NLRB v. UNITED FURNITURE WORKERS OF AMER., AFL-CIO

• Decision Date: 28 October 1964
• Docket Number: No. 84,Docket 28967.,84
• Citation: 337 F.2d 936
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

337 F.2d 936 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED FURNITURE WORKERS OF AMERICA, AFL-CIO, Respondent.

No. 84, Docket 28967.

United States Court of Appeals Second Circuit.

Argued October 2, 1964.

Decided October 28, 1964.

Stephen B. Goldberg, N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Atty. Gen., George H. Cohen, Washington, D. C., on the brief), for petitioner.

Martin Raphael, General Counsel, United Furniture Workers of America, AFL-CIO, for respondent.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, Circuit Judge:

The National Labor Relations Board petitions for enforcement of an order adopting a trial examiner's findings and conclusions that the United Furniture Workers of America, AFL-CIO, violated Section 8(b) (7) (B) of the National Labor Relations Act, 29 U.S.C. § 158 (b) (7) (B), added by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, which prohibits "recognitional" or "organizational" picketing within twelve months after a valid election. Because it is difficult to determine, on the record before us, on exactly what basis the Board found that the Union had engaged in "picketing" within the meaning of § 8(b) (7) (B), and whether it applied the proper criteria, we withhold enforcement and remand the case for additional findings and conclusions consistent with this opinion, to be made after a further hearing with respect to that issue if the Board considers this necessary or advisable.

In order to view this case in proper perspective we begin our account of the facts with August 9, 1961, when the Board certified the United Furniture Workers of America, AFL-CIO, as the bargaining representative of the production and maintenance employees at the Jamestown Sterling Corporation's furniture manufacturing and distributing plant in Ellicott, New York. After a short period of unsuccessful contract negotiations, the Union struck on October 3, 1961, and commenced picketing Jamestown's plant with signs reading, "On Strike." Initially, the picketing followed the traditional form of ambulatory patrolling by union members carrying placards in front of the plant. But in the spring of 1962 the patrolling ceased and, instead, "On Strike" signs were affixed to poles and trees in front of Jamestown's plant. Then, in August 1962, the Union began to secure the signs around the poles with a chain to which a lock was attached. Five days a week at 6 a. m. the signs were put in place by striking employees who represented the Union. After affixing the signs, the Union representatives stationed themselves in automobiles in a parking lot across the street from the plant, where they remained until about 3 p. m., at which time they removed the signs and departed only to return the next working day and go through the same procedure.

Jamestown responded to the strike in January 1962, by hiring replacements. And, on December 10, 1962, the Company filed a petition with the Board's Regional Director requesting an election to determine whether the Union represented a majority of its employees. After conducting a hearing on the petition, the Regional Director found, contrary to the Union's contentions, that a question concerning representation existed and that an election should be held. The Regional Director, however, postponed ruling on the eligibility of the strikers and their replacements to participate in the election until after ballots had been cast and challenged. On March 1, 1963, the Board declined to review his action.

The election was conducted on March 5, 1963, at which time 118 of the approximately 198 voters were challenged. Since the challenges were determinative of the election results, the Regional Director impounded the ballots and investigated the challenges administratively, giving both the Company and the Union full opportunity to submit evidence in support of their respective contentions. The challenged eligibility of both the strikers and their replacements to cast ballots turned on whether the replacements were intended to be permanent or temporary. The Union members, as economic rather than unfair labor practice strikers, would be entitled to vote only if permanent replacements had not been hired in their stead. National Labor Relations Act, § 9(c) (3); N. L. R. B. v. MacKay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). And the replacements would be eligible to vote only if they had been permanently hired. Pacific Tile & Porcelain Co., 137 N.L.R.B. 1358, 1363-65 (1962). The Regional Director found that the replacements were permanent and therefore overruled the challenges to their ballots and sustained the challenges to the strikers' ballots. He also denied the Union's request for a hearing to resolve the issue of voter eligibility because, under the Board's Rules and Regulations, 29 C.F.R. 102.69, the Union had raised no "substantial and material factual issues" warranting a hearing. The Board declined to review this decision.

On May 24, 1963, the Regional Director opened the ballots of the challenged replacements and certified that of approximately 128 eligible voters, 25 had voted for and 90 against the Union. The Union promptly filed objections, asserting that it had been improper to order an election in the first instance because there was no evidence that the strikers were permanently replaced and claiming further that it had been denied due process by the Regional Director's decision to investigate the challenges administratively rather than by holding a full-scale hearing. But the Regional Director, on June 6, 1963, overruled these objections and certified that the Union was not "the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act." Once again, the Board declined to review his decision.

Despite these adverse decisions, the Union representatives continued to affix signs to poles outside Jamestown's plant and to have these observed by its representatives in the parking lot. The only change in the Union's activities was that after the Regional Director's tally of ballots of May 24, 1963, established that the Union lost the election, the legend on the signs was amended from "On Strike" to read "Wages at Jamestown Sterling Are Not Up To Area Standards." But, on May 29, 1963, the Union's Label Director, Sol Silverman, visited a Jamestown customer and advised him that the Union planned to continue to picket the Company's customers; when Silverman was reminded that the Furniture Workers had lost the election, he said that "in his opinion, * * * the election did not mean anything * * * and he thought this whole matter with Jamestown Sterling could still be settled." Moreover, on June 5 the Union, through Silverman, wrote Jamestown's customers stating that the Union was willing to negotiate a settlement of the strike. And...