San Diego Typographical Union No. 221, AFL-CIO (Central Typesetting, Inc., d/b/a Central Graphics)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Diego Typographical Union No. 221, AFL-CIO and Central Typesetting, Inc., d/b/a Central Graphics. Case 21-CP-621 Spetember 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On May 14, 1982, Administrative Law Judge Earldean V. S. Robbins issued the attached Deci- sion in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, San Diego Ty- pographical Union No. 221, AFL-CIO, its officers, agents, and representatives, shall take the action set forth in the said recommended Order,' except that the attached notice is substituted for that of the Administrative Law Judge. The recommended Order properly enjoins the Respondent from picketing with a recognitional or an organizational objective for I year from the date its unlawful picketing ceases. Retail Store Employees' Union, Local No. 692, Retail Clerks International Association AFL-CIO (Irvins, Inc.), 134 NLRB 686, 690-691 (1961). It appears from representations made by both counsel that the traditional picketing ceased as of some time prior to the hearing herein, but that the handbilling which had ac- companied the picketing continued. We have adopted the Administrative Law Judge's finding that the handbilling, when it accompanied the pick- eting, constituted picketing as well. However, as the record is bare with regard to the manner in which the handbilling has been conducted since the traditional picketing ceased, we make no finding as to whether the later handbilling constituted picketing. Cf. Lumber and Sawmill Workers Local Union No. 2797 (Stoltze Land & Lumber Company), 156 NLRB 388, 393-395 (1965); Lawrence Typographical Union No. 570, affiliated with the International Typographical Union, AFL-CIO (Kansas Color Press. Inc.), 169 NLRB 279, 283-284 (1968). 264 NLRB No. 119 APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket, cause to be picketed, or threaten to picket Central Typesetting, Inc., d/b/a Central Graphics for a period of 1 year from the date of the cessation of our picketing at Central Graphics, which has been found by the National Labor Relations Board to be un- lawful, where an object thereof is to force or require Central Graphics to recognize or bar- gain collectively with us or to force or require the employees of Central Graphics to accept or select us as their collective-bargaining rep- resentative. WE WILL NOT picket, cause to be picketed, or threaten to picket Central Graphics for any of the above-mentioned objects, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which we did not win. SAN DIEGO TYPOGRAPHICAL UNION No. 221, AFL-CIO DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was heard before me in San Diego, California, on January 25, 1982. The charge was filed by Central Typesetting, Inc., d/b/a Central Graphics, herein called Central Graphics, and served on San Diego Typographi- cal Union No. 221, AFL-CIO, herein called Respondent, on August 5, 1981. The complaint which issued on Sep- tember 1, 1981, alleges that Respondent violated Section 8(b)(7)(B) of the National Labor Relations Act, as amended, herein called the Act. The basic issue herein is whether Respondent's picket- ing of Central Graphics facility had a recognitional object. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the parties, I make the follow- ing: FINDINGS OF FACT I. JURISDICTION Central Graphics, a California corporation, with its principal place of business in San Diego, California, herein called the Central Graphics facility, is engaged in business as a typographical service. In the course and conduct of said business operations, Central Graphics an- nually derives gross revenues in excess of $500,000, and 874 SAN DIEGO TYPOGRAPHICAL UNION NO. 221 annually purchases goods and products valued in excess of $5,000 which originated outside the State of Califor- nia. The complaint alleges, Respondent admits, and I find that at all times material herein Central Graphics has been an employer engaged in commerce or in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Most of the facts herein are undisputed. Respondent and Central Graphics have been parties to successive collective-bargaining agreements, the most recent of which expired by its own terms, inter alia, on April 30, 1980. On October 8, 1980, following the breakdown of contract negotiations, Respondent commenced a strike against Central Graphics. Commencing on that same date and continuing until July 24, 1981,1 Respondent picketed the Central Graphics facility with signs which read: ON STRIKE AGAINST CENTRAL GRAPHICS SANCTIONED BY CENTRAL LABOR COUNCIL SAN DIEGO TYPOGRAPHICAL UNION 221 AFFILIATED WITH AFL-CIO On February 4, pursuant to a decertification petition filed with the Board to determine the collective-bargain- ing representative of the employees of Central Graphics in the appropriate unit represented by Respondent, an election by secret ballot was conducted by the Board which resulted in the challenged ballots being determina- tive. On March 6, the Regional Director issued his Report on Challenged Ballots, to which Respondent timely filed exceptions asserting that the issues raised by the challenges should not have been resolved without an evidentiary hearing. By a Decision and Direction issued on July 7, the Board adopted the Regional Director's report, finding that Respondent's exceptions raised no material or substantial issues of law or fact which war- ranted the reversal of the Regional Director's recommen- dations or required a hearing. Subsequently the chal- lenged ballots were counted and, on July 22, the Acting Regional Director certified that a majority of the valid ballots had not been cast for Respondent and that Re- ' All dates hereinafter will be in 1981 unless otherwise indicated. spondent was no longer the exclusive representative of the employees in the appropriate unit. 2 As indicated above, Respondent ceased picketing on July 24. By letter dated July 31, Respondent notified sev- eral employers and labor organizations, whose employees and members had refused to cross Respondent's picket lines, that it had been decertified and was no longer en- gaged in a strike against Central Graphics or interested at that time in negotiating with Central Graphics or or- ganizing Central Graphics employees; but that it intend- ed to carry on informational activity to encourage the public not to patronize Central Graphics, but instead to patronize establishments which provide union members with jobs. The letter further states that such activity is not aimed at any suppliers, employees, or anyone making deliveries to the Central Graphics facility and that Re- spondent had no objections to the employees of the ad- dressees crossing such informational picket lines. On that same date, by letter, Respondent notified Cen- tral Graphics that, because it continues to represent em- ployees of other employers in the area, it has a continu- ing interest in wages paid by competing employers in the area; and requested information as to the current wages and health and welfare and pension or profit-sharing benefits paid Central Graphics employees so that Re- spondent could verify its information that Central Graphics was paying wages and benefits below area standards. By letter dated August 3, Central Graphics denied to Respondent that its wages and benefits were below area standards. On August 3, Respondent commenced picketing at the Central Graphics facility with picket signs which read: Central Graphics does not have a labor contract with ITU Local 221 AFL-CIO. Central Graphics does not employ members of this union ITU Local 221. Please do not patronize Central Graphics. We do not seek to bargain with or seek recognition from Central Graphics. We also do not seek to induce any individuals and/or employees to refuse to pick-up and deliver goods to or perform other services at Central Graphics. San Diego Typographical Union 221 Affiliated with AFL-CIO. The same individuals, by and large, who had participated in the prior picketing have also participated in the re- sumed picketing. In conjunction with such picketing on August 3, at the Central Graphics facility, Respondent commenced dis- tributing leaflets which read: 2 In its answer, at the hearing herein and in its post-hearing brief, Re- spondent continues to assert that a hearing should have been held on the challenged ballots and that, since the Board refused to do so, there was no valid election. However, it does not offer to adduce any newly dis- covered evidence or previously unavailable evidence, nor does it allege any special circumstances which would require the Board to reexamine its decision General Drivers and Helpers Union. I ocal No. 554, affliated with International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America (Young and Hay Transportation Company). 221 NLRB 754 (1975) 875 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Please DO NOT patronize CENTRAL GRAPHICS Central Graphics does not employ members of this Union, International Typographical Union Local 221. Many of the employees who voted against Local 221 are no longer employed by Central Graphics. We do not seek to bargain with or seek recogni- tion from Central Graphics. We also do not seek to induce any individuals and/or employees to refuse to pick up or deliver goods to or perform other services at Central Graphics. We do seek your support in preserving Union Jobs. Please partonize Union printers. You can have your typeset and printing done at the following Union shops: PLEASE SUPPORT US BY HAVING YOUR TYPE SET AND PRINTING DONE ELSE- WHERE You can have your type set and printing done at the following places: Arts & Crafts Press 3590 Kettner Blvd., San Diego. DeFrance Printing 340 G Street, San Diego Diego & Sons 2233 National Avenue Neyenesch Printers 2750 Kettner Blvd. San Diego. Plaza Press 4651 Mission Gorge Road, Suite A, San Diego. South Bay Press 317 National Avenue, National City San Diego Union. Evening Tribune. In addition there are many, many other plants that can do quality printing. Thank you for your support. As evidence of the recognitional object of the resumed picketing, the General Counsel adduced testimony from Sharon Gilfoil, corporate secretary for Central Graphics, that on August 3, at around 6 p.m.,3 she heard Respond- ent's president, Ray Butler, tell the picketers at the Cen- tral Graphics facility, "I want to see these handbills in all the windows of the cars, I want them in the fronts, I want everybody to see them. We're going to run that asshole out of business." I credit Butler's denial that he ever made such a statement or that he was at Respond- ent's premises prior to 6:20 p.m. that afternoon. Butler impressed me as an honest and reliable witness who was endeavoring to be truthful. His testimony is corroborated by Leroy Opdenbrouw, who was on picket duty at Cen- s Gilfoil testified positively that it could have been no later than 6:05 p.m. tral Graphics at the time.4 Also, the picketing duty log tends to support Butler's testimony as to the time of his arrival, and his account of his activities immediately prior to coming to the Central Graphics facility tends to indicate that he had some reason for being certain that he was not at the facility prior to 6:20 p.m. Furthermore, Gilfoil had a tendency to fashion her testimony in a manner favorable to Central Graphics as shown by her testimony that she heard the picket captain make a dam- aging statement in October. Testimony by another wit- ness and subsequent testimony by Gilfoil made it appar- ent that Gilfoil did not hear the statement. Rather, it was repeated to her by the employee who heard it, but who could not identify the speaker. B. Conclusions The complaint alleges that the picketing which com- menced on August 3 is violative of Section 8(b)(7)(B) of the Act. That section provides: It shall be an unfair labor practice for a labor or- ganization or its agent . . . to picket or cause to be picketed, or threaten to picket or cause to be picket- ed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employ- ees of an employer to accept or select such labor organization as their collective bargaining repre- sentative, unless such labor organization is currently certified as the representative of such employees . . .where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted ... The purpose thereof is to provide stability for the 12- month period during which Section 9(c)(3) of the Act bars a second election for the same unit by protecting an employer and its employees against the pressures of re- cognitional and organizational picketing by a union for the duration of that period. International Union of Operat- ing Engineers, Local 12, AFL-CIO, et al. (Lamont Pipe Company, Inc.), 239 NLRB 500 (1978). Thus, the issue here is whether, despite its disclaimers, Respondent's picketing had a recognitional or organiza- tional object. Neither the fact of Respondent's previous picketing nor the shortness of the hiatus in the picketing can, alone, establish a recognitional or organizational object. Similarly, Respondent's disclaimer does not, of itself, establish that the proscribed object does not exist. Rather a determination must be made by evaluating all of the surrounding circumstances. Here, since I have credited Butler's denial that he made the statement at- tributed to him by Gilfoil, the only other circumstance to consider is the language of the picket signs and handbills. Respondent argues that the language of the picket signs and handbills, coupled with its disavowals of a pro- scribed object and its efforts to limit the effects of the 4 It was stipulated that if Richard Bihlmayer, another picketer who was on picket duty at Central Graphics at the time, was called to testify, he would testify substantially the same as Opdenbrouw. 876 SAN DIEGO TYPOGRAPHICAL UNION NO. 221 picketing, clearly established a noncoercive, information- al objective and the absence of a recognitional or organi- zational objective. I find no merit in this argument. The picket signs state, inter alia, that Central Graphics does not have a labor contract with, nor employ members of, Respondent. Similarly, the handbills5 state that Central Graphics does not employ members of Respondent. The Board has held that such language indicates that the spe- cific reason for appealing to the public to withhold pa- tronage from an employer is that the employer did not have a contract with, nor employ members of, a picket- ing union thereby rendering it apparent that the union considered that its quarrel with the employer would cease when the employer again employed union mem- bers or entered into a contract with the union. Local 445, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Colony Liquor Distribu- tors, Inc., Colonial Carriers, Inc.), 145 NLRB 263 (1963); Amalgamated Meat Cutters and Butchers Workmen of North America, AFL-CIO, District Local 340 (PFA-Farm- ers Market Association), 232 NLRB 111 (1977); Retail Store Employees Union Local 214, affiliated with United Food & Commercial Workers International Union, AFL- CIO-CLC (Pick-N-Save Warehouse Foods, Inc.), 252 NLRB 547 (1980). Accordingly, I find that Respondent's picketing which commenced on August 3, within a year of a valid elec- tion, had a statutorily proscribed object.6 I therefore find that Respondent thereby violated Section 8(b)(7)B) of the Act. CONCLUSIONS OF LAW 1. Central Typesetting, Inc., d/b/a Central Graphics, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By picketing Central Graphics commencing on August 3, 1981, with an object of forcing or requiring Central Graphics to recognize and bargain with Re- spondent as the collective-bargaining representative of Central Graphics employees and/or of forcing or requir- ing Central Graphics employees to accept and select Re- spondent as their collective-bargaining representative, al- though Respondent was not currently certified as such representative, and a valid election under Section 9(c) of the Act had been held within the preceding 12 months, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. B The General Counsel argues, and I agree, that in the circumstances herein, the handbilling constitutes picketing. Lumber and Sawmill Workers Local Union No. 2797 (Stoltze Land a Lumber Company), 156 NLRB 388, 393-395 (1965). 6 Neither Respondent's expressions of disclaimer nor the absence of other conduct evidencing a proscribed object precludes such a finding. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, San Diego Typographical Union No. 221, AFL-CIO, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Picketing, causing to be picketed, or threatening to picket Central Typesetting, Inc., d/b/a Central Graphics for a period of I year from the date of the cessation of Respondent's unlawful picketing, where an object there- of is to force or require Central Graphics to recognize or bargain collectively with Respondent or to force or re- quire the employees of Central Graphics to accept or select Respondent as their collective-bargaining repre- sentative. (b) Picketing, causing to be picketed, or threatening to picket Central Graphics for any of the above-mentioned objects, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conduct- ed which Respondent did not win. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix. " s 8 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by its authorized rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken by Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director with signed copies of the aforesaid notice for posting by Central Graphics, if willing, at places where it customarily posts notices to its employees. (c) Notify said Regional Director, in writing, withih 20 days from the date of this Order, what steps Respond- ent has taken to comply herewith. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 877