NLRB v. UNITED RUBBER, CORK, LINOLEUM & PLASTIC WRKS.

• Decision Date: 26 June 1959
• Docket Number: No. 7781.,7781.
• Citation: 269 F.2d 694
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO, and its Local 511, Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

269 F.2d 694 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, AFL-CIO, and its Local 511, Respondents.

No. 7781.

United States Court of Appeals Fourth Circuit.

Argued March 9, 1959.

Decided June 26, 1959.

Duane B. Beeson, Atty., N. L. R. B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

James O. Cross and Garnet L. Patterson, Akron, Ohio (Arthur J. Goldberg, Washington, D. C., on the brief), for respondents.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

The question in this case is whether a labor union was guilty of unfair labor practices in violation of § 8(b)(1)(A) of the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq., when it picketed the plant of an employer and conducted a boycott campaign in order to force the employer to recognize the Union as the bargaining representative of its employees in spite of the fact that the Union had been rejected by the employees in a Labor Board-conducted representative election. The Board concluded, upon the facts hereinafter stated, that the Union had violated § 8(b)(1) (A) of the Act by restraining and coercing the employees in the exercise of rights guaranteed by § 7 of the Act by picketing the Company for the purpose of obtaining recognition and a contract as the exclusive representative of the Company's employees, when the Union did not represent a majority of the employees. The Board issued an order directing the Union to cease and desist from such activities and also from conducting a boycott campaign against the Company's products for the purpose of forcing the Company to recognize the Union as the exclusive representative of the employees, or of forcing the Company to enter into a contract with the Union when it did not represent a majority of the Company's employees.

The O'Sullivan Rubber Corporation is engaged in the manufacture and sale of rubber soles and heels at Winchester, Virginia. From 1942 to 1946, its production and maintenance employees were represented by Rubber Workers Local 22770, affiliated with AFL. On March 20, 1956, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, petitioned the Board for an election, which was held by consent on April 4, 1956, and resulted in a vote of 343 votes for and 2 against the petitioner out of a total of 388 eligible voters. Accordingly, on April 12, 1956, the Board certified the Union as the exclusive representative of the workers and shortly thereafter Local Union No. 511 was chartered to service the employees. Contract negotiations were then carried on from April 1956 until May 11, 1956, but no agreement was reached. A strike was called on May 14, 1956, and 27 bargaining sessions were held up to April 1, 1957, but no agreement was consummated. Picketing of the plant was begun on May 14, 1956, and has since been carried on continuously and was still in operation at the time of the examiner's hearing two years later.

When the strike began the Company had 420 employees of whom 8 appeared for work and 412 did not. During the next two months 72 additional employees returned to work and the Company hired a total of 265 persons who had never worked for it before, so that on July 16, 1956, the Company had a complement of 345 workers and has since carried on active operations.

On September 26, 1957, as the result of petitions filed by the employer and one of the employees in the previous April, indicating that the employees no longer desired to be represented by the Union, the Board ordered that an election be held and decided that the employees who had gone on strike were economic strikers who had been permanently replaced and were therefore ineligible to vote. On October 18, 1957, the election was held and out of a total of 325 eligible voters, 5 voted for the Union and 288 voted against it. Accordingly, the Board, on October 28, certified that the majority of the ballots had not been cast for the Union.

From the beginning of the picketing on May 14, 1956, until a month after the election on October 18, 1957, the picketers carried signs which contained the warning that the penalty of strikebreaking was a lifetime of shame and regret, and alleged that the products of the Company were made by strikebreakers and by a company without a soul and urged the public not to buy the Company's products. Thereafter the picketers used signs which stated that the local union had been on strike since May 13, 1956, and that the Company was unfair to organized labor and urged the public not to buy the Company's products made by strikebreakers.

Since October 28, 1957, the picketers at the entrance of the plant have not engaged in any violence or other conduct designed to impede the voluntary ingress and egress of employees or other persons having business with the Company, and they have not been present in such numbers as to accomplish such purposes.

The Personnel Manager of the Company testified that all of the negotiations between the Company and the Union related to attempts to reach a contract and that the Union had not indicated in any manner to the Company that there had been any change in the issues since the negotiations were terminated on April 1, 1957.

On October 16, 1957, on the eve of the election, the Local Union published an advertisement in a Winchester newspaper which appealed to the employees to vote for the Union and stated that the strike and boycott would continue regardless of the outcome of the election until the Company reached an agreement with the Union in a satisfactory settlement of the issues involved in the strike.

A reporter for the newspaper testified that after the results of the election were published he was told by the field representative of the International Union that the strike and boycott would continue although the Union had lost the election, and a statement to this effect was published in the newspaper in the evening of that day and has not been challenged. In November 1957, a leading article appeared in a publication of the Union, known as "The United Rubber Worker," which contained a statement of the General President of the United Rubber Workers that the consumers' strike against the products of the Company was continuing in the struggle of the Local Union for a contract with decent wages and working conditions. A reprint of this article was distributed by the Union to 10,000 shoe repair shops in various states and directed the attention of all shoe men to the fact that the strike and the boycott were still on.

In January 1958, a news story from Atlantic City, where the Constitutional Convention of AFL-CIO was being held, noted the unanimous approval by the delegates of a resolution supporting the Union in its consumer boycott of the Company. The article stated in part that the Union had spearheaded the consumer strike because the Company had stubbornly refused to consider a fair and reasonable contract with the Local Union.

On the basis of the foregoing evidence the Board found that the Unions continued to seek a contract with the Company despite the loss of the election on October 18, 1957. The Board therefore held that the Unions, notwithstanding their minority status, continued their economic sanctions of picketing and boycotting in the period after the election for the purpose of compelling the Company to recognize them as the representatives of the employees who had decisively rejected them.

The opposing testimony of the Unions as to their intentions after the election was found unconvincing and insufficient by the Board. Representatives of the Unions testified that their original objective was changed after they lost the election, and that after the result of the election was certified by the Board on October 28, 1957, they ceased to seek recognition as to the bargaining representative in order to obtain a contract covering the employees and continued their efforts merely to obtain reinstatement for the replaced strikers. The Board rejected this testimony in view of the postelection activities and statements of the Unions above referred to. We are bound by this finding since it is clear that there was substantial evidence on the record as a whole to support it.

The substantial question in this case is whether the exertion of economic pressure by a union upon an employer by picketing and boycotting in order to secure recognition as the bargaining representative of the employees and to secure a contract from the employer after the employees have rejected the union in a Board-conducted election is a violation of § 8(b)(1)(A) of the statute. The first paragraph of § 8(b) declares that it shall be an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of the rights guaranteed by § 7 of the statute, which includes the right to bargain collectively through representatives of their own choosing and also the right to refrain from any or all such activities, that is, to refrain from union representation altogether.

The Board in support of its conclusion that the Unions' conduct was a violation of the statute, quoted a passage from its prior decision in Curtis Bros., 119 NLRB 232, 236, on November 4, 1957, wherein, departing from its earlier decisions in 1948 in National Maritime Union, 78 NLRB 971 and Perry Novell, 80 NLRB 225, it first interpreted the statute to cover minority picketing for recognition. It said, page 236:

"* * * the pressure exerted by such sanctions is necessarily an economic one, a device to reduce the business to the point where his financial losses force the employer to capitulate to the union\'s demands. It is immaterial whether the ostensible technique, or the unspoken

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