NLRB v. LOCAL 182, INTERNAT'L BRO. OF TEAMSTERS, ETC.

• Decision Date: 28 January 1963
• Docket Number: Docket 27524.,No. 224,224
• Citation: 314 F.2d 53
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

314 F.2d 53 (1963)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, Respondent.

No. 224, Docket 27524.

United States Court of Appeals Second Circuit.

Argued December 4, 1962.

Decided January 28, 1963.

COPYRIGHT MATERIAL OMITTED

Norton J. Come, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, James C. Paras and Lee M. Modjeska, Washington, D. C., Attys.), for petitioner.

George Schiro, Utica, N. Y., submitted brief for respondent.

Before LUMBARD, Chief Judge, and SWAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

The National Labor Relations Board seeks enforcement of an order, 135 NLRB No. 90, finding that Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereafter the Union or the respondent, violated § 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.¹ The order, entered February 5, 1962, required the Union to cease and desist from such picketing (a) "for a period of one year from March 1, 1961", and (b) "where within the preceding twelve months a valid election under 9(c) of the Act has been conducted which the Respondent did not win." We grant enforcement.

Woodward Motors, Inc. (hereafter Woodward, the Company or the employer) is engaged, in upstate New York, in the sale and servicing of automobiles procured from outside the state. On August 1, 1960, the Union informed Woodward that it represented a majority of the Company's employees and requested negotiations. After polling its 15 employees, Woodward, on August 8, recognized the Union as representative of the employees in a specified unit, agreed to enter into negotiations and to establish union shop conditions in the meantime, and further agreed to submit to arbitration the discharge of one Gorecki on August 2. Some seven bargaining sessions were held, without result. On September 21, Woodward received a petition signed by eight of the employees stating that they did "not want to become associated with the Local Teamsters Union" but did "want to form our independent shop union." At the next scheduled bargaining session, Woodward informed the Union that, in the light of the petition, it could not continue to negotiate. On October 5 the Union filed charges alleging violation by the Company of § 8(a) (1), (2), (3) and (5) — because of a refusal to bargain, the discriminatory discharge of Gorecki, and unlawful assistance to the "independent" union. Woodward countered on October 7 with a petition for an election.

Beginning on October 10, 1960, representatives of the Union appeared at the entrance to the Company's property, carrying signs that read:

"WOODWARD MOTORS, INC UNFAIR LABOR PRACTICE AND VIOLATION OF AGREEMENT PICKET LINE UNFAIR TO ORGANIZED LABOR DO NOT PATRONIZE TEAMSTERS-CHAUFFEURS WAREHOUSEMEN & HELPERS AFL LOCAL 182 UTICA & CENTRAL N. Y. STATE"

The Company, on October 28, filed charges that this picketing violated § 8(b) (7) (C) in that it was for recognitional and organizational purposes and was being conducted when a petition for an election had not been filed within a reasonable period after its commencement. On November 3 the Regional Director accepted a settlement of the Union's § 8(a) (1) and (3) charges with respect to the discriminatory discharge of Gorecki; he later notified the Union he was dismissing its other charges under § 8(a) (2) and (5). The Union appealed to the General Counsel from the dismissal of these charges; the appeal was denied on December 23. Next, on January 6, 1961, the Regional Director dismissed the Company's § 8(b) (7) (C) charge against the Union on the ground that a timely petition for election had been filed, to wit, the Company's own petition of October 7, "and a determination has been made that an expedited election should be conducted upon such petition in accordance with the provisions of sections 8(b) (7) (C) and 9(c)."

Picketing stopped on January 16, 1961. At the election, on January 17, no labor organization achieved a majority of the valid ballots. About January 30 representatives of the Union reappeared near Woodward's premises and stationed themselves in autos parked on the shoulder of the adjacent highway, having previously planted two signs in a snowbank abutting the entrance. The first read:

"WE ARE NOT PICKETING FOR ORGANIZATION OR RECOGNITION." The second read "THE EMPLOYEES OF WOODWARD MOTORS INC., ARE NOT PROTECTED BY A UNION CONTRACT."

The Union business representative testified that if people inquired of the sign watchers what this Janus-like display was supposed to mean, the watchers "would tell them we had a signed Union agreement with this Company and there are certain things that happened, we had lost the people, some were discharged for unjust cause, some were laid off. There was, in other words, a motive to break the Union I would tell these people." He conceded that if the Union had had a contract with Woodward at the time, "there would be no reason to place a sign out." Mr. Woodward testified that if a truck came along, the Union representatives "would run out, stop it, speak to the driver after which action the driver would always drive away", and that, in general, deliveries were thus interrupted. The Union continued this activity until March 1, 1961, when Judge Brennan granted a temporary injunction under § 10(l). Finding a violation of § 8(b) (7) (B) by the Union, the Board entered the order described above, which it asks us to enforce.

The Union challenges the order on five grounds. It (1) denies that there was picketing after the election, (2) says that if there was, this did not have the object defined in the introductory clause of § 8(b) (7), (3) claims that any picketing was within the second proviso to § 8(b) (7) (C), which, it asserts, applies also to § 8(b) (7) (B), (4) contends that the election was not "a valid election", and (5) urges finally that the order by its terms is "academic, useless, and illegal".

The Union's first objection, that the post-election activity was not "picketing", is without merit. Webster's New International Dictionary (2d ed.) says that the verb "picket" in the labor sense means "to walk or stand in front of a place of employment as a picket" and that the noun means "a person posted by a labor organization at an approach to the place of work. * * *" Movement is thus not requisite, although here there was some. The activity was none the less picketing because the Union chose to bisect it, placing the material elements in snowbanks but protecting the human elements from the rigors of an upstate New York winter by giving them the comfort of heated cars until a delivery truck approached; this was still "more than speech and establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey". Building Service Employers' Int'l Union Local 262 v. Gazzam, 339 U.S. 532, 537, 70 S.Ct. 784, 787, 94 L.Ed. 1045 (1950). At the very least, the Board did not act unreasonably in construing "picket", a statutory term relating to a subject within its area of special competence, to include what the Union did here. N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, 130-131, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). See also, Comment, Picketing by an Uncertified Union: The New Section 8(b) (7), 69 Yale L.J. 1393, 1395-98 (1960).

There is little more in the Union's second claim, that the post-election picketing did not have as "an object thereof * * * 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." The Union does not dispute that stopping deliveries would amount to "forcing or requiring" if the other conditions were met; but denies that they were. Professor Cox, who writes with peculiar authority on this subject, says, with respect to the phrases here at issue, "The very few men close to the drafting of the Conference Report who understood this problem had no common intention — perhaps `had conflicting intentions' would be a better phrase"; he suggests that "The best solution would be to treat the union's objective as a question of fact." 44 Minn.L.Rev. at 266-67. So treating it, we cannot find unreasonable the Board's conclusion that the Union's protest "was directed to the Employer's withdrawal of recognition and discontinuance of bargaining negotiations" and that "Satisfaction of such protest required a renewal of recognition and resumption of negotiations." The Board was not bound to accept at face value the disclaimer on the sign first described; it was entitled to consider the totality of the Union's conduct. See Penello v. Retail Store Employees Local Union No. 692, 188 F.Supp. 192, 201 (D.Md.1960), aff'd, 287 F.2d 509 (4 Cir., 1961). It is true that even the second sign did not contain specific reference to the picketing union, as did the signs in the Penello case, in Kennedy v. Los Angeles Joint Executive Board of Hotel & Restaurant Employees, 192 F. Supp. 339 (S.D.Calif.1961), and in N.L. R.B. v. Local 239, IBT, 289 F.2d 41 (2 Cir.), cert. denied, 368 U.S. 833, 82 S.Ct. 58, 7 L.Ed.2d 35 (1961), but stated only that Woodward's employees "are not protected by a union contract." We assume in the Union's favor, without deciding, that in proscribing picketing whose object is to force or require the employer's recognition...