Labor Board vs. Teamsters Union
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Scribd Government DocsLabor Board vs. Teamsters Union
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Scribd Government Docs340 F.
2d 1020
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
LOCAL 239, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, Respondent.
No. 284, Docket 29212.
United States Court of Appeals Second Circuit.
Argued Jan. 12, 1965.
Decided Jan. 27, 1965.
Richard S. Rodin, Attorney, National Labor Relations Board (Arnold
Ordman, General Counsel, Dominick L. Manoli, Associate General
Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Stephen B.
Goldberg and Glen M. Bendixsen, NLRB, on the brief), for petitioner.
Charles R. Katz, of Katz & Wolchok, New York City, for respondent.
Before SMITH, KAUFMAN and ANDERSON, Circuit Judges.
SMITH, Circuit Judge.
The National Labor Relations Board petitions the court for enforcement of its
order of May 19, 1964, 147 NLRB No. 4, requiring Local 239, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
to halt recognitional or organizational picketing of Abbey Auto Parts Corp.,
Bethpage, Long Island, New York, in violation of Section 8(b)(7)(B) 1 of the
National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29
U.S.C. 151 et seq.) and to post appropriate notices. We find the order invalid
because not based on substantial evidence on the record as a whole, and deny
the petition for enforcement.
Abbey Auto Parts Corporation (Abbey) with nine employees, and Bethpage
Auto Parts, Inc. (Bethpage) with two employees, had withdrawn from a multi-
employer collective bargaining arrangement with the Union a sufficient time
prior to the signing of a new agreement with the other employers. Shortly
thereafter, in April 1962, Abbey and Bethpage pursuant to Section 9(c)(1)(B) of
the NLRA filed individual petitions with the Board asserting their timely
withdrawal from the multi-employer unit and requesting elections to determine
union representation. The Board agreed and on April 15, 1963 ordered
elections. A week prior to the date set for elections at Abbey the Union sent the
company a letter wherein it stated that it would picket the premises for the
purpose of informing the public that the establishment was non-union, but
would not in any way interfere with Abbey's business and was not at all
interested in organizing Abbey's employees, the Union's purpose being only to
protect union interests in the general area. Picketing commenced on May 6,
1963 with the Union representatives carrying two types of placards, one of
which read,
3
To the Public Please Be Advised Abbey Auto Parts is Non-Union
This Jeopardizes our Union Standards Please Do Not Patronize
Local 239, IBT
and the other,
Don't Buy at Abbey Non-Union Local 239, TeamstersThe Union also
distributed handbills to Abbey customers as they entered an adjacent parking
lot. On May 10, 1963, the Union resoundingly lost the election.
The picketing and handbilling continued after the election, and in addition
many of Abbey's customers were approached and requested not to do business
with Abbey. In the meantime the election had not yet been held at Bethpage,
and the Union commenced picketing around that establishment with signs
identical to those used at Abbey except for the name, and an identical letter was
sent to the Bethpage management. On July 3, Bethpage's employees also voted
the Union down; however, the picketing continued as it had at Abbey. But
Bethpage and the Union reached an accord and entered into an agreement about
a month later after picket Lewis Sherman, the brother of the Local's president,
informed Bethpage that a possible way to eliminate the picketing would be to
sit down and meet with the Union.
After the agreement was signed by Bethpage, Lewis Sherman was assigned to
the Abbey picket line. Abbey's president claimed that Sherman, while present
at Abbey, approached him and told him that unless Abbey sat down with the
Union, as Bethpage had done, the Union would never leave Abbey alone.
Meanwhile, on May 29 Abbey had filed unfair labor practice charges against
the Union alleging that the Union's picketing violated 8(b)(7)(B) of the Act.
9
The Trial Examiner found that the Union engaged in unfair labor practices
within the meaning of 8(b)(7)(B) by picketing Abbey for recognitional and
organizational purposes at a time when a valid election under 9(c) had been
conducted within the preceding twelve months. The Board adopted the Trial
Examiner's findings, conclusions and recommendations.
10
The Examiner relied on Sherman's statement, on the withdrawal of pickets at
Bethpage after agreement was reached, and on the language of one of the picket
signs, 'Don't buy at Abbey. Non-Union. Local 239, Teamsters.' The Examiner
found that Bethpage was located directly across the street from Abbey. The
Board concedes that this was error, since the two shops are actually more than
a mile apart, but held that the error had no effect on the correctness of the
decision or its concurrence therein.
11
As against this evidence, it is uncontroverted that in a letter of May 3, 1963 the
Union declared its purpose in the picketing to be informational and not
recognitional, and promised to correct any violation of instructions by pickets
promptly on being advised. The Union enclosed a copy of its instructions to
pickets to patrol peaceably in front of consumer entrances only, and not to have
any employees stop work or any deliveries interrupted. The only instance of
violation of instructions was the claimed statement by Sherman, who, although
a brother of the Local's president, was not an officer of the Union, but a hired
picket on his first such employment in the Bethpage and Abbey picketing.
There was no interference with deliveries or with Abbey's employees. No report
was made to the Union of Sherman's claimed violation of instructions. When a
Union member making delivery by truck refused to cross the picket line, a
picket reported to a representative of the Local, who came and told the driver to
make the delivery. The picketing of Abbey lasted more than 100 days. Some 70
customers of Abbey were visited by Union representatives.
12
The Sherman incident was the sole occurrence in even arguably union activity
which could be said to give a recognitional color to the picketing. While a
union may be bound by actions of its agents other than its elected officers,2 we
should be hard put to find any such agency here. The other facts relied on are
similarly weak. The use of the term 'non-union' on the signs was thought by the
Examiner to show a desire to change Abbey's status from non-union to union
and so recognitional. We cannot agree. While it is of course true that any effort
to divert business from non-union to union shops has some tendency to make an
employer consider the advisability of unionizing, it is not so directly aimed to
that end as to support a finding of forcing or requiring an employer to recognize
or bargain, and so a 8(b)(7) violation. Language similar to that used here has
been held to be within the exemption of 8(b)(7) (C) and therefore could not
serve as evidence of an illegal purpose. McLeod v. Chefs Local 89, 280 F.2d
760, 2 Cir. 1960; N.L.R.B. v. Local 3, IBEW, 317 F.2d 193, 2 Cir. 1963. While
this is an 8(b)(7)(B) case, the same tests must be applied in determining
whether picketing is solely informational, an exercise of the right of free
speech, or whether an object thereof is the forbidden one of forcing or requiring
an employer to recognize or bargain.
13
The evidence of the Union's effort, generally successful, to keep the picketing
of Abbey on an informational rather than coercive plane far outweighs that
relied on by the Board. We cannot find that the Board's conclusions were based
on substantial evidence on the record as a whole. Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 479, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Federation of
Union Representatives v. N.L.R.B., 339 F.2d 126, 2 Cir. 1964 (11/20/64).
14
The petition for enforcement of the Board's order is denied.
'(b) It shall be an unfair labor practice for a labor organization or its agents-'(7) to picket or cause to be picketed, or threaten to picket or cause to be
picketed, 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 employees of an employer to
accept or select such labor organization as their collective bargaining
representative, unless such labor organization is currently certified as the
representative of such employees:
'(B) where within the preceding twelve months a valid election under section
159(c) of this title has been conducted.'
New Power Wire & Electric Corp. & P. & L. Services, Inc. v. NLRB-- NLRB
v. Local 3, 2 Cir., 340 F.2d 71
