Radio Broadcast Technicians Local Union No. 1264 v. Jemcon Broadcasting Co.

• Citation: 205 So.2d 595,281 Ala. 515
• Decision Date: 21 December 1967
• Docket Number: 1 Div. 143,AFL-CIO
• Parties: , 11 Rad. Reg. 2d (P & F) 2095 RADIO BROADCAST TECHNICIANS LOCAL UNION NO. 1264, International Brotherhood of Electrical Workers,, v. JEMCON BROADCASTING COMPANY, Inc.
• Court: Alabama Supreme Court

Page 595

205 So.2d 595

281 Ala. 515, 11 Rad. Reg. 2d (P & F) 2095

RADIO BROADCAST TECHNICIANS LOCAL UNION NO. 1264, International Brotherhood of Electrical Workers, AFL-CIO, v. JEMCON BROADCASTING COMPANY, Inc.

1 Div. 143.

Supreme Court of Alabama.

Dec. 21, 1967.

Rehearing Denied Jan. 18, 1968.

Pierre Pelham, Mobile, and J. R. Goldthwaite, Jr., of Adair, Goldthwaite & Stanford, Atlanta, Ga., for appellant.

Willis C. Darby, Jr., of Kilborn, Darby & Kilborn, Mobile, for appellee.

LAWSON, Justice.

This is an appeal by the Radio Broadcast Technicians Local Union No. 1264, International Brotherhood of Electrical Workers, AFL-CIO, an unincorporated association, hereinafter sometimes referred to as Local 1264, and sometimes referred to as appellant, from a decree of the Circuit Court of Mobile County, in Equity, denying the motion of Local 1264 to dissolve a temporary injunction, issued ex parte, which enjoined said Local 1264 from picketing the places of business of appellee, Jemcon Broadcasting Company, Inc., a corporation, which operated Radio Station WLIQ in Mobile, and which also enjoined Local 1264 from otherwise interfering with appellee in the conduct of its radio broadcasting business.

E. W. Jemison and Frank Conwell, a partnership doing business as Jemcon Broadcasting Company, commenced construction of Radio Station WLIQ in October of 1960. The partnership operated WLIQ until October 1, 1962, when 'E. W. Jemison and Frank Conwell, partners doing business as Jemcon Broadcasting Company, transferred all of their assets to Jemcon Broadcasting Company, Inc., and Jemcon Broadcasting Company, Inc., assumed all of the liabilities of E. W. Jemison and Frank Conwell, partners, doing business as Jemcon Broadcasting Company.' After October 1, 1962, Jemcon Broadcasting Company, Inc., operated WLIQ, formerly operated by E. W. Jemison and Frank Conwell, partners, doing business as Jemcon Broadcasting Company.

The change in ownership and operation of Radio Station WLIQ is not material. Both parties to this appeal seem to agree that certain events, to which we will hereinafter refer, although occurring during the time WLIQ was owned and operated by the partnership, are material to the question presented for determination on this appeal, although the decree here under review was rendered in a proceeding instituted against Local 1264 by the appellee, Jemcon Broadcasting Company, Inc., a corporation, on February 19, 1963. Sometimes we will refer to both the partnership and the corporation as WLIQ.

Local 1264 in October, 1960, began efforts to organize the technician employees of the station by writing Mr. Conwell relative to signing a 'standard working agreement' and thereby recognizing appellant as the exclusive bargaining representative of appellee's employees.

The end result of appellant's request for recognition was that on August 31, 1961, WLIQ declined to recognize the appellant, stating, 'When you have received certification, we will be happy to discuss the matter with you.'

On September 14, 1961, appellant began picketing WLIQ's office and transmitter in Mobile, Alabama, with signs bearing the inscription: 'WLIQ UNFAIR, LOCAL 1264, IBEW-AFL-CIO' and 'WLIQ TECHNICIANS ON STRIKE--LOCAL 1264 IBEW.'

On or about September 18, 1961, Local 1264 filed a petition with the National Labor Relations Board for an election for a unit consisting of 'all radio technicians including the chief engineer' employed by WLIQ.

On September 25, 1961, the Regional Director of the National Labor Relations Board dismissed the petition for an election filed by appellant on the grounds that '* * * the employer's operations in interstate commerce do not meet the minimum standards of the Board for the assertion of jurisdiction * * *'

The action of the National Labor Relations Board was apparently grounded on the language which we will hereafter quote from Raritan Valley Broadcasting Co., Inc., v. American Federation of Television & Radio Artists, New York Local (AFL-CIO), 122 NLRB page 90, Case No. 22-RC-190, which opinion was rendered by the National Labor Relations Board after a hearing before the full Board on November 14, 1958:

'Ever since the enactment of the National Labor Relations Act in 1935, the Board has consistently held to the position that it better effectuates the policies of the Act and promotes the prompt handling of cases not to exercise its jurisdiction to the fullest extent possible under the authority delegated to it by Congress. For the first 15 years the Board exercised its discretion in this area on a case-by-case basis. In 1950 the Board first adopted certain jurisdictional standards designed to aid it in determining where to draw the dividing line between exercised and unexercised jurisdiction. In 1954 the Board reexamined its jurisdictional policies in the light of its experience under the 1950 standards and revised its jurisdictional standards. At that time the Board noted that 'further changes in circumstances may again require future alterations of our determinations one way or another.' Consistent with this practice of periodic review of its jurisdictional policies and a direct consequence of the Supreme Court's decision in P. S. Guss, d/b/Photo Sound Products v. Utah Labor Relations (Board, 353 U.S. 1, 77 S.Ct. 598, 1 L.Ed.2d 601) denying to the States authority to assert jurisdiction over enterprises as to which the Board declines to exercise its statutory jurisdiction, the Board reexamined its existing jurisdictional policies and the standards through which such policies were implemented. As a result the Board determined to revise its jurisdictional policies at this time so that more individuals, labor organizations and employers may invoke the rights and protections afforded by the statute. In Siemons Mailing Service the Board fully set forth the general considerations which persuaded it that this could best be accomplished by the utilization of revised jurisdictional standards as an administrative aid in making its jurisdictional determinations. The Board has chosen this case to set forth the revised standard to be applied to enterprises operating communication systems.

'The Board has decided that it will better effectuate the policies of the Act to assert jurisdiction in all future and pending cases involving enterprises engaged in the operation of radio or television broadcasting stations or telephone or telegraph systems which do a gross volume of business of at least $100,000 per annum.'

Local 1264 did not appeal this action of the Regional Director to the National Labor Relations Board, although it was advised that such was its right and instructions were given by the Regional Director as to how such an appeal could be effected.

On October 5, 1961, the five employees of WLIQ, three of whom were technicians, voted to be represented for the purpose of collective bargaining by the Federation of Licensed Broadcast Employees. That election was conducted by a local minister. Local 1264 asserts that the said election was unlawful under the National Labor Relations Act, as amended, and that the new 'labor organization' was organized with the full cooperation of WLIQ and was dominated and controlled by that station.

On October 9, 1961, Station WLIQ and The Federation of Licensed Broadcast Employees entered into a collective bargaining agreement.

In September and October, 1961, appellant by picketing WLIQ's place of business and by letters addressed to persons, firms and corporations advertising over Station WLIQ in Mobile, Alabama, sought to effect a boycott of WLIQ and to cause persons doing business with WLIQ to cease doing business with WLIQ.

On October 24, 1961, WLIQ (the partnership) procured an ex parte injunction in the Circuit Court of Mobile County, in Equity, against Local 1264's activities referred to in the preceding paragraph. That proceeding was docketed in the equity court as Case No. 56,748.

Local 1264 filed pleas to the jurisdiction wherein it averred, in effect, that the Circuit Court of Mobile County, in Equity, was without jurisdiction to issue the injunction in that the National Labor Relations Board had exclusive jurisdiction to adjudicate the subject matter of the bill for injunction.

On or about November 13, 1961, Local 1264 petitioned the National Labor Relations Board for an advisory opinion As to its jurisdiction in conformity with § 102.98 of the Board's rules and regulations.

The NRLB designated the petition for advisory opinion as Case No. AO--29. It later rendered a decision wherein it stated that it would assert jurisdiction over the subject matter of Case No. 56,478 and would adjudicate the merits of the dispute between the parties. That decision may have been rendered on or about January 19, 1962. The date of its rendition does not appear in the record, but in briefs filed here it is said that the opinion was rendered on that date.

In any event, Case No. 56,748 came on for final hearing on October 30, 1962, at which time the complainant therein, the partnership, sought to amend the complaint by making the corporation the party complainant. The trial court promptly granted a motion for discontinuance and dismissal on account of the change in parties complainant.

Thereafter, the Federation of Licensed Broadcast Employees filed a representation petition with the National Labor Relations Board. The petition was denied by the Acting Regional Director on September 27, 1962, and review was denied on October 23, 1962. This denial was on the ground that the Board would not assert jurisdiction because the employer's operations in interstate commerce did not meet the minimum standards of the Board. This action was also apparently based on the decision in Raritan Valley Broadcasting Co., Inc., v. American Federation of Television & Radio Artists, etc., supra.

Thereafter, on February 18 and 19, 1963, the Union picketed the premises of Radio Station WLIQ and on ...