National Lab. Rel. Bd. v. BUSINESS MACH. & OFFICE A., ETC.

• Decision Date: 22 December 1955
• Docket Number: Docket 23523.,No. 53,53
• Citation: 228 F.2d 553
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUSINESS MACHINE AND OFFICE APPLIANCE MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

228 F.2d 553 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUSINESS MACHINE AND OFFICE APPLIANCE MECHANICS CONFERENCE BOARD, LOCAL 459, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, Respondent.

No. 53, Docket 23523.

United States Court of Appeals Second Circuit.

Argued October 7, 1955.

Decided December 22, 1955.

COPYRIGHT MATERIAL OMITTED

Norton J. Come, Attorney, National Labor Relations Board, Washington, D. C. (Theophil C. Kammholz, General Counsel, David P. Findling, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Melvin Pollack, Attorney, National Labor Relations Board, Washington, D. C., on the brief), for petitioner.

Benjamin C. Sigal, Bert Diamond, Washington, D. C., Delson, Levin & Gordon, New York City (Ernest Fleischman, New York City, of counsel), for respondent.

Before HAND, MEDINA and LUMBARD, Circuit Judges.

LUMBARD, Circuit Judge.

This case arose out of a labor dispute between the Royal Typewriter Company and the Business Machine and Office Appliance Mechanics Conference Board, Local 459, IUE-CIO, the certified bargaining agent of Royal's typewriter mechanics and other service personnel. The National Labor Relations Board now seeks enforcement of an order directing the Union to cease and desist from certain picketing and to post appropriate notices.

The findings of the Board, adequately supported by the record, disclose the following facts, about which there is no significant dispute. On about March 23, 1954, the Union, being unable to reach agreement with Royal on the terms of a contract, called the Royal service personnel out on strike. The service employees customarily repair typewriters either at Royal's branch offices or at its customers' premises. Royal has several arrangements under which it is obligated to render service to its customers. First, Royal's warranty on each new machine obligates it to provide free inspection and repair for one year. Second, for a fixed periodic fee Royal contracts to service machines not under warranty. Finally, Royal is committed to repairing typewriters rented from it or loaned by it to replace machines undergoing repair. Of course, in addition Royal provides repair services on call by non-contract users.

During the strike Royal differentiated between calls from customers to whom it owed a repair obligation and others. Royal's office personnel were instructed to tell the latter to call some independent repair company listed in the telephone directory. Contract customers, however, were advised to select such an independent from the directory, to have the repair made, and to send a receipted invoice to Royal for reimbursement for reasonable repairs within their agreement with Royal. Consequently many of Royal's contract customers had repair services performed by various independent repair companies. In most instances the customer sent Royal the unpaid repair bill and Royal paid the independent company directly. Among the independent companies paid directly by Royal for repairs made for such customers were Typewriter Maintenance and Sales Company and Tytell Typewriter Company.

On and after April 13, 1954 the Union picketed some of Royal's larger customers whom it had reason to believe were having independent companies do repair work on Royal contract machines. This picketing continued until restrained on June 15, 1954 by a temporary injunction issued by the District Court for the Southern District of New York, 122 F. Supp. 43. During this time the Union picketed some 37 customers of Royal at their principal offices in Manhattan and Brooklyn, usually in large office buildings. This picketing was in all cases peaceful and orderly. The Board found it unlawful with respect to six of Royal's customers: Electrolux Corporation, Royal Indemnity Insurance Co., Lily-Tulip Cup Corporation, Vick Chemical Co., New York Life Insurance Co., and American Can Co. With respect to these companies the Board found that the picketing took place before entrances "commonly used by members of the public, by employees of the picketed firm, and by employees of any other tenants of the building, and also by deliverymen making light deliveries." There was no evidence that the picketing took place at entrances used exclusively by employees. No violation was found with respect to the other customers because the Board found that there was no evidence that the picketing took place before entrances used or likely to be used by employees.

From April 13th until April 23rd, or shortly thereafter, the pickets carried signs reading (with minor variations and with the picketed customer's name inserted):

Royal Business Machines In N. Y. Life Ins. Co. are being repaired by Scab Labor Local 459, IUE-CIO

Sometime after April 23rd the words "Notice to the Public Only" were added to the signs in large letters at the top. This was on advice of counsel after a conference with representatives of the Board who suggested that the picketing was unlawful. The picketing was carried on during ordinary business hours and during the time when at least some employees would be going to lunch. In at least one instance picketing began before the start of employees' working hours.

One of the picketed customers, Charles Pfizer, did agree to discontinue doing business with Royal and the Union withdrew its pickets. There is no evidence to indicate that this came about through any pressure on or from any of Pfizer's employees.

The Board found, and it is conceded, that an object of the picketing of Royal's customers was to induce the customers to cease doing business with Royal. The Union contended that it sought to do this only by embarrassing the firms picketed and bringing its grievance to the attention of the customers of those firms and the general public. The Trial Examiner found that the picketing constituted inducement and encouragement of employees, that the Union's professed intent not to influence employees was no defense, and that the picketing was therefore unlawful. These findings the Board adopted.

During May 1954 the Union also picketed four independent typewriter repair companies who had been doing work covered by Royal's contracts pursuant to the arrangement described above. The Board found this picketing unlawful with respect to Typewriter Maintenance and Tytell. Typewriter Maintenance was picketed for about three days and Tytell for several hours on one day. In each instance the picketing, which was peaceful and orderly, took place before entrances used in common by employees, deliverymen and the general public. The signs read substantially as follows (with the appropriate repair company name inserted):

Notice To The Public Only Employees Of Royal Typewriter Co. On Strike

Tytell Typewriter Company Employees Are Being Used As Strikebreakers

Business Machine & Office Appliance Mechanics Union, Local 459, IUE-CIO

Both before and after this picketing, which took place in mid-May, Tytell and Typewriter Maintenance did work on Royal accounts and received payment directly from Royal. Royal's records show that Typewriter Maintenance's first voucher was passed for payment by Royal on April 20, 1954 and Tytell's first voucher was passed for payment on May 3, 1954. After these dates each independent serviced various of Royal's customers on numerous occasions and received payment directly from Royal.

With one exception there was no evidence that the picketing of either the customers or the repair companies resulted in a strike or refusal to work by any employee. Such evidence as there was indicated that no employee ceased work or refused to operate any Royal typewriter or other machine. The one exception was Gordon Speer, a repairman for Lewis Business Machines Service Company, who was sent on April 22nd to repair a Royal typewriter at the Royal Indemnity Insurance Company. On approaching the Royal Insurance office he saw pickets carrying signs as described above, without the words "Notice to the Public" as these were not added until a few days later. Not wishing to cross the picket line, he called his office, explained that because of the pickets he would not make the repair, and was instructed to return.

On the above facts the Trial Examiner and the Board found that both the customer picketing and the repair company picketing violated § 8(b) (4) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (4) which provides:

"It shall be an unfair labor practice for a labor organization or its agents —

"* * * to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment * * * to perform any services, where an object thereof is: (A) forcing or requiring * * * any employer * * * to cease doing business with any other person; * * *."

With respect to each type of picketing the question before us is the same: Was there substantial evidence on the whole record to support the Board's finding that the Union's acts constituted an unfair labor practice under this section? Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.

The Independent Repair Company Picketing

We are of the opinion that the Board's finding with respect to the repair company picketing cannot be sustained. The independent repair companies were so allied with Royal that the Union's picketing of their premises was not prohibited by § 8(b) (4) (A).

We approve the "ally" doctrine which had its origin in a well reasoned opinion by Judge Rifkind in the Ebasco case, Douds v. Metropolitan Federation of Architects, Engineers, Chemists & Technicians, Local 231, D.C.S.D.N.Y.1948, 75 F.Supp. 672, 676. Ebasco, a corporation engaged in the business of providing engineering services, had a close business relationship with Project, a firm providing similar services. Ebasco subcontracted some of its work to Project and when it did so Ebasco supervised the work of Project's employees...