321 F.2d 612 (5th Cir. 1963), 18748, Burr v. N. L. R. B.

Docket Nº:18748, 19080, 19162.
Citation:321 F.2d 612
Party Name:Samuel H. BURR and Perfection Mattress & Spring Company, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, Respondent. UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLE
Case Date:July 18, 1963
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 612

321 F.2d 612 (5th Cir. 1963)

Samuel H. BURR and Perfection Mattress & Spring Company, Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, Respondent.

UNITED WHOLESALE AND WAREHOUSE EMPLOYEES, LOCAL 261, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, AFL-CIO, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 18748, 19080, 19162.

United States Court of Appeals, Fifth Circuit.

July 18, 1963

Page 613

[Copyrighted Material Omitted] Page 614

Mark L. Taliaferro, C. V. Stelzenmuller, Birmingham, Ala., for Samuel H. Burr and Perfection Mattress & Spring Co.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Melvin J. Welles, Atty., N.L.R.B., Washington, D.C., for N.L.R.B.

Jerome A. Cooper, Birmingham, Ala., Michael H. Gottesman, David E. Feller, Jerry D. Anker, Washington D.C., for the Union.

Before RIVES, CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case deals with a secondary boycott under the 1959 Landrum-Griffin Amendments 1 to the Act. We hold that the consumer picket line constitutes a

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violation of § 8(b)(4)(i) and (ii). 2 We also hold that in some particulars the order should be made more precise. The result is that we sustain the Board's petition to enforce, Perfection's petition to reverse the order denying relief under § (i) and to make the order more specific, and deny the Union's petition to set aside the order adjudging a violation of § (ii). The case has a long and tortuous history. Begun in 1958 and now in its fifth year after three decisions by the Labor Board and two by Courts of Appeals, it still has life thanks, in no small measure, to intervening legislative changes. Perfection 3 is the primary employer. Subsequent to the designation of the Union 4 as the bargaining representative of its employees, Perfection and the Union engaged in extensive bargaining negotiations which lasted from July to October 1958. On October 14, 1958, the Union called a strike in support of its demands.

Perfection was able to continue its operations. It undertook to make deliveries to a number of retail furniture stores in the Birmingham area. Union representatives requested managers of the various retail stores to stop receiving or buying Perfection products. When such requests failed, the Unions immediately placed pickets at the entrances of those stores refusing to cease doing business with Perfection. This picketing continued until it was enjoined December 9, 1958, by an order under § 10(l), 29 U.S.C.A. § 160(l) pending action by the Board. This injunction was affirmed by this Court. Retail, Wholesale & Department Store Union, AFL-CIO v. Rains, 5 Cir., April 30, 1959, 266 F.2d 503. In December 1959, the Board issued its decision finding that the Union's picketing had violated § 8(b)(4)(A) of the 1947 Act. 29 U.S.C.A. § 158(b) (4)(A). United Wholesale and Warehouse Employees, Local 261, 125 NLRB 520. The § 10(l) injunction expiring by its own terms, the Union, although it had previously formally disclaimed any interest in further representing the employees, nevertheless resumed picketing of the same retail stores on March 10, 1960. Presumably it desired to test the 1959 Amendments. It is upon this picketing that the Board's order now before this Court is based. Within a few months the Court of Appeals for the District of Columbia by a divided court set aside the Board order finding the 1958 picketing to be an unfair labor practice. United Wholesale & Warehouse Employees, Local 261 v. N.L.R.B., July 7, 1960, 108 U.S.App.D.C. 341, 282 F.2d 824. The Court of Appeals rejected the Board's conclusion 'that the picketing activity had as its necessary effect the inducing and encouraging of employees to engage in a work stoppage.'

On the basis of charges filed by Perfection, the Board issued a complaint alleging violations by the Union of § 8(b)(4)(i) and (ii)(B). The parties waived a hearing and agreed to submit the case to the Board on stipulated facts which also included the entire record in the original § 10(l) injunction proceeding.

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On December 28, 1960, the Board issued its order, 129 NLRB 1014, holding that the 1960 picketing violated both §§ (i) and (ii). Perfection petitioned for review under § 10(e) on the ground that the provisions of the cease and desist order, stated as they were in statutory language, were too vague and indefinite upon which to secure effective compliance through contempt or other coercive sanctions. 5 On August 17, 1961, the Board filed a motion in this Court for leave to modify its decision on the ground that by subsequent decision after a change of its membership the Board had in a subsequent case 6 held that there was no (i) violation. We denied the motion to modify but remanded the proceedings to the Board for limited reconsideration and filing of an amended or supplemental order meanwhile retaining jurisdiction of the subject matter. Following this, on December 4, 1961, the Board issued a supplemental decision and amended order finding no § (i) violation. 134 NLRB 99. The result is that the order is now confined to a violation of § (ii). The Board and Perfection seek enforcement of that order. The Union seeks denial of enforcement. Perfection seeks, in effect, a reinstatement of the finding of a § (i) violation and both Board and Union oppose this. Perfection, opposed by both Board and Union, further attacks the vagueness of the order as to either one or both of § (i) and (ii).

By stipulation the record upon which the Board acted included the testimony in the 1958 § 10(l) injunction proceedings. This record showed that Union representatives had stated in various ways to managers of a number of retail furniture stores that they were going to 'picket the stores and try to stop the trucks that was coming in from Perfection.' When a store manager declined to cease purchasing Perfection merchandise, pickets shortly appeared. At one store, due to confusion in similar names, the pickets were withdrawn when the Union was assured that Perfection merchandise would not be sold. This assurance was enough for the Union to conclude that the retailer's conduct would not have 'violated the picket line.' Further, at one store (Willoughby) pickets loudly shouted about 'junk in the (show) window that is made by scab labor' and when Willoughby remonstrated about this, the picket became harsh and impudent resulting in a further exchange of harsh words between the picket and another employee. On another occasion at Willoughby's, there was repeated inquiry as to the home address of a servant of Willoughby's as she crossed the picket line. On another occasion at Ross Black Furniture Company, pickets became loud and boisterous shouting several times they 'would never cross a picket line, even to pay a bill, it's a good excuse not to pay it.' These statements were made in the hearing of one or more employees.

Though the evidence did not show any picketing of delivery entrances as such, or actual interference with deliveries, the record is clear that the presence of the pickets was known to all employees. Some employees of the retail stores regularly left before the pickets. Employees could see the picket signs through windows and doors. Many employees customarily went in and out of the front entrances of the stores all throughout the day for coffee, lunch, errands and the like. Many came to and left work customarily through the front entrances.

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The sign carried by the pickets bore this legend in large letters:

'Products made by Perfection Mattress and Spring Company are made by nonunion labor. As a consumer please do not buy them. Local 261, AFL-CIO.'

In addition to the § 10(l) evidence, further facts concerning the picketing which resumed March 10, 1960, were stipulated. 'In furtherance of its dispute with Perfection,' the Union 'picketed at the * * * retail stores in * * * Birmingham, at entrances commonly used by customers and some employees.' Such 'picketing was peaceful * * * and was limited to not more than one picket at any one time * * *' who '* * * was on the public sidewalk in front of the store and carried a picket sign * * *' which was identical to the 1958 sign except it was prefaced by the words 'To the Consuming Public-- .' The pickets arrived after and left before the times store employees normally arrived or departed. Pickets were not placed at the service or delivery entrances. But 'employees of the stores could see, and some saw, the picket sign from inside the stores, and also when, as some employees did, such employees used the public entrances * * * to enter or leave in the course of a day.' No request was made of truck drivers or delivery men to refuse to make deliveries 'and no such employee refused to make any such delivery.' Since December 1958 no appeal other than by picketing has been made by the Union 'directly to employees of the retail stores, or any other person or persons, including the retail store employers handling retail products of Perfection.' There 'has been no work stoppage at any time * * * by employees of' the 'retail stores' being picketed and 'no employee of the stores quit work or indicated any inclination or intention to do so, or to refuse to handle Perfection-made products as a result of or during the picketing.'

It is crystal clear that the object of the picketing was one proscribed by subsection (B). As the stipulation categorically states, the picketing was 'in furtherance of (the Union's) dispute with Perfection.' The Union first sought to obtain an agreement from the retail stores not...

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