American Newspaper Publishers Ass'n v. National Labor Relations Board

73 S. Ct. 552, 97 L. Ed. 852, 97 L. Ed. 2d 852, 345 U.S. 100, 1953 U.S. LEXIS 2619, 31 A.L.R. 2d 497, 31 L.R.R.M. (BNA) 2422
CourtSupreme Court of the United States
DecidedMarch 9, 1953
Docket53
StatusPublished
Cited by46 cases

This text of 73 S. Ct. 552 (American Newspaper Publishers Ass'n v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Newspaper Publishers Ass'n v. National Labor Relations Board, 73 S. Ct. 552, 97 L. Ed. 852, 97 L. Ed. 2d 852, 345 U.S. 100, 1953 U.S. LEXIS 2619, 31 A.L.R. 2d 497, 31 L.R.R.M. (BNA) 2422 (U.S. 1953).

Opinions

Mr. Justice Burton

delivered the opinion of the Court.

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 oyer 90% of the advertising published in such papers.

In November, 1947, petitioner filed with the National Labor Relations Board charges that the International [102]*102Typographical 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. Id., at 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, 190 F. 2d 45. A comparable view was expressed in Rabouin v. Labor Board, 195 F. 2d 906, 912-913 (C. A. 2d Cir.), but a contrary view was taken in Gamble Enterprises v. Labor Board, 196 F. 2d 61 (C. A. 6th Cir.). Because of this claimed conflict upon an important issue of first impression, we granted cer-tiorari in the instant case, 344 U. S. 812,3 and in Labor [103]*103Board v. Gamble Enterprises, 344 U. S. 814. Our decision in the Gamble case follows this, post, p. 117.4

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.

[104]*104By 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 it 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 [105]*105interpretation: 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) 1158(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 [106]*106below makes it unnecessary to consider the additional contentions of the Board.

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73 S. Ct. 552, 97 L. Ed. 852, 97 L. Ed. 2d 852, 345 U.S. 100, 1953 U.S. LEXIS 2619, 31 A.L.R. 2d 497, 31 L.R.R.M. (BNA) 2422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-newspaper-publishers-assn-v-national-labor-relations-board-scotus-1953.