American Newspaper Publishers Ass'n v. National Labor Relations Board
193 F.2d 782 (1951)
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Rule of Law:
A union's demand for payment for work that is actually performed by employees does not constitute an illegal 'exaction' for services not performed under § 8(b)(6) of the Labor Management Relations Act, even if the employer does not want, need, or use the work product.
Facts:
- The International Typographical Union (ITU) traditionally required that newspaper composing rooms operate as 'closed shops,' employing only union members.
- A long-standing ITU practice known as 'reproduction' or 'setting bogus' required publishers to pay union typesetters to manually re-set advertisements that were already provided in a ready-to-print matrix form.
- This reproduced type was created after the advertisement had already been published from the matrix and was subsequently melted down without ever being used.
- After the 1947 Taft-Hartley Act outlawed closed shops, the ITU adopted a 'no contract' policy, instead issuing unilateral 'Conditions of Employment' to publishers which maintained closed-shop practices and the 'setting bogus' requirement.
- As a tactic, the ITU later offered a contract form known as 'P-6A' which contained a 60-day cancellation clause, allowing the union to threaten a strike on short notice if a publisher hired non-union employees.
- The ITU also insisted that composing room foremen, who possessed the authority to hire, fire, and adjust grievances, must be union members.
- The American Newspaper Publishers Association (ANPA) and other employer groups challenged these practices, leading to widespread labor disputes.
Procedural Posture:
- The American Newspaper Publishers Association (ANPA) filed charges with the National Labor Relations Board (NLRB) against the International Typographical Union (ITU).
- The NLRB's General Counsel issued a complaint alleging the ITU engaged in unfair labor practices under §§ 8(b)(1)(A), 8(b)(1)(B), 8(b)(2), and 8(b)(6) of the Labor Management Relations Act.
- The NLRB conducted hearings and issued a final order finding that the ITU had violated § 8(b)(2) by coercing employers to maintain closed-shop conditions and § 8(b)(1)(B) by coercing employers in the selection of foremen.
- The NLRB's order dismissed the charge that 'setting bogus' violated § 8(b)(6) and also dismissed the § 8(b)(1)(A) allegations.
- The ANPA, as the charging party, petitioned the U.S. Court of Appeals for the Seventh Circuit to review and modify the Board's order.
- The NLRB petitioned the same court for enforcement of its orders against the ITU.
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Issue:
Does a union's demand that its members be paid for setting type for advertisements that are not used, a practice known as 'setting bogus,' constitute an 'exaction' for services not performed or not to be performed, in violation of § 8(b)(6) of the Labor Management Relations Act?
Opinions:
Majority - Swaim, Circuit Judge
No, a union's demand for payment for 'setting bogus' does not violate § 8(b)(6) of the Labor Management Relations Act. The court reasoned that § 8(b)(6) was intended by Congress to prohibit payments only for services that are not performed at all, such as paying for a standby orchestra that never plays. The legislative history, particularly statements by Senator Taft, indicates that the law was designed to prevent unions from demanding payment for 'people who do not work.' In this case, the union members actually performed the labor of setting the type, even though the resulting product was useless to the employer. The court determined that because the service was, in fact, performed, the practice does not fall under the statute's prohibition, regardless of whether the work is necessary, valuable, or desired by the employer. The court also upheld the National Labor Relations Board's findings that the ITU's overall bargaining strategy, including its 'no contract' policy and insistence on a 60-day cancellation clause, constituted coercion to maintain an illegal closed shop in violation of § 8(b)(2), and its demand for union-member foremen was coercion in the selection of grievance adjusters in violation of § 8(b)(1)(B).
Analysis:
This decision significantly narrowed the interpretation of the Taft-Hartley Act's anti-featherbedding provision, § 8(b)(6). The court established a critical distinction between demanding payment for 'make-work' that is actually performed and demanding payment for services not rendered at all. By finding that 'setting bogus' was not an unfair labor practice, the ruling affirmed that the legality of such practices hinges on whether any work is done, not on the work's utility or necessity to the employer. This precedent makes it very difficult for employers to challenge 'make-work' rules under federal labor law, effectively shifting disputes over such issues from the legal system back to the collective bargaining table.
