Jemcon Broadcasting Co.

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. New York State Electric & Gas Corporation is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Local 249, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The evidence does not establish that Allen J. Sanderson and Cal- vin G. Crosby were discharged in violation of Section 8(a) (3) and (1) and 8(b) (2) and (1) (A) of the Act. [The Board dismissed the complaint.] MEMBERS RODGERS and LEEDOM dissenting : We cannot concur in our colleagues' determination to overrule Chun King Sales, Ine., supra. In that case, the Board held, and in our view correctly so, that a union-security clause requiring employees to join the union "within thirty (30) days from the date of their employment" exceeded the permissive limits of the Act. Section 8 (a) (3) of the Act authorizes at the most a contract provision requiring union member- ship "on or after the thirtieth day following the beginning" of em- ployment. Contrary to our colleagues' holding that "within" 30 days is equivalent to "on or after" 30 days, we believe it patent that the two clauses are not the same, and that the clause requiring membership "within thirty days" does not accord employees the full 30-day grace period guaranteed by the Act. This view has been endorsed by the Court of Appeals for the Sixth Circuit.' N.L.R.R. v. Industrial Rayon Corporation, 297 F. 2d 62. Accordingly, we would adhere to Chun King, and find the union- security clause in issue here unlawful. E. W. Jemison and Frank Conwell, Partners, doing business as Jemcon Broadcasting Company and Radio Broadcast Tech- nicians Local Union No. 1264, International Brotherhood of Electrical Workers, AFL-CIO. Case No. AO-29. January 19, 1962 ADVISORY OPINION This is a petition filed by Radio Broadcast Technicians Local Union No. 1264, International Brotherhood of Electrical Workers, AFL- CIO, herein called the Petitioner, for an Advisory Opinion in con- formity with Section 102 .98 of the Board's Rules and Regulations, Series 8. 135 NLRB No. 48. JEMCON BROADCASTING COMPANY 363 A. In pertinent part, the petition alleges as follows: 1. The Petitioner, a labor organization within the meaning of the Act, is a party defendant to an equity proceeding in the Circuit Court of Mobile County, Alabama, docketed as Case No. 56,748 in equity. Said proceeding was instituted on October 25, 1961, by the plaintiffs, E. W. Jemison and Frank Conwell, Partners, doing business as Jemcon Broadcasting Company, herein called the Employer or Primary Employer, who operate-Radio Station WLIQ in Mobile, Alabama. The suit seeks an injunction and an ex party restraining order enjoining and preventing the Petitioner and its members (1) from engaging in primary picketing at the Employer's Radio Station WLIQ; (2) from contacting the station's advertisers with a request that they refrain from advertising with such station; and (3) from distributing literature to advertisers and customers request- ing that they cease doing business with Radio Station WLIQ. The Employer's bill for injunction alleged, inter alia, that the Petitioner has intimidated and coerced persons doing business with the Employer by threatening to institute a boycott against them unless they cease doing business with the Employer. 2. On October 25, 1961, that court authorized the issuance of a temporary writ of injunction upon the posting of a $500 bond by the Employer. 3. In its response to the bill for injunction, the Petitioner intends to file a plea to the court's jurisdiction and a motion to dismiss on the grounds that the Board has exclusive jurisdiction over the labor dispute which is the subject of the injunction proceeding. The Peti- tioner urges that the bill for injunction sets forth allegations which constitute an unfair labor practice in violation of Section 8(b) (4) (and possibly of 8(b) (1) and (2)) of the Act by threatening and coercing advertisers to cease doing business with the Primary Em- ployer; but it further urges that the conduct of the Petitioner, its agents, and members was protected concerted activity under the Act. 4. The Employer began operating Radio Station WLIQ in Mobile, Alabama, on or about January 25, 1961. During the period from January 25, 1961, to the beginning of September 1961, Radio Station WLIQ had cash sales of $30,000 more or less. This figure did not include "trade outs" (exchange of advertising for goods and services) or sales of piped-in background music to various business houses such as Autry Greer & Sons, Inc., over which the Board has, in the past, asserted jurisdiction.' 5. The material facts relating to the labor dispute between the Peti- tioner and the Employer show that the dispute began on August 31, 1961, when in reply to the Petitioner's letter of August 28, requesting I Autry Greer £ Sons, 112 NLRB 44. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition as the bargaining representative of the Employer's tech- nicians, the Employer refused to do so until the Petitioner was certi- fied by the Board. Thereafter, on September 14, two technicians went on strike to protest the Employer's discharge of one of them and to request recognition for the Petitioner. 6. On September 18, 1961, the Petitioner filed with the Board a petition for certification of representatives pursuant to a Board elec- in Case No. 15-RC-2444. On September 25, the Regional Director for the Fifteenth Region dismissed the petition on the grounds that "the Employer's operations in interstate commerce do not meet the minimum standards of the Board for the assertion of jurisdiction." No appeal to the Board was taken by the Petitioner from this dis- missal. Thereafter, following a private election, the Employer recognized a newly formed labor organization as the bargaining representative of its employees. 7. As part of its activity arising from the dispute with the Primary Employer, the Petitioner picketed Radio Station WLIQ, and its members personally contacted 12 advertisers of the radio station re- questing that they cease advertising with the Primary Employer's Radio Station WLIQ. In addition, the Petitioner caused two sepa- rate letters to be sent to every concern which was a current or past advertiser of the station requesting that they respect the Petitioner's primary picket line at Radio Station WLIQ. The Petitioner also requested other unions and customers of advertisers to send postcards to advertisers asking them to cease doing business with the Primary Employer's Radio Station WLIQ. 8. Secondary employers affected by the Petitioner's aforesaid activi- ties arising from its dispute with the Primary Employer include ad- vertisers such as Autry Greer & Sons, Inc., and Delchamps, Inc., interstate chains of retail grocery stores operating in Mobile; Bud- weiser Distributing Company, a retail and wholesale beer distributor in Mobile; Johnson Chevrolet, Inc., a Mobile automobile dealer; and Hotz GMC Trucks, Inc., a Mobile truck dealer, each of which does a gross annual retail business in excess of $500,000, and makes purchases annually outside of Alabama valued in excess of $50,000. 9. No other cases are pending with regard to the instant dispute. B. In its answer to the petition for Advisory Opinion, the Primary Employer alleges, in pertinent part, as follows : 1. The Employer admits that the Petitioner is a labor organization within the meaning of the Act. It affirmatively alleges that the Peti- tioner is a dominated labor organization-dominated by the super- visors of radio and television stations in the Mobile area. 2. The Employer is without knowledge whether Petitioner's mem- bers have personally contacted 12 advertisers of Radio Station WLIQ or whether the Petitioner caused 2 separate letters to be mailed to all JEMCON BROADCASTING COMPANY 365 current or past advertisers of Radio Station WLIQ. However, it affirmatively alleges that the Petitioner did send letters, others than those attached to the petition herein, to some of the Employer's adver- tisers and former advertisers. 3. The Employer denies the Petitioner's conclusion that the allega- tions of the bill for injunction set forth violations by the Petitioner of Section 8(b) (4) and possibly 8(b) (1) and (2) of the Act. It also asserts that such allegations set forth violations of Alabama law- violations which are enjoinable under the rationale of the United States Supreme Court decision in International Brotherhood of Team- sters Local 695 v. VOGT, Inc., 354 U.S. 284. 4. The Employer denies that the total revenue from Radio Station WLIQ including tradeouts for broadcasting operations and piped-in background music, for the period January 21 through August 31, 1961, was in excess of $30,000. It is without knowledge as to the commerce facts set forth in the petition for Advisory Opinion alleged with re- spect to secondary employers Delchamps, Inc., Budweiser Distributing Company, Johnson Chevrolet, and Hotz GMC Trucks, Inc. 5. The Employer affirmatively contends that (1) the dismissal of the petition for certification of representatives for failure of the pri- mary Employer's operations to meet the Board's minimum standards is res judicata of the jurisdictional issue; (2) the failure to appeal from the dismissal should have estopped the Petitioner from filing the petition for Advisory Opinion herein; (3) "the Board cannot deprive an employer of the benefits of a certification, or of the benefits of an election wherein the union is not certified by declining to hold an elec- tion, and thus deprive the employer of the benefits of Section 8 (b) (7) (A), (B) and (C) and the employer's rights under Section 301 (a) and (b) of the National Labor Relations Act"; and (4) the Board procedures for Advisory Opinions without a hearing deprive the Employer of due process. For the reasons hereinafter set forth, the Board finds no merit in these contentions. On the basis of the above, the Board is of the opinion that: 1. The Employer is engaged in the operation of Radio Station WLIQ in Mobile, Alabama. The Board's standard for exercising jurisdiction over enterprises engaged in the operation of radio stations is a minimum gross volume of business of $100,000 per annum. Rari- tan Valley Broadcasting Company, Inc., 122 NLRB 90. On the facts submitted, the Employer's operations do not meet the Board's stand- ard for asserting jurisdiction over radio stations. 2. Secondary employers Autry Greer & Sons, Inc., Delchamps, Inc., Budweiser Distributing Company, Johnson Chevrolet, Inc., and Hotz GMC Trucks, Inc., are retail enterprises operating in Mobile, Ala- bama, each of which does a gross annual retail business in excess of $500,000 and make annual purchases outside of Alabama in excess of 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000. The Board's standards for exercising jurisdiction over a retail enterprise which satisfies,its statutory or legal jurisdiction is a gross volume of business of at least $500,000 annually. Carolina Supplies and Cement Co., 122 NLRB 88, 89. The out-of-State pur- chases, constituting direct inflow under the Board's decision in Sie- mons Mailing Service, 122 NLRB 81, bring each of the aforesaid secondary employers within the Board's statutory or legal jurisdic- tion. As the annual gross volume of business of each of the secondary employers exceeds $500,000, they each would meet the Board's juris- dictional standard for retail enterprises and the Board would assert jurisdiction over each of them. 3. In cases involving secondary activity by a union which may be violative of Section 8(b) (4) of the Act where, as here, the primary Employer's operations do not meet the Board's jurisdictional stand- ards, the Board will take into consideration for jurisdictional purposes not only the operations of the primary Employer, but also the entire operation of the secondary employers at the location affected by the alleged conduct involved 2 The dispute between the Petitioner and the Primary Employer herein exists in Mobile and the Petitioner's activity with respect to the five secondary employers, mentioned in paragraph numbered 2, above, occurred in Mobile. Mobile is thus the location affected by the Petitioner's secondary conduct. As indicated above secondary employers, Budweiser Distributing Company, John- son Chevrolet, Inc., and Hotz GMC Trucks, Inc., are Mobile enter- prises each of which meets the Board's jurisdictional standards and over each of whom the Board would assert jurisdiction.' In these circumstances and in accord with established Board prece- dent, the Board would assert jurisdiction over the Primary Employer and the secondary employers affected by the Petitioner's activities, whether or not such activities are in fact violative of Section 8(b) (4) of the Act.' 2 Truck Drivers Local Union No. 649, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America , AFL (Jamestown Builders Exchange, Inc ), 93 NLRB 386 ; International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, General Drivers and Helpers Local No 554, and Chauffeurs, Teamsters and Helpers Local No. 608, AFL (McAllister Transfer, Inc ), 110 NLRB 1769, Madison Building & Construction Trades Council, et at. ( Wallace Hildebrandt & John Kiefer d/b/a II it K Lathing Co., at at ), 134 NLRB 517. 8In view of these circumstances , it is unnecessary to rely, for jurisdictional purposes, on the commerce data relating to the Mobile operations of secondary employers, Autry Greer & Sons, Inc., and Delchamps, Inc., the extent of whose Mobile operations were not clearly set forth in the petition herein See Euclid Foods, Incorporated ( d/b/a Bondi's Mother Hubbard Market ), 1118 NLRB 130 4 Madison Building it Construction Trades Council, et at (Wallace Hildebrandt it John Kiefer d/b/a H & K Lathing Co, et at ), supra, where the Board stated. "The re- quirement that secondary employers be affected by the conduct involved does not mean that a violation must first be found. It is sufficient that conduct occurred that involved the secondary employer, which conduct must be considered and ruled upon as alleged violations " THE FARM BUREAU COOPERATIVE ASSOCIATION, INC . 367 In view of the foregoing, the Board finds no merit in the Primary Employer's contentions that the Petitioner's secondary activity may not be violative of Section 8(b) (4) of the Act; and that the Board's earlier declination of jurisdiction over the Primary Employer's oper- ations was res judicata, or should have estopped the Petitioner from filing the petition herein or that such declination deprived the Primary Employer of the benefits of Section 8(b) (7) and 301(a) and (b) of the Act. Nor is there any merit to the contention that the Board's Ad- visory Opinion procedures deprived the Employer of due process. By their very nature, such procedures do not contemplate holding a hear- ing as they were devised merely to give advice to parties in a State pro- ceeding and to the State court or agency before whom the proceeding may be pending as to whether, on the facts submitted, the Board would or would not assert jurisdiction. Accordingly, the parties are therefore advised, under Section 102.103 of the Board's Rules and Regulations, Series 8, that, on the facts here present, the commerce operations of the Primary Employer and those of the secondary employer at Mobile, Alabama, the location affected by the Petitioner's secondary conduct, are such that the Board would assert jurisdiction with respect to labor disputes cognizable under Sections 8 or 10 of the Act. MEMBER RODGERS took no part in the consideration of the above Advisory Opinion. The Farm Bureau Cooperative Association , Inc. and United Steelworkers of America, AFL-CIO. Case No. 9-CA-2401. January 02, 1962 DECISION AND ORDER On November 6,1961, Trial Examiner Frederick U. Reel issued his Intermediate Report herein, finding that the Respondent engaged in unfair labor practices in violation of Section 8(a) (5) and (1) of the Act and recommending that it cease and desist therefrom and take affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board i has considered the Intermediate Report, the exceptions and brief, and the entire record. The Board affirms the Trial Ex- 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in this case to a three-member panel [Members Leedom, Fanning, and Brown]. 135 NLRB No. 52.