Local 3, Int'l Brotherhood of Electrical Workers

LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 5 represented separately from other employees who share like interests with them through participation in a common endeavor z As a unit limited to the photographers alone is inappropriate and as the Petitioner does not wish to participate in an election for any other unit, we shall dismiss the petition. [The Board dismissed the petition.] 2 The Board has treated photographers and darkroom technicians as a single category for unit purposes. Thiokol Chemical Corporation, Redstone Division, 123 NLRB 888, 892; Westinghouse Air Brake Company, Union Switch cE Signal Division , 119 NLRB 1391, 1394. Local 3, International Brotherhood of Electrical Workers, AFL- CIO and Jack Picoult and Al Picoult d/b/a Jack Picoult. Case No. O-CP-123. August 19, 1963 SUPPLEMENTAL DECISION AND ORDER On April 26, 1963, the United States Court of Appeals for the Second Circuit handed down its decision declining to enforce the Board's initial Decision and Order,' and remanding the case for "more adequate findings in the light of this opinion." 2 After a re- appraisal of the record in the light of the court's opinion, we reaffirm our previous conclusion that Respondent violated Section 8(b) (7) (C) of the Act. A. The applicable principles The court remanded the case to the Board primarily because it was doubtful whether the Board had properly applied the second proviso to Section 8(b) (7) (C). Section 8(b) (7) (C) bans picketing for recognitional or organizational purposes which has been conducted for more than a reasonable period of time (not to exceed 30 days) without a representation petition having been filed. But the second proviso to (C) states : That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to in- duce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. 1137 NLRB 1401. 2 N.L R B v Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult), 317 F 2d 193, 196 (C.A. 2). 144 NLRB No. 9. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The court concluded that, in enacting this proviso, the Congress ex- cepted from the general rule covering recognitional and organiza- tional picketing "a comparatively innocuous species of picketing hav- ing the immediate purpose of informing or advising the public, even though its ultimate object was success in recognition and organization." 3 In the court's view, this was not necessarily the Board's interpre- tation of the proviso. The court believed that the Board's position may have been that the second proviso applied only to an entirely separate species of informational picketing which had neither recog- nition nor organization as an object. This position, in the court's opinion, gave too little scope to the second proviso; moreover, since the Board, in finding that the picketing had a recognitional object, relied in part on the wording of the picket signs (the first of which was substantially equivalent to the kind specified in the second pro- viso), this position would have resulted in finding the Union guilty of an unfair labor practice for carrying the very signs permitted by the proviso. With all due deference, the Board submits that, since the second Crown decision 4 (which was handed down prior to the Board's orig- inal decision in this case), it has not so construed the import of sub- section (C). Rather, it has interpreted Section 8(b) (7) (C) so as to give meaning both to the general proscription and the second proviso thereof. Thus, in agreement with the court, it is also the Board's position that the second proviso exempts from the ban of Section 8(b) (7) (C) a certain class of recognitional or organizational picketing. Accordingly, a violation of Section 8(b) (7) (C) is not established simply by showing that picketing for a recognitional or organizational object has been conducted for more than a reasonable period of time (not to exceed 30 days) without a representation peti- tion having been filed. It is necessary to go on and determine whether the picketing is nevertheless privileged under the second proviso, in that it is "for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization," and does not have "an effect" on deliveries.' We proceed to apply these principles to this case. $Id, at 197. s Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders Inter- national Union of Long Beach and Orange County ; etc. (Crown Cafeteria ), 135 NLRB 1183, reversing on reconsideration , 130 NLRB 570. 6This basic approach to 8(b )( 7)(C) was originally set forth in the above-mentioned second Crown decision and has subsequently been followed in numerous Board decisions See, for example, Retail Clerks Union Local 824, etc. (Barker Bros. Corp . and Gold's, Inc ), 138 NLRB 478 ( Members Rodgers and Leedom dissenting ) ; Retail Clerks Union, Local No. 1404, AFL-CIO (Jay Jacobs Downtown, Inc.), 140 NLRB 1344 (Member Leedom dis- senting) ; and Retail Store Employees' Union, Local No. 428, etc . (Marttno's Complete Home Furnishings ), 141 NLRB 503 (Members Rodgers and Leedom dissenting). LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 7 B. The picketing had a recognitional objective Respondent disclaims any recognitional objective in its picketing of Picoult at the Brooklyn Post Office job. It contends rather that its aim was to induce Picoult to subcontract the electrical work to a con- tractor who was under agreement with the Union, or failing this, to get the General Services Administration to cancel its contract with Picoult. We find, however, than an object of the picketing was to force Picoult to recognize Respondent Local 3 as the representative of his employees. On November 24,1961, Local 3 began picketing at the post office with signs reading : ELECTRICIANS Working on This Job Employed by Picoult Are Not Members of the Electrical Workers Local Union No. 3 Established 1891 International Brotherhood of Electrical Workers Affiliated With The AFL-CIO Call GRamercy 5-3260 Union Label No. 194 Both shortly before and shortly after the picketing started, Union Business Agent Samuel Dobbins asked Jack Picoult to sign a contract with Local 3. And, when Picoult declined the second request, Dobbins stated, "The picketing will be going on for quite some time here." These requests of Dobbins clearly show that the Union was seeking a contract as the representative of Picoults' employees. While it may be argued that the Union's recognitional object is confirmed by the afore- mentioned legend on the signs, we need not rely on these signs to find a proscribed object herein. It is true that the Union, after a month of picketing, changed its signs in late December or early January 1962, to protest against alleged "substandard wages and inferior working conditions," and that these signs, standing alone, might not be sufficient to establish a recognitional objective. Cf. Houston Building and Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321, 322-323. But, in the circumstances of this case, such a mere change in signs was not sufficient to dispel Respondent's prior recognitional objective. S DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indeed, Business Agent Dobbins subsequently admitted on cross- examination at the Section 10(1) injunction proceeding in February 1962 that there would have been no picketing if Picoult had a contract with Local 3. Finally, the Union never informed Picoult that it no longer sought recognition, and the picketing continued without in- terruption while the signs were changed. Both of these factors indi- cate that, despite the change in signs, the Union had not abandoned its previously expressed recognitional objective, and we so find. For these reasons, we conclude that throughout its entire period an object of the Unions' picketing was to force Picoult to recognize the Union as the representative of his employees. Since the picketing was conducted for more than 30 days without a representation petition having been filed, the picketing thus violates Section 8(b) (7) (C) un- less saved by the second proviso thereto. We now turn to that question. C. The picketing is not privileged by the second proviso to Section 8(b) (7) (C) For recognitional or organizational picketing to be privileged under the second proviso it must, inter alia, "be for the purpose of truthfully advising the public." The court explained that the proviso "gives the union freedom to appeal to the unorganized public for spontaneous popular pressure upon an employer; it is intended, however, to ex- clude the invocation of pressure by organized labor groups or members of unions, as such." 6 Accordingly, the court continued, in determining whether the picketing is "for the purpose of truthfully advising the public," it is necessary to ascertain the Union's tactical purpose. Was it seeking a response from the public at large, or from organized labor groups? If the former, the court stated, the picketing is privileged by the proviso unless it communicates more than the limited informa- tion permitted thereby or it in fact has an effect on deliveries; if the latter, the picketing is not privileged irrespective of its actual effects. The record shows that both before and after the change of picket signs, the picketing frequently occurred on the Adams Street side of the post office, where the delivery entrances are located and where very few members of the public walk. The record also contains at least one incident (that involving truckdriver Isele, a member of the Team- sters Union) in which an employee making a delivery was stopped by the pickets, told that they were "on strike," and then waved away from the jobsite by the "picket captain" before he could make the delivery. In these circumstances, it is apparent that the Union's picketing was not directed at achieving the limited purpose of com- municating with the public, but was also intended to be precisely that "signal" to organized labor which Congress sought to curtail. 0 N L R.B. v. Local 3, IBEW, AFL-CIO (Jack Picoult), supra, footnote 2 INT'L UNION OF OPERATING ENGINEERS, LOCAL NO. 12 9 Since, for the reasons set forth above, we find that Respondent's picketing is not protected by the second proviso of subsection (C),7 it is unnecessary to determine whether Respondent failed to satisfy the proviso in other respects as well. Wherefore, on the basis of the entire record, we conclude that Re- spondent's picketing violated Section 8(b) (7) (C) of the Act, and reaffirm our previous Order. MEMBERS RODGERS and LEEDOM took no part in the consideration of the above Supplemental Decision and Order. 7 Local 140, Bedding, Curtain & Drapery Workers Union, etc. (Sealy Greater New York, Inc., et al. ), 140 NLRB 343 ; Local Union 154 , International Typographical Union, AFL- CIO (Ypsilanti Press, Inc.), 137 NLRB 1116 ; cf. Philadelphia Window Cleaners and Maintenance Workers' Union, Local 125 (Atlantic Maintenance Co.), 136 NLRB 1104; and Automotive, Petroleum & Allied Industries Employees Union, Local 618, etc . ( Charles Schmitt and Stephen A. Schmitt d/b/a Charlie's Car Wash and Service ), 136 NLRB 934. International Union of Operating Engineers , Local Union No. 12 [George E. Miller Electric Company] and Wesley E. Miller, Charging Party and International Brotherhood of Electrical Workers, Local Union No. 11. Case No. 21-CD-131. August 19. 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the National Labor Re- lations Act, following the filing of charges under Section 8 (b) (4) (D) of the Act. A hearing was held before Louis A. Gordon, hearing officer, on March 6, 7, and 8, 1963. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing upon the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by all parties and have been duly considered. Upon the entire record in the case, the Board' makes the follow- ing findings of facts: 1. All parties stipulated that Wesley E. Miller as sole proprietor of, and doing business as, George E. Miller Electric Company, herein called the Employer, is engaged in the electrical contracting business in California and is a member of the Los Angeles Chapter of the National Electrical Contractors Association, herein called NECA, an organization that exists, inter alia, for the purpose of negotiating ' Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel [,Chairman McCulloch and Members Rodgers and Leedom]. 144 NLRB No. 2.