Sapulpa Typographical Union No. 619, A/W ITU

National Labor Relations Board - Board Decisions

Aug 17, 1962

138 N.L.R.B. 180 (N.L.R.B. 1962)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sapulpa Typographical Union No. 619 , affiliated with the Inter-
national Typographical Union and Ed K. Livermore and Melba
H. Livermore, d/b/a Sapulpa Daily Herald . Case No. 16-CP-2.
August 17, 1960
DECISION AND ORDER
On March 24, 1960, Trial Examiner George L. Powell issued an
Intermediate Report finding that Respondent Union had violated
Section 8(b) (7) (C) of the Act, as set forth in the Intermediate Re-
port attached hereto. Thereafter, exceptions were filed by the Re-
spondent Union, and briefs were filed by the Respondent Union and
the General Counsel.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds them free of prejudicial error. The rulings
are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case?
On the basis of that consideration, the Board hereby adopts the find-
ings, conclusions and recommendations with the modifications noted
hereinafter.
1. As the Trial Examiner found, the picketing in which Respondent
Union engaged began on October 5, 1959, and terminated on Decem-
ber 7, 1959. Except for the first few days, the picketing consisted of
a single picket peacefully parading in front of the main entrance of
the Company and bearing a sign which, until December 1, 1959, read
"SAPULPA HERALD-UNFAIR TO I.T.U.-LOCAL 619," and
from December 1 to December 7 read "INFORMATIONAL PICK-
ETING-SAPULPA HERALD DOES NOT EMPLOY MEM-
BERS OF TYPOGRAPHICAL UNION NO. 619." 3 The Respond-
ent Union was not certified and no representation petition was filed.
Upon the foregoing evidence and other evidence more fully de-
tailed in the Intermediate Report the Trial Examiner found, and we
agree, that the picketing herein was for an object of recognition.4
2. We agree with the Trial Examiner's conclusion that the picketing
was in violation of Section 8 (b) (7) (C) of the Act. We base this con-
clusion on the following :
Section 8(b) (7) (C), so far as relevant, makes it an unfair labor
practice for a labor organization to picket for recognition, bargaining,
'Pursuant to the provision of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Rodgers , Leedom,
and Fanning].
2 The Respondent Union's request for oral argument is denied as the record , exceptions,
and briefs adequately present the issues and the positions of the parties
3 During the first few days only, another picket bearing the sign first described was
stationed in the public alley adjacent to the plant
4 We likewise agree with the Trial Examiner that the picketing was not protected by
the first amendment , and that the Company's alleged unfair labor practices would not
constitute a defense
138 NLRB No. 24.
SAPULPA TYPOGRAPHICAL UNION NO. 619, A/W ITU 181
or organization unless a representation petition is filed "within a
reasonable period of time not to exceed thirty days from the com-
mencement of such picketing . . . ." The picketing in the present
case began on October 5, 1959, and continued until December 7, 1959,
or a total of 64 days. However, as the Labor-Management Reporting
and Disclosure Act of 1959 which included Section 8(b) (7) (C) did
not become effective until November 13, 1959, the picketng after that
date continued for only 24 days.
The Trial Examiner predicated his finding of a violation on alter-
native grounds. First, he found that because the Respondent Union
had not filed a representation petition and, in his view, "would never"
file one, the 24 days of picketing was more than a "reasonable period
of time" within the statutory meaning and hence a violation had oc-
curred.' Alternatively, he found that even if the picketing were
deemed, contrary to his finding, to be "informational rather than for
recognition," it was still violative of the Act because "Collins and
Campbell in the course of their employment refused to cross the picket
line."
We find it unnecessary to pass upon the question whether the picket-
ing fell within the protection of the "publicity" proviso when the
signs were changed on December 1, or whether the refusals to cross
the picket line which occurred thereafter vitiated the protection of
that proviso. In our opinion the 18 days of picketing between Novem-
ber 13, 1959, the effective date of Section 8(b) (7) (C), and Decem-
ber 1, 1959, the date when Respondent Union changed its picket signs,
was a "reasonable period of time" within the meaning of that section
in view of the duration of the picketing before November 13, 1959.
In the Stan-Jay case,' the Board held that picketing which contin-
ued for 17 days after the effective date of Section 8(b) (7) (C) was a
reasonable period of time within which a union was required to file a
representation petition or face the prospect of having its picketing en-
joined where the picketing for organization and recognition had been
going on continuously for almost 2 months before the new Act be-
came effective. The Board said :
In the light of this background we agree with the Trial Examiner
that the 17 days of additional picketing thereafter was a reason-
able period of time in which to require the Respondent to file a
representation petition or face enjoinment of the picketing.
The Stan-Jay decision was enforced by the Court of Appeals for the
Second Circuit.
6 The Trial Examiner in an inadvertent error refers to December 7, the date the picket-
ing ceased , as the date the sign was changed and hence treats December 7 as the cutoff
date Obviously , he intended December 1, the actual date the sign was changed . On this
hypothesis only 18 days, not 24, were involved
O Local 239 , International Brotherhood of Teamsters , etc. (Stan -Jay Auto Parts t
Accessories Corp ), 127 I\TLRB 958, enfd. 289 P. 2d 41 (C.A. 2).
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the present case, the picketing which began on October 5, 1959,
continued for 40 days to November 13, and for 18 days thereafter to
December 1, when the picketing sign was changed. We hold that
this 18 days of picketing after the effective date of Section
8(b) (7) (C) was a "reasonable period of time" within which Respond-
ent Union was required to file a representation petition in view of the
duration of the antecedent picketing. Accordingly, as Respondent
did not file a representation petition as required, we find that by its
picketing between November 13, 1959, and December 1, 1959, Re-
spondent Union violated Section 8(b) (7) (C) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Sapulpa Typo-
graphical Union No. 619, affiliated with International Typographical
Union, its officers, representatives, and agents, shall:
1. Cease and desist from :
(a) Picketing or causing to be picketed, or threatening to picket or
causing to be picketed, Ed K. Livermore and Melba H. Livermore
d/b/a Sapulpa Daily Herald, Sapulpa, Oklahoma, under conditions
prohibited by Section 8(b) (7) of the Act, where an object thereof is
forcing or requiring the aforesaid Company to recognize or bargain
with the Respondent Union as the representative of its employees,
or forcing or requiring the employees of the aforesaid Company to
accept or select the Respondent Union as their collective bargaining
representative.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent Union's business
offices, meeting halls, and places where notices to its members are
customarily posted, copies of the notice attached hereto marked "Ap-
pendix."' Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed by
official representatives of the Respondent Union, be posted by the
Respondent Union immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter. Reasonable steps shall
be taken by the Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Sixteenth Region signed
copies of the aforementioned notice for posting by Ed K. Livermore
and Melba H. Livermore d/b/a Sapulpa Daily Herald, the Company
TIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
SAPULPA TYPOGRAPHICAL UNION NO. 619, A/W ITU 183
willing, in places where notices to employees are customarily posted.
Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being signed by the Respondent
Union, as indicated, be forthwith returned to the Regional Director
for disposition by him.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF SAPULPA TYPOGRAPHICAL UNION No. 619,
AFFILIATED WITH THE INTERNATIONAL TYPOGRAPHICAL UNION AND
TO ALL EMPLOYEES OF ED K. LIVERMORE AND MELBA H. Liviuu oRE
D/B/A SAPULPA DAILY HERALD
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT picket or cause to be picketed, or threaten to
picket or cause to be picketed, E. K. Livermore and Melba H.
Livermore d/b/a Sapulpa Daily Herald, Sapulpa, Oklahoma,
under conditions prohibited by Section 8 (b) (7) of the Act, where
an object thereof is to force or require the aforesaid Company to
recognize or bargain with us as the representative of its em-
ployees, or to force or require the employees of the aforesaid Com-
pany to accept or select us as their collective-bargaining repre-
sentative.
SAPULPA TYPOGRAPHICAL UNION No. 619, AFFILIATED
WITH INTERNATIONAL TYPOGRAPHICAL UNION,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort
Worth, Texas, Telephone Number, Edison 5-4211, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding began with the filing of a charge on November 19, 1959, by the
Charging Party, and , with all parties represented , was heard before Trial Examiner
George L. Powell in Tulsa, Oklahoma, on January 5, 1960 , on complaint of the
General Counsel and answer of the Respondent Union.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issues in the case are whether Respondent Union violated Section 8(b) (7) (C)
of the National Labor Relations Act, as amended, herein called the Act, by picketing
the Charging Party for recognition without a petition having been filed in accordance
with Section 9(c) and that it has continued the picketing beyond a reasonable period.
If the picketing is to be considered informational, the question is did it effectively
induce individuals "employed by any other person" not to pick up, deliver, or per-
form services.
The defenses of Respondent Union are that: (1 ) the picketing was entered into
to publicize the dispute with the employer over two unfair labor practices of the
employer, to wit, a refusal to bargain and the discriminatory discharge of employees
for their union activities; and (2) it was engaging in informational picketing under
the provisions of Section 8(b)(7)(C) of the Act and that if this picketing is held
to be unlawful it would deprive the Union and its members of its right of freedom
of speech under the first amendment to the Constitution of the United States.
Respondent, moved to dismiss, at the conclusion of the General Counsel's case,
which motion was reserved for action in accordance with this report and is denied
in accordance with the findings set out out below.
All parties were represented by counsel who participated in the hearing. Full
opportunity was afforded the parties to be heard, to examine and cross-examine
witnesses, to introduce relevant and pertinent evidence, and to file briefs on or before
February 2, 1960. Briefs have been received from the General Counsel and from
Respondent's counsel which have been carefully considered.
Upon the entire record and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING PARTY
The Charging Party is and has been at all times material herein, a partnership
existing by virtue of the laws of the State of Oklahoma, having its principal office
and place of business at 16 South Park, in the city of Sapulpa, Oklahoma, and is
now and has been at all times herein metnioned , continuously engaged at said place
of business, hereinafter called the plant, in the printing, composition, and distribu-
tion of a daily newspaper. In the course and conduct of its business operations at
its plant during the 12-month period ending December 31, 1959, which period is
representative of all times material hereto, the Charging Party has received a gross
revenue valued in excess of $200,000. During the same period it has purchased
and received newsprint from points outside the State of Oklahoma valued in excess
of $19,700. And in excess of $45,000 of its revenue is derived from advertising of
firms who ship goods across State lines in amounts exceeding $50,000 per year.'
The Charging Party also purchases wire service from the United Press Interna-
tional . I find it is engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the meaning of Section 2, sub-
section (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The events
Almost all of the facts are uncontested . The parties admit that since on or about
October 5, 1959, Respondent Union has picketed the Charging Party's plant and
has continued to do so until December 7, 1959. The picket signs carried the legend:
SAPULPA
HERALD
UNFAIR
TO. I.T.U.
LOCAL 619
1. The defense of refusal to bargain
The brief of Respondent Union devotes itself exclusively to the constitutional
question that purely informational picketing is either lawful under the provisions of
1 These are stipulated facts. Admitted facts in pleadings vary slightly but have no
effect on this finding
SAPULPA TYPOGRAPHICAL UNION NO. 619 , A/W ITU 185
Section 8(b)(7)(C) of the Act, regardless of the effect of the picket line, or the
Act is unconstitutional depriving the Respondent Union and its members of the
right of free speech given by the first amendment to the Constitution of the United
States. However during the trial the Respondent had additional defenses that the
picketing was in protest of unfair labor practices engaged in by the Charging Party.
These were a refusal to bargain in good faith and two alleged discriminatory dis-
charges. The alleged unfair labor practice of refusing to bargain is as follows:
The Charging Party purchased the Supulpa Daily Herald from R. P. Matthews,
and Ed Livermore took over management of it on January 1, 1959. Previous to
that time a majority of the six employees in the composing room, the involved
herein, were members of Respondent Union as there had been in effect a so-called
union shop. The parties had been respecting the terms of wages, hours, and working
conditions set out in a contract entered into in about 1947. On March 31, 1959,
Respondent Union, by letter, terminated any agreement which theretofore had
existed and asked to meet with Livermore and discuss wages and hours.
Livermore replied by letter dated April 3, 1959, that he would meet at their mutual
convenience and on April 8 and 20, he and Ted Olson and Respondent Union's Ed
Walker, Pascal Wadley, and David Howard, Chairman of Respondent Union's Scale
and Contract Committee, met without reaching agreement. On May 20, 1959, there
was another meeting at which time Livermore submitted a proposal. On about
June 1, it was turned down. The short meeting on September 29 was deferred until
September 30.
On September 30, 1959, Livermore, Floyd L. Rheam, counsel for the Daily
Herald, and C. M. Brown and Carl E. Linder ITU International representative, met
in Rheam's office to further discuss the matter of a contract. Linder gave Liver-
more and Rheam a copy of Respondent Union's proposed contract. The first page
of the contract, in section I, provided for recognition of the Respondent Union as the
exclusive bargaining representative of all employees covered in the agreement, and
the clauses deemed mandatory or almost mandatory were checked. Charging Party
advised Respondent Union it had cause to doubt majority status and asked if
Respondent Union represented a majority. The reply was that they would when
they had the contract. Livermore or Rheam recommended that Respondent Union
join with Daily Herald in filing a petition for an election with the National Labor
Relations Board, and that if the Respondent Union were certified by the National
Labor Relations Board as the exclusive bargaining representative of Daily Herald's
employees, the Herald would bargain with it. Linder said, in effect, that if a con-
tract was not signed they had an effective way of counting noses, and refused to go
to an election? This meeting terminated without any agreement.
On or about October 5, 1959, the Respondent Union picketed the front sidewalk
and the public alley with each picket carrying a sign as follows (see General Coun-
sel's Exhibit No. 8 for picture of sign):
SAPULPA
HERALD
UNFAIR
TO I. T. U.
LOCAL 619
On or about October 9, 1959, the picketing in the public alley ceased but picketing
in front of the building continued until December 7, 1959.
Since on or about December 1, 1959,. the picket sign read (General Counsel's Ex-
hibit No. 9) :
INFORMATIONAL PICKETING
SAPULPA
HERALD
DOES NOT EMPLOY
MEMBERS OF
TYPOGRAPHICAL
UNION
NO. 619
' Linder told Charging Party's representatives that they (Respondent Union) ignored
the Labor Board and the Labor Board ignored them, and that they would count the union
support by counting noses of those employees who would refuse to cross a picket line.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about November 30, 1959, Livermore was asked by Linder, who at that
time was standing beside the picket, when they were going to get together. Liver-
more suggested that a Board election be requested. Linder replied "you know we
can't win an election." Livermore said he would negotiate with them when they
were certified.
Since November 30, 1959, there has been no additional meetings between the
Charging Party and the Respondent Union.
Livermore was called to the witness stand and outlined in detail the bargaining
discussions at the various meetings including testimony about the details of the meet-
ing on the picket line on November 30, at which time Linder stated that the Re-
spondent could not win an election-that Respondent Union asked no one in the
composing room to join the Union, and Livermore ended the conversation by saying
"when you have a certification that you represent a majority of the people in my
composing room, I will be happy to negotiate with you." The testimony of Livermore
shows that discussions were had on proposals by Respondent Union and on proposals
offered by the Charging Party but that no agreement was reached. The record
discloses as well that no charges of refusal to bargain nor charges alleging discrimina-
tory discharge were ever filed by Respondent Union against the Charging Party.
As of September 30, only David Howard, was left of the employees who were
in the unit when Livermore took over, and he left the employ of Charging Party on
October 5, 1959, when the strike started.
2. The defense of discriminatory discharges
C. M. Brown and Larry McNamara were the only two employees discharged by
Charging Party.
Livermore credibly testified that based upon his previous experience in this line of
work, and his observation of the performance of the people in the composing room,
after he took over the Company in January, he told his foreman, DeLong, sometime
in February 1959 that "he did not feel that Charles Brown was a competent printer
on the floor." He also did not believe Brown was competent on the Linotype ma-
chine and had heard from the previous owner that Brown was not a "proficient
printer." Although Brown appeared to have been a good man on the Ludlow ma-
chine this machine was used only 1 day in the week and there was no need for a
full-time Ludlow operator. Further, the use of the Ludlow machine was minimized
when additional equipment had been added. Livermore was attempting to make
his operation more efficient and needed people competent on both the floor and the
machine in order to be able to shift them around in emergencies. Accordingly,
Brown was given notice that he would be terminated on or about August 24, 1959,
because the Charging Party needed a machinist-operator and Brown had failed in
that capacity although he had been given the opportunity to do the job. However,
Brown voluntarily left employment on August 14, 1959. He agreed that he was dis-
charged because he was not a machinist, and he did not consider his discharge to be
discriminatory. Nor was there any evidence that his discharge was ever brought
to the attention of the Respondent Union with the request that the Union should
consider it as being discriminatory. Finally, as noted above, no charge was ever
filed alleging the discharge to be a violation of Section 8(a)(3) of the Act.
Larry McNamara was hired on August 29, 1959, at a time when the Charging
Party was advertising for union people to help him in his operation. He had not
qualified for membership in the I.T.U. when he began work as a probationer and
Livermore made it clear to him that his attitude toward the Union had nothing to do
with his employment. Livermore told him that the decision of whether to join or not
to join the Union was his alone and there would be no hard feelings because of any
position that he would take.3 The trouble between Livermore and McNamara stems
from the fact that McNamara continued to do maintenance work on his machine al-
though he had been instructed by the foreman not to do so. And he admitted that
he was told by the foreman that he was discharged because he was doing more of
the maintenance work than he should do McNamara discussed his discharge with
Howard and with Brown. Yet he did not ask either one to take any action in his
behalf. He did not join the Union until after notice of his discharge. He was given
notice of termination on September 29, 1959, and worked until the picket line was
established on October 5, 1959.4 Finally, his discharge was not mentioned on
November 30, 1959, at the meeting on the picket line.
3 With respect to another employee named Bob Hundley who was hired on July 27, 1959,
Livermore actually told him that he would be expected to continue his union card.
4 McNamara admitted that he was let go because he was doing more maintenance work
than he should do. He also admitted that in a conversation with Livermore, he had been
told that it was all right with Livermore if he didn 't want to cross a picket line.
SAPULPA TYPOGRAPHICAL UNION NO.' 619, A/W ITU 187
3. The defense of peaceful picketing
As set out above, picketing commenced on October 5, 1959, and continued until
December 7, 1959. There was one picket at the front of the building and one picket
at the back of the building but the latter picket was removed on or about October 9.
Thereafter and until December 1 the picket sign merely read that the Sapulpa Herald
was unfair to the ITU Local 619. On December 1, the picket sign was changed to
read that this was informational picketing and that the Herald does not employ
members of Typographical Union No. 619.
Section 8(b) (7) of the Act makes it an unfair labor practice for a labor organiza-
tion or its agents-
(7) to picket or cause to be picketed . . . any employer where an object
thereof is 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, unless such labor organization is currently
certified as the representative of such employees:
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed
thirty days from the commencement of such picketing: . . . Provided
further, That nothing in this subparagraph (C) shall be construed to pro-
hibit any picketing or other publicity for the purpose of truthfully advising
the public (including consumers) that an employer does not employ mem-
bers of, or have a contract with, a labor organization, unless an effect of
of such picketing is to induce any individual employed by any other person
in the course of his employment, not to pick up, deliver or transport any
goods or not to perform any services.
The effective date of the Act was November 13, 1959.5 The picketing continued
21 days after November 13 before the complaint in this case was issued (December 4,
1959) and continued 24 days before picketing was removed on December 7. During
this period no effort had been made to file a 9(c) petition, nor was Respondent Union
currently certified as the representative of the employees involved. Testimony ad-
duced above was to the effect that Respondent Union ignored the Labor Board and
admitted that their method of counting members was to count the noses of those
who refused to cross the picket line. Accordingly, as early as September 30, it is
clear that Respondent Union would not file a petition.
With respect to determining what period of time might be "reasonable" within
the meaning of the Act, the General Counsel suggested in his opening statement that
although the type of business involved does not handle a perishable product it
could be considered as a perishable business. He suggested the principal facets of
the Company's business were directly affected by the particular picketing. In the
first place receipts of advertising from companies was affected which, of course, is
the lifeblood of any daily newspaper. Secondly, subscriptions were definitely affected
and thirdly means of communicating through pickups and deliveries to and from
the plant were definitely interfered with. An additional interference was suggested
that involves the news service employed by this particular employer. This service,
UP International, comes to the Company through a machine called a reperforating
and teletype machine. This is around-the-clock wire service provided this Company.
It must be serviced from a mechanical standpoint by the Bell Telephone Company.
If the service isn't provided and the machine is thereby interfered with, the wire
service will be discontinued. This maintenance is done every 2 months in order to
keep the machine in order.
It was admitted by counsel for Respondent Union that three individuals who did
not cross the picket line were not persuaded by a discussion between the pickets
and themselves not to cross, but were persuaded not to cross the line by the existence
of the picket line itself. In this respect, the defense of Respondent Union is that
the word "induce," appearing in Section 8(b) (7) (C) as ". . unless an effect of
such picketing is to induce any individual employed . . . not to pick up, deliver or
transport any goods or not to perform any services," means to induce individuals
by an unlawful means or by threat of violence or by violence itself. Of the three
persons, R. R. (Bud) Collins was an employee of the Telephone Company, William
Rogers, Jr., was the electrical contractor, and Ellis Campbell was a truckdriver
employee of Frisco Transportation Company. [Emphasis supplied.]
5 The Act became law on September 14, 1959, but this part of it was not to take effect
for 60 days.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After the picket line had been established on October 5, 1959, R. R. (Bud) Col-
lins refused to cross it on November 20, 1959, in order to perform services consisting
of making the bimonthly checks of the reperforating and teletypewriter machine in
the regular course of his employment. Likewise on December 1, 1959, William
Rogers, Jr., owner of Bill Rogers Electric Company was requested by Ed K. Liver-
more to repair certain electrical equipment on the premises of the Daily Herald.
Knowing that his employees because of their membership in the International Broth-
erhood of Electrical Workers, AFL-CIO, would refuse to cross the picket line if
assigned to do this work, Rogers considered it futile to make such assignment and
did not make such assignment. His employees had heretofore been assigned to
perform and performed electrical services on about 15 separate occasions during
1959 at the premises of the Daily Herald at times before the picketing began. Also
after the picketing began in October, Ellis Campbell a truckdriver employee of
Frisco Transportation Company was instructed by Mullins, agent for Frisco, to
pick up a barrel of metal at the Daily Herald. Campbell refused to cross the
picket line to make the pickup Mullins then arranged with the Daily Herald to
move the barrel across the street or alley where Campbell picked it up. On De-
cember 4, 1959 Campbell was again instructed to pick up a barrel of metal at the
Daily Herald. Having seen the picket line at the Daily Herald that day Campbell
told Miss Hill, rate clerk for Frisco, that he would not go to get the barrel because
of the picket line and refused to go to make the pickup. Arrangements were then
made for the Daily Herald to transport _the barrel of metal from its plant to the
depot in Sapulpa where Campbell picked it up and delivered it to the Frisco Tulsa
warehouse that same afternoon
It was also stipulated that there are some 26 electrical contractors in Sapulpa
who are licensed electrical contractors but that Rogers is the only one having union
employees.
B. The position of the parties
In his opening statement, the General Counsel outlined his position which briefly
stated is that the picketing commenced as a desire to obtain recognition and a
contract, that it continued for more than a reasonable time after the effective date
of the Act, and that there is evidence that at no time would a petition be filed by
Respondent Union in any event. Further, that even if the picketing could be con-
sidered to be informational, individuals were induced by the picket line not to
pick up, deliver or to perform any services and that this was a normal foreseeable
effect of the picketing. There is no question but what the Respondent Union is
not currently certified as the representative of Charging Party's employees.
The position of Respondent Union, as set out by the opening statement of its
counsel, is that the picketing commenced as an unfair labor practice picketing due
to the refusal to bargain by the Charging Party and to the discriminatory discharge
of the two employees discussed above. Further, that the picketing was informa-
tional and that the definition of the word "induce" must mean an inducement by
some unlawful means and not by virtue of the mere existence of the picket line In
its brief to the Trial Examiner, Respondent counsel urges only the constitutional
aspect of the case. That is that it has a constitutional right under the first amend-
ment to the Constitution of the United States to engage in free speech and that was
precisely what the Union was doing when it was picketing, and that any curtailment
of this right would amount to a curtailment of rights protected by the Constitution
and hence render the Act unconstitutional. This was amplified to mean that if the
word "induce" is construed to mean induce by virtue of the picket line that the Act
is unconstitutional under the decision of Thornhill v. Alabama.6
C. Concluding findings
Picking up the defenses of Respondent Union, I find that: (1) there is insufficient
evidence that the Charging Party refused to bargain with the Union. The evidence
on the other hand tends to show that Respondent would bargain with the Union
if it represented a majority of the employees in the unit, but that it had good cause
to believe that the Respondent Union did not represent a majority of the employees.
Also as a matter of fact, the evidence shows that the Respondent Union did not
represent the majority of the employees. The uncontradicted testimony is that
proposals and counterproposals were offered and examined, yet no agreement was
reached. In addition it is clear that the Respondent Union at no time ever filed
meaning of the Act; and (2) the evidence is likewise insufficient to show a viola-
unfair labor practices relating to a refusal to bargain in good faith within the
6 310 U.S 88, 6 LRRM 679
SAPULPA TYPOGRAPHICAL UNION NO. 619, A/W ITU 189
tion of Section 8(a)(3) of the Act by virtue of the discharges of Brown and
McNamara . It is clear that the Charging Party was activated by economic con-
siderations and in general dissatisfaction with the qualifications of Brown as a
mechanic. It had a particular need for a mechanic -operator and Brown did not
fulfill this qualification . His discharge was for cause and cannot be considered
discriminatory within the meaning of the Act. As to McNamara, it is clear that
the Charging Party had no antiunion animus as it had advertised for union mem-
bers or those who could qualify as such for employment in the composing room
and that when McNamara was hired Livermore made it clear to him that his attitude
toward the Union had nothing to do with his employment . Furthermore, when a
discussion was had as to whether or not McNamara would cross a picket line it
was clearly pointed out to him by Livermore that crossing or not crossing the
picket line was perfectly all right with Livermore. It is likewise clear that McNamara
continued to do maintenance work on his machine even though he had been in-
structed not to do so , and that he admitted that he was terminated because of this
fact. It is noted that neither Brown nor McNamara suggested to the Union that
they had been discriminatorily discharged within the meaning of the Act and it is
also noted that no charges were so filed.
Accordingly, while I recognize the ability, sincerity, and earnestness with which
the above defenses are urged , I am of the clear opinion that I find none of them well
taken. That leads us then to an examination of any other reason why the picket
line was established on October 5, 1959.
The evidence is clear that the Respondent Union flatly took the position on Sep-
tember 30, 1959, that the Charging Party must recognize the,Union as the bargain-
mg agent of the employees before any type of an agreement could be reached be-
tween the two. Thus it would appear that the establishment of the picket line 5
days later was a continuation of the Respondent Union's desire to be recognized
and to have a contract with the Charging Party. The fact that it had a practice
of counting noses of those who refused to cross the picket line in order to establish
majority and that it had stated it would have the majority after a contract was
signed, leads me to the conclusion that the reason for the picket line was recognition.
As recognitional picketing may be unlawful under certain circumstances, the
remaining questions are:
1 Has picketing occurred without a petition having been filed under Section 9(c)?
2. Has this picketing continued beyond "a reasonable period"?
There is no question but that the Respondent Union had not filed a petition under
Section 9(c) and it is clear from the representations made at the bargaining meet-
ings that such a petition would never be filed. The statement that Respondent
Union ignored the Labor Board and that the Labor Board ignored them and that
their method of counting union support was by seeing who crossed and who did
not cross the picket line is clear evidence of their policy of never filing petitions
under the authority of the Act. In the absence of evidence tending to show a
change of mind of Respondent Union , I feel it is proper to assume that it had not
changed its mind about filing a petition?
With respect to the question of a "reasonable period " I find we are in a field of
law that is presently being interpreted on this precise point by the United States
district courts as ' petitions for injunctions are filed . One recent interpretation is
that of United States District Judge Thomas F. Meaney. He ruled that picket line
conduct has an impact on deciding the reasonableness of time, when he said in part:
The unlawfully aggressive nature of the picketing and its coercive effect on the
employees have combined in the instant case to shorten the period for which
the Union may reasonably be allowed to picket before seeking the impartial
intervention of the Board.8
I believe a fair interpretation of the statute is that only within the first 30 days
of picketing can the question be raised of whether or not a petition for an election
was filed within a reasonable length of time. After 30 days of picketing , a question
of reasonableness is barred . Hence, it would seem that whether a union were to
get as many as 30 days of picketing before filing a petition depends upon the cir-
cumstances . Judge Meaney found 10 days to be a reasonable time under the facts
7McLeod v. Chefs , etc., Local 89 (Stork Restaurdnt ), 181 F Supp 742 (D.C.S N.Y.),
and cases cited therein
8 Cuneo v. United Shoe Workers of America , Joint Council No 13, etc (Q T. Shoe Manu-
facturing Company ), 181 F Supp 324 (D C N.J) The petition for an election among em-
ployees in that case was filed after 10 days of picketing and this was held to be an un-
reasonable delay although well within the 30 - day limit
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in his case . Judge Savage found more than 15 days of picketing to be unreasonable 9
Judge Miller (D.C.M.D. Tenn., 12/12/59), granted an injunction when the charge
of the case was filed after only 10 days of picketing without a petition having been
filed under Section 9(c).10 Judge Bartels found 27 days to be a reasonable period
to file."
The Respondent Union has not argued nor come forth with any evidence as to
why it had not filed a petition within the 24 days before December 7, 1959, assuming
without deciding that that date, the day the picket sign was changed, became the
cutoff date. On the other hand, it is clear from the testimony in the case that
Respondent Union's policy was not to avail itself of the services of the-Labor Board
and that its method of deciding union strength was to count the noses of those
people who refused to cross the picket line. As no evidence has been adduced that
this policy of the Union has been changed, it would seem clear that the Union would
never file a petition for such an election without first changing this basic policy.
Accordingly, this picketing must be considered to have continued for an unreason-
able length of time and hence is violative of the Act. Thus, it is unnecessary to
consider the possible "perishable" nature of Charging Party's business as to
"reasonableness."
Having concluded that the Union is not the certified bargaining agent of the
employees and that the object of the picketing was for recognition and bargaining
and that no petition had been filed under Section 9(c) of the Act within "a reason-
able period" it is clear that Section 8(b)(7)(C) has been violated.12
However, should it be found, contrary to the finding of this Trial Examiner, that
the picketing was informational rather than for recognitional another problem arises
as to whether the picketing effectively induced individuals "employed by any other
person" not to pick up, deliver, or perform services. The parties have agreed to
the fact that Collins and Campbell in the course of their employment refused to
cross the picket line. And it is further admitted that the picket line itself was what
influenced these people not to cross the line. This also violates Section 8(b) (7) (C)
of the Act.
With respect to the defense of Respondent Union that the term "induce" must
mean more than ordinary picket line inducement in situations where the picketing
is for informational purposes, in order for the Act to be considered constitutional
under the decision of the United States Supreme Court in Thornhill v. Alabama,
supra, I do not consider it necessary to reach this point in this case. Furthermore,
should it be necessary to resolve this issue I would do so as did Judge Anderson,
supra. I cannot improve upon his language that . . .
The assertion by the Union that § 8(b) (7) (C) is a violation of the First
Amendment to the Constitution protecting freedom of speech, is untenable.
Picketing for the purpose of truthfully advising the public that an employer
does not employ members of or have a contract with a labor organization is
expressly excepted. The effect of the amendment in limiting recognition picket-
ing to currently certified representatives of employees and those who within
thirty days from the commencement of the picketing have petitioned for cer-
tification under § 9(c) and in prescribing machinery through which only those
representing a majority of employees may be certified and freely continue
recognition picketing, is not unconstitutional as abridging the First Amendment
because the only picketing proscribed is that by the claimed representatives of
a minority of employees who are prevented, not from telling the public that the
employer does not employ their members or have a contract with them, but
from imposing economic coercion to force or require recognitin or bargaining
upon the employer or upon other employees who are not allied with them, or
both. Experience has shown the existence of the latter type of picketing to be
evil which Congress has sought to correct by a law which does no more than
establish a means of meeting that particular wrong.
Because illegal conduct may include the incidental use of written or spoken,
words, the wrongdoer cannot therefor find sanctuary in the Constitution.
9 Elliott v Sapulpa Typographical Union, 45 LRRM 2400 (D C. N. Okla). (Previous
proceedings in instant case)
30 45 LRRM 2363
u 3[cLeod v. Local 239, International Brotherhood of Teamsters, etc (Stan-Jay Auto
Parts), 179 F Supp 481 (D C E.N T.).
v "The main thrust of this new amendment to the Labor Management Relations Act was
to prevent recognition picketing by a union representing a minority of employees or none
at all." (Judge Anderson in Greene v. International Typographical Union ( Charlton
Press, Inc.), 182 F. Supp. 788 (D.C. Conn.).)
SAPULPA TYPOGRAPHICAL UNION NO. 619, A/W ITU 191
The Union argues it is not the wrongdoer but the wronged. However, it is
not faced with a temporary injunction because it had a dispute with an em-
ployer over what it claims was an unfair labor practice in discharging eight
employees, but because the Union has refused to follow the [reasonable] pro-
cedures provided by law to qualify it to continue organizational picketing.
Unions may use their picket lines and their signs in full freedom of speech and
can publish their problems to the world, but when the line itself stands for more
than free speech, it is not a lawful picket line under the proviso of Section 8(b)
(7) (C). (See recent curtailments of the Thornhill v. Alabama case such as Team-
sters Local v. Vogt, 6/17/57, 40 LRRM 2208, 354 U.S. 284. Also see People v.
Schweinler Press, 214 NY 395, 108 N.E. 639; 28 Harvard Law Review 790.) 1
believe, and this is the position of the General Counsel, that the present view of the
Supreme Court has been announced in these words "picketing by an organized group
is more than free speech, since it involves patrol of a particular locality and since
the very presence of a picket line may induce action of one kind or another, quite
irrespective of the nature of the ideas being disseminated." 13 Both the Vogt
decision and the Stacey case,14 dealt with the inference based on the facts that the
picketing was to coerce the employer to put pressure on his employees to join the
Union, which factual situation is very close to the context which Section 8(b)(7)
seeks to prohibit. In the instant case, of course, we are referring to recognitional
picketing, but organizational picketing as well is involved in the first part of Section
8(b)(7).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring
in connection with the operations of Charging Party described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged in certain unfair labor
practices, I shall recommend that they cease and desist therefrom and take certain
affirmative actions which I find necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Respondent Union, Sapulpa Typographical Union No. 619, affiliated with
the International Typographical Union, is a labor organization within the meaning
of Section 2(5) of the Act.
2. Ed K. Livermore and Melba H. Livermore d/b/a Sapulpa Daily Herald is
engaged in commerce within the meaning of Section 2(5) of the Act.
3. By picketing employer Charging Party with an object of forcing or requiring
the Charging Party to recognize or bargain with Respondent Union as the repre-
sentative of his employees, in a situation where Respondent Union is not currently
certified as the representative of such employees, where such picketing has been
conducted without a petition under Section 9(c) being filed within a reasonable
period of time from the commencement of such picketing, the Respondent Union
has engaged in unfair labor practices within the meaning of Section 8(b)(7)(C)
of the Act.
4. By picketing Charging Party, should it be determined that the object there-
fore is for the purpose of truthfully advising the public (including consumers)
that the Charging Party does not employ members of, or have a contract with, the
Respondent Union, when an effect of such picketing is to induce any individual
employed by any other person in the course of his employment not to pick up,
deliver, or transport any goods or not to perform any services, the Respondent Union
has engaged in unfair labor practices within the meaning of Section 8(b) (7) (C)
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
" Bakery Drivers Local v. Wohl, 315 U.S 769; 8 LRRM 457; see also Carpenters
Union v. Ritter's Cafe, 315 U.S 722, 725-728; 10 LRRM 511. See also Denver Building
and Construction Trades Council, et al (Gould & Pretaner) v. N L.R.B , 341 U S. 675
14 151 ME 36, 116 A 2d 497; 36 LRRM 2619.