspapers.'
During the past year, a period representative of their operations, the Respondent
members of the Association, in the course and conduct of their publishing opera-
tions, held membership in and subscribed to various interstate news services, including
the United Press International and the Associated Press, published various syndicated
features, advertised various nationally sold products, caused newsprint, inks, and
other goods and materials to be transported in interstate commerce directly from
States of the United States other than the State of New York, published newspapers
and caused them to be delivered in interstate commerce directly to purchasers in
the States of the United States, other than the State of New York, and each derived
gross revenues from said publishing operations in excess of $500,000.
It is admitted that each of the aforesaid members of the Publishers' Association is
an employer engaged in commerce within the meaning of the Act, and that the
Publishers' Association is an employer as defined in the Act.
II. THE LABOR ORGANIZATIONS
The Charging Parties and other unions referred to hereinafter are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
1. The issue, in brief, is whether the New York City newspapers, members of a
multiple employer bargaining group, the Publishers' Association of New York City,
may concertedly lock out or threaten to lock out their employees in order to fore-
stall or to compel the termination of a work stoppage by a union at one of the news-
papers, relating to a labor dispute between that union and that newspaper, which stop-
page is or is believed by the particular employer to be in violation of the union's
collective-bargaining contract withthe employer.
There is little substantial dispute as to the facts, which are the subject of admission
and stipulation, as amplified by uncontradicted and credited testimony offered by the
Respondents. The newspapers employ some 15,000 to 20,000 employees. No union
animus is involved or alleged.
2. The unions: In the mechanical phase of publication the Publishers deal with
nine mechanical or craft unions pursuant to collective-bargaining contract. These
unions are Mailers No. 6 ITU, the Deliverers (or Drivers), the Printing Pressmen, the
Machinists (IAM), the Photoengravers, the Paper Handlers, the Stereotypers, the
Electrical Workers (IBEW), and Typographical Union ITU (Typographers).
Though each employer enters into separate contracts with each union the agreements
are negotiated by the Publishers' Association as agent for the papers. So far as
material, the provisions of these contracts are given later.
3. The complaint alleges that:
(a) The Association and its members maintain an agreement or understanding by
which each member agrees to suspend publishing operations in the event that em-
ployees of any member, represented by a labor organization other than the News-
paper Guild, threaten to or engage in a strike or work stoppage or interruption, or
honors a picket line at such members' premises.
(b) On various dates from January 1961 to May 1961, in effectuation of the said
agreement or understanding, the Respondents Mirror, Herald Tribune, Times, and
1 The Respondent members of the Association, specified in Appendix A of the com-
plaint, are:
The New York Times Co. (Times)
News Syndicate Co. (News)
New York Post Corp. (Post)
Long Island Daily Press Publishing Co., Inc. ( Long Island Daily Press)
Twin Coast Enterprises , Inc. (Journal of Commerce)
N.Y. Herald Tribune, Inc. (Herald Tribune)
Hearst Consolidated Publications , Inc. (Journal-American)
New York Mirror Div., Hearst Corp. ( Mirror)
New York World-Telegram Corp. (World-Telegram and Sun)
Newspaper Enterprises, Inc. (Long Island Star-Journal)
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Publishers' Association warned employees to refrain from work stoppages or strikes
and from giving assistance or support on particular occasions to certain of the labor
organizations.
(c) About February 22, 1961, the Herald Tribune and the News, and about
April 26, 1961, the Herald Tribune, the News, and the Mirror, in pursuance of the
aforesaid understanding or agreement suspended operations as a consequence of
work stoppages or strikes by unions at the plant of the Times.
4. The contracts: A pivotal contention of the Respondents is that the collective-
bargaining contracts forbid work interruptions by the mechanical unions. Though
they concede that perhaps a majority of the agreements do not contain traditional no-
strike language, the Respondents nevertheless contend that the agreements are to be
read as containing such a warranty because they provide for binding arbitration of
disputes.
The contracts do not contain uniform provisions, in this regard, except in one
respect: all provide a procedure terminating in final and binding arbitration for the
adjustment of grievances or disputes arising under the agreements. In addition, four
of the contracts (Mailers, Typographers, Deliverers, Pressmen) contain varying pro-
visions against strikes, lockouts, or similar interference with employment. In the
case of two of these four (Deliverers and Pressmen) the commitment is uncon-
ditional. The clauses in the contracts of the Mailers and the Typographers reserve
to the union the right to support a strike authorized under the laws of the I.T.U.
against any signatory publisher. A fifth contract, that of the Stereotypers, pro-
vides that no member of the union shall be required to perform struck work under
certain described circumstances. Thus, five of the nine contracts contain no express
commitment not to strike over grievances or other disputes (JAM, IBEW, Photo-
engravers, Paper Handlers, and Stereotypers), and three of them expressly authorize
strikes under certain circumstances.
Six of the contracts provide in some fashion for the maintenance of existing condi-
tions pending final determination of the dispute. These are the Mailers, Deliverers,
Typographers, Pressmen, Stereotypers, and PaperhandIers. However, only the latter
three do so unconditionally. The agreements of the Mailers, the Deliverers, and of the
Typographers except discharge cases from the operation of this provision. The
contracts of the JAM, the IBEW, and the Photoengravers contain no requirement for
the maintenance of existing conditions pending grievance resolutions.
Five of the contracts contain clauses, in varying language, the effect of which is
that the union offers to supply such employees covered by the agreement as the
publishers require. (Stereotypers, Paperhandlers, Photoengravers, Machinists,
IBEW.)
5. The development of the suspension agreement- The craft or mechanical con-
tracts, though negotiated by the Publishers' Association for the respective employers,
are signed separately by each publisher. The Association does not act for the pub-
lishers in negotiating contracts with the Newspaper Guild; each publisher negotiates
his own agreement with the Guild. However, the publishers confer concerning
Guild demands, presumably with a view of coordinating their responses. All the
contracts, both craft and Guild, are for stated 2-year terms, expiring in even-numbered
years, the Guild contract in October, the craft agreements generally in December.
The Guild negotiations, ordinarily the first to be disposed of, usually set the money
pattern for the settlements with the crafts.
The events which preceded, accompanied. and provided the motivation for the
creation of the suspension or lockout agreement, as given in the stipulations of the
parties and the testimony of the publishers, are as follows.
As early as 1950 the publishers began, in their words, to consider a "closing of
ranks on the management side" in defense against craft union action deemed to be in
violation of contract. Thus in 1950, during the course of a strike by the Newspaper
Guild against the World-Telegram, several employees, members of craft unions
having contracts with the Respondents, did not cross the picket line at that paper.
The record does not disclose whether the contracts authorized such action.
In 1953 the Photoengravers conducted a strike in the course of which it picketed
all the Association members except the Tribune, which did not employ any photo-
engravers. Some employees did not cross the picket lines The Tribune continued
to publish for several days and then closed, although its operations were not
affected or threatened by the strike.
The 1958 contract negotiations: In 1958 the Guild contracts with the several
papers were due to expire on October 31. Prior to the negotiations the publishers
agreed in caucus upon a $7 package as the maximum limit of their concessions in the
new contract.
During the negotiations the Guild suggested to the publishers the possibility of a
strike against less than all of the papers. Confident that in the 'event of a strike,
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1103
either general or piecemeal, the papers could publish if the crafts continued to report
for work, the Publishers' Association sent telegrams on October 30 to the craft unions
urging them to work as usual during any Guild strike, and warning that failure to do
so at any paper would be regarded as a breach of contract against all papers. In the
event of a failure to work, the Association said, all papers would suspend employ-
ment.2 However, there was no strike by the Newspaper Guild; agreement was reached
and a new contract executed providing for the $7 package.
The craft negotiations of that year were not so successful, however, and inability
to reach agreement ultimately resulted in a complete shutdown by the publishers for
a period of several weeks.
As the Guild agreement was being worked out the craft negotiations were in
progress for renewal of the craft contracts, due to expire on December 7, 1958.
Some 24 hours before the expiration, Dwyer, then president of the Pressmen's Union,
stated that he would not settle for the $7 package accepted by the Guild and
threatened to shut down the Times, which was about to go to press with a heavy
Sunday edition. The Publishers informed Dwyer that if the Times were struck
there would be no work for Pressmen at the other papers. There was no strike by
the Pressmen.
No agreement for renewal being reached by expiration time, all the contracts
except that of the Deliverers union were extended. Upon expiration of its contract
the Deliverers struck all the Association papers. Within a few hours, and before
operations were substantially interrupted, settlement was reached between negotia-
tors for the papers and for the Deliverers. However, the union membership rejected
the settlement, the strike was resumed and continued for some 18 days.
The publishers attempted to continue operations during the strike by selling papers
at their respective plants. At the outset of the strike the Times adopted the policy
.of paying all regular employees who "observed their contractual obligations with
the Times or with the Publishers' Association and . . . reported for work provided
that they were not members of unions striking elsewhere against another member
of the Publishers' Association." Substantially all the crafts crossed the Deliverers'
picket lines. However, on the evening of December 10 most of the printers, members
of Typographical Union ITU, at the New York plant of the News stood outside
the plant and did not enter. Typographical Union officials denounced the men's
action and unsuccessfully sought to get them back to work. Nevertheless the em-
ployers held the Typographical Union responsible.3 About midnight the News
decided to close because of inability to print.
On the next day, December 11, all the other major New York City papers also
ceased publication. Except in the case of the Times the stated reasons for the
shutdowns were economic: lack of advertising and delivery systems, and plant
locations making sales difficult. The Times, however, was able to continue to publish
had it desired to do so. Its reason for closing, as stated by Bradford, was that the
printers "were not observing their contract with the News."
There was one other significant difference between the action of the Times and
that of the other papers. Except with respect to a few employees needed for
essential operations, the other papers laid off all their employees, and terminated
the compensation of all on December 11, generally as of the last shift worked.
The Times, however, though also laying off all but essential employees, terminated the
compensation of only the Typographical Union employees on December 11. As
to its other employees the Times announced that, consistent with its policy, stated
above, of paying employees who "observed their contract" and "were not members
of unions striking elsewhere," it would continue to pay them until 2 p.m., Decem-
ber 12, pending further developments in the negotiations with the Deliverers Union.
2 Thus the Association's telegram concluded:
We have been advised by our seven [sic] members that if any of them are unable
to publish because a craft union has not crossed a guild picket line this will be re-
garded as a contract violation against all. If the craft unions report for work at
all newspapers, there will be work for their employees so long as each paper can
continue to publish. Conversely , if any craft union does not fully comply with its
contract and publication of a newspaper is suspended, then employment will be
suspended for all.
DONALD R MCVAY, Executive Secretary,
Publishers Association of NYC.
3 As Amory H. Bradford, general manager and vice president of the Times, and member
and former chairman of the executive committee of the Publishers' Association testi-
fied: ". . . we decided that we could judge [responsibility ] only by results. . . .
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In its notice to the Typographical Union employees the Times gave the following
reasons for its action:
[The attempt of the newspapers to continue publishing during the strike and
to sell papers at their plants] was frustrated at the plant of The News by the
refusal of the Typographical Union to cross the Drivers' picket lines. Accord-
ingly The News was forced to suspend publication.
The refusal of members of the Typographical Union to cross the Drivers'
picket lines and at The News to report to work violates the maintenance of
existing conditions provision of the expiring contract to which this newspaper
is a party. Such a refusal is the equivalent of a strike against The News as
well as against this newspaper and all other members of the Publishers' Asso-
ciation of New York City who are parties to the contract with the Typographical
Union.
It is obvious that this concerted refusal to work can be extended to us, or
to other newspapers, at any time and without notice. We are convinced that
our interests are as directly and adversely affected by the concerted refusal to
cross picket lines at The News as if it were taking place at our own plant, and
that we must so regard it.
The papers remained closed until agreement was reached with the Deliverers,
at which time they reopened. When operations were resumed the Times refused to
reinstate certain inspectors (not in the jurisdiction of the Deliverers union) who
had not crossed the picket line at the beginning of the strike. When the Deliverers
threatened renewal of the strike unless these inspectors were reinstated, the Times'
representative told the union that if it struck in place of submitting the issue to the
contractual grievance machinery, "all the other papers would shut down." The
strike was not resumed . After settlement with the Deliverers the Publishers reached
agreement with the other crafts, though not until May or June in the case of some.
There were no threats to operations by unions during that time in connection with
renewal of these contracts.
The apparent success of their course during the 1958 negotiations impelled the
publishers to agree to extend their unity of action, that is, possible shutdown of
all the papers, to situations involving work interruptions during the life of the
contracts .4
After the 1958 shutdown several of the affected unions, claiming that the closings
were in breach of contract, sought to secure monetary recovery from the publishers
in arbitration proceedings under the contracts. These efforts were generally un-
successful, although one such action appears to have been won by the JAM under
circumstances not altogether clear.
Restatement of the agreement in 1960: Following initial formulation in 1958. as
described, the agreement was effectually restated on two occasions in 1960. The first
of these occurred in July 1960 at the Times during the course of dispute with the
Pressmen's union over the speed of new presses, which resulted in a work inter-
ruption by the pressmen. After consultation with the other newspapers the Times
informed the pressmen that if the situation was not "brought under control" it
could "involve all the papers in the city." This announcement evoked protest from
Mailers Union No. 6 and threats by that union to sue for breach of contract in the
event of a citywide shutdown. However, the dispute was ironed out peaceably. This
incident is referred to in more detail infra.
The other 1960 incident occurred during the negotiations of that year with the
Newspaper Guild. On October 25 the Times issued a written report, apparently
reflective of the views of all the publishers, concerning the progress of the negotia-
tions In part this report said:
d Thus the testimony of Mr Bradford:
. at the end of [the strike] we had a great deal of opportunity to think through
some of our problems and all of the papers had agreed that the unity that we had
shown earlier in the negotiations should be applied to quickie strikes and walkouts
during the life of the contracts.
See also the testimony of Charles C. Lane, then associate business manager of the Times
and a member of the executive committee of the Publishers' Association, at an arbitration
hearing in January 1960. His testimony was that after the strike the papers determined
in a meeting of the Association 's executive committee,
that the failure of a craft to go through the picket line [of any newspaper] was a
repudiation of the contracts which were had with the Association, and might involve
cessation of publication because of a breach of contract.
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1105
... in the event of ... a strike, [by the Guild] The Times said it would continue
to publish so long as the other unions honored their contracts and their mem-
bers reported for work; if however, any of the newspapers was unable to publish
because the members of another union did not cross a Guild picket line, such
action would be regarded as a contract violation by all of the newspapers and
all of them would suspend publication. It could not, The Times said, allow
the other unions to place it in double jeopardy, first on November 1 as con-
cerned a Guild strike, and then on December 8 with respect to their own wage
settlements....
6. The incidents covered by the complaint: The incidents which are the subject
of the complaint occurred in 1961 during the term of the craft contracts. They con-
sist of threats by the publishers to invoke citywide shutdowns, and actual suspen-
sions of publication as a consequence of work interruptions or threats thereof by
individual craft unions or employees in individual plants. These incidents are as
follows:
On or about January 15, 1961 Lawrence W. Kennelly, who was at that time
manager of industrial relations for the Mirror, during the course of a labor dispute,
told Emil Bonagura, a business agent of the Deliverers Union, that the entire city
would be shut down by the Publishers if the Deliverers Union engaged in a work
stoppage at the Mirror. The nature of the controversy is not disclosed. The
evidence does not indicate whether the union threatened to strike during the incident.
February 11: In connection with a dispute between the foreman and the chapel
chairman of the Stereotypers' Union over the assignment of a stereotyper at the
Herald Tribune, all stereotype work stopped at that paper for an undisclosed length
of time. Stereotyper President McMahon sought in good faith to terminate the
stoppage. During the course of the incident, Barney Cameron, who was at that
time vice president and business manager of the Tribune, told Stereotyper President
McMahon that the stoppage was in violation of contract and if continued might
result in a "city wide temporary suspension." McMahon finally succeeded in getting
work resumed, with some delay in the edition, and the dispute was resolved.
February 23: This concerned an incident at the Times involving the Deliverers or
Drivers Union. When the foreman discharged a deliverer for refusing an assign-
ment the Times deliverers engaged in a wildcat stoppage during the course of a
press run. The Times then shut down the presses at its 43d Street plant and did not
resume operations until about 1 a.m. Some of the Times employees were idle during
the period of the shutdown and as a consequence of it.
During the course of the incident, pursuant to the understanding between the pub-
lishers, the Times reported it to the Publishers' Association and the other morning
papers.5 The Times also notified the chapel chairman, the business agent, and the
president of the Deliverers Union that continuance of the stoppage might result in
a citywide shutdown of all the newspapers. The business agent and the president
of the union made efforts to get the men back to work.
The Herald Tribune, the News and the Mirror were at that time between editions.
Upon receipt of the information concerning the Times each of those papers issued
instructions to its staff not to resume printing until the stoppage at the Times was
ended. Sometime after news of this action was received at the Times the deliverers
went back to work and the dispute was immediately submitted to the impartial chair-
man for determination., Upon notification of the termination of the stoppage at
the Times all the papers which had suspended resumed printing. At the News the
suspension delayed the edition about 25 minutes, at the Herald Tribune about half
an hour. The extent of the delay at the Mirror is not clear.
None of the employees of the Herald Tribune or of the News lost any wages or
compensation as a result of this shutdown, and none of those employees were
directed to leave the premises. The situation at the Mirror is not clear.
March 11: This incident involved a dispute at the Herald Tribune. At around
suppertime on this day Business Agent McDonald of Mailers' Union No. 6 objected
to the operation of the wire-tying machine without the use of certain safety devices.
When Business Manager Cameron of the Tribune refused the demand McDonald
said that if the devices were not installed by the next afternoon the mailers would
not operate the machine. Cameron then spoke to Thomas Laura, president of
Mailers' Union No. 6, and told him that if McDonald shut down the wire-tying
5 The afternoon papers were not at that time prepared to publish
9 The Deliverers ' contract contains a clause, unique among the agreements , providing
for a permanent chairman who is subject to call at all hours of the day or night to hear
and determine disputes.
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine it "might lead to a city-wide shutdown by the Publishers." Laura assured
Cameron that there would be no strike and that the matter would be submitted to
the Labor Department for investigation . This was done and official approval was
secured for operation of the machine without the devices, thus sustaining the position
of the Herald Tribune.
April 26: On or about April 26, about 3:30 p.m., employees of the Times repre-
sented by the Typographical Union engaged in a walkout and work stoppage to pro-
test the discharge of the chapel chairman, Samuel Resnick. As a result of the work
stoppage the first edition of the Times was delayed almost 3 hours. Publication
did not begin until about 9:30 p.m., with the edition reduced in size almost 60 percent.
Informed of the situation the News and the Mirror, which usually go to press about
7 p.m., continued their composing room and other operations but delayed the start
of their press runs until the Times announced at 9:30 p.m. that it would be able
to publish. The management of the Herald Tribune had made a decision not to
commence publication while the Times was shut down but was not itself ready to
print until after the Times had announced its ability to publish.
During the stoppage , around 8:30 p.m., the Publishers ' Association issued a state-
ment to the press in which, after describing the incident, it observed that the em-
ployees' action was a "clear and direct violation of the contract" which required
that "such disputes be resolved by arbitration, and not by work stoppages or other
forms of self help." The statement further said that,
These facts were presented to the other newspapers, all of whom agreed that
this strike at the Times constituted a direct breach of contract. Those news-
papers that were ready to publish while the strike was on decided to suspend
publication until the Times employees again honored their contract obligations.
The newspaper members of the Association are unanimously agreed that ir-
responsible and unlawful conduct of this kind must be met by firm and united
action on the part of the newspapers , any of whom might be singled out as the
next victim.
The full complement of typographical employees at the Times returned to work
about 3 p m. on April 27 under threat of disciplinary action by the International
Union if they did not terminate the strike.
All the 1961 incidents described above were localized in the particularly paper
involved and, with the possible exception of the controversy at the Tribune over the
safety devices on the wire -tying machine, presented no likelihood or apprehension
of spread to the other newspapers. In each case of work stoppage or threat thereof
officials of the unions involved-other than the chapel chairmen who are full-time
employees-attempted in apparent good faith to get their men to remain at work.
On May 2, 1961, Times General Manager Bradford issued a memorandum to the
Times' employees which , after restating the Times' understanding of the publishers'
suspension agreement , said in part:
Over 2 years ago the New York newspapers agreed that in order to stop
certain union agents from breaking their contracts by using these tactics
[threats of strike ] they should be ready to suspend publication of all newspapers
until work was resumed and the dispute resolved in the orderly way provided
by the contract.
For several years'the Times and some other papers, though not all, have carried
strike insurance . However its coverage is limited and there is a waiting period of
7 days. The extent of compensation may be gauged from the Times' experience in
the 1958 strike when it recovered some $250 ,000 while incurring losses of about
$1,500,000.
7. Other background conduct involving the unions : In addition to what has been
recited, the publishers introduced other evidence of union action as "ample historical
justification" for their suspension agreement , contending that "over the years, the
New York City newspapers have been plagued with actual or threatened work
stoppages , slowdowns or other self-help on the part of union members ." As sum-
marized in the Respondents ' brief these involve the following.
Deliverers: Identified in publishers' testimony as one of the most "unruly" of
the unions , in 1960 Deliverers was involved in five instances of actual or threatened
interference with production . In 1961 , including the incident on February 23 previ-
ously described, there were six such occurrences . Whether the union was the cul-
pable offender in each case is not disclosed. Consequently the significance of all
PUBLISHERS ' ASSOCIATION OF NEW YORK CITY, ET AL. 11©7
the incidents cannot be assessed . However, the February 23 occurrence seems clearly
to have been in violation of contract.?
Mailers Union No. 6: The incident in March 1961 concerning the safety device
dispute at the Herald Tribune has been described. In addition there was, at an
undisclosed time, a dispute at the Times between the Mailers and the Deliverers
Unions over certain equipment which the Times resolved by ceasing to use the equip-
ment and taking the issue to the NLRB. Whether the actions of either union involved
a violation or threatened violation of their contract or of the statute is not clear.
In February 1961, mailers at the Herald Tribune, the Mirror, and the Journal-
American refused to handle certain matter printed by a company against whom
Mailers Union No. 6 was conducting a strike. The Board recently found that action
of the union to be violative of Section 8(b)(4) of the Act. (New York Mailers'
Union No. 6, International Typographical Union, AFL-CIO (New York Herald
Tribune, Inc., et al.), 136 NLRB 196.)
Pressmen: In 1959, there was a brief stoppage of pressmen at the Times, ap-
parently in violation of the then-existing contract, ostensibly in protest of the observa-
tion of their work by technical experts from outside the plant. And on an occasion
in July 1960, referred to supra, the Times increased the speed of its presses, where-
upon the president of the local union of the Pressmen shut the presses down. A
protest was made to the president of the International Union and after consulta-
tion between the newspapers, General Manager Bradford of the Times told the
union that if the Times remained shut down, the other papers would be asked for
support by closing down also. The International president assured General Man-
ager Bradford that there would be no further trouble, and there was not. The
Times lodged a grievance under the contract and was awarded damages by the
arbitrator, prevailing against a counterclaim by the union based on excessive press
speed.
Typographers: On an occasion in 1959, the typographical employees at the
Times held a special chapel meeting at a time inconvenient to management. The
incident of April 26, 1961, which resulted in invocation of the publishers' agreement
has been previously described.
Stereotypers: In 1959 there was a series of slowdowns by the stereotypers at
the Times, the News, and the Long Island Press over adoption of new equipment
which eliminated certain operations, and a brief stoppage at the Times concern-
ing the assignment of related work.
In 1960, the Times contracted out to a firm in Albany, New York, the reproduc-
tion of certain parts of its Sunday financial section. Several unions objected to
the transfer of this work, the stereotypers saying that they would refuse to mold
the necessary mats. The Times took the issue to arbitration and won the right to
print in Albany. The Times did not call on the other papers for support because
it believed it had an adequate remedy under the contract. The basis for the
award is not disclosed. The then-current contract presumably contained clauses
similar to the present one providing for mutual commitments to orderly settle-
ment of disputes, and with final and binding arbitration and maintenance of the
status quo in the interim, that is, that "conditions prevailing prior to a dispute shall
be maintained pending final decision ." It is not clear in this instance whether the
action threatened by the stereotypers was designed to upset the predispute condition
or to preserve it.
During 1957 the Times experienced a series of slowdowns by the stereotypers
after the discharge of some "unruly members " This action resulted in delaying
the starting of the presses from 20 to 25 minutes. The contract then effective pro-
vided for arbitration of disputes, but its other terms are not disclosed.
The incident of February 1961 at the Tribune involving the Stereotypers has been
set out above.
Paper Handlers: In the summer of 1958 the Paper Handlers engaged in a brief
work stoppage at the News in a dispute with the Teamsters union over which
employees should perform a certain new operation. This dispute was referred to
the NLRB where it was resolved. The facts are not further elaborated.
7 The Deliverers' contract contains a prohibition against interference with work by the
employer as well as by the union, and also contains the clause providing for maintenance
of existing conditions pending grievance disposition-with certain exceptions The nature
of the disputes other than that on February 23, and who and what precipitated them, is
not revealed.
672010-63-vol. 139 71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record does not reflect any conduct by the Photoengravers , the IAM, or the
IBEW in the nature of work stoppages or threats thereof in violation of contract.
Concluding Findings
To recapitulate the complaint : the specific conduct of the publishers alleged as un-
fair labor practices are: (7 ) maintenance of the lockout agreement since Septem-
ber 16, 1960 ; ( 2) the threats of citywide shutdown in 1961 on January 15 by the
Mirror, on February 11 and March 11 by the Herald Tribune, on February 23 by
the Times , and on April 26 by the Publishers' Association ; and (3 ) implementation of
the lockout agreement by suspension of operations at the News and Herald Tribune on
February 23, and at the News, Tribune, and Mirror on April 26.
1. Contentions of the General Counsel: Terming the publishers ' agreement a
"lockout agreement ," the General Counsel's basic , and substantiated , contention is
that its substantial purpose is to deter all the craft unions from striking during the life
of their contracts , regardless of whether or not the contracts contain specific no-strike
clauses 9 The General Counsel further says that the suspension agreement and the
threats to invoke it constitute threat of loss of wages as a penalty for engaging in
concerted activity protected by Section 7, and thus are violative of Section 8(a)(1).
In addition , the contention runs, the agreement and its effectuation by shutdown are
violative of Section 8(a) (1) and Section 8(a) (3) because grounded in discrimination
based on union membership , as exemplified in the Times ' policy, stated in its Decem-
ber 11, 1958, suspension notice, of paying employees who reported for work
"provided that they were not members of unions striking elsewhere against another
member of the Publishers' Association."
Continuing, the General Counsel says that not all the contracts prohibit strikes
during their term, but the lockout agreement is nevertheless applicable in all cases,
and, moreover , makes no exception for strikes otherwise protected by law-such as
those to protest substantial employer unfair labor practices violative of the contracts.9
Thus, the General Counsel contends , employees are deterred from engagement in legal
current or future activities protected by Section 7. There is no exception, he urges,
for those unions-such as the Photoengravers, IAM, and IBEW-who have not en-
gaged in or threatened any objectionable intereferences with production, but is applied
indiscriminately to all.
Finally, the General Counsel argues that the lockouts constituted breaches of
contract by the publishers themselves , that the publishers had adequate relief in the
arbitration procedures of the contract, strike insurance, disciplinary measures and
legal remedies-and therefore no substantial need for extraordinary protective
devices-and in conclusion that the true purpose of the lockout agreement was to
freeze competitive positions among the publishers.
2. Contentions of the publishers - The basic defense is that the suspension agree-
ment and its implementation are reasonable defensive measures designed to prevent
illegal work stoppages in violation of contract , and to insure that all disputes are
settled without such interruption . The publishers concede that a purpose of the
agreement is to deter the crafts from striking during the life of the contracts. Their
8 Thus the testimony of General Manager Stephens of the Daily News:
Q Your Pin pose, then was actually to deter everyone of the Craft Unions from
striking during the life of the contract " [Emphasis supplied ]
A I should say the answer to that is definitely yes
And again
. . we [the publishers ] would assume that whether there is a no -strike clause in
the contract or not, that any of the stoppages like this are illegal . . .
The testimony of General Manager Bradford of the Times is to the effect that the pub-
lishers regard any strike by a craft union during the term of its contract as a breach
of contract:
. . so long as the contract is in effect and hasn't been terminated by the parties,
then it would be regarded [ by the publishers] as breach of contract if they [the
union] told their men not to work
9A no -strike provision of a labor agreement does not, absent explicit waiver, bar a
strike in protest of substantial employer unfair labor practices violative of the agreement
Mastro Plastics Corp and French-A mer i can Reeds Mfg Co , Inc. v . N L R R., 350 U S
270, Ford Motor Company ( Sterling Plant, Chassis Parts Division ), 131 NLRB 1462,
Mid-West Metallic Products , Inc, 121 NLRB 1317 ; Arlan'e Department Store of Michigan
Inc, 133 NLRB 802; N L R B v Thayer Company and H N Thayer Company, 213 F 2d
748 (C A. 1) , ef. National Electric Products Corporation , 80 NLRB 995.
PUBLISHERS ' ASSOCIATION OF NEW YORK CITY, ET AL. 1109
primary premise is that all the contracts contain the equivalent of a no-strike
covenant, even though perhaps not in specific language, because of the arbitration
provisions. The suspension agreement, they say, is not an absolute commitment
requiring each publisher to close, but merely an arrangement to confer concerning,
and to consider, voluntary concerted action as a defense to illegal self-help by the
unions. This course of action, the publishers assert, is compelled by the actions of
the unions over past years, previously described, in engaging in or threatening inter-
ferences with production. This type of sanction is required, the publishers say,
by the nature of their operations. A newspaper is fearful of damage to its com-
petitive position by strike. News is a perishable commodity; its merchantability is
regulated by time, its useful life is limited, it cannot be preserved, its value dete-
riorates rapidly with exposure, and its lost revenues are not recoverable. News-
papers are thus particularly vulnerable to work stoppages at crucial moments in
the publishing process. The collective-bargaining contracts, with their arbitration
or no-strike clauses were devised to require disputes to be resolved peacefully free
of the compulsion of moment-to-moment threat to operations. Nevertheless, the
publishers say, unions have taken advantage by threatening or engaging in stoppages
at critical moments when the papers are most defenseless. By so doing, it is con-
tended, the unions deprive the publishers of the fruits of their joint collective bargain,
and threaten the operations of all the papers and the integrity of the multiple bar-
gaining unit. Consequently, the Respondents assert, protection of the bargaining unit
was also an object of their action. Proof of the value of the suspension policy, it is
said, is that it has worked: statement of intention to invoke it has generally inhibited
strike threat or strike action, or modified their duration or effectiveness.
The agreement has not been freely invoked, the publishers say; in any situation in
which adequate relief can be secured without it, the publishers have avoided its use.
Thus in the July 1960 dispute with the Pressmen the Times merely shut down the
affected presses, transferred production to another plant, and filed a grievance under
the contract. Similarly the News, in the jurisdictional dispute between the Teamsters
and the Paper Handlers, in the summer of 1958, did not ask for a citywide shutdown,
nor the Herald Tribune when the Mailers, and the Times when the Stereotypers,
refused to work on sections printed outside. The issues were taken by the publishers
to the NLRB or to arbitrators under the contract for resolution. As to the General
Counsel's objection that the agreement is applicable indiscriminately to all unions,
whether they have engaged in reprehensible activity or not, such as the Photo-
engravers, the publishers say that "the Photo Engravers knew well that if, as for the
past many years, they avoid the use of self-help as a means of compelling settlement
of any disputes they may have with the Publishers, the agreement will not be
applicable against them."
Proceeding, the publishers say, the 1961 strikes at the Times were not protected
activity because they were in breach of the no-strike commitment. Citing N.L.R.B.
v. Great Falls Employers' Council, Inc., et al, 277 F. 2d 772, 776 (C.A. 9), and
N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Insur-
ance Co.), 361 U.S. 477, 489, they contend that it is not the business of the Board to
define what economic sanctions may be used by parties to collective bargaining and
that the publishers are free to adopt "any approach or technique which has not been
specifically banned from the contests of power between parties to a labor dispute."
Finally the publishers contend that their action is a form of protection against
union attempts at destruction of the multiple-employer bargaining unit, a shutdown
for such purpose being authorized by the principle of Buffalo Linen Supply Company,
et al., 109 NLRB 447, affg. subnom. N.L.R.B. v. Truck Drivers Local Union No.
449, International Brotherhood of Teamsters, etc., 353 U.S. 87. In summary, they
say, "It is by now well established that members of an employer association may,
without being charged with unfair labor practices, lock out their employees in
response to a strike against one employer."
We turn now to a consideration of these contentions.
3. Whether there was a lockout agreement: The Respondents do not seriously
quarrel with the General Counsel's characterization of their arrangement as a "lock-
out agreement," though they say that no lockout in the general meaning of the word
has as yet occurred because of it. In this respect the Respondents point out that
in the instances in which the agreement was actually invoked no employee lost
wages or was told to leave the premises. However the Respondents concede that
there could be a "lockout" and loss of compensation under the agreement in the
future.
These assumptions may be accepted. Though there is no statutory definition of
the term "lockout," despite the fact that the Act itself and Board and court decisions
thereunder use the word, it no doubt at least comprehends, as at common law, a
temporary denial or withholding of work from employees by an employer for the
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of compelling or penalizing a concerted action by the employees with re-
spect to employment. The suspension of operations on February 23 and April 26
constituted acts of such character. They were therefore lockouts. There is thus
no need to attempt at this time a comprehensive definition of the term "lockout"
within the meaning of this Act.10
The next question is, what was the nature of the lockout agreement?
The specific nature of the agreement: That the Respondents entered into an under-
standing to consult and advise with each other in the event of a strike threat at any
Association newspaper if deemed by the Respondents to be in breach of contract,
is admitted. That this consultation was with the view of securing the voluntary
shutdown of all the newspapers, if necessary to compel the offending union to termi-
nate its threat and submit the controversy to contractual adjustment, is an inescapable
conclusion from the admitted facts. As the Respondents say in their brief, they
"have readily conceded that they adopted a program which envisions the possibility
of concerted action on their part, although in each instance dependent upon the
decision of the individual newspapers, as a defense against illegal strikes or other
forms of self-help on the part of any mechanical unions." The Respondents contest
only the allegation that there was an "agreement" to shut down, and this because
each publisher was "left to its own decision in that regard."
So far as responsibility under this Act is concerned, the Respondents' distinction
is not of substantial importance. For it is clear that the agreement contemplated
general shutdown of all the newspapers as a possible course of action. The sub-
stance of the agreement is, I believe, fairly reflected in the following excerpts from
the statement of Donald R. McVay, executive secretary of the Association:
In the event that any union that is a party to an Associationwide contract
engages in . . . or threatens a work stoppage at the plant of any one of the
publishers [if the breach is serious and suspension of the involved paper]
justified or required . . . each publisher . . . will suspend operations. . . .
On each occasion that the agreement was invoked by a paper threatened with a
work interruption, each of the publishers then prepared to publish suspended publi-
cation upon request or notification, until informed by the affected paper that the
threat had been lifted. In no instance has a publisher refused to suspend when
asked to do so. That none of the publishers formally committed himself in ad-
vance to take such action in each situation which might arise, and that the affected
paper did not in each instance ask for a general shutdown, does not change the
essential character of the arrangement. It contemplates concerted plant shutdown
because of employee engagement in certain concerted activity.
It is therefore found that the Respondent Publishers and Association have entered
into and maintained an agreement or understanding to suspend, or to consider sus-
pending, publishing operations, that is to lock out all craft employees, upon request
in the event that employees covered by an associationwide contract threaten a strike
or work interruption against any member of the Publishers' Association. Whether
as thus framed the agreement is illegal is the basic element of dispute.
4. The legality of multiple employer lockouts: ii There are a number of Board
cases dealing with the legality of multiple-employer lockouts. All occurred in a
context of negotiations for a collective-bargaining contract.iz
11 For comment as to the meaning and use of the expression at common law and under
the Act, see Betts-Cadillac-Olds, Inc., at at., 96 NLRB 268, 282-283. For an earlier
definition see Restatement of the Law of Torts, Section 787, Comment a The Board
and the Supreme Court more recently used the word without definition in the case of
Buffalo Lsnen Supply Company, et at. , supra
11 The subject of lockouts has provoked extensive comment. See, for example, Koretz,
"Legality of the Lockout," 4 Syracuse Law Review 251 ; Koretz, "The Lockout Revisited,"
7 Syracuse Law Review 263; Koretz, "The Multi-Employer Lockout Vindicated," 9 Syra-
cuse Law Review 40 See also Meltzer, "Single Employer and Multi-Employer Lockouts
Under the Taft-Hartley Act," 24 University of Chicago Law Review 70; Meltzer, "Lock-
outs Under the LMRA: New Shadows on an Old Terrain," 28 University of Chicago Law
Review 614; Sweetal and Aiges, "Lockouts," 9 Labor Law Journal 43; Dayken, "Legality
of Lockouts Under the Taft-Hartley Act," 9 Labor Law Journal 136 ; see also Note, 73
Harvard Law Review 787.
12 Morand Brothers Beverage Co, at at, 91 NLRB 409, remanded 190 F. 2d 576
(CA. 7) ; 99 NLRB 1448, enfd. 204 F. 2d 529 (C.A. 7), cert. denied 346 U.S. 909, re-
hearing denied 346 U.S. 940; Betts Cadillac Olds, Inc, et at, 96 NLRB 268; Albert
Leonard, et at, Co-partners, jointly and severally d/b/a Davis Furniture Co. at at, 94
NLRB 279, remanded 197 F. 2d 435 (C.A 9) ; 100 NLRB 1016, set aside 205 F. 2d 355
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1111
The lockout is not per se unlawful under this Act. Its legality depends upon the
circumstances, and may involve the balancing of substantial legitimate and conflict-
ing interests. Betts Cadillac Olds, Inc., et al., supra at 283; Bugalo Linen Supply
Company, et al., supra at 92-93; Texas Gas Corporation, 136 NLRB 355. The prob-
lem of resolving and accommodating these divergent claims, so far as the National
Labor Relations Act and multiple-employer bargaining are concerned, is in large
measure committed primarily to the discretion of the Board, subject to limited
judicial review. (Buffalo Linen Supply Company, et al., supra, at 96.) The prin-
ciples thus far marked out by the Board may be stated as follows.
An employer may lawfully suspend operations for reasons unrelated to the exercise
of rights protected by the National Labor Relations Act. Pepsi Cola Bottling Com-
pany of Montgomery, 72 NLRB 601; N.L.R.B. v. The Houston Chronicle Publishing
Company, 211 F. 2d 848 (C.A. 5). He may not, however, lock out or lay off
employees in derogation of such rights. Thus a lockout to frustrate organizational
efforts, to destroy or undermine bargaining representation, or to evade the duty to
bargain is unlawful. N.L.R.B. v. Wallick and Schwalm Company, et al., 198 F. 2d
477 (C A. 3); N.L.R.B. v. Somerset Classics, Inc. and Modern Mfg. Co., Inc., 193
F. 2d 613 (C.A. 2), cert. denied 344 U.S. 816; Olin Industries, Inc., Winchester
Repeating Arms Company Division v. N.L R.B., 191 F. 2d 613 (C.A. 5). Equally
illegal are lockouts discriminating on the basis of union membership (Anchorage
Businessmen's Association, supra), and lockouts designed to compel a union to accede
to the employer's bargaining demands. Quaker State Oil Refining Corporation,
supra; Dalton Brick & Tile Corporation, supra. Actual animus or hostility to unions
or organizational activity is not essential to a finding of violation. Interference,
restraint, or coercion of the right of self-organization and the right to bargain
collectively and to engage in concerted action for mutual aid or protection is like-
wise unlawful.
However, certain lockouts are lawful: (1) those genuinely and reasonably moti-
vated by desire to avoid economic loss of unusual character flowing from strike
action, actual or imminent. Betts Cadillac Olds, Inc., supra; cf. American Brake Shoe
Company, supra; (2) those in which a union seeks to disrupt multiple-employer unit
bargaining by piecemeal strike action or threat thereof against individual members
of the bargaining unit in order to compel employers to accede to the union's bar-
gaining demands. Buffalo Linen Supply Company, supra; Great Falls Employers'
Council, Inc., supra.13
Neither the employees' right to engage in concerted activity helpful to their ends
nor the employer's right to counter it by the most effective measures are absolute.
Where these conflict the Board must find a balance between the competing interests-
a balance generally expressed in an empiric. judgment based on sometimes subtle
(CA. 9) , Continental Baking Company, et al , 104 NLRB 143, set aside 221 F. 2d 427
(CA. 8) ; Buffalo Linen Supply Company, et al , supra , Great Falls Employers' Council,
Inc, at al, 123 NLRB 974, set aside 277 F 2d 772 (CA. 9) ; Anchorage Businessmen's
Association, et al, 124 NLRB 662, enfd. 289 F. 2d 619 (C.A 9) ; Utah Plumbing and Heat-
ing Contractors Association, etc, 126 NLRB 973, enfd 294 E. 2d 165 (C.A. 10) ; Dalton
Brick & Tile Corporation, 126 NLRB 473 (pending in Fifth Circuit Court on Board peti-
tion for enforcement) [set aside 301 F 2d 886].
Other illustrative recent cases dealing with lockouts, such as American Brake Shoe
Company, Ramapo Ayas Division, 116 NLRD 820, set aside 244 F. 2d 489 (C A 7) ;
Quaker State Oil Refining Corporation, 121 NLRB 334, enfd 270 F 2d 40 (CA 3),
cert. denied 361 U.S. 917, and Iercules Powder Company, 127 NLRB 333, enforcement
refused other grounds 297 F. 2d 424 (C A. 5), did not involve multiple-employer situa-
tions. They dealt with the legality of lockouts by single employers in anticipation of a
bargaining strike
13 Whether an employer may lock out to compel employees to accept his contract terms
has received mixed response. The Board has answered the question in the negative
(Continental Baking Company, supra, Quaker State Oil Refining Corporation, supra;
Utah Plumbing and Heating Contractors Association, supra ; Dalton Brick & Tile Corpora-
tion, supra; cf. Great Falls Employers' Council, Inc, supra; Hercules Powder Company,
supra) with the apparent approval of the Third and Tenth Circuit Courts of Appeal
(Quaker State Oil Refining Corporation, Utah Plumbing and Heating Contractors Associa-
tion). The Ninth Circuit, citing the Supreme Court decision in the Prudential Insurance
case, supra, intimated the contrary in Great Falls Employers' Council, Inc, supra The
question was specifically reserved by the Supreme Court in Buffalo Linen Supply Company,
supra, at 93 . In Morand Brothers Beverage Co , supra, the Seventh Circuit indicated that
a bargaining lockout would be legal after impasse is reached in the bargaining. The
question is presently pending before the Fifth Circuit in the Dalton Brick case.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distinctions in which the context of the conduct rather than its intrinsic quality may
be the predominant force.14 There are no mathematical guides as to where the
line is to be drawn. Wherever in an orderly society principles of equal merit con-
verge priority as between them may be a matter of time and circumstance. In an
area of necessary imprecision general principles can only guide the judgment, they
cannot make it.
There is no precise precedent governing the instant problem. Each of the pre-
vious cases cited in footnote 12, supra, dealing with employer lockouts occurred
in a context of collective bargaining in which the lockout was used to checkmate
legal union activity, actual or prospective, designed to compel the employers to
agree to bargaining demands. The instant case involves lockouts used to check-
mate union activity occurring during the term of the collective-bargaining contract
and designed to compel the employer to acquiesce to union grievances. Some of
this activity seems clearly to have been contrary to contract, and all the disputes
were resolvable by arbitration. The present case further differs in other respects:
(1) the union activity was not in the nature of an attack upon the collective-
bargaining unit, (2) the dispute presented no threat to the operations of the em-
ployers not immediately involved, (3) most of the employees locked out neither
engaged in nor threatened to engage in any concerted activity, and (4) no wages or
thing of value was lost by any employee as a consequence of the lockouts.
We turn next to the question as to whether all the mechanical contracts contain
no-strike clauses. The specific provisions have been set out supra.
5. Whether all the contracts forbid strikes: Ordinarily a strike in violation of
a valid contractual no-strike commitment is not a protected concerted activity
(N.L.R.B. v. Sands Manufacturing Co., 306 U.S. 322) though it may be privileged
if provoked by serious unfair labor practices (footnote 9, supra). Necessarily, in
similar circumstances, concerted employer conduct in the nature of interruption of
employment violative of contractual commitment is also not an activity protected
or privileged by this statute.
A strike to enforce a grievance claim where the contract provides for submission
to an arbitration panel as the exclusive means of adjudicating disputes may con-
stitute a material breach of the agreement and an unprotected concerted activity,
even though the contract may lack an explicit no-strike clause. W L. Mead, Inc.,
113 NLRB 1040; Boone County Coal Corporation, et al., 117 NLRB 1095, set
aside sub nom. International Union, United Mine Workers of America, et al. V.
N.L.R.B., 257 F. 2d 211 (C.A.D.C.). Such provisions imply a covenant not to
strike in substitution for resort to the grievance and arbitration procedures. United
Construction Workers v. Haislip Baking Co., 223 F. 2d 872, 876-877 (C.A. 4),
cert. denied 350 U.S. 847; Teamsters V. W L. Mead Co., 230 F. 2d 576, 583 (C.A. 1);
United Mine Workers v. Benedict Coal Corp., 259 F. 2d 346 (C.A 6), 361 U.S.
459. See also Hazel Atlas Glass Company, 34 NLRB 346, 414, footnote 99, enfd.
127 F. 2d 109, 111, 117-119 (C A. 4); Dorsey Trailere, Inc, 80 NLRB 478, enfd.
179 F 2d 589 (C.A. 5); Sunset Minerals, Inc., 100 NLRB 1457, 1467, set aside 211
F. 2d 224 (C A. 9). The principle of these cases was recently approved by the
United States Supreme Court in the case of Local 174, Teamsters, Chauffeurs, Ware-
housemen & Helpers of America v. Lucas Flour Co., 369 U.S 91.15
This is not to say that wherever a collective-bargaining contract contains an arbitra-
tion clause there is automatically and per se a covenant not to strike. The matter
14 Thus an employer cannot legally discharge an employee for engaging in a protected
economic strike, but he can terminate the employment of such a striker by replacing him
(N L R B v. Mackay Radio & Telegraph Co , 304 U S 333). He may not normally pro-
hibit union solicitation on the employee's time on the plant premises, but he may by valid
union contract forbid such activity (The May Department Stores Company, et at , 59
NLRB 976) We have seen that an employer may close his plant to avoid economic loss
but may not do it to discourage legal union activity
15 This doctrine evolved over a period of years. Originally the Board had substantially
held that a strike over a dispute subject to contractual arbitration was protected in the
absence of a specific commitment not to strike The courts of appeals in the Hazel Atlas,
Dorsey Trailers, and Sunset Minerals cases disagreed with this position, a view to which
the Board acquiesced in the W. L Mead case and followed in Boone County However,
in the latter case the Court of Appeals for the District of Columbia set aside the Board's
order on the ground that the contract obligation did not constitute a no-strike clause.
The later Benedict case involved a suit for damages over the same controversy. The
Sixth Court of Appeals, disagreeing with the District of Columbia Court, found the con-
tract to contain such a commitment.
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1113
is always one of contractual interpretation for the intent of the parties as manifested
in their agreement. The decision of the Court in the Local 174 case appears to
make this clear. It is true that ordinarily an undertaking to arbitrate and one not
to strike are "the quid pro quo for leach] other." United Steelworkers v. Amer-
ican Mfg. Co., 363 U.S. 564; see also Textile Workers Union of America, AFL-CIO
v. Lincoln Mills of Alabama, 353 U.S. 448, 455 This is a rule of construction,
however, and not of law, for a waiver of the right to strike is "not be inferred"
in the absence of express language (N.L.R.B. v. Lion Oil Company, 352 U.S. 282,
293), and always narrowly construed (Mastro Plastics Corp., and French-American
Reeds Mfg. Co., Inc. v. N.L.RB., 350 U.S. 270, 279-284). As the Board has
said, "The question is, what was the agreement of the parties with respect to strikes
as reflected in the terms of the . . . agreement" Fafnir Bearing Co., 73 NLRB
1008, 1009; Illinois Bell Telephone Company, 88 NLRB 1171, 1173-1175, enforce-
ment denied on other grounds 189 F. 2d 124 (C.A. 7).
As to what principle of law is to be derived from the cases, no doubt various
views are possible. That which appears to me the most reasonable is that where
a valid collective-bargaining contract contains an unconditional commitment to sub-
mit disputes to final and binding arbitration as the exclusive method for resolution,
without express or implied reservation of right to take other action, the agreement
is to be interpreted as incorporating a pledge not to strike or lockout over such
issues. However, where the agreement, distributively and contextually read, in-
dicates a contrary or doubtful intent, such a waiver of statutory right is not to
be inferred. We turn now to the question of the construction of the present
contracts
Meaningful scope must be given, if possible, to all parts of a contract as reflective
of intent of the contracting parties The agreements here must also be considered
in their context, that is, their relation to each other. Most were negotiated about
the same time, for the same basic employment operation, and with the same central
objective: the regularization of employment conditions in the publishers' shops.
However, their provisions relating to the resolution of disputes have significant
differences, as we have seen. To summarize, while all nine provide for final and
binding arbitration, several additionally contain modifying clauses relating to strikes
and lockouts, to the end that only two contain unconditional commitments against
such action Two expressly permit strikes under certain circumstances and a third
binds the employer not to require work upon some struck goods. These varying
treatments militate against the conclusion that all the agreements embody a uniform
covenant governing work interruptions at any time during the life of the contract.
Substantial differences of language in contemporaneous agreements covering the
same subject matter presumably reflect difference in intent. Diverse dispositions
of an issue, each susceptible of a particularized and differing interpretation do not
resolve themselves into the same thing. Words, like matter, take their meaning
from their environment 16 An agreement to arbitrate disputes cannot mean the
same in like context as an agreement to arbitrate disputes and not to strike. By
itself a commitment (such as the IAM's) to accept binding arbitration would be
interpretable as importing a warranty not to strike, but when considered against
a contemporaneously executed agreement (such as the Pressmen's) providing for
the furnishing of such workmen as the employer shall require, reference of all
disputes to arbitration, specific covenant not to strike, and the maintenance of ex-
isting conditions while the dispute is being resolved, it is scarcely susceptible of the
same construction.
It is not to be presumed that the additional provisions in other contracts are sur-
plusage. It may be argued that the absence of some clauses in one contract
merely reflect a failure to secure the unessential. This, however, both assumes the
point at issue and is speculative. To me the more reasonable conclusion in the
circumstances is that if the extra clauses had no significance they would not be
there. The provision in some of the contracts to the effect that the union agrees
to supply men seems no more a no-strike commitment than an employer's agree-
ment to employ union members is a guarantee of work.
1s "Words are not pebbles In alien juxtaposition ; they have only a communal existence ;
and not only does the meaning of each interpenetrate the other, but all in their aggregate
take their purport from the setting in which they are used (N L It B v Federbush
Company, Inc, 121 F. 2d 954, 957 (C.A. 2).)
"A word is not a crystal, transparent and unchanged, It is the skin of a living thought
and may vary greatly In color and content according to the circumstances and the time
In which it is used " (Towne v. Eisner, 245 U 8 418, 425.)
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing considerations it is found that not all the craft
or mechanical unions have bound themselves in all circumstances not to engage in
work interruptions with respect to disputes adjudicable under the collective-
bargaining contracts.
The publishers' admitted effort to deter all the crafts from striking during the
term of their contracts therefore interfered with the rights of employees, not con-
tractually bound not to strike, to engage in concerted activity protected by Section 7.
If this is a construction of the contracts contrary to the publishers' intent they are
free to propose removal of the ambiguity in their next contracts.
However, my finding that not all the contracts forbid strikes during their term is
not an indispensable premise to my disposition of the case. For reasons indicated
hereinafter I would reach the same ultimate conclusion as to the legality of the
publishers' actions if I found that all the mechanical contracts contained no-strike,
no-lockout clauses. The discussion in the following sections is therefore based on
the assumption that each of the contracts is to be construed as containing such a
commitment.
The burden of factual establishment that the conduct of the unions was in violation
of contractual commitments is on the Respondents, as the persons affirmatively assert-
ing it. However, of the five incidents in 1961 charged in the complaint, only two
appear clearly from the submitted evidence to have involved employee action violat-
ive of their contractual obligations.
The Stereotypers' contract is one of those which provide that "conditions pre-
vailing prior to a dispute shall be maintained pending final decision" in arbitration.
There is further provision requiring that employees obey any order of a foreman, with
right of appeal to the grievance procedure. As has been seen this contract does
not contain a specific no-strike clause. Whether in view of these provisions, the
action of the stereotypers in the February 11 incident at the Herald Tribune was in
violation of the contract, may depend upon a determination as to what the condi-
tion was which prevailed "prior to [the] dispute"-the foreman's assignment or the
condition prior to the assignment. That fact is not disclosed. In the absence of
such information-even assuming the stoppage to be one for which the union
is responsible (an issue later discussed)-I am unable to say that its action was
violative of its contract.
As to the January 15, 1961, incident at the Mirror, the evidence does not disclose
that the Deliverers threatened to strike, though-in the view I take of the case, and
for reasons later stated-my ultimate conclusion would be the same even if it had.
It is possible that the March 11 dispute at the Herald Tribune was protected by
Section 502 of the statute-a question not necessary to decide (see discussion, infra).
B. Alleged violation of Section 8(a)(3)
The first question is whether lockouts of the kind here could be violative of Sec-
tion 8(a)(1) and (3) in any circumstances. If the answer to that question is in
the affirmative we must then consider the Respondents' defenses. We begin with
three factual premises. The first is that the Respondents were not animated by
considerations of hostility to unions or unionization; second, their ultimate object
was to compel the offending union in each case to resort to the grievance and
arbitration procedures of the bargaining contracts for resolution of the disputes,
rather than to engage in work interruptions or threats thereof; third, the action
which the Respondents took, though in some cases constituting an interruption of
operations, withdrawal of work, and lockout, did not result in any impairment of
employment status of any person or loss or deprivation of any privilege, benefit, or
thing of recognizable value
Upon these facts there was no violation of Section 8(a) (3).
That section inter alia prohibits "discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or discourage
membership in a labor organization." The complaint in this respect is that the
publishers discriminated in such fashion as to discourage union membership. How-
ever, what occurred in the 1961 lockouts was, in sum, that employees were per-
mitted to remain on the premises but were not permitted to work, though continuing
to receive their customary remuneration and other beneficial emoluments of em-
ployment. In fact, some employees earned overtime pay as a consequence of pub-
lishing delays. I do not conceive that action of such kind and context, if it consti-
tutes discrimination, is of a sort calculated or likely to discourage union
membership. Whether it might be under other circumstances need not be deter-
mined Cf. General Motors Corporation, 59 NLRB 1143; Allis-Chalmers Manu-
facturing Company, 70 NLRB 348.
PUBLISHERS ' ASSOCIATION OF NEW YORK CITY , ET AL. 1115
C. Interference, restraint, and coercion
The next, and more difficult, question is whether the Respondents' actions were
of a character to be violative of Section 8(a) (1)-that is, could interfere with,
restrain, or coerce employees in the exercise of rights guaranteed in Section 7,
quoted below.17
An employer is free to take reasonable measures not otherwise inconsistent with
the statute where designed in good faith to maintain operations, even though the
action may incidentally affect concerted or union activity. Action by unions or
employees in the nature of strikes or threats to strike in violation of their contractual
commitments is, as we have seen, conduct not protected by this statute. Reprisals
in employment, in the nature of a lockout, imposed by the employer upon the
offending employees because of their participation in or responsibility for such
activity therefore do not constitute unfair labor practices. Similarly a threat by
the employer to impose appropriate reprisals upon employees who threaten to strike
in violation of contract would also appear not to be a violation. Likewise a threat
to lock out employees in case they fail, in violation of their contractual obligation,
to perform their normal employment duties in connection with a controversy be-
tween the employer and another union, where the warning is issued in good faith for
the genuine purpose of insuring compliance with the commitment, may perhaps be
equally privileged. The likelihood of such a violation occurring would no doubt
be material to the question of the employers' motivation and his good faith. And
if, reasonably believing that a strike which will cause unusual loss will occur the
employer closes down his entire operation-the exigencies of his business requiring
it-in order to avoid such loss, there would also appear to be no violation, even
though innocent employees thereby lose wages. Legitimate modifications of opera-
tions caused by the concerted activity of one group of employees may necessitate
stoppage of all operations. In such a situation the employees not involved in the
activity are really laid off for bona fide economic reasons-lack of work for them
to do i8
Where, however, employees not responsible for the strike threat are laid off, as
here, in reprisal for the actions of other employees, a different question is presented.
For lack of a better term those laid-off employees may be described as neutrals.
They have not in connection with the controversy supported or engaged in any un-
protected concerted activities. Reprisals on them cannot therefore be defended on
the ground that they have disqualified themselves from invoking the protection of
the statute.
The question then is-what right can the neutrals invoke? Is there a statutory
claim which the Respondents have impaired? The neutrals are not engaging in a
specific union or concerted activity. They are not locked out because they are
engaging in or threatening to engage in such activity or to inhibit them from so
doing. The answer to this query involves a determination as to how the publishers'
object--discouragement of wildcat or illegal strikes-was intended or could reason-
ably be anticipated to be, implemented my the publishers' action. How did the pub-
lishers contemplate that the threat of lockout of the neutrals would discourage
unprotected strikes or avert the current one?
17 Section 7 of the Act reads as follows:
SEC 7. Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in section 8(a) (3).
"This was the situation in N L R.B v. Continental Baking Company, et at., 221 F 2d
427 (CA. 8), where a general shutdown by bakery employers, caused by a piecemeal
strike by the bakers, resulted in a lack of work for the truckdrivers. The present case,
of course, does not involve economic layoff, exemplified by the Betts Cadillac Olds and
American Brake Shoe line of cases The newspapers not immediately concerned were not
threatened with or apprehended probable interruption of their operations in connection
with the dispute And the papers which were immediately involved were not motivated
by considerations of avoiding proximate loss
Some of the closedowns in the 1958 strike are perhaps instances of economic layoff
similar to that in the Continental Baking case. Except in the case of the Times, the sus-
pension notices issued by the papers on that occasion asserted inability to continue publi-
cation as a reason for the action.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obviously it was envisioned that somehow the action would result in influence
on the offending union or employees to abandon or refrain from improper conduct.
But precisely how this was to be achieved is not clear. Inquiry at the hearing
elicited little that was informative in this regard-whether the neutrals would im-
portune the delinquents to spare them the employers' blow, or whether the mere
prospect of havoc to the neutrals could be expected to shock the offenders into
abandonment of their conduct; or whether both were contemplated. Whatever the
intent, it seems apparent that a probable effect of general lockout would be to induce
the neutrals to influence the offending group to alter or abandon its concerted
activity.
The consequence is that the employer compulsorily enlists or impresses the neutral
employees as his allies in the labor dispute. This is suggestive of a kind of second-
ary boycott with the classical roles reversed. When the action is extended to em-
ployers not involved in the controversy it constitutes a sympathetic lockout. If a
craft union at one newspaper, faced with a breach of contract by that publisher,
threatened employees at other papers with reprisals if they did not engage in a
sympathy strike to deter the breach, there would seem little doubt that such action
would constitute a restraint upon the statutory right of the neutral employees to
refrain from engaging in a concerted activity. Similarly, when the publishers in the
instant case, by threats of and deprivation of employment, bring concerted pressure
to bear upon employees unconnected with a dispute to compel solution of the em-
ployers' controversy with another union, the effect-irrespective of the design-
is to compel such employees to assist in the employers' concerted activity (resistance
to the union demand) and to oppose the union's activity. These are Section 7
activities, from which employees have the right to refrain. Consequently, unless
privileged, the publishers' action constituted a restraint upon a Section 7 right of
the neutral employees.
It would also be restraintful for another reason: Securing abandonment of the
offensive union activity would be in the interests of the neutrals; it would avoid
their layoff and potential loss of benefit. That the lockouts and threats to lock out
did not result in actual loss of employee benefits does not affect this conclusion.
Implicit in the employer's action was the menace of such injury; it is not likely that
the publishers thought as a long-term proposition to discourage strikes by enforced
vacations with pay. Moreover, the employees were not aware that the employers
would continue their remuneration. And in future cases they concededly may not.
The Respondents' conduct therefore tended to coerce neutral employees to engage
in a concerted activity (opposition to the disputing union 's activity) for their own
mutual aid and protection.
The restraints intended by and inherent in the Respondents' action are thus ap-
parent. They seem to make it quite clear that the publishers' assurances that the
agreement will not be invoked against unions which honor their obligations, are not
quite accurate. For despite their apparent record of complying with their commit-
ments there is no indication in the evidence that the Photoengravers, the LAM, or
the IBEW were spared the application of either the lockouts or the threats.
1. Whether a lockout was privileged: Having determined that a lockout of neutral
employees may operate as a restraint upon rights protected by Section 7, the next
question is whether such restraint, like that involved in the replacement of an eco-
nomic striker, or the application of a valid contractual provision forbidding union
solicitation on an employee's free time, may nevertheless be privileged. This re-
quires a balancing of the competing interests. In such an assessment the nature of
the nroblem and the availability and character of other remedies are relevant.
The intentional infliction of harm upon another person is normally tortious,
though it may at times be privileged as against an aggressor or offender against
legally protected interests , as in defense of person or property. Restatement, Torts,
sec. 63. sec 871, comment b. Except in the case of extraordinary public need,
however. such right does not extend to the infliction of advertent, willful. and sub-
stantial damage upon innocent third persons for the protection of the actor's interest.
Id. sec. 890, comment a. One may not sacrifice another and disinterested person to
protect oneself from harm Id. sec. 73. And even the privilege to resist an
aggressor does not necessarily imply license to use force, or if force is warranted
to employ it in unnecessary or excessive measure. Id. sec. 71. The privilege of
interference with legally protected interests is special , extraordinary, and highly
circum^crihed. These principles weigh heavily against the Respondents' method of
meeting their exigencies here.
That the publishers in good faith believed their problem to be substantial and their
solution reasonable I do not doubt. Good faith will not avail, however, against an
unexcused invasion of statutory right.
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1117
We have already discussed the general proposition that the Respondents' object
was to secure resolution of disputes by use of the contractual machinery rather than
by work interruption. The Respondents also assert that they sought to maintain the
integrity of the bargaining unit against piecemeal attack, as in the Buffalo Linen
Supply case, and that this is a privileged object-as indeed it is. The question is
whether the principle is applicable.
The publishers have a legitimate interest in the maintenance of the collective-
bargaining contracts and the contractual machinery for the orderly settlement of
disputes. The refusal of a union at one newspaper to abide by its commitments in
this regard is properly a matter of concern for all papers. As each employer in a
multiple-employer bargaining unit has a stake in the maintenance of the integrity
of the unit so may he have a proper concern in maintaining the contract. Indeed
securement of the contract is a primary reason for the existence of the bargaining
umt. The agreement is the fruit for which the vine is cultivated. It would therefore
not be unreasonable to argue that where the actions of a contracting party demon-
strate a purpose to deprive the entire unit of employers of the benefits of the contract,
the employers would be warranted in locking out the offending group if such action
would effectively checkmate the employee activity-as in the Buffalo Linen Supply
case where the general shutdown of employers canceled out the union's attempt
to fragmentize the bargaining unit. However, this is not that kind of problem.
In the Buffalo Linen Supply case the union sought to achieve a limited shutdown
in order to compel the employers to engage in a new and different type of bargain-
ing, with the aim of coercing them, one-by-one, to agree to the union's demands.
In the instant situation the employees' action was not such an attack upon the joint
interest of the employers, their solidarity, or their form of organization. The unions
were not attempting to impair the effectiveness of the publishers' joint resistance to
union proposals or the publishers' concerted insistence upon their own In sum,
the employers were not here repelling a union attack upon the integrity of their
bargaining position-as in the Buffalo Linen line of cases-or upon their bargain.
I am not prepared to extrapolate the principle of concerted defense of a joint bar-
gaining unit or bargain by lockout to the authorization of joint lockout in defense
of an individual position. For to do so would convert the multiple employer bar-
gaining unit from an instrument for the maintenance of labor peace to a weapon
for its unsettlement; to extend the disturbance of a local grievance from a compos-
ing room to an entire city. As was said in the Morand Brothers Beverage case, 91
NLRB 409, 413, "An isolated skirmish would become a civil war."
For what was involved were purely local grievances with individual employers
over individual differences with their own employees. There was no apprehension
among the other publishers that the dispute would spread to or affect their own
operations-other than the remote conjecture that if a contract violation occurred
at one paper it might happen at another. Valid though such anticipation may be
as a philosophical proposition, it does not constitute adequate justification for in-
vasion of a legally protected right.
In a grievance dispute between an individual employer and a segment of his
employees, part of a multiple employer bargaining unit, other unit employers not
individually involved in the particular controversy and not threatened by interrup-
tion of their own operations, may not close down for the purpose of compelling the
disputant employees to observe the terms of the joint unit contract.
Though it is not always so, a grievance is normally a controversy confined to a
particular employer and his employees Where it is so, union pressure on that
employer does not constitute an attack upon the integrity of a multiple-employer
unit justifying a general lockout by the employers. Otherwise every minor local
dispute could become a vehicle for the closedown of an entire industry. I do not
read the Buffalo Linen Supply case as authorizing such a result. This is so even
though the union pressure may be a violation of the unit contract.
That the lockout is over observance of the contract grievance procedure rather
than some other contractual provision does not change the situation. The nature of
the contractual right which is being enforced is not a distinguishing characteristic
That the employers would not close down in all or any particular instance does not
meet the issue. The question posed by the Respondents is one of the existence of
legal right to take the action. In such a context it is of no moment whether in a
particular circumstance the right is likely to be exercised.
An employer may take reasonable measures designed to prevent disruption of his
business in advance of any such disturbance, where the likelihood of interference
is strong. Betts Cadillac Olds, Inc., supra; Cleaver-Brooks Mfg. Corporation v.
N L R.B , 264 F. 2d 637 (C.A. 7); Caterpillar Tractor Company, a Corporation v.
NLRB., 230 F. 2d 357 (C.A. 7); American Brake Shoe Co., supra. This is much
like the right of self-defense. The apprehension of strike, if it is to serve as proper
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis for an anticipatory lockout, like the apprehension of assault in connection with
self-defense, must be reasonable and envision immediate unwarranted attack upon
a substantial right of the defender. Mere intuitive fear, however genuinely enter-
tained, that one may be "next in line" is not sufficient excuse. The self-defense
permitted an employer under Section 8 does not include a right to wage war or to
engage in a punitive expedition. Nothing in the Supreme Court's opinion in the
Prudential Insurance case (361 U.S. 477) suggests the contrary.19
In the light of the circumstances here, the publishers' measures reflect the exercise
of unreasonable force.
This does not proscribe employer use of economic sanctions and weapons in the
process of collective bargaining, for the employer remains free to exert the ultimate
and decisive sanction-one denied unions and employees-the imposition of his own
lawful demands if bargaining results in an impasse. N L.R.B. v. Crompton-High-
land Mills, Inc., 337 U S. 217 20
2. The publishers' breach of contract: Having assumed for this portion of the
discussion that all the mechanical contracts contain no-strike, no-lockout provisions,
it must be found that the publishers' lockout of neutral employees was in breach of
contract, and for that reason also not privileged action under this Act. For if it is a
violation of their contractual obligations for employees or unions to strike, it is
equally so for the publishers to lock out-unless for economic reasons or to defend
against contract violations by the locked-out employees. Neither defense being
applicable against the neutral employees, their lockout was in breach of contract 21
3. Union responsibility: In considering the permissible extent of the use or threat
of lockout under the particular circumstances, the responsibility of union officials
for the union activity which provoked the reprisal, and their effort, or lack of it,
to secure cessation of the activity must also be weighed. For if responsibility can-
not fairly be imputed to the union, self-help by the publisher would additionally
appear to be inconsistent with his own contractual obligation to refer the dispute to
arbitration before resorting to lockout.
The work stoppages or threats which gave rise to the incidents alleged in the
complaint were mostly wildcat in nature. Where they were supported by a union
official, they were repudiated by more responsible union officers.
Thus in the February 11 dispute at the Herald Tribune, Stereotyper President
McMahon sought to terminate the stoppage, and it was ended with slight delay
to the edition. In the February 23 incident at the Times the business agent and the
president of the Deliverers made efforts to get the men back to work. In the
March 11 dispute at the Tribune over safety devices the union president assured
the Tribune that there would be no strike over the issue. During the April 26
stoppage at the Times in protest of the discharge of the chapel chairman, the presi-
dent of the local union sought to get the men back to work. When that effort was
unsuccessful officers of the International union threatened their members with loss
of union membership and privileges unless the stoppage was terminated.
Good faith of conduct is not always readily assessable and may be dissembled.
However, there is neither evidence nor contention that such was the case here.
"'In that case the Court said • "The presence of economic weapons in reserve, and their
actual exercise on occasion by the parties is part and parcel of the system that the
Wagner and Taft-Hartley Acts have recognized " (Id 489 ) And see Great Falls
Employers' Council, supra; "It is not the business of the Board 'to define through its
processes what economic sanctions might be permitted negotiating parties in an ideal or
balanced state of collective bargaining'"
Recognition of the legitimacy of force in one circumstance is not an affirmation of its
validity in all situations.
20 This authority is not because the lockout is the correlative of the strike, for it is
not, despite occasional comment to that effect The equivalent of the strike is the em-
ployer's authority to set the conditions of employment; not his power to lock out the
employees, but his capacity to resist by rejecting their demands The strike is but a
device to compel the employer to establish an employment practice It is the ultimate
employee weapon only because, having no power to set terms of hire, employees have no
better But the employer is not so restricted Once he had bargained the issue to the
point of impasse he is free to impose his own employment requirements. The employees
must then either strike, submit and accept the situation, or discontinue their employ-
ment Given equivalent power in employees to prescribe terms of employment there
would be no necessity for-and presumably no use of-the strike. The lockout is thus
not the employer's counterpart of the strike
21 This conclusion is for the purposes of this Act and this proceeding only. It is not
to say that a similar opinion must (or must not) follow in arbitration under the con-
tracts, or in a suit at law. That question is not presented and I express no opinion on it.
PUBLISHERS' ASSOCIATION OF NEW YORK CITY, ET AL. 1119
While one may surmise that the publishers' warnings of general shutdown might
have contributed to the warmth of the union officials' effort to avoid or terminate
stoppages , there is no apparent ground for questioning its genuineness . In such
circumstances infliction upon the entire union, and indeed upon the whole body of
employees, of punishment for the perhaps irresponsible act of a minority seems
severe. In the absence of authorization, adoption, or ratification the action of in-
dividual members of a class is not ordinarily imputable to all in the class. Associa-
tive or mass guilt are concepts not favored in our law. This view is incorporated
in the Norris-LaGuardia Act, section 6, of which states (129 U.S.C.A. 106):
No officer or member of any association or organization, and no association
or organization participating or interested in a labor dispute shall be held re-
sponsible or liable in any court of the United States for the unlawful acts of
individual officers, members, or agents, except upon clear proof of actual
participation in, or actual authorization of, such acts, or of ratification of such
acts after actual knowledge thereof.
If members or organizations interested in a labor dispute are not to be held
responsible for unlawful acts which they did not authorize, ratify, or participate in,
it seems unlikely that those not involved in the dispute would be. See N.L R.B. v.
Ohio Calcium Company, 133 F. 2d 721, 726 (C.A. 6); Marshall Car Wheel and
Foundry Co. of Marshall, Texas, Inc., 218 F. 2d 409, 417-418 (C.A. 5).
As the court of appeals said in the Marshall Car Wheel case at 418 in refusing
to authorize reprisals against all strikers because of the unlawful acts of some
strikers :
the Board has the initial duty and responsibility, in the exercise of its
broad statutory discretion, to fashion an order which, while deterring irrespon-
sible dereliction of duty either by unions or individual members thereof by
refusing them all remedial relief, nevertheless would not tend to penalize those
individual employees, if any, who may not fairly be charged with any respon-
sibility therefor.
Confirmatory of these principles in another context is the recent case of F. McKenzie
Davison, W. J. Hardy, Sr. and W. J. Hardy, Jr., d/b/a Arlington Asphalt Com-
pany, 136 NLRB 742, in which the Board held that it is a refusal to bargain for
an employer to insist in bargaining negotiations upon the union providing him an
indemnity agreement for damages to the employer caused by labor organizations
and employers beyond the union 's control.
The rejoinder of the Respondents to the effect that they could judge performance
only by results, is not likely to encourage no-strike commitments . If by acceptance
of an arbitration clause every union and employee in the establishment becomes
the insurer of the conduct of every other union and employee, the premium for
the policy will no doubt have to reflect the increased risk-or the coverage with-
drawn. For these reasons the Respondents' actions are additionally inconsonant
with the statutory objectives of encouraging the peaceful resolution of labor con-
troversies and protection of the organizational rights of employees.
4. The existence of other remedies: Additional ground for conclusion that the
Publishers' lockout policy exceeds permissible limits in the circumstances is the
availability of other remedies which, on balance and in the light of the problem,
render the publishers' action excessive and nonprivileged. This is an additional
substantial element of difference between the problem of the publishers here and
that of the employers in the previous cases where lockout action has been sustained.
In the latter lockout was substantially the only defensive or redressive weapon
available.
On occasion the publishers have secured money awards in arbitration proceedings
under the contracts as damages for violation of agreement. Though the Respond-
ents seem to suggest that arbitration and damages are not satisfactory remedies it
is not apparent why that should be so. Moreover, if there is substance to the con-
tention there would appear to be an inconsistency between the Respondents' in-
sistence that the unions must use the contract machinery for rectification of their
grievances but that the publishers are not required to. Principles of mutuality
would seem to make inadequacy of remedy a defense equally available to both
parties. It may be that because of the nature of newspaper publishing-involving
deadlines and a perishable product-the publisher is more sensitive to pressure
than employees. But such disparity can be true in any legal relationship. It is
why there are such things as contracts, legal procedures for their enforcement and
damages for their violation. Moreover, a fair mind might in some cases deem
the employees' claim more urgent than the employer's. This is where the em-
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee complaint involves an assertion of dangerous working conditions-the stated,
but unfounded, assertion in the March 11 dispute at the Herald Tribune concern-
ing safety devices on the wire-tying machine. Section 502 of the Act states that,
the quitting of labor by an employee or employees in good faith because of abnor-
mally dangerous conditions for work at the place of employment of such employee
or employees [shall not] be deemed a strike under this Act." If the condition is
abnormally dangerous it would thus not be within the scope of a no-strike agree-
ment. But even if it is not so dangerous in fact, if it is in good faith and upon
apparently reasonable grounds believed to be so, I would have doubt that refusal
to accept the condition would be a violation of a no-strike commitment. In the
light of Section 502, I do not conceive that an employee or union representative act-
ing in good faith upon ground not patently unreasonable is required by this Act
to risk honestly apprehended injury or else be held to have violated his contract.
Cf. Knight Morley Corporation, 116 NLRB 140, enfd. 251 F. 2d 753 (C.A. 6),
cert. denied 357 U.S. 927.22
Other remedies-some of which they have used on occasions-are also avail-
able to he publishers to deter action violative of the contracts or the law: dis-
charge or other disciplinary action against the offending employees; damage or
injunction suits at law or equity, and if applicable unfair labor practice charges.
The most obvious of these-disciplinary or discharge action-is said to be ineffec-
tive for the reason that, as one witness for the Publishers stated, it will "not get
your paper out" and will likely provoke more serious interruptions. This, while
no doubt true, is not enlightening: it does not explain how the situation is improved
by ceasing publication altogether. The thesis that deserved discipline will incite
further stoppages would seem as applicable to unwarranted reprisals.
The availability of these remedies makes inappropriate the Respondents' method
of solution of their problem. What the Board said in F. McKenzie Davison, W. J.
Hardy, Sr. and W. J. Hardy, Jr., d/b/a Arlington Asphalt Company, 136 NLRB
742, in recognizing the situation which faced the employer there, might well be
said of some union action here:
. . , we have no doubt but what unlawful activities of the foregoing classes
could well result in an effective curtailment of Respondent's operations. But
Congress provided, and has placed at Respondent's disposal, adequate statutory
remedies to alleviate the pressures which such activities produce.
See also Plumbers Union of Nassau County, Local 457, United Association of
Journeymen etc. (Jerry Bady, d/b/a Bomat Plumbing and Heating), 131 NLRB
1243, enfd. 299 F. 2d 497 (C.A. 2).
No doubt the publishers have not used the lockout on all possible occasions but
have, as they put it, used the weapon "sparingly" or with "restraint." That one
has observed the law where he might have broken it, though perhaps cognizable in
mitigation, is scarcely a matter of defense. That a lockout may be an effective
deterrent to breach of contract strikes or threats, as the Respondents say has been
their experience here, I have no doubt. As Mailers' counsel somewhat wryly ob-
served, disposal of the union leaders would perhaps also be effectual. The test of
the legality of conduct is not exclusively its effectiveness, however-though of course
that is a factor to be weighed-but its consonance with law.
5. Strike insurance: I do not find that strike insurance is a substantial element
of compensation to the publisher in case of strike. Some, but not all of the
papers carry such insurance. However, as we have seen, the coverage is limited,
and the waiting period of 7 days would presumably make the policy inapplicable in
all but extraordinary situations. I therefore do not regard insurance protection of
such circumscribed scope as an adequate remedy for potential strike losses.
6. The lockout policy as based upon union membership and affiliation: A gen-
eral lockout by employers in a multiple-employer bareaining unit is unlawful where
based on consideration of union membership or affiliation. Anchorage Business-
men's Association, et at., 124 NLRB 662, enfd 289 F. 2d 619 (C.A. 9). The
lockout policy and agreement here were substantially so based.
During the 1958 strike the Times, as we have seen, paid all employees who
reported for work, "provided they were not members of unions striking elsewhere
against another member of the Publishers' Association." Thus some employees of
the Times, not themselves acting in breach of any contractual obligation, were
as This is not to suggest that the March 11 dispute was of such character On my dis-
position of the case I do not reach that question.
PUBLISHERS ' ASSOCIATION OF NEW YORK CITY, ET AL. 1121
deprived of pay because of their membership in a union engaged in a strike against
another employer. In my view, such a policy is prohibited by the statute.
However, no finding of unfair labor practice is made on that action, first be-
cause it is not alleged in the complaint, and secondly, because now barred by Sec-
tion 10(b) of the Act. In addition, individual action of the Times cannot be
imputed to the other publishers, who are not shown to have authorized, adopted,
or ratified it.
However, when the current lockout agreement came into existence in its present
form, it was based upon union action: Neutral employees were made subject to
possible lockout in case of a strike by any contracting union because the employees
were members of unions having contracts with the publishers. Moreover, the simple
occurrence of strike or threat was made attributable to the union of which the
strikers were members, regardless of authorization or ratification by the union, its
senior officers or members, or the efforts of responsible union officials to have the
activity terminated. Thus, if employees struck an employer their union was re-
sponsible; for union action union members of all mechanical unions could be laid
off by all the employers. The agreement was applicable only if a union or union
members struck; presumably not if nonunion employees struck. In addition, an
object of the lockout agreement was to discourage breach of contract strikes by all
unions. Thus, again, employees were singled out for lockout threat because they
were members of unions having contracts with the employers. That the publisher
may by proper means in appropriate circumstances warn contracting employees of
the consequences of breach of contract strikes does not meet the issue. It was not
permissible to do it by improper means.
It is therefore found that the lockout agreement, as it existed in the period of
time alleged in the complaint, contemplated the lockout of employees because of
their union membership or affiliation. This, of course is not to suggest that the
publishers were animated by antiunion considerations or animus against employee
organization, for I have specifically found that they were not. However, motive or
animus are not the tests of whether conduct may reasonably tend to restrain union
membership or affiliation or the exercise of statutory rights. American Freighttivays
Co., Inc., 124 NLRB 146; N.L.R.B. v. Star Publishing Co., 97 F. 2d 465 (C.A. 9);
General Motors Corporation, 59 NLRB 1143; Allis-Chalmers Manufacturing Com-
pany, 70 NLRB 348.
Upon the basis of the foregoing considerations I am of the opinion that the lock-
out agreement, the 1961 threats to lockout, and the lockouts of that year by the
publisher Respondents were violative of Section 8(a) (1) of the Act.
Summary
An employer may take reasonable measures to avoid a breach of contract strike,
including warning employees of the consequences of such activity. It is a quite
different thing, however, for him to throw them out of employment or to threaten
to do so for the purpose of conveying or emphasizing such a warning, when he has
no reason to apprehend imminent action by them in breach of their employment
obligations. If employees threaten his continued operation, he may shut down to
avoid unusual loss; if they seek to atomize his multiple-employer bargaining unit by
piecemeal strikes to compel resolution of a bargaining dispute, he may close to avoid
destruction of the unit. But on the present state of the law I do not believe that he
can legally lock out employees to provide them with an object lesson as to what will
happen if they do not observe their contracts. Neither do I believe that he can
suspend operations to compel or induce employees to oppose or support the con-
certed activity, lawful or unlawful, of other employees. For this is to involve neutral
employees in a labor dispute, to enlarge the area of the dispute, and to make it
secondary in character. Additionally, I am of the opinion that an employer may
not deprive neutral employees of employment, or threaten to, in order to induce
other employees to refrain from concerted activities, regardless of whether the con-
certed activities are lawful or unlawful; for to do so is to seize the employment of
neutral employees as an item of bargaining with the disputing employees and to
seek to trade it for a resolution of the controversy. Perhaps an employer may seek
to induce neutral unions or employees on a voluntary basis to take appropriate and
lawful measures-secondary though this inducement may be-to secure the termina-
tion of concerted activity by other employees or unions. This issue is not presented
mid not decided. Even if such a right exists it does not extend to a compulsory
draft. Impressment is not enlistment.
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that employers in a multiple -employer bargaining unit may not engage
in a sympathetic lockout in support of one of their number threatened with a breach
of contract strike over a grievance dispute in the latter 's plant.
Finally, we reach the most sensitive point in the controversy-the effect of the
disputes and the parties' conduct on the flow of news , a current vital to the function-
ing of a democratic society. It was to maintain this flow that the publishers ' efforts
were primarily directed ; it was its disruption that disputing employee groups threat-
ened . That the publishers should not have been subjected to such improper pressure
where there were peaceful alternatives cannot be overstressed . It was their right
and duty to combat it appropriately . What compromised their worthy end was the
remedy they chose to avert the evil. To rescue one paper from involuntary close-
down or delay they voluntarily suspended or threatened to suspend publication of
every paper. Heroic medicines may be suitable in time of desperate need, but the
total blackout of perhaps the greatest single collection of competitive news media
in the world in order to frustrate interruption of a segment of the enterprise, seems
to be to compound the disease . This is not to question the good faith of the pub-
lishers, for they had a private interest in maintaining publication , quite apart from
impulses of public service . But the voluntary and concerted suppression, even tem-
porarily and with the best of motives , of such important vehicles of public informa-
tion is a responsibility fraught with more than ordinary consequence-whosoever
the original fault. This is a principle applicable to employers , unions, and employees.
Where there are reasonably adequate peaceful alternatives, the use of disruptive self-
help by either side of a labor dispute in so important an enterprise contributes
neither to the public convenience nor to the long-term interest of the participants.
For if they are unable to resolve their differences by their own restraints and inven-
tions, other and more impatient forces may provide brusquer machinery.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section IH, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondents have interfered with , restrained , and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act, it will be
recommended that the Respondents cease and desist therefrom and take certain
action to effectuate the policies of the Act.
Since it has been found that the Respondents did not engage in violations of
Section 8(a)(3) of the Act it will be recommended that such allegations of the
complaint be dismissed.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents violated Section 8 (a) (1) of the Act by:
(a) Maintaining an agreement or understanding by which a publisher agrees to
suspend or to consider suspending publishing operations or to lock out neutral em-
ployees in the event that employees ccvered by an associationwide contract threaten
or engage in a strike or work interruption against any member of the Publishers'
Association.
(b) Threatening citywide shutdown by all the publishers pursuant to the aforesaid
agreement or understanding.
(c) Engaging in suspension of publication and locking out or laying off neutral
employees pursuant to such agreement or understanding.
(d) Locking out or laying off, and threatening to lock out or lay off, employees
on the basis of union membership or affiliation , or because other employees have
engaged in concerted activity as defined in the Act.
2. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
3. The Respondents have not committed unfair labor practices within the mean-
ing of Section 8(a) (3) of the Act.
[Recommendations omitted from publication.]