Newspaper Guild of New York, Local No. 3 of the Newspaper Guild, Afl-Cio v. National Labor Relations Board, and Nyp Holdings, Inc., Intervenor

261 F.3d 291, 266 B.R. 291, 167 L.R.R.M. (BNA) 2808, 2001 U.S. App. LEXIS 18028
CourtCourt of Appeals for the Second Circuit
DecidedAugust 10, 2001
Docket2000
StatusPublished
Cited by27 cases

This text of 261 F.3d 291 (Newspaper Guild of New York, Local No. 3 of the Newspaper Guild, Afl-Cio v. National Labor Relations Board, and Nyp Holdings, Inc., Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newspaper Guild of New York, Local No. 3 of the Newspaper Guild, Afl-Cio v. National Labor Relations Board, and Nyp Holdings, Inc., Intervenor, 261 F.3d 291, 266 B.R. 291, 167 L.R.R.M. (BNA) 2808, 2001 U.S. App. LEXIS 18028 (2d Cir. 2001).

Opinion

JACOBS, Circuit Judge:

This appeal reviews an order of the National Labor Relations Board (“NLRB”), finding that two subsidiaries (of the same corporation) that successively operated the same business are neither alter egos nor a single employer.

News America Publishing Inc. (“News America”), an entity controlled by Rupert Murdoch’s News Corporation, formed a subsidiary in March 1993 for the purpose of managing the then-bankrupt New York Post newspaper in order to preserve the paper as an acquisition opportunity. Under the supervision of the bankruptcy court, the subsidiary published the paper, absorbed its considerable operating losses, and renegotiated its collective bargaining agreements with all but one union. The remaining union was the Newspaper Guild of New York, Local No. 3 (the “Guild” or “Union”), which is the petitioner in this proceeding.

After certain regulatory and other hurdles were surmounted, the bankruptcy court approved an asset sale to another News America subsidiary, which was formed for the purpose of competing for the asset purchase. After the closing, the Guild called an unsuccessful strike that ended with an unconditional offer to return to work, an offer that was spurned by the Post’s new owner, which discharged and refused to reinstate more than 200 of the approximately 280 striking Guild employees.

The Guild filed an unfair labor practice charge, alleging that Acquisition and Holdings violated sections 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., by discriminating in regard to tenure, hire and terms of employment for employees represented by the Guild, and that the companies violated NLRA sections 8(a)(1) and (5) by refusing to meet with the Guild and bargain with it in good faith.

The NLRB ruled that the two subsidiaries were not alter egos, and therefore that the new owner of the paper had the right to hire a new work force and set new terms of employment. Inquiry on alter ego is controlled by Goodman Piping Products, Inc. v. NLRB, 741 F.2d 10 (2d Cir.1984), and focuses on commonality of (i) management, (ii) business purpose, (iii) operations, (iv) equipment, (v) customers, and (vi) supervision and ownership, as well as on whether the succession of employers was motivated by anti-union sentiment. See id. at 11-12. Key to the NLRB’s alter ego ruling was its determination that the two subsidiaries did not share the same “business purpose” because they played different transactional roles and had different financial and strategic purposes. The NLRB summarily rejected the Guild’s single employer argument in a footnote.

We affirm.

BACKGROUND

The history of the Post’s successive ownerships, its bankruptcy, and its labor woes is set out in detail in the decisions of the Administrative Law Judge (“ALJ”) and the NLRB. We recount only the facts that bear on the appellate questions we decide.

A. Ownership of the Post: Pre-1993

News America first acquired the New York Post in 1976, but was forced to sell it *295 because News America owned New York City television station WNYW, and the cross-ownership rules of the Federal Communications Commission (“FCC”) barred an owner of a major newspaper from owning a television station in the same media market.

News America sold the paper in 1988 to the New York Post Company (“Post Company”), which was run by real estate developer Peter Kalikow. The paper continued to operate with the benefit of union concessions (about 48 Guild jobs were lost), but by January 1993 the Post was losing money fast, and Kalikow, who suffered financial reverses in the early 1990s, stopped funding the operating losses and resolved to close the paper unless a buyer was found.

Over the next two months, two potential purchasers of the Post surfaced: Steven Hoffenberg and Abraham Hirschfeld. Hof-fenberg took over management of the Post while he arranged to buy it. When his attempt failed, Hirshfeld tried, but he too was incapable of managing the business. During this time, no one was funding the Post’s mounting losses.

B.Financial Condition: Early 1993

In early 1993, Hoffenberg and Hirsch-feld abandoned their efforts to purchase the paper. The paper was then losing money at an average rate of $300,000 a week. On March 15, 1993, Post Company filed for protection under Chapter 11 of the bankruptcy code. It was clear that without an immediate infusion of capital, the paper-which had over 700 employees-would have to suspend publication. Given the competitive nature of the business, it was also clear that a suspension of more than a few days would be fatal.

C. Acquisition’s Management

Shortly after the filing in bankruptcy, Post Company vice-president Peter Faris contacted the president of News America, Patrick Purcell, to see if News America was interested in re-acquiring the paper. (Purcell had been the Post’s publisher when News America owned it.) News America was potentially interested, depending on whether three conditions could be satisfied: FCC waiver of its cross-ownership rules; the implementation of operating economies to make the paper financially viable; and approval by the bankruptcy court.

On March 25, News America incorporated a subsidiary-NYP Acquisition Corp. (“Acquisition”) — to manage the paper and to provide financing to the debtor in possession (Post Company) pending a possible purchase by News America or some other company (subject of course to bankruptcy court approval). Acquisition’s chairman was Rupert Murdoch, and its president was Patrick Purcell; among its board members were other board members of News America.

On March 28, Acquisition asked the bankruptcy court to approve documents under which it would manage and finance the Post, with any profit going to the debtor’s estate. The court granted approval the next day, and Acquisition began exercising editorial, administrative and financial control over the paper. All employees, including Guild members, continued to work under their existing collective bargaining agreements.

D. Bargaining with the Unions

Early in the bankruptcy proceedings, News America made clear that it would not acquire the paper unless significant concessions were extracted from all the unions of the paper’s employees. Soon after Acquisition assumed control of the *296 Post, News America opened negotiations for new contracts with the eleven employees’ unions. After unproductive negotiations, the Post suspended publication for two days in July, but negotiations resumed after intervention by elected officials, and News America quickly reached agreements in principle with all the unions except the Guild.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lewis v. Slaiby
D. Connecticut, 2025
NLRB v. Newark Electric
14 F.4th 152 (Second Circuit, 2021)
Moore v. Navillus Tile, Inc.
276 F. Supp. 3d 110 (S.D. New York, 2017)
New York v. United Parcel Service, Inc.
253 F. Supp. 3d 583 (S.D. New York, 2017)
Trustees of Laborers Union Local No. 1298 v. A to E, Inc.
64 F. Supp. 3d 435 (E.D. New York, 2014)
Ferrara v. Smithtown Trucking Co.
29 F. Supp. 3d 274 (E.D. New York, 2014)
National Labor Relations Board v. Homer D. Bronson Co.
273 F. App'x 32 (Second Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
261 F.3d 291, 266 B.R. 291, 167 L.R.R.M. (BNA) 2808, 2001 U.S. App. LEXIS 18028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newspaper-guild-of-new-york-local-no-3-of-the-newspaper-guild-afl-cio-v-ca2-2001.