National Labor Rel. Bd. v. LOCAL 50, BAKERY & C. WKRS.

• Decision Date: 23 May 1957
• Docket Number: No. 241,Docket 24293.,241
• Citation: 245 F.2d 542
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 50, BAKERY and CONFECTIONERY WORKERS INTERNATIONAL UNION, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

245 F.2d 542 (1957)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 50, BAKERY and CONFECTIONERY WORKERS INTERNATIONAL UNION, AFL-CIO, Respondent.

No. 241, Docket 24293.

United States Court of Appeals Second Circuit.

Argued February 15, 1957.

Decided May 23, 1957.

Theophil C. Kammholz, General Counsel, Stephen Leonard, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Norton J. Come, Franklin C. Milliken, Washington, D. C., for petitioner.

Howard N. Meyer, O'Dwyer & Bernstien, New York City, for respondent.

Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

The National Labor Relations Board petitions for enforcement of its order directing the respondent, Local 50, Bakery and Confectionery Workers International Union, AFL-CIO, to cease and desist from violating § 8(b) (4) (C) of the National Labor Relations Act as amended, 61 Stat. 136 (1947), 29 U.S.C.A. § 158(b) (4) (C), by picketing the premises of Arnold Bakers, Inc., of Port Chester, New York. The Board found that the picketing was intended to induce and encourage a work stoppage to force Arnold Bakers to recognize or bargain with Local 50 when another labor organization had been certified as the representative of Arnold Bakers' employees.¹ Because we find no substantial evidence to support the Board's decision that Local 50's objective was to force Arnold to recognize or bargain with it and that the picketing was intended to induce a work stoppage, we deny enforcement.

Union rivalry at Arnold Bakers, Inc. has a long history. In February 1943, the New York State Labor Relations Board conducted a representation election at the plant in which Local 50 and its rival union, Arnold Bakers Employees Association, an independent, were the contestants. The Association won and in March 1943 was certified by the State Board as the representative.

In 1951 Local 50 began an intensive campaign to replace the Association as bargaining representative. On February 21 a meeting was held between Arnold and several AFL unions including Local 50 and Local 802 of the Bakery Drivers, in which Local 50 unsuccessfully urged Arnold to recognize it as bargaining agent for Arnold's employees. At a second meeting a few months later, in which the Association participated, the AFL organizations unsuccessfully tried to persuade the Association to affiliate with Local 50. The Association's representative contended that the employees did not wish to affiliate. The trial examiner found that the AFL organizations intimated picketing might ensue, but no picketing took place.

Through 1952 and 1953 Local 50 persisted in its efforts to persuade the Association to affiliate, but with no success. During the summer of 1954 Local 50 was engaged in an organizational drive in Westchester, and on August 9 at a meeting with the Association it again tried to entice the rival union into affiliating with it and again threatened to picket the plant. The Association, through its president, again refused, and thereafter, on August 12, two pickets appeared in front of Arnold's plant carrying placards which read

LOCAL 50 BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA AFFILIATED WITH AMERICAN FEDERATION OF LABOR WANTS THE EMPLOYEES OF ARNOLD'S TO JOIN THEM TO GAIN UNION WAGES, HOURS AND WORKING CONDITIONS HELP US TO ORGANIZE THESE EMPLOYEES BY BUYING UNION BAKED PRODUCTS

These pickets patrolled the length of the company's property line on Travers Avenue, in Port Chester, past the main entrance to the plant and office, and past the entrances to the shipping platform and to the employees' parking lot.

The pickets were instructed not to speak to employees about union activity, and to tell any truck driver who asked that no strike or lockout was in progress and that he should cross the picket line. The trial examiner found that "the purpose of this picketing was concededly to induce Arnold employees to join Local 50."

In September, Arnold officials talked several times with Local 50 representatives, and Local 50 urged Arnold to "sign up" with them threatening dire consequences if Arnold should refuse. Arnold did refuse claiming that it could not dictate to its employees which union they should join; none of the threatened consequences followed. The Trial Examiner found that through half of October the picketing "was peaceful, no employee or any employer refused to cross * * * the picket line, and except for the Robinson-Smiley incident² there were no conversations between employees and the pickets or other Local 50 representatives relating to the picketing activity."

On October 18, 1954, the Association filed a petition with the Board requesting certification. Local 50, because it had no representation among Arnold's employees, declined to participate. In the election held on November 4, 322 out of Arnold's 356 employees voted, and 306 of the ballots were for the Association. On November 15, 1954, the Regional Director certified the Association without objection.

The picketing in front of Arnold's plant continued, however. For the first ten days after certification the pickets carried no placards but on November 26, they presented new signs, which read:

PLEASE DO NOT BUY ARNOLD'S PRODUCTS ARNOLD EMPLOYEES HAVE REFUSED TO JOIN LOCAL 50 OF THE BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION AFFILIATED WITH AMERICAN FEDERATION OF LABOR THE WORKING CONDITIONS AT ARNOLD'S ARE BELOW LOCAL 50 STANDARDS IN OTHER BAKING COMPANIES PLEASE BUY BAKERY PRODUCTS MADE BY MEMBERS OF BAKERY & CONFECTIONERY WORKERS UNION, A.F.L.

Local 50 claims that whereas its picketing until November 15 may have been to induce Arnold's employees to join Local 50, its purpose thereafter was only to bring the dispute before the public. The Trial Examiner found that the picketing was the only means of publicity utilized by Local 50, and that since the picketing took place only in front of Arnold's plant where very few members of the public ever appeared, it was unlikely that publicity was Local 50's objective.

While the picketing was going on, the pickets frequently talked with Arnold employees about baseball and similar casual matters. However, during December 1954 and January 1955 the pickets spoke to six Arnold employees about joining the union. Typical remarks were: "When are you going to join up with us?"; "If you belonged to our union, you wouldn't have to work these hours, you would have better hours."

Toward the end of December 1954 the Regional Director sought an injunction in the District Court for the Southern District of New York under § 10(l) of the Act, 29 U.S.C.A. § 160 (l), alleging he had reasonable cause to believe Local 50 was violating § 8(b) (4) (C). Judge Dawson denied the injunction on January 5, 1955, because he did not think that the picketing was designed to induce or encourage a work stoppage. Douds v. Local 50, D.C.S. D.N.Y.1955, 127 F.Supp. 534, and we affirmed. 2 Cir., 224 F.2d 49. Thereafter the General Counsel brought this proceeding before the Board which issued a cease and desist order.

II. The Board's Opinion

Both the Board and the Trial Examiner found that the objective was that proscribed by subsection § 8(b) (4) (C) of the Act and that the picketing constituted an inducement to Arnold's employees to engage in a concerted work stoppage.

On the issue of objective, the Board did not believe Local 50's claim that its purpose was only to inform the public.³ The Board and its Examiner found that before certification Local 50's objective "was to force or require Arnold to recognize or bargain with Local 50 presently as the representative of its employees and that in the absence of evidence to the contrary, it would be presumed that the objective continued." Our previous decision stated that Local 50's purpose was only to propagandize Arnold's employees in order to be certified in a future election. The Board did not agree that this was the Union's sole objective. Pointing out that such future certification might well be quite improbable until far in the future and that the Act proscribed not merely "the" object but "an object," the Board summed up its conclusion thusly:

"Did Local 50 harbor a forbidden objective after November 15? Its admitted objective before certification was immediate recognition. Picketing continued after certification. The professed object after certification, information to the public, was viewed with skepticism by both the District Court and the Court of Appeals for the Second Circuit in the injunction proceedings. With no evidence that Local 50 made known any change in its objective after November 15, with its asserted objective repudiated by the courts, with the opportunity for lawful recognition necessarily a remote speculation, the inference seems compelling to us that Local 50 after November 15 did not abandon hope and purpose to emerge at once as the recognized bargaining agent by reason of capitulation to its pressure. The Trial Examiner found that its desire for immediate recognition remained alive and was one of the continued objects of its picketing. We are impelled to agree with the Trial Examiner\'s conclusions."

The second element of illegality — the inducement to a concerted work stoppage — was disposed of by the Trial Examiner with the conclusion that under long established Board authority, picketing was by its very nature a "strike signal" and was of itself an inducement to stop work, regardless of whether such a stoppage did take place. Hence, the Examiner concluded that a finding of specific intent to induce such a work stoppage was unnecessary.

Two members of the Board seemed to take exception to this per se rule, stating that "conceivably, there may be other extraordinary circumstances in which a picket line cannot reasonably be found to induce employees to strike." But they concluded that this case did not present such circumstances, and specific intent need not be...