# Petition for Writ of Certiorari — N.Y. City Pub. Assn. v. Nat. Lab. Rel. Bd. (No. 6335) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0019%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 ## Text , 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 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 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 .. : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0019%3A1. Public record. Not legal advice.