American Newspaper Publishers Association v. National Labor Relations Board/Opinion of the Court

by Harold Hitz Burton

United States Supreme Court

345 U.S. 100

American Newspaper Publishers Association  v.  National Labor Relations Board

 Argued: Nov. 19, 1952. --- Decided: March 9, 1953

The question here is whether a labor organization engages in an unfair labor practice, within the meaning of § 8(b)(6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, ^[1] when it insists that newspaper publishers pay printers for reproducing advertising matter for which the publishers ordinarily have no use. For the reasons hereafter stated, we hold that it does not.

Petitioner, American Newspaper Publishers Association, is a New York corporation the membership of which includes more than 800 newspaper publishers. They represent over 90% of the circulation of the daily and Sunday newspapers in the United States and carry over 90% of the advertising published in such papers.

In November, 1947, petitioner filed with the National Labor Relations Board charges that the International Typographical Union, here called ITU, and its officers were engaging in unfair labor practices within the meaning of § 8(b) (1), (2) and (6) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, here called the Taft-Hartley Act. ^[2] The Regional Director of the Board issued its complaint, including a charge of engaging in an unfair labor practice as defined in § 8(b)(6), popularly known as the 'anti-featherbedding' section of the Act. It is not questioned that the acts complained of affected interstate commerce.

The trial examiner recommended that ITU be ordered to cease and desist from several of its activities but that the 'featherbedding' charges under § 8(b)(6) be dismissed. 86 N.L.R.B. 951, 964, 1024-1033. The Board dismissed those charges. 86 N.L.R.B., at pages 951, 963. Petitioner then filed the instant proceeding in the Court of Appeals for the Seventh Circuit seeking review and modification of the Board's orders. That court upheld the Board's dismissal of all charges under § 8(b)(6). 193 F.2d 782, 796, 802. See also, 7 Cir., 190 F.2d 45. A comparable view was expressed in Rabouin v. National Labor Relations Board, 2 Cir., 195 F.2d 906, 912-913, but a contrary view was taken in Gamble Enterprises v. National Labor Relations Board, 6 Cir., 196 F.2d 61. Because of this claimed conflict upon an important issue of first impression, we granted certiorari in the instant case, 344 U.S. 812, 73 S.Ct. 10, ^[3] and in National Labor Relations Board v. Gamble Enterprises, 344 U.S. 814, 73 S.Ct. 43, Id., 344 U.S. 872, 73 S.Ct. 165. Our decision in the Gamble case (National Labor Relations Board v. Gamble Enterprises, Inc.) follows this, 345 U.S. 117, 73 S.Ct. 560. ^[4]

Printers in newspaper composing rooms have long sought to retain the opportunity to set up in type as much as possible of whatever is printed by their respective publishers. In 1872, when printers were paid on a piecework basis, each diversion of composition was at once reflected by a loss in their income. Accordingly, ITU, which had been formed in 1852 from local typographical societies, began its long battle to retain as much typesetting work for printers as possible.

With the introduction of the linotype machine in 1890, the problem took on a new aspect. When a newspaper advertisement was set up in type, it was impressed on a cardboard matrix, or 'mat.' These mats were used by their makers and also were reproduced and distributed, at little or no cost, to other publishers who used them as molds for metal castings from which to print the same advertisement. This procedure by-passed all compositors except those who made up the original form. Facing this loss of work, ITU secured the agreement of newspaper publishers to permit their respective compositors, at convenient times, to set up duplicate forms for all local advertisements in precisely the same manner as though the mat had not been used. For this reproduction work the printers received their regular pay. The doing of this 'made work' came to be known in the trade as 'setting bogus.' It was a wasteful procedure. Nevertheless, it has become a recognized idiosyncrasy of the trade and a customary feature of the wage structure and work schedule of newspaper printers.

By fitting the 'bogus' work into slack periods, the practice interferes little with 'live' work. The publishers who set up the original compositions find it advantageous because its burdens their competitors with costs of mat making comparable to their own. Approximate time limits for setting 'bogus' usually have been fixed by agreement at from four days to three weeks. On rare occasions the reproduced compositions are used to print the advertisements when rerun, but, ordinarily, they are promptly consigned to the 'hell box' and melted down. Live matter has priority over reproduction work but the latter usually takes from 2 to 5% of the printers' time. ^[5] By 1947, detailed regulations for reproduction work were included in the 'General Laws' of ITU. They thus became a standard part of all employment contracts signed by its local unions. The locals were allowed to negotiate as to foreign language publications, time limits for setting 'bogus' and exemptions of mats received from commercial compositors or for national advertisements.

Before the enactment of § 8(b)(6), the legality and enforceability of payment for setting 'bogus,' agreed to by the publisher was recognized. Even now the issue before us is not what policy should be adopted by the Nation toward the continuance of this and other forms of featherbedding. The issue here is solely one of statutory interpretation: Has Congress made setting 'bogus' an unfair labor practice?

While the language of § 8(b)(6) is claimed by both sides to be clear, yet the conflict between the views of the Seventh and Sixth Circuits amply justifies our examination of both the language and the legislative history of the section. The section reads:

'Sec. 8. * * *

'(b) It shall be an unfair labor practice for a labor organization or its agents-

'(6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed. * * *' 61 Stat. 140 142, 29 U.S.C. (Supp. V) § 158(b)(6), 29 U.S.C.A. § 158(b)(6).

From the above language and its history, the court below concluded that the insistence by ITU upon securing payment of wages to printers for setting 'bogus' was not an unfair labor practice. It found that the practice called for payment only for work which actually was done by employees of the publishers in the course of their employment as distinguished from payment 'for services which are not performed or not to be performed.' Setting 'bogus' was held to be service performed and it remained for the parties to determine its worth to the employer. The Board here contends also that the insistence of ITU and its agents has not been 'in the nature of an exaction' and did not 'cause or attempt to cause an employer' to pay anything 'in the nature of an exaction'. Agreement with the position taken by the court below makes it unnecessary to consider the additional contentions of the Board.

However desirable the elimination of all industrial featherbedding practices may have appeared to Congress, the legislative history of the Taft-Hartley Act, 29 U.S.C.A. § 141 et seq., demonstrates that when the legislation was put in final form Congress decided to limit the practice but little by law.

A restraining influence throughout this congressional consideration or featherbedding was the fact that the constitutionality of the Lea Act penalizing featherbedding in the broadcasting industry was in litigation. That Act, known also as the Petrillo Act, had been adopted April 16, 1946, as an amendment to the Communications Act of 1934, 47 U.S.C.A. § 151 et seq. Its material provisions are stated in the margin. ^[6] December 2, 1946, the United States District Court for the Northern District of Illinois held that it violated the First, Fifth and Thirteenth Amendments to the Constitution of the United States. United States v. Petrillo D.C., 68 F.Supp. 845. The case was pending here on appeal throughout the debate on the Taft-Hartley bill. Not until June 23, 1947, on the day of the passage of the Taft-Hartley bill over the President's veto, was the constitutionality of the Lea Act upheld. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. ^[7]

The purpose of the sponsors of the Taft-Hartley bill to avoid the controversial features of the Lea Act is made clear in the written statement which Senator Taft, cosponsor of the bill and Chairman of the Senate Committee on Labor and Public Welfare, caused to be incorporated in the proceedings of the Senate, June 5, 1947. Referring to the substitution of § 8(b)(6) in place of the detailed featherbedding provisions of the House bill that statement said:

'The provisions in the Lea Act from which the House language was taken are now awaiting determination by the Supreme Court, partly because of the problem arising from the term 'in excess of the number of employees reasonably required.' Therefore, the conferees were of the opinion that general legislation on the subject of featherbedding was not warranted at least until the joint study committee proposed by this bill could give full consideration to the matter.' 93 Cong.Rec. 6443. ^[8]

On the same day this was amplified in the Senator's oral statement on the floor of the Senate:

'There is one further provision which may possibly be of interest, which was not in the Senate bill. The House had rather elaborate provisions prohibiting so-called feather-bedding practices and making them unlawful labor practices. The Senate conferees, while not approving of feather-bidding practices, felt that it was impracticable to give to a board or a court the power to say that so many men are all right, and so many men are too many. It would require a practical application of the law by the courts in hundreds of different industries, and a determination of facts which it seemed to me would be almost impossible. So we declined to adopt the provisions which are now in the Petrillo Act. After all, that statute applies to only one industry. Those provisions are now the subject of court procedure. Their constitutionality has been questioned. We thought that probably we had better wait and see what happened, in any event, even though we are in favor of prohibiting all feather-bedding practices. However, we did accept one provision which makes it an unlawful-labor practice for a union to accept money for people who do not work. That seemed to be a fairly clear case, easy to determine, and we accepted that additional unfair labor practice on the part of unions, which was not in the Senate bill.' 93 Cong.Rec. 6441. See also, his supplementary analysis inserted in the Record June 12, 1947. 93 Cong.Rec. 6859.

As indicated above, the Taft-Hartley bill, H.R.3020, when it passed the House, April 17, 1947, contained in §§ 2(17) and 12(a)(3)(B) an explicit condemnation of featherbidding. Its definition of featherbedding was based upon that in the Lea Act. For example, it condemned practices which required an employer to employ 'persons in excess of the number of employees reasonably required by such employer to perform actual services,' as well as practices which required an employer to pay 'for services * * * which are not to be performed.' ^[9] The substitution of the present § 8(b)(6) for that definition compels the conclusion that § 8(b)(6) means what the court below has said it means. The Act now limits its condemnation to instances where a labor organization or its agents exact pay from an employer in return for services not performed or not to be performed. Thus, where work is done by an employee, with the employer's consent, a labor organization's demand that the employee be compensated for time spent in doing the disputed work does not become an unfair labor practice. The transaction simply does not fall within the kind of featherbedding defined in the statute. In the absence of proof to the contrary, the employee's compensation reflects his entire relationship with his employer.

We do not have here a situation comparable to that mentioned by Senator Taft as an illustration of the type of featherbedding which he would consider an unfair labor practice within the meaning of § 8(b)(6). June 5, 1947, in a colloquy on the floor of the Senate he said in reference to § 8(b)(6):

'(I)t seems to me that it is perfectly clear what is intended. It is intended to make it an unfair labor practice for a man to say, 'You must have 10 musicians, and if you insist that there is room for only 6, you must pay for the other 4 anyway.' That is in the nature of an exaction from the employer for services which he does not want, does not need, and is not even willing to accept.' 93 Cong.Rec. 6446.

In that illustration the service for which pay was to be exacted was not performed and was not to be performed by anyone. ^[10] The last sentence of the above quotation must be read in that context. There was no room for more than six musicians and there was no suggestion that the excluded four did anything or were to do anything for their pay. Section 8(b)(6) leaves to collective bargaining the determination of what, if any, work, including bona fide 'made work,' shall be included as compensable services and what rate of compensation shall be paid for it.

Accordingly, the judgment of the Court of Appeals sustaining dismissal of the complaint, insofar as it was based upon § 8(b)(6), is affirmed.

Affirmed.

Mr. Justice DOUGLAS, dissenting.

Notes

1. 'Sec. 8. * * *
2. 49 State. 449, 29 U.S.C. § 151 et seq., as amended, 61 Stat. 140-142, 29 U.S.C. (Supp. V) § 158(b)(1), (2) and (6), 29 U.S.C.A. §§ 151 et seq., 158(b) (1, 2, 6).
3. The grant was-
4. For a general discussion of the problems in these cases, see Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 288-290; Featherbedding and Taft-Hartley, 52 Col.L.Rev. 1020-1033.
5. In metropolitan areas, only the printers on the 'ad said' of a composing room, as contrasted with those on the 'news side,' take part in the reproduction work and never on a full-time basis. Such work is not done at overtime rates but when there is an accumulation of it, the newspaper is not permitted to reduce its work force or decline to hire suitable extra printers applying for employment. The trial examiner, in the instant case, found that reproduction work at the Rochester Democrat & Chronical cost over $5,000 a year, at the Chicago Herald-American, about $50,000, and at the New York Times, about $150,000.
6. '§ 506. (a) It shall be unlawful, by the use or express or implied threat of the use of force, violence, intimidation, or duress, or by the use or express or implied threat of the use of other means, to coerce, compel or constrain or attempt to coerce, compel, or constrain a licensee-
7. For a report of the subsequent trial and acquittal on the merits, see United States v. Petrillo, D.C., 75 F.Supp. 176.
8. In its report of December 31, 1948, the Joint Committee on Labor-Management Relations, established under § 401 of the Taft-Hartley Act, later reviewed the litigation arising under § 8(b)(6), including the trial examiner's report in the instant case, and recommended 'a continuing study of cases arising under the present featherbedding provision, since there has not been sufficient experience upon which to base intelligent amendments at this time.' S.Rep.No.986, Pt. 3, 82th Cong., 2d Sess. 61, and see pp. 58-61.
9. H.R. 3020 as it passed the House provided that:
10. Section 8(b)(6) does not relate to union requests for, or insistence upon, such types of payments as employees' wages during lunch, rest, waiting or vacation periods; payments for service on relief squads; or payments for reporting for duty to determine whether work is to be done. Such practices are recognized to be incidental to the employee's general employment and are given consideration in fixing the rate of pay for it. They are not in the nature of exactions of pay for something not performed or not to be performed. See 93 Cong.Rec. 6859.