Newspaper And Mail Deliverers' Union Of New York And Vicinity

NEWSPAPER & MAIL DELIVERERS (MACROMEDIA PUBLISHING) Newspaper and Mail Deliverers' Union of New York and Vicinity and Macromedia Publishing Incor- porated. Case 22-CP-356 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On the basis of a charge filed on January 27, 1986, by Macromedia Publishing Incorporated (the Employer), the General Counsel of the National Labor Relations Board, by the Acting Regional Di- rector for Region 22, issued a complaint against Newspaper and Mail Deliverers' Union of New York and Vicinity (the Respondent) on February 7, 1986. The complaint alleges that since about De- cember 28, 1985, the Respondent has violated Sec- tion 8(b)(7)(C) of the Act by picketing the Em- ployer in order to force or require the Employer to recognize and bargain with the Respondent as the representative of certain of its employees, without a valid petition under Section 9(c) of the Act having been filed within a reasonable period of time from the commencement of the picketing. The Respondent filed an answer to the complaint on February 20, 1986, in which it denied the commis- sion of any unfair labor practice and asserted sever- al affirmative defenses. On May 6, 1986, the parties filed a motion to transfer proceeding to the Board and they agreed that certain documents would constitute the entire record in this case,' waived a hearing before an ad- ministrative law judge, and submitted this case di- rectly to the Board for it to make findings of fact and conclusions of law and the issuance of a Deci- sion and Order. On July 25, 1986, the Board grant- ed the motion and set a date for the parties to file briefs. None of the parties filed a brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 1 The parties did not file a stipulation of facts They agreed that the record in this proceeding should consist of the following . the charge, the complaint, the order granting extension of time to file an answer, and the answer, the transcript of proceedings on January 14, 1986, in NMDU v Macromedia Publishing Incorporated, Civil No 85-5940 (D N J 1986), a Sec 301 suit in the U S District Court for the District of New Jersey, and two attendant exhibits (assets purchase agreement and assignment and assumption agreement), the transcript of the proceedings on January 15, 1986, and the orders issued in that case on January 29 , 1986, and March 25, 1986; and the record in Kendellen v. NMDU, Civil No 86-582 (D N.J 1986), a Sec 10(1) proceeding in the U.S District Court for the District of New Jersey, including the petition for injunction, the Re- spondent's answer to the petition, Petitioner's memorandum of points and authorities in support of petition for injunction , transcript of the proceed- ings on February 28, 1986, and attendant exhibits, postheanng memoran- dum of NMDU, the Petitioner's posthearing memorandum, transcript of the proceedings on March 13, 1986, and order granting preliminary in- junction 537 The Board has considered the entire record2 and makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer, a New Jersey corporation, is en- gaged in the publication, circulation, and distribu- tion of the News Tribune newspaper at its facility in Woodbridge, New Jersey. During the past year, the Employer derived gross revenues in excess of $200,000 and held membership in, and subscribed to, interstate news services, published nationally syndicated features, and advertised nationally sold products. From the foregoing, the Employer ad- mitted, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts3 Prior to the Employer's purchase of its assets, Middlesex County Publishing Company (Middle- sex) was the publisher of a daily newspaper, the News Tribune. In October 1971, the Board certi- fied the Respondent as the exclusive bargaining representative of all circulation employees, includ- ing truckdrivers, mailroom workers, promotion em- ployees, branch office operators, and other ship- ping and receiving employees employed by Mid- dlesex at its Woodbridge, New Jersey facility. In March 1972, with the Respondent's consent, Mid- dlesex subcontracted its delivery operation to 3-C Corporation (3-C), which then entered into a col- lective-bargaining agreement with the Respondent. About the same time, Middlesex signed a letter of understanding with the Respondent, stating that if Middlesex terminated its contract with 3-C it would either directly deliver the newspaper using its own employees and negotiate an agreement with the Respondent or subcontract to another company that already had an agreement with the Respondent. On November 5, 1985, in a bona fide purchase, the Employer acquired the assets of Middlesex. 2 A Determination of Dispute involving the parties to this proceeding issued on September 29, 1986, in Newspaper & Mail Deliverers (Macrome- dia Publishing), 281 NLRB 588 (1986) 2 The facts, which are not in material dispute , are taken from the evi- dence adduced in the proceedings in the U S District Court for the Dis- trict of New Jersey, supra, fn 1 289 NLRB No. 68 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Employer agreed to assume certain agree- ments, leases, and contracts as stipulated in the pur- chase sale agreement. On November 7, 1985 , Middlesex advised 3-C that its contract was canceled . About December 20, 1985, 3-C advised the Respondent that truck- drivers represented by the Respondent would be terminated effective January 1, 1986 , once the newspaper operations were transferred to the Em- ployer. On December 23, 1985, the Employer ad- vised the Respondent that it intended not to hire 3- C employees represented by the Respondent, but instead would subcontract the Employer's delivery services to another independent contractor. In De- cember 1985, the Employer engaged T C Enter- prises, Ltd. d/b/a Associated Security Specialists (Associated), whose employee drivers are unrepre- sented, to provide security and delivery services for the publication of the News Tribune. On December 27, 1985 , the Employer com- menced publication of the News Tribune. From that date, the Respondent commenced picketing of the Employer's premises carrying picket signs bear- ing, inter alia, the legends, "NMDU Locked Out, the News Tribune Unfair to Organized Labor," "'It Ain't Over Till It's Over' This Site Founded on December 27, 1985, by Pr. Jerry Cronin, N.M.D.U.," and "Scabs Go Home." At some point between January 14 , 1986, and about February 5, 1986, some of the picket signs also read, "Notice To The Public Including Consumers . The News Tribune Does Not Employ Members of Newspaper and Mail Deliverers' Union." After February 5, 1986, the pickets continued to carry signs stating "Scabs Go Home" and other pickets carried no signs at all . There was no hiatus in picketing prior to the appearance of the "Notice to the Public" legends, and the picketing continued unabated. The Respondent did not file a valid petition for an elec- tion under Section 9(c). According to the testimo- ny of the Employer's attorney, John Langel, the Respondent's attorney indicated to him that the only way the picketing would cease would be if the Employer hired the employees directly or en- tered into an agreement with "an NMDU orga- nized wholesaler" to provide delivery. The picketing disrupted the Employer 's oper- ations to the following extent . The picketing caused 25-30 delivery trucks to stop at the picket line and turn away. These trucks carried advertis- ing inserts, newsprint, and other materials used in the Employer's operation. Further, the pickets stopped several trucks by running or standing di- rectly in front of the trucks. As a result of the picketing, the Employer has made special arrange- ments to receive deliveries, including sending secu- rity personnel to pick up supplies and advertising supplements. The Employer's vice president and business manager, John Burk, testified in the Sec- tion 10(1) proceeding4 that 90 percent of his time was consumed making special arrangements attrib- utable to the picketing . The Employer has had to change its presstime from 7 a.m. to 1 a.m., at least in part as a result of the disruptions caused by the picketing. B. Contentions of the Parties As noted, the parties did not file briefs or make any contentions before the Board independent of the pleadings in this case and the proceedings of the U.S. District Court for the District of New Jersey in the Section 301 and Section 10(1) matters. The General Counsel contends that the Respondent picketed the Employer with an object of forcing it to recognize or bargain with the Respondent in violation of Section 8(b)(7)(C) of the Act. The General Counsel further contends that the picket- ing was not privileged by the second proviso to Section 8(b)(7)(C) of the Act. The Respondent contends in its answer that it is the certified repre- sentative of certain employees at the News Trib- une, that the Employer is a successor to Middlesex for purposes of bargaining with the Union, that the Employer terminated employees represented by the Respondent in furtherance of a plan to deprive em- ployees of their collectively bargained rights, and that the picketing was not for a recognitional ob- jective, but rather was for the purpose of truthfully advising the public that the Employer does not employ members of the Respondent or have a con- tract with the Respondent. D. Discussion and Conclusions Section 8(b)(7)(C) of the Act, in pertinent part, makes it an unfair labor practice for a labor organi- zation, not certified as the representative of an em- ployer's employees, to picket an employer (7) where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees . .. . (C) where such picketing has been conducted without a petition under section 9(c) .. . being filed within a reasonable period of time not to exceed thirty days from the commence- ment of such picketing . . . . Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising 4 Supra, fn 1. NEWSPAPER & MAIL DELIVERERS (MACROMEDIA PUBLISHING) 539 the public (including consumers) that an em- ployer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any indi- vidual employed by any other person in the course of his employment, not to pick up, de- liver or transport any goods or not to perform any services. The record here shows that, prior to the Em- ployer's acquisition of the News Tribune, the Re- spondent represented circulation employees em- ployed by subcontractor 3-C, pursuant to a Board certification and letter of understanding with Mid- dlesex, the former owner of the News Tribune. Picketing began on December 27, 1985, virtually immediately on the Employer's commencement of publication and its use of a nonunion independent contractor, Associated, to perform security and de- livery services. The picketing was directed at the News Tribune, now published by the Employer, protested the use of "scabs," and accused the News Tribune of locking out employees and being unfair. Further, the Respondent's attorney indicated to the Employer that the picketing would cease if the Employer hired employees directly or entered into an agreement with a delivery service whose em- ployees were represented by the Respondent. In these circumstances, it is evident that an object of the Respondent's picketing of the Em- ployer was to achieve a continuation of the Re- spondent's former representative status of circula- tion employees employed in the operation of the News Tribune, either by establishing a bargaining relationship directly with the Employer or by forc- ing the Employer to subcontract work to an entity having a bargaining relationship with the Respond- ent. Indeed, consistent with the objective sought by the picketing, the Respondent has consistently maintained that the Employer is legally obligated to recognize and bargain with the Respondent. Thus, in its answer to the complaint, the Respondent as- serts that it is the representative of the circulation employees of the News Tribune and, pursuant to that assertion, the Respondent filed both an unfair labor charge contending, in pertinent part, that the Employer violated Section 8(a)(5) and (1) of the Act by refusing to bargain, 5 and a Section 301 suit also asserting a bargaining obligation on the part of the Employer-6 Accordingly, we find that an 5 The Respondent filed an unfair labor practice charge on December 27, 1985, against Middlesex, 3-C, and the Employer, alleging violations of Sec 8(a)(1), (3), and (5) On January 24, 1986, the Regional Director dis- missed the charge On April 14, 1986, the General Counsel denied the Respondent's appeal of the dismissal 6 Supra, fn I object of the picketing was to force or require the Employer to recognize the Respondent as the rep- resentative of the circulation employees. The Respondent contends in the answer to the complaint, as it did in the prior proceedings before the District Court of New Jersey, that it is the cer- tified representative of the circulation employees and that the Employer is a successor to Middlesex, from whom the Employer acquired the News Trib- une. The Employer, however, employs no employ- ees to handle deliveries in the circulation unit that the Respondent asserts it represents. Those duties are performed by Associated, whose employees are not represented by the Respondent. Thus, the Em- ployer is not an employer of the employees for whom the Respondent contends a successor rela- tionship exists.7 Further, there is no evidence estab- lishing that the Employer agreed to recognize the Respondent or to assume the obligations of the col- lective-bargaining agreement between 3-C and the Respondent.8 Because there is no probative evi- dence of the requisite work force continuity neces- sary to establish successorship status on the Em- ployer,9 or to establish that the Employer agreed to be bound by the obligations of the seller, Mid- dlesex, we find that the Employer is not a succes- sor to Middlesex or 3-C with respect to the circula- tion employees formerly employed by 3-C, and that the Respondent, therefore, is not a labor orga- nization "currently certified as the representative of such employees" within the meaning of Section 8(b)(7)(C). 10 Subsequent to the finding by the U.S. District Court for the District of New Jersey that the Em- ployer was not a successor employer, the Respond- ent displayed additional picket signs at the Em- ployer's premises reading, "Notice to the Public In- 7 There is no evidence that the Employer is a joint employer with As- sociated of the circulation employees 8 The record before us in this proceeding, as it pertains to the Re- spondent's successorship contentions, consists virtually entirely of the Sec 301 proceeding in the U S District Court for the District of New Jersey The primary evidence presented in that proceeding by the Re- spondent to establish successorship is the Assets Purchase Agreement be- tween Middlesex and the Employer That agreement provides that the latter "will purchase from sellers all the tangible and intangible assets of [Middlesex] including, without limitation the following [specification of assets omitted here] " The only labor agreement mentioned thereafter is an agreement with Newark Newspaper and Graphic Communication Union No 8 The Assets Purchase Agreement makes no mention of the bargaining agreement between 3-C and the Respondent. Accordingly, we find no merit to the Respondent's contention that the Employer contrac- tually assumed Middlesex ' relationship with the Union Newspaper & Mail Deliverer (Macromedia Publishing), 281 NLRB 588 fn 15 (1986) 9 NLRB v Burns Security Services, 406 US 272 (1972), Fall River Dyeing Corp v NLRB, 482 U S. 27 (1987) 1° In its answer the Respondent asserts that Macromedia and Middle- sex terminated union -represented employees in furtherance of a plan to deprive individuals represented by the Respondent of their collectively bargained rights As no evidence was presented in support of this asser- tion, we reject it as lacking merit. 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cluding Consumers. The News Tribune Does not Employ Members of Newspapers and Mail Deli- verers' Union." The Respondent contends that these signs privilege the picketing under the second proviso to Section 8(b)(7)(C). We find this conten- tion lacking in merit. Despite the appearance of the "Notice to the Public" signs, we find an object of the picketing continued to be immediate recogni- tion. The signs were not accompanied by a dis- claimer of recognition, the "Scabs Go Home" signs continued to be used, and some pickets carried no signs, which under the circumstances, indicated that they were picketing in furtherance of the mes- sages conveyed by the legends of both signs. There also was no hiatus in the picketing; and the Re- spondent not only did not inform the Employer that it was not interested in immediate recognition, it never repudiated the statements of its attorney- nor did he retract them-that the picketing would cease when the Employer either hired the former 3-C employees or signed a contract to provide de- livery services with a subcontractor whose employ- ees were represented by the Respondent. See McClintock Market, 244 NLRB 555, 556 (1979) (de- spite disclaimer, union's course of conduct was tan- tamount to present demand for recognition where there was no hiatus in picketing and the union did not unequivocally inform the employer it was not interested in immediate recognition). In any event, assuming, arguendo, that these signs express the Respondent's true intention to inform the public that its members are not em- ployed at the Employer's premises, the picketing at the Respondent's premises had the effect of induc- ing individuals in the course of their employment not to pick up, deliver, or transport goods or not to perform services. As noted, numerous delivery trucks refused to cross the picket line and the pick- ets stopped several delivery trucks from the site by running or standing in front of the trucks. These substantial disruptions required the Employer to make special arrangements to receive deliveries and contributed to the alteration of its designated pres- stime from 7 a.m. to 1 a.m.11 Thus, the picketing at no time was privileged by the second proviso of Section 8(b)(7)(C). Accordingly, we find that the Respondent's pick- eting at the Employer's premises since December 27, 1985, violated Section 8(b)(7)(C) of the Act, as alleged. " We find no merit to the Respondent's contentions that these disrup- tions were de mmimis in character THE REMEDY Having found that the Respondent has violated Section 8(b)(7)(C) of the Act, we shall order it to cease and desist and take certain affirmative action necessary to effectuate the policies of the Act.12 CONCLUSIONS OF LAW 1. Macromedia Publishing Incorporated, Wood- bridge, New Jersey, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing the Employer commencing De- cember 27, 1985, with an object of forcing or re- quiring the Employer to recognize and bargain with the Respondent as the representative of circu- lation employees, where such picketing has been conducted without a petition being filed under Sec- tion 9(c) of the Act within a reasonable period of time not to exceed 30 days from the commence- ment of such picketing, the Respondent has violat- ed Section 8(b)(7)(C) of the Act. 4. The foregoing is an unfair labor practice within the meaning of the Act. ORDER The National Labor Relations Board orders that the Respondent, Newspaper and Mail Deliverers' Union of New York and Vicinity, Woodbridge, New Jersey, its officers, agents, and representa- tives, shall 1. Cease and desist from picketing, or causing to be picketed, Macromedia Publishing Incorporated where an object thereof is forcing or requiring the Employer to recognize or bargain with the Re- spondent as the collective-bargaining representative of circulation employees, at a time when the Re- spondent is not certified as such representative and where such picketing has been conducted without a petition under Section 9(c) of the Act being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix."13 Copies 12 The General Counsel's request for a visitatonal clause is denied, as such clause is not necessary in the circumstances of this case . Cherokee Marine Terminal, 287 NLRB 1080 (1988). 18 If 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " NEWSPAPER & MAIL DELIVERERS (MACROMEDIA PUBLISHING) of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to members are customarily posted . Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 22 signed copies of the notice in sufficient numbers for posting by Macromedia Publishing Incorporated, if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 541 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT picket, or cause to be picketed, Macromedia Publishing Incorporated , where an object thereof is forcing or requiring the Employer to recognize or bargain with us as the collective- bargaining representative of circulation employees, at a time when we are not certified as such repre- sentative and where such picketing has been con- ducted without a petition under Section 9(c) of the Act being filed within a reasonable period of time not to exceed 30 days from the commencement of such picketing. NEWSPAPER AND MAIL DELIVERERS' UNION OF NEW YORK AND VICINITY