Petition for Writ of Certiorari — N.Y. City Pub. Assn. v. Nat. Lab. Rel. Bd. (No. 6335)

, Beet f. Office-Supreme Court US.

made oy) : FILE)

CT 5

re

JOHN. DAVIS, CLERK’

.

n

i]

eS TERM 1966 7 te Ae e

vos — Seauks

‘ss Pusiisners’ Association or New York City, Toe Hearst

a _. Corporation, NEWSPAPER Enterprises, Inc., Lone IsLanp

Datty Press PuBLIsSHING Co., Inc., 125 Barcuay STREET,

Inc., News SynpICATE Co, ‘Inc. _and_ THE New. Yous

Tries Company, pera e a seit io

2 | Politioaers,

; ee er | fener

Nationai Lazor Retatioxs Boarp and. New York ©

°°: ‘Typocrapuican Union No. 6,

| Respondents.

| PETITION FOR A WRIT_OF CERTIORARI TO THE eee

_ UNITED STATES COURT OF APPEALS——— ~~ Hs

.. FOR THE SECOND CIRCUIT

Joun R. ScHormer, Jk.

3 i a | Attorney for Petitioners . nae

. | ; +, 220 East 42nd Street ___* Cannan 2

reg 8A oP ¥ a8 3 New torm New York 10017 | ‘

' October 4, 1966

or:

aN:

2

: ute k \

es

Y : :

INDEX cgi eget

/ % : : G

| : PAGE

Perrrion saoclens |

Opinion Below’ rider ion igecad one oack dpaiaon bean

Jurisdiction -. re

. 4.

Question Presented -... a

' Statute Involved :

‘Statement | ;

: = The Collective Bargaining Relationships es

UV

“a 99 0 bo bo bo fe

B. The. Board’s Decision and Order > os 66 eas

oO

C. -The Decision of the Court of Appeals Siadianss aly ee

Reasons #0n-Gaawsite THE Wile. er ot <

%. Rie Tas . geist

Cases:

| American Ship Building Co. v.N, _N. LB. B., 380. U. s. | o

’ 300 (1965) Rah ae Sea UR NBPSSDhe AEE

) Bell Bakeries, 139 NLRB 1344 ae ne am

. Brown Food Stores, 137 NLRB 73 ($962), enf. den.

sub ‘nom. Brown v. N. L. RB. B,, 319 F. 2d (10th Cir. py

1968), aff'd 380 U. S:'278 (1965). .vi-eeqeoeeepeonveeeeeenn8, 10, 14.

sor Buffalo Linen. Supply Co., 109 NLRB. 447 (1954), enf.

- den. sub nom. Truck Drivers Local Union v. N. L.

Ree © 2a 110 (20 Cir. 1956); rev'd 358 U. S. 87

(1950) on nies 89,11 12 5

he ‘Bemea-Oardoen: 97 : NLEB 1342" (1952), enpa 205 F. 24 :

889 (9th Cir. 1953) bois | | Wee

78 rasp .

PAGE.

Clune v. Publishers? pe N. Y..C 214 BP Sapp., ie

520 (8. D.N. Y.), afd 314 F. 2d 3 ice. ae 5:

10, 132 NLRB 4 (1961) cia <a

ame

— Breing News Association, 1 154 NLEB ie. 121 (1965).

1 et 0 Re Shara ‘i

Sg

ie Te R. B: ¥. Burroughs Corp, 261 F. 2d 463 (2d Cir.

1958) ... . > 14:

N. L.. BR. B, v. Philamon Taboratories, 298 F. 2d 146

(2d Cir: 1962) : /14 ¥

N.LB. B. v, Sheridan Creations, rong 357 F 2d 245

(2d Cir. 1966) ....... Ms f

. Newspaper Drivers’ Union v. Detroit Newepaper/Pub.

_ Asem, 382 U. S. 374 (1966) ..... oe

=

Old ae Cole v.N.L R. B,, 260 F. 2a 530 (6th Cir.

7 1958) - fe ae es

Publishers’ Assn. of N. ¥. ¢; 139 NLRB 1092. ( 1962),

aff'd 321 F. 2d 292 (2d: Cir. 1964) iaalceudce ¢

oe Associates, Ine,, 120 NLRB 388 (1958) ha 12 “

| Stouffer Corp, 101 NLRB 1331 (1952) oa tS

“Tom Thumb Stores, Inc:, 123 NLRB 833 (1959) a 14

. — Sheet gia Works, 149 NLRB 1487 (1964) New oe

< .

ae Others: 3 Tae

Am. Bar Assn. Lasor Law Boor. Denia (1966) 423,

Report of the Committee on the Development of the -

/ GAINING In New York Stare (State Dept. of Labor,

. 10

Law: under the N. L. R.A, |

* Dame. LawyEr 624, 630° (1950) oer

EMPLoyER Associations -Encacep IN CoLLEctive Bar-

i965) pp. Al, 7) gas

~ Jones, The N. L..R. B. and the Multi-Employer Unit,

Masog Uston ConTRacts IN THE Usarep Srarss (U. Ss

5 Lanor L: J. 34, 37 (1954) . sccipaceiesiens

: Dept. “of Labor Bull. 1353)

’ Meltzer, Single-Employer and Multi-Employer Ted

%.

ee.

: Sweetall & —— Lockouts, 9 Laon. L. J. 43 (1958) sain

outs under the Taft-Hartley Act, 24 U: Cuz.. L. av.

70 (1956) ;

_ Multiemployer Asscoition: piniaiaiag ‘and: I ts. Seed :

on theCollective: Bargaining Process, House Labor

Comm. Rep., 88th. Cong., 2d Sess. (1964)

_ Note, 41. N. Y. U. L. Rev. 651. (May 1966) .

DB

Term 1963, No. 558, p. 10 ......... ey.

PAGE |

Cox, The Uses and. Abuses of Union Power, 35 Norse S

11

11

~_

11

a ;

a Petition for Cattiorari, N. L. R: B. v. Bea, October | :

10

Me ee

. i;

: | ‘ . te

ge In: THE ie

| rine Gout of the ote States q

: a pes fans Cee ° Ree | scape 4

: | : “Ocronie Team” 1966 - sts : . io ee i

| a sau . 3 |

| Possums kimecianne or Ngw "York Crry, Tu Himaner

_ Corporation, NEWSPAPER Ewrenpnises, Inc., Lone IsLanp: ,

Dary Press Pusiisnine Co., Inc., 125 Barcuay STREET, — :

Inc.; News SynpicaTe Co. Ino. and THE N EW Youx

: ; Pemcie Conceawe, | es |

” Naiowan irae ibecieoee Boarp and Ni ew York a

ohana TYPOGRAPHICAL Uston. No. 6, ©. . Bee re ts oe

p X / 7 siete ~ ' i

ms ae | a aoe ee Respondent all 4

“PETITION FOR A WRIT OF CERTIORARI TO THE

a UNITED STATES COURT.OF APPEALS. _-__—-

ery FOR THE SECOND CIRCUIT ‘

Publishers’ ‘Ausociation of New York City et al. petition —

for a writ of certiorari to review the decision of the. Court -

ae Appeals for the Second Circuit entered i in this case on

Bar e2 J uly 25, 1966. a = ;

' of

“4g

: he Opinion. Below

‘The. opinion‘of the Court of Appe ‘is not yet officially

ay reported,. but appears at ‘Appendix ‘A, infra, pp. 17-25. .

te Ne decision and .order.,of the National Labor. Relations

oard (12a-17a {in Petitioners’\Appendix]) are re eee at

a nia Na 16; eae 21, —

Bi . “ | ay , : a ‘Jurisdiction :

The decision of the Court of Avpecis: was rendered ao

a uly 25, 1966. On August 8, 1966, petitioners’ filed a peti-

tion for ‘rehearing, which was denied. The court’s decree

ps filed on August 26, 1966:°(App. A, p. 26, imfra), but

~ * on September 8, 1966 it was recalled and its reissuance

stayed periding this application (p. 28,’ infra).

The jurisdiction of this. Court i is invoked under 28 U.S. C.

§1254(1)- arid §10(e) and (f) ot the suas Labor Rela-

tions a as amended. aii cciion vans 4

Question Presented.

“Whether a ‘union which has historically anieined in a.

snitiizcoterds bargaining unit may unilaterally and for any |

_ reason withdraw from the unit and demand that future

- ~bargaining be conducted in separate units, for tlie refusal

of which the employers may be —— to have violated

~ $8(a) (5) of the Act.

-W°

% Statute Involved ‘s | | P

7

‘The: relevant. provisions of the N ational ene Relations

ee as amended (61 Stat..136, 29 U. 8. ‘C. §§151 et seq.)

-are’set forth in Appendix B, infra, PP. ie:

Pa

&

; ‘Statement aon

“. The Collective Bargaining Relationships Pir: Gl

; For’: more “than fifty years petitioners’ have wasn’ 7

with New Yérk Typographical Union No. 6* as the rep-

résentative of newspaper composing room. me gm ae? (21a).

In ‘May 1964 a Board trial examiner held that the press- °

men’s union had the right to demand separate units. at:

the ‘Detroit newspapers (36-37a). The following month

petitioners were informed by the Typographical Union that .

it would no longer: ‘continue bargaining in the existing »

Association unit ‘but wished to batcatars ‘separately | for |

‘

once: \epemermaadntiomiias

1 The. petitioning Piblishers’ dation is an- unineorporated ;

association which for many years represented the New York.

City newspapers in their dealings with the craft. unions represent-

ing employees in their production and delivery ‘departments (21la)..

The corporate petitioners fall into “two. groups: (1) . those ‘now

publishing newspapers in New York City (News-.Syndicate Co.

Inc. [Daily News], The New York Times Company,. Newspaper

ae Enterprises Inc. [Long Island Star Journal] and Long Island. Daily

Press Publishing Co.), and (2) those which, published newspapers

prior to April 24, 1966 but no r do }® (The Hearst Co

’. tion, Suécessor to ‘New, York Jou American Division of

- Consolidated Publications, Inc., and 195; Barclay Street, ie.

[fornterly New York World-Telegram Corporation]),, a re-.

spondent before the Board:(16a), but not a petitiower in the court

peed de was New York Herald Tribune, Ine. See. notes. 3 and 5

7

‘i The t ion was granted leave to intervene before the Court of

‘ Appeals, without ee and is named as a ee are. 3

he

art 2

«

4,

“new nsaiaite to replace the Association ssiehaiins expiring

March 30, 1965° (288a). Denying that the Union “has the

unilateral right to disregard and overturn joint great

bargaining relationships that have existed for many years”,

petitioners réfused the demand (291a). This refusal, with-

eek.

_ out more, was found by the Board to be an unfair labor :

practice.

The New York newspapers and the unions “face each .

other across the bargaining table in two groups. On the

management side, the employers deal with nine craft unions —

through the Publishers’ Association. Its composition has

changed over the years, chiefly because of the dlosing of -

- individual papers ;* but today all the newspapers still pub-.

lishing (except the New York Post). bargain oe the .

- Association. | ‘

The: union group has also sviouicns imensborstiy Sis

(179a,. 210a, 240a). Under the leadership of the Typo- —

' graphical Union, the combined ‘anions pledged themselves

~ in 1962 to “urtified action” in their dealings. with the Asso-._

ciation, adopting the principle that “no one union in‘ the

group: is expected. to sign-a contract” with the publishers

which has economic terms that are not. satisfactory to the

whole group” (276-77a). At contract expiration in De- -

cember 1962, one of the unions. reached tentative se Se .

‘ 8The Brooklyn Eagle and. the Sun shut down in ‘the 1950's; ica

the Daily Mirror permanently suspended six mdénths after the

1962-1963 strike -(84a, 218a) ; the Wall Street Journal resigned

when it moved its printing Sperations out of the city (214a) ; the

New York Herald Trfbune resigned in 1954, returned in 1956;

resigned again in-September“1965 (14a, 216a). It returned to the

Association in 1966 as a constituent of a new company formed

. fre the merger of three newspapers but never ‘resumed pub-

lication, announcing its closing some four months after the start

of a strike against the merged’ yor, that had, it nak

starting up.

=

“Be -

with the publishers, but a majority of the other unions

voted it down (143a), and the Typographical Union began —

_& whipsaw strike against some of: the papers, resulting in

the voluntary suspension ‘of the others. The union group

_.supported the strike: Since that time there have been two

additional strikes against some of the New York papers.’ -

The Reasons for Withdrawal. Claiming that the Board

was under a duty to examine the good faith of the Union’s

withdrawal and to make a comparative evaluation of the

- appropriateness of single v. multiple units, petitioners of-

fered proof that the Union had no need fog, separate units.

This proof was said by the dissenting Board member to

show that “no justifiable reason” existed for withdrawal —

. (17a). ect gan eae a ,

The Union conceded that-all its “reasons” for separate

‘contracts had existed for many years; no recent change in

" circumstances had occurred (86a, 175a, 234a). While pro-

fessing a need to bargain on the- basis of individual ability:

‘to pay (221a),. it admitted that (a). wagés and conditions

. had always been uniform with the publishers, whether they “of

were in or out of the Association (232a); (b) efforts by .

. “weaker” papers to secure preferential contracts during ©

‘The relevant facts: are stated in Clune v. Publishers’ Assn. of pat

N. Y. C, 214 F. Supp. 520 (S. D. N. Y.), aff'd 814 F. 2d 343 (24 ~

_ Cir., 1963), and also at 79a-8la. .

* * Subsequent to the hearing in this case, but noted by the Board

in its decision (14a), the Newspaper Guild’ began a strike against

The New York Times, and‘the other papers shut down in its sup-

port. On April 24, 1966, the Guild bégan a strike against a. new

company into.which three of the newspapers had been combined, ~

. and the other unions (including the Typographical Union) refused ©.

to allow their members to work for the new company until agree- -

ment. was reached with all the unions. Publication finally began

141 days: later, on September.:12, 1966. , Sabi

tetien’ were rebuffed by the Unios \(85-86a) ; ‘aii (e) even

while separate units were being demanded in 1964 the

Union -had handed the publishers identical édntract pro-

posals (231a).* Moreover, the Union’s internal procedures

require that each’ separate contract be ratified by the *

entire membership of the Union (251a),, thus guaranteeing

uniformity among the “separate” units, as if. the Union

were still. bargaining in the old Association units.

The Board, however, declined to consider any of this

. evidence.

_ B, The Board's Decision and Order”

The Board’s 2-1 decision was ‘based on its earlier decision

in Evening News. Assn., 154 NLRB No. 121 (1965) ‘(printed _

' at 36-57a): Conceding the good faith of these. petitioners in

opposing “single. units (22a, 13a), the majority neverthe-

less held that the refusal to-bargain in the form demanded

by the Union violated §8(a)(5). The Board refused to

ae the Union’s reasons for withdrawing and to de-

~ ter

case ‘as. merely one of -mutual consent and réciprocity of

withdrawal. privileges. As multiemployer bargaining is

“grounded”-on the consent of both parties, the Board said,

it would not be “logical” to deny the Union the right to.

withdraw. while employers are ‘permitted to do 50 for any

reason’ (14a). ae Pee

; 6

‘The 1965-67 contract: later. signed’ (in the traditional form,

but without prejudice to the Union’s demand for separate units)

_. provides that the parties will endeavor to develop vem of in-

dustry-wide hiring ‘and seniority. .

*

- "108. Coca-Cola Bottling Works Co’, 91 NLRB 351 (1950) ; eae c

Bros., Inc., 132 NURB 444 (1961), modified in Bell Bakeries, 139 .

‘NLRB 1344 (1982),, where yore were not allowed to with-

‘ “ «

th : Sp pelenlsiniaice

. e 2 ; . : e .

72) ; |

+

: o

oy

e whether these were adequate, instead treating the

pasa aint i

@ oe

Member Brown, dissenting, noted that union withdrawal* |

necessarily dissolved the bargaining relationship. ( 17a) :

“And, where no justifiable reason appears therefor, ‘as

_ > none does in this case,the cause of industrial stability

yer suffers.” Teri Rs :

The’ Board’s order directs the petitioning publishers

-¢ °“apon request” to bargain collectively with the Union in

separate composing room-units (32a). |

C. The Decision of.the Court of Appeals

- Commenting that the Board’s rule “has the advantage

of simplicity and of apparent equality of treatment” (App:

A, p. 20),.the Court granted enforcement of the Board’s

_ order.® ‘It. observed, however, that the Board’s position ’

_» was “not wholly free from doubt” in determining that _

_ Congress did not intend to ingtruet the Board to require a

,

a

draw. Axid-see-N. L. R. B. v. Sheridan Creations, Inc., 357 F. 2d

—+="945 (2d-Cir. 1966), upholding the Board’s ban on withdrawals dur.

_ing negotiations. ~~ ; ; +

* In his dissent in Evening News, Member Brown observed that

“withdrawal” is a. misnomer, “for a union does not. withdraw uni-

laterally, but compels an employer to forego group action and -

pursue an independent course” (52a). weigh

_ . *Cf. Chief Judge Lumbard, dissenting, in Sheridan Creations

(357 F. 2d at 250): eee ay er A met

“Neither potential instability of the ‘bargaining. process nor

_ administrative convenience _Tequires#substituting a flat rule’

'. . prohibiting withdrawal after negotiations have b in place

of ay inquiry as to bad faith and possible harpiful effects.”

And see also Sweetall & Aiges, Lockouts, 9 Lasor L. J. 43,51 ~

(1958), ‘advocating. “a careful appraisal of the circymstances ~

tm each case” of union withdrawal by the Board. See also Tulsa

Sheet Metal Works, 149 NLRB 1487 (1964) (“the ultimate deter...

mination with respect to timely withdrawal must turn upon a dis-

criminating: evaluation of all attendant facts and circumstances”).

eae

>

~. ® >!

o

atte

°

s,

—-o.4 2

i?

"union ‘to Temain in 5 wantin bargaining, and it-re- -

marked - -that the contrary arguments «were “forcefully”

‘stated in Member Brown’ s two dissents (td. at 21).

- While the Court agreed that. the blanket. jiiaeithons of

— union withdrawals “may have much more harmful effect

ets * than ‘the withdrawal of one or more employers” and

may “substantially tilt the balances” (id. at 21-22), it. dis-

missed as “rt ‘éntirely justified” petitioners’ fears about” _

their defense to Whipsaw strikes i in. separate: units.”°

ca udge Kaufman, concurring specially, agree ed that alle.’

. viation must sme ee ee not froni the courts, but

expressed. fo gs about a decision allowing “the his-

Bes of more than 50 years of multiemployer bargaining -

to] be disrupted upon the whim of one of the parties

‘ without any reasons assigned and with more abrasiveness.

sure to follow as a result” (p. 24).

Reasons for Granting the Writ +

1. As the Court of “Appeals - observed’ ‘(p. 20), the :

question answered by the Board for the first time in -

_ Evening News and in this. case was expressly left -open

by this Court in NV. L. ‘R. B. v. Truck Drivers’ Local, 353

10 These fears have, of course: eased. N. L. R: B. v. Brown, 380

. U.S. 278 (1965); American Ship Building Co. v. N. L. R. B. (id.

- 800) ; but see Newspaper Drivers’ Union v. Detroit Newspaper Pub- —

lishers Assn., 382 U, 8. 374 (1966). But problems still exist. By

achieving | " staggered’. expiration dates . among the employers the

Union can curtail the defense to a strike agdinst the employer with .

the earliest expiration date. Suspension by the other employers,

with, valid and subsisting -contracts, would create serious back pay

'. hazards, either from the Board or from arbitrators. Similarly, the .

right of joint defense against breach of contract strikes in a single - ~

unit, Publishers’ Assn. of N. Y.~C., 139 NLRB 1092, aff'd 327 F. 2d

a2 (24 Cir. we is put in doubt.

a v ° é @

ee

:

o U. S, 87 (1957). There the. Board had sanctioned a lockout: oe

by members of a multiemployer association when the union ie

struck only one of the members at contract expiration.

Buffalo Linen Supply Co., 109° NLRB 447 (1954).: The

Second Circuit reversed by a. divided court, with Judge git EAL

Frank for the majority observing i in passing that it “would —

= seeni only fair” for tht union to be: granted ‘the same —

| Sars ‘voluntary apa Privilege as the. eh ewe gl (291 F. 2d

ae — 110, 115).

: os i Court held that the Board’s diseretion i in permitting a

} +. lockouts was not to be. interfered with by the courts and

a Board had correctly balanced the conflicting: in- —

- terests in deciding that a lockout designed to preserve the -

_ integrity of multiemployer bargaifiing ; against the threat of:

_ the whipsaw strike was lawful. Speaking of J udge Frank’s

dictum, Mr. Justice Brennan said (353 U. S: at 94, 1, 22):.

. “The Court of Appeals vigorously argued that a union . :

Should be accorded the same freedom of voluntary’ wey

withdrawal from a multiemployer bargaining unit as HS

the Board has accorded to individual employers. But

that question® is not presented by this case, and we

: expressly reserve decision until it is: properly before

us. 9 p . sr oie *

ae a

The question. is now presented by the instant case for the “

first, time.”

:

2. The. question i is one of tieiiniidiai ‘eile to the

law of labor relations, for the- result reached by the Board.

11 While Evening News Avia: was ‘decided by the Board before-

this case, it has not yet been argued before the Sixth ‘Circuit on

review (Detroit Newspaper Publishers’ Assn. v. N. CL. RB, )

- 16,855 and 16,856). ; ree

10°

“may well augur a complete upheaval i in multiemployer

bargaining”.” The Board’s statement in successfully apply-

ing for certiorari in N. L. R. B. v. Brown, October Term

1963; No.. 558; p. 10, is apposite:

hake: (TIhe importance of multi-employer bargaining makes

it desirable that this Court promptly correct the [error

- below]. Multi-employer bargaining i is common through- .

out the United States. It’ is estimated that in 1961

” about half of the 329 major collective bargaining agree- |

ments (i.e., contracts covering 5,000 or more workers)

were. multi-employer agreements. ‘Thousands of

. smaller employers, especially in distribution industries,

_ Hegotiate throug “multi-employer associations. The

_— question presented here, like that in the Truck Drivers _

. ease, will, determine one of the basic rules for multi-

employer bargaining. Thus, it affects many thotisands. - .

- of employers and millions of employees.” -

3. ‘While claiming to ave achieved ey of treatment,

the Board has ignored oreeny of result, as the Court of

e %

18 Report - the Committee on Sener of the eee énder the .

Nattonal Labor Relations Act, A. B. A. Lasor Law Sect. Program

423 (1966). A law review comment has termed the decision “erro-

neous”. 41:N. Y. U. L. Rev. 651, 656 (May 1966).

_ _ 48 These statistics are drawn from Masor Union ConTRAcTS IN —

‘THE UNITED Sratzs, 1961 (U. S. Dept. of Labor Bull: 1353) p. 4,

which also points out that 61.6%. of employees in printing, publish-

. ing and allied industries are covered by multiemployer agreements .

(p. 2).. Typographical Union locais in all except ‘one of the largest

U.S. cities (Los Angeles) bargain in multiemployer units (inte

191a).

In New York there are 565 employer associations engaged i in.col-.

lective bargaining. Four of the oldest (over fifty years) arein the |

printing trades. EMPLOYER AssociaTIONS ENGAGED IN COLLECTIVE

_ Barearnine In New York’ STaTE a oe Dept. of — iad

2. PP. A-1, A-1. . ‘s

RY

ee i

-

fd aes

' Appeals noted (infra; pp. 21-29). When ¢ an. ‘employer with- .

draws from. multiemployer bargaining, the ‘structure is

. left untouched ; when a union withdraws “the. very identity,

nature and composition” of the employer group are’ over-

turned (dissenting opinion,.52a). The Board had foreseen

this in its pioneer decision in Re etail octates, 120 NLRB

_ 888 (1958), where it said it woul Feject . any withdrawal

“obviously employed . only as a- ‘measure of momentary

_ expedience, or strategy in bargaining,” enabling the union |

@ to enjoy the “benefits” of whipsawing the employers (p.

394). Now it Says it cannot’ impose the “reasonable con-

trols” it had promised i in 1958 ( 420 NLRB at 393) because

. Congress has not given it the power to do so. But this Court

.. gaid in Buffalo Linen, after noting that the multiemployer -

form was. believed ee. to’ "Sitengthened collective bar-

gaining”: Shee eae ae

“The inaction .. of ‘Cases with respect to multi. *

eniployer bargaining cannot be said to indicate an

_ intention to leave the resolution of, this problem to

future aenomend (353 U. S.:at 95.96).

‘. And as one oiisiuadeiie observed, after reviewing the his-

tory of limiting proposals. put forth during the Taft-

Hartley debates, “unlimited rights of union, withdrawal —

from an established unit are as paradoxical as similar

. Tights to an employer to abandon collective bargaining.” othe

Recognizing that the preservation of multiemployer units

is “a legitimate end” for employers, N. L. R, ‘B. v. Brown,

2 Meltzer, Single-Employer and Multi- mployer Labbe Under’

the Taft-Hartley Act, 24 U. Cui. .L. 70, 94 (1956).; see also ~

Jones, The NLRB and the Multi-Employer Unit, 5 Lazor L. J. 34,

37 (1954) ; Cox, The Uses and Abuses of Union Power, 35 Norns

Dame LAWYER ‘624, 630 (1950). ;

eat Y

380 U. ‘Ss. 278, 289 (1365); this Court has sisi’ no inline: |

*. tion to limit. Buffalo Linen principles to actual strike situa-

tions. , Surely the intent of | ‘Congress to have the Board

“assume an active ‘tole in multiemployer ‘questions cannot -.

tolerate a Board policy of. leaving unions a free hand .in

bs manipulating units-for their own wtrategi: advantage. . oe

4, In the past, the Board petliawei a per se ‘aievets

. and investigated the possible. harmful. effects of employer -

and union withdrawals. Thus, attempted withdrawals that

_ were otherwise proper under the Board’s rules were none-

theless denied Board sanction, regardless. of whether. the

“employer [e.g., Dittler Bros., 132 NLRB 444. (1961) ] or

- the ‘uniet.[Stouffer Corp. 101 NLRB 1931 .(1952)]. was

seeking to withdraw. The test applied was whether, after.

-, an investigation of all of the circumstances, the Board _

_ judged that the withdrawal would have a- ‘harmful a

on the bargaining relationship. .

_ In- Retail: Associates, 120 NLRB at 393, the Board had

said: it would not.permit withdrawals from multiemployer

. units to'be “exercisable at will or whim,” for this would be

- “to neglect its function ‘in delineating appropriate. ‘units

under’ Section: 9.” Later, in Dittler Bros., ‘supra, . it re--

iterated that it would not permit abandonment ‘to individual

employers of the statutory control of unit determinations.

The rule now announced ignores these pronéuncements

in favor of a per se "rule which gives a union:

Pa

; (a): The. right to. decide whether single. or multiple

.. units are more appropriate. and. to dissolve an employer

int without. any Board action .

(b) A potent weapon by way of “a threatened as-

sault on the solidarity of the employer position, thereby |

eee injecting? an extraneous and explosive issue- into the ..

ee and. — ee:

(c) The” right ‘to: ‘continue its alliances aa other !

unions; thus compelling individtal employers to con-'* *.. +

yw dealings with a coalition of union forees.

5. Athcatin ype bargaining resti on ‘a more solid’

hasif’ 4n apprehension about whipsaw strikes. Although

_. both the Board and Court séemed to think this was peti:

_tioners? only concern, their long dedication to joint baf--

_ gaining, going back into the last century (85a), bespeaks ~

, & deeper ‘interest. For example, the Publishers’ Associa-

tion functions as the central office through which grievances

. are channeled and. disposed of: (113-14), thus reducing .

“friction in individual plants’ and stabilizing industry con- .

. | ditions... Employers and unions engaging in assoeiation bar- -

| gaining’ ‘and contract administration. were found by a con-

= gressional committee to be almost unanimous in its, ‘sup-

Renu? nee tg He ,

des “(ti is dinndsiitiy clear that both iabor and manage-

‘Inent, with extremely limited exceptions, -are very

~ strong in their .support for miltiemployer association _—

bargaining and their belief that it is necessary to pre- ,

¢

Serve a A cere eyatem of collective — chem e

ey

a Report of . ‘Weuns Gime Sibctnialitis 'o on ‘Labor, Multi.

Mas Employer Association Bargaining and Its Impact,on the Collective

Bargaining Process (December. 31, 1964) p. 32. ‘The. Committee .

‘lists. seven“ advantages” of this form of ‘bargaining, ohly one of

oat which i is the ith of erecta ae a satadset

o

u +

et

- e@

ot wens

4

” ‘

e

ae aa

6. While proceedings under §8(a)(5) may properly be

used to raise questions of unit appropriatenéss in the .

ordinary case, this was not such a case. Petitioners have —

been- branded as ‘violators of the Act for. refusing to do

_ something neither the gegee nor "any court madd held was

_Tequired of them. ~

. When’ the charge was filed against. petitioners some sata |

‘months, before contract expiration, the contract barred any

§9 proceeding -to. challenge the appropriateness of single

units. There was no prior‘Board-determination that single

unions would be appropriate; in fact the Board had not

yet announced a rule permitting conversion’ poo multiple a

to single units by union fiat.

SEE

Petitionaes do not challenge the ine that matted good-

te . . 2

* faith doubts. will not insulate -an employer from.a viola-

~ tion of §8(a) (5).2° But. that rule should not be applied ‘

* to an employer who refuses to abandon the traditional unit

on union demand, where there’ has been no. change i in cir-

Sta no finding’ of appropriateness of the new -

unit demanded, ‘and the employees will continue ‘to be rep- —

resented in the existing unit. The employers’: endeavors ©

to preserve the integrity of that ‘unit serve a legitimate ..

purpose, NV. L. R. B. v. Brown, 380 U. 8S. 278, 289 (1965),

and should not have been so peremptorily condemned asa.

violation of $8(a) (5).

a

tn 1959 the Board abandoned its anti ‘boubrtin: Buzza-

Cardoza, 97 NLRB 1342 (1952), that the employer who in good ©

faith disagreed .with the unit claimed by the union may insist on -

certification .before bargaining. Tom Thumb Stores, Inc., 123

;NLRB 833 (1959). It was upheld by the Court~of Appeals, e.g.

“WN. L. R. B. v: Burroughs Corp., 261 F. 2d 463 (2d Cir. 1958) ;

Old King Cole v. N. L. R. B., 260 F. 2 530-(6th Cir. 1958); ef.

N. L. R. B..v. Philamon Laboratories, 298 F. 176-179. (2d Cir.

1962) (doubts as to union’s majority status).

td

“ %®» i ° ff ss Poe - | Esler ee

Ries es eee eae ee Oe ; 15 be eenas

A ‘ |

S ; re ; e a

; i

a

ee _ CONCLUSION Q°

‘e the seit reasons, petitioners respectfully

pray that the writ of certiorari be granted. |

e

9 . hay Jouy R. Scuozmen, Jz.

&

October 4, 1966 ~

ara Attorney for Petitioners.

) , 220 Hast 42nd Street .

e-

*

>

F)

a

®

z s

~

a

©

¢ .

&

is

> 3

a ’”

ve 3

y

ee

- %

* : hess

e

Cia 1

a .

*

A Sad 6

Ga __, New York, New York 10017 —

«

Te mel

°

.

*

ry

..

: