New Orleans Typographical Union No. 17

NEW ORLEANS TYPOGRAPHICAL UNION NO. 17 587 WE WILL NOT enter into, actively maintain, give effect to, or enforce any contract or agreement, express or implied, whereby the Madison Employers' Council or any Council Member thereof, or any other employer, ceases or refrains, or agrees to cease or refrain, from handling, using, selling, transporting, or otherwise dealing in any of the products of any other employer, or from doing business with any other person, to the extent found unlawful by the Board. DRIVERS, SALESMEN, WjTAREIIOUSEMEN, MILK PROCES- SORS, CANNERY, DAIRY EMPLOYEES AND HELPERS LOCAL UNION No. 695, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Union. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date ,of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional 'Office, Commerce Building, 744 North Fourth Street, Milwaukee, Wis- consin, Telephone No. 272-8600, Extension 3860, if they have any ques- tions concerning this notice or compliance with its provisions. New Orleans Typographical Union No. 17 International Typo- graphical Union, AFL-CIO and E. P. Rivas, Inc. and Local No. 53, Amalgamated Lithographers of America . Case No. 15-CD- 33. May 13, 1965 DECISION AND ORDER On November 16, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices violative of Section 8(b) (4) (D) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as recommended in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has con- 152 NLRB No. 61. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sidered the Trial Examiner's Decision and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. We agree with the Trial Examiner that an object of the Respond- ent's strike was to force E. P. Rivas, Inc., to reassign the disputed work of operating an ATF photographic typesetter from employees repre- sented by Local No. 53, Lithographers, to employees which it repre- sents, and therefore that by this conduct the Respondent violated Sec- tion 8 (b) (4) (ii) (D) of the Act.' The Respondent excepts to the Trial Examiner's findings, contending that the complaint should be dis- missed because the sole object of its strike was to compel Rivas to arbi- trate the work jurisdiction dispute under Rivas' contract with the Respondent. Like the Trial Examiner, and in disagreement with our dissenting colleague, we find no merit in this contention. The pertinent facts are as follows: In April 1963, Rivas purchased and installed the typesetter at its Chartres Street plant and assigned its operation to employees represented by Lithographers. The Respondent protested the assignment, taking the position that since the machine was a typesetting machine, its operation was covered by the jurisdiction clause of its contract with Rivas. In an attempt to settle the dispute, a meeting was held on May 7, 1963, between repre- sentatives of the Respondent and representatives of Rivas. At that meeting, the Respondent, claimed that it was entitled to the disputed work. When E. P. Rivas stated that the work had already been assigned to employees represented by Lithographers, Waterson, an international representative of the Respondent, said that "we have ways of whipping you fellows into line" and that "we just spent five million dollars whipping the newspapers in New York in line and we can spend another million dollars on you all." 2 At this point, the meeting broke up. On June 14, 1963, employees represented by the Respondent engaged in a strike against Rivas. This strike was enjoined by the United States district court on August 8, 1963. Some- time before August 8, the Respondent filed a petition in the district court seeking a mandatory injunction requiring Rivas to arbitrate the dispute under its contract with the Respondent. On August 8, the dis- trict court also issued a mandatory injunction requiring the arbitration. ' On June 1, 1964, the Board issued a Decision and Determination of Dispute awarding the disputed work to employees represented by Lithographers (147 NLRB 191) Al- though Chairman McCulloch and Member Fanning would adhere to their view stated in that decision that the disputed work should be assigned to employees represented by the Respondent, as there is no majority of the Board favoring a reversal of that award, they join Member Brown in sustaining the Trial Examiner's finding that the Respondent violated Section 8(b) (4) (ii) (D) 2 The Trial Examiner discredited Waterson's denial that he made the statements about "whipping you into line," and we are not persuaded that a clear preponderance of all the relevant testimony establishes that the Trial Examiner's credibility resolution was in- correct. Standard Dry Wall Products. Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). NEW ORLEANS TYPOGRAPHICAL UNION NO. 17 589 In view of the fact that, at the May 7 meeting, the Respondent claimed that it was entitled to the work and thus in effect demanded that Rivas assign the disputed work to employees it represents, and the fact that the Respondent threatened that it had "ways of whipping you fellows into line," it is apparent, and we find, that an object of the Respondent's strike against Rivas was to enforce its immediate demand that Rivas assign the work to employees represented by the Respond- ent. It is true, as our dissenting colleague points out, that, at the same meeting, the Respondent demanded that Rivas arbitrate the dispute and that Rivas refused. However, Section 8(b) (4) (D) requires only that the Respondent's conduct have "an object" proscribed by the Act. So, even if the Respondent's strike was for a further object of com- pelling Rivas to arbitrate the dispute, the strike was nonetheless unlaw- ful because, as appears from the record, it was designed to force Rivas to reassign the work .3 In view of the foregoing and on the basis of the record as a whole, we find that an object of the Respondent's strike was to compel Rivas to reassign the disputed work and, accordingly, that by this conduct the Respondent violated Section 8(b) (4) (ii) (D). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondent, New Orleans Typographical Union No. 17, International Typographical Union, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER JENKINs, dissenting in part: While I am of the view that the disputed work was properly awarded to employees represented by Lithographers, Local No. 53, unlike my colleagues, I would not find that an object of the Respondent's strike was to force Rivas to assign the disputed work to employees it repre- sents. I am aware that in the Section 10 (k) proceeding the Board found, and I agreed, that an object of the Respondent's conduct was to compel Rivas to reassign the disputed work. But in proceedings under Section 10 (k), the Board need only determine that there is "reasonable cause" to believe that the statute has been violated.4 In an unfair labor practice proceeding, however, Section 10(c) requires that 3 In concluding that the Respondent's strike was for an unlawful object, unlike the Trial Examiner, we do not rely on the testimony of Salterelli, president of the Respondent, that in view of the terms of the contract between Rivas and the Respondent , it expected that the arbitrator would decide that employees it represents were entitled to the work. 4 See, for example, Local Union No. 3, International Brotherhood of Electrical Workers ( Western Electric Company Incorporated), 141 NLRB 888, 893. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the violation be proven by a preponderance of the testimony taken at the hearing. Here, in finding that the Respondent's strike was for a proscribed object, the majority relies on the fact that, at the meeting on May 7, the Respondent told Rivas that it was entitled to the disputed work and that it had "ways of whipping you into line." But, the majority concedes that at the same meeting the Respondent, indicating that its claim for the work was based on the jurisdiction clause of its contract with Rivas, demanded that the dispute be arbitrated; and there is no warrant in the record for finding that the Respondent intended to, or in fact conveyed to, Rivas the idea that it would "whip" Rivas "into line" by coercing it to reassign the work rather than by forcing it to arbitrate the dispute.5 Nor has the General Counsel adduced any evidence to show that the strike itself was to compel a reassignment of the work rather than to force Rivas to arbitration. Admittedly, the General Counsel need only show that the strike had "an" unlawful object. However, in view of the foregoing, I do not believe that the General Counsel has shown by a preponderance of the relevant testimony that even "an object" of the strike was to compel Rivas to reassign the work. Accordingly, I would dismiss the com- plaint in its entirety. 5 The majority does not deny that if the latter were the object of the strike, the strike would not have been unlawful under Section 8(b) (4) (ii) (D). There is no indication from Rivas' testimony as to the context in which Waterson made the statement that the Respondent would "whip" Rivas "into line." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On June 26, 1963, the above -named Empolyer filed a charge alleging that the above-named Respondent Union , hereinafter referred to as ITU, had violated Sec- tion 8 (b) (4) (i) and (ii) (D) of the National Labor Relations Act, as amended, in connection with a work assignment dispute. Pursuant to Section 10(k) of the Act, a hearing was conducted in New Orleans, Louisiana, on August 29 and 30 and September 16, 1963. On June 1, 1964, the National Labor Relations Board issued its Decision and Determination of Dispute , 147 NLRB 191. In quick summary, the Board determined that lithographers in a unit represented by Local No. 53, herein- after referred to as ALA, were entitled to the disputed work, and that ITU was not entitled to force or require , by means proscribed by Section 8(b)(4)(D), to force the Employer to assign such work to compositors represented by ITU. By letter of July 16, counsel for ITU informed the Board that "we will not voluntarily comply with the decision." On behalf of the Board, therefore , the Regional Director for Region 15 on July 24, 1964, issued his complaint and notice of hearing , alleging in substance that from June 24 to August 8, 1963, ITU had picketed the Employer's two plants, an object thereof being proscribed by Section 8(b)(4)(D ). Thereafter the Respondent Union filed its answer denying the commission of unfair labor' practices. Pursuant to the notice , a hearing was held in New Orleans on September 23, 1964, before Trial Examiner C. W. Whittemore. At the hearing all parties were repre- sented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondent Union. Pursuant to agreement of the parties , and to Section 102.92 of the Board's Rules and Regulations , Series 8, as amended, the record and exhibits of the 10 (k) pro- ceeding were placed in evidence before me. NEW ORLEANS TYPOGRAPHICAL UNION NO. 17 591 Upon the record thus made and upon my observation of the witnesses appearing before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER E. P. Rivas is a Louisiana corporation engaged in the printing and distribution of printed materials from its plants located at 615 Bienville Street and 2117 Chartres Street, New Orleans, Louisiana. During the past year Rivas received goods and materials valued at more than $50,000 from outside the State of Louisiana. During the same period the Employer performed services for, and shipped printed matter valued at more than $50,000 to, customers located outside the State of Louisiana. As the Board has found in its cited decision, and as the Respondent Union con- cedes in its answer, the Employer is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Both ITU and ALA are labor organizations within the meaning of the Act. M. THE UNFAIR LABOR PRACTICES A. Setting and chief issues That the Respondent Union picketed the two above-described plants of the Employer from June 24 to August 8, 1963, is stipulated by the parties and is found. It is also agreed that the picket signs bore the legend: RIVAS, INC., UNFAIR. WILL NOT HONOR CONTRACT. NEW ORLEANS TYPOGRAPHICAL UNION NO. 17, AFL-CIO On or about the latter date the strike was enjoined by a temporary injunction, under Section 10(1) of the Act, granted by Judge Frank B. Ellis of the United States District Court for the Eastern District of Louisiana. In its decision above cited, the Board not only determined and found that the disputed work belonged to lithographers of ALA, but it also held that "there is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred...." I do not believe that the issue of the disputed work award is properly before me.1 No newly discovered or previously unavailable evidence on this point was adduced at the hearing before me.2 The one issue for consideration here, it appears, is whether or not ITU has in fact engaged in conduct violative of the sections of the Act invoked by General Counsel. More specifically, the question for resolution by me is whether ITU has engaged in a strike, and has threatened, coerced, or restrained the Employer, a purpose of such conduct being to force or require the Employer to assign the dis- puted work to compositors represented by the Respondent Union instead of lithog- raphers represented by ALA. B. Relevant facts In my opinion, the preponderance of credible evidence establishes the following relevant facts, and they are so found: (1) As described more fully in the Board's Decision, above cited, the Employer in April 1963 assigned operation of a certain typesetter, shortly before then having been installed at its Chartres Street plant, to the ALA, then the representative of its employees at that plant. (2) Upon learning of such assignment, ITU protested. (3) On or about May 15, 1963, ITU Representatives Salterelli and Waterson met with the brothers Marcel and E. P. Rivas, Jr., and claimed that the disputed work should be given to ITU members, and further claimed that the ITU contract with the Employer, covering composing room employees at the Bienville Street plant, called for assignment to ITU members. The employer representatives, on the contrary, took the position that its ALA contract also covered this work, and that it had in fact assigned the work to ALA. i In support of this finding, General Counsel in his brief cites a number of cases begin- ning with N.L R B, v Local 450, International Union of Operating Engineers, AFL-CIO (Stine Industrial Painters), 275 F 2d 408 (CA 5) enfg 123 NLRB 1. 2 The work involved is referred to by the Board as the operation of an ATA photographic typesetter. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Upon this statement of opposing positions ITU Representative Waterson declared: Well, we have ways of whipping fellows like you in line ... you know we have just spent five million dollars whipping the newspapers in New York in line and we can spend another million dollars on you all.3 (5) Thereafter ITU demanded that the Employer submit the disputed assignment to arbitration, under the terms of its contract. The Employer declined, chiefly upon the ground that ALA would not be a party to such arbitration and would not be bound by any award. (6) On or about May 24 the two company officials met with two other 1TU repre- sentatives, Stoddard and Hebert, and ITU Counsel Meunier. The respective posi- tions regarding arbitration were discussed at length . At one point Stoddard remarked that the only "way the case could be brought before the Labor Board was if there was a strike." 4 (7) As noted, shortly thereafter the strike began and continued until the court injunction. C. Conclusions Contrary to the ITU's contention that the sole purpose of the strike was to force the Employer to submit to arbitration, I am convinced and conclude from the fore- going facts and the entire record that an object of both the clearly implied,threat to strike and the strike itself was to force the Employer to assign the disputed work to 1TU members.5 To threaten "any person engaged in commerce ," and to engage in a strike, where a purpose thereof is to force or require "any employer to assign particular work to employees in a particular labor organization ... rather than to employees in another labor organization ..." is prohibited by the sections of the Act invoked by General Counsel. Having found that such prohibited conduct was engaged in, and for the unlawful purpose noted, it is concluded and found that the Respondent ITU has engaged in conduct violative of Section 8(b)(4)(i) and (ii)(D) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent ITU, set forth above, occurring in connection with the operations of E. P. Rivas, Inc., described herein, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union has engaged in certain unfair labor prac- tices I will recommend that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. New Orleans Typographical Union No. 17, International Typographical Union, AFL-CIO, and Local No. 53, Amalgamated Lithographers of America, are labor organizations within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging individuals employed by E. P . Rivas, Inc., to engage in a strike and a refusal in the course of employment to perform services, and by threatening, coercing, and restraining E. P. Rivas, Inc., with an object in each 3 The quotation is from the credible testimony of E. P . Rivas. Waterson 's denial that he made this threat Is not credited . As noted, the threat was, in effect, later fulfilled. 4 None of the three ITU representatives at this meeting were witnesses . Rivas' testi- mony, from which the above quotations are taken , on this point is undisputed The following colloquy supports the conclusion: TRIAL E XAMINER: The purpose of the arbitration was to get control of the machine which you claimed was yours under the contract, was It not? The WITNESS: (Salterelli) Yes, we thought that surely under the terms of our arbitration that surely the arbitrator would see that we were right. TRIAL EXAMINER : You wouldn 't go to arbitration with the expectation that the arbitrator was going to rule against you, would you? The WITNESS : NO, sir, we felt sure that under the terms of our contract that we would get it. NEW ORLEANS TYPOGRAPHICAL UNION NO. 17 593 case of forcing or requiring E. P. Rivas, Inc., to assign certain work to employees who are represented by New Orleans Typographical Union No. 17, International Typographical Union, AFL-CIO, and who were not then lawfully entitled to such work, rather than to employees who were represented by Local No 53, Amalgamated Lithographers of America, and who were lawfully entitled to such work, the Respond- ent Union has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b) (4) (i) and (ii) (D) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, New Orleans Typographical Union No. 17, International Typographical Union, AFL-CIO, its officers, representatives, and agents, shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by E. P. Rivas, Inc., or by any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or refusal in the course of his employment to perform any services, and from threatening, coercing, or restraining the above-named Employer, where an object thereof in either case is to force or require E. P. Rivas, Inc., to assign the work on the ATA photographic typesetter to compositors who are represented by said Respondent Union rather than to lithog- raphers represented by another labor organization, except insofar as any such action is permitted under Section 8 (b) (4) (D) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act• (a) Post at the business office of Respondent New Orleans Typographical Union No. 17, International Typographical Union, AFL-CIO, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for Region 15, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, in conspicuous places, including all places where notices to employees and members are customarily posted, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director signed copies of said notice for posting by the above-named Employer, if willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the said Regional Director, shall, after being signed by the Respondent, be forthwith returned to the Regional Director for disposition by him. (c) Notify the said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith .7 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order " 71n the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF E. P. RIVAS, INC. Pursuant to the Recommended Order of a Trial Examiner of the National I abor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby give notice that: WE WILL NOT engage in, or induce or encourage any individual employed by E. P. Rivas, Inc., or by any other person engaged in commerce or in an industry affecting commerce , to engage in, a strike or refusal in the course of his employ- ment to perform any services, or threaten, coerce, or restrain the above-named 789-730--66-vol. 152-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer, where an object thereof in either case is to force or require E. P Rivas, Inc., to assign the work on the ATA photographic typesetter to com- positors who are represented by our union rather to lithographers represented by another labor organization, except insofar as any such action is permitted under Section 8(b) (4) (D) of the said Act. NEW ORLEANS TYPOGRAPHICAL UNION No. 17, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, Telephone No. 529-2411, Extension 6396, if they have any question concerning this notice or compliance with its provisions. The Wm. H. Block Company and Retail, Wholesale and Depart- ment Store Union, AFL-CIO, Petitioner. Case No. 25-RC- 2447. May 13,1965 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Arthur Hailey. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case,' including briefs filed by the par- ties ,2 the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2(6) and (7) of the Act. 'The parties' requests for oral argument are hereby denied , as the record, including the briefs , adequately presents the issues and the positions of the parties. 'After the hearing was closed , Local 725, Retail Clerks International Association filed with the Board a motion to Intervene and requested that its name be placed on the ballot in the event an election is directed herein . The Petitioner filed its opposition to the motion. The motion is hereby denied in view of our decision herein dismissing the petition. 152 NLRB No. 59.