# News Union of Baltimore v. National Labor Relations Board > Court of Appeals for the D.C. Circuit · February 9, 1968 · 393 F.2d 673 URL: https://www.frixlaw.com/law-library/cases/8878731 ## Case - **Full name:** The NEWS UNION OF BALTIMORE v. NATIONAL LABOR RELATIONS BOARD, Hearst Corp., News American Division, Intervenor TRUCK DRIVERS AND HELPERS, LOCAL 355, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS v. NATIONAL LABOR RELATIONS BOARD, Hearst Corp., News American Division, Intervenor - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** February 9, 1968 - **Citations:** 393 F.2d 673 - **Precedential status:** Published - **Opinion:** Dissent by Bazelon - **Judges:** Bazelon, McGowan - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8878731 ## Opinion text BAZELON, Chief Judge (dissenting). I believe that under applicable case law a defensive lockout requires a finding that the union in some manner “threatens the destruction of the employers’ interest in bargaining on a group basis.” 1 Union tactics of whipsawing 2 and selective grievance strikes 3 have been recognized as justifying a lockout since they are designed to affect the union’s relationship with the unit employers. Here the Trial Examiner found that because of the almost unanimous refusal of the employees to cross the picket line, the action may be attributed to the union itself as its tactic. 4 But the Board “deem[ed] it unnecessary to decide whether, as found by the Trial Examiner, the unions are responsible for the conduct of their members and therefore themselves breached their agreements.” I do not agree that the Board needs only to find the employees’ actions unprotected. I think the Trial Examiner’s finding of union support is essential at least for a determination that the employers’ interest in group bargaining with the union was threatened. The majority says that a lockout is justified because to the extent that the employees’ conduct conflicts with the no strike clause it defeats the employer parties’ bargaining expectations: in other words since almost unanimous employee activity caused the work stoppage, the Board was not required to determine whether the union condemned or condoned the employees’ action. This view ignores the union’s role as the nexus which allows Hearst to lock out all its employees when printers and teamsters, whose unions bargained with the publishers’ unit, honor the Guild’s picket line at Abell. It is the union which agreed to act in good faith, and not engage in whipsawing or selective grievance strikes. Conceivably individual members may engage in unprotected activities which subject them to dismissal for violating the contract but which cannot be imputed to the union. 5 Only if the union authorizes *682 or ratifies a work stoppage can the employers’ interest be said to be threatened. 6 And whether this threat is sufficiently great to justify a lockout depends on the Board’s “balancing of the conflicting legitimate interests,” 7 for not all union activity would justify a lockout. 8 . NLRB v. Truck Local (Buffalo Linen Supply Co.), 353 U.S. 87, 93 , 77 S.Ct. 643, 646 , 1 L.Ed.2d 676 (1957). . In Buffalo Linen the Supreme Court held that whipsawing was a union strike tactic designed to put selective pressure on members of the multi-employer unit. . In New York Mailers’ Union v. NLRB, 327 F.2d 292 (2d Cir. 1964) the employees’ activity was repeatedly characterized as a strike tactic and at footnote 9, the court noted that: ■> We agree with the Board’s resolution of the issue of the responsibility of the various unions for the conduct of their worker members in resorting to breach of contract strikes during disputes over grievances. The Board noted that the stoppages did not appear to be purely “wildcat” in nature; that such strikes were used against the publishers with “annoying frequency”; that several incidents involved a union steward or shop chairman; and that union officials were in every instance able to get their striking members to return to work. . The Trial Examiner found: To hold, as the representatives of the union urge, that every single one of these workmen, all members of disciplined labor organizations, acted independently of the opinion and belief of all others who moved with them would ignore the realities of industrial life and traditional union activities. V V True, there is no direct evidence of inducement by either union as such, but union responsibility in this type of situation need not rest upon out and out confession. . In a wildcat strike where more than individual behavior is involved employees may be discharged for unprotected activity, but the union remains as bargaining agent for the unit. And Section 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106 (1964 ed.) specifically provides that be *682 fore responsibility for illegal employee activity can be attributed to the union, it must be shown that the union authorized or ratified the activity. . The majority contends that a finding of union responsibility would only be required in this case to determine whether the union was liable for damages for breaking the contract. It reads the Board’s action as justifying the lockout without finding the union liable under the contract, whereas in New York Mailers the majority reads the Board’s findings and the court’s holding as indicating union liability under the contract. My view is that the Board is charged in the first instance with determining whether the lockout is justified and not with creating a record for the employer to rely on in a subsequent damage suit. Since both New York Mailers and this ease involved careful consideration at different stages of whether the employer could lockout, I regard any discussion of “union responsibility” to bear primarily on the lockout question. The failure of the Board to find union responsibility here was a misreading of New York Mailers and Buffalo Linen. . NLRB v. Truck Local (Buffalo Linen Supply Co.), 353 U.S. 87 , 77 S.Ct. 643 , 1 L.Ed.2d 676 (1957). . See American Ship Building v. NLRB, 380 U.S. 300, 327 , 85 S.Ct. 955 , 13 L.Ed.2d 853 (1965) (concurring opinion) (Goldberg, J.). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8878731. Public record. Not legal advice.