Atlanta Typographical Union 48

National Labor Relations Board - Board Decisions

Jan 30, 1970

180 N.L.R.B. 1014 (N.L.R.B. 1970)

1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlanta Typographical Union No. 48 and
Times-Journal , Inc. and Big Apple Supermarket of
Marietta, Inc. Cases 10-CC-724 and 10-CC-725
January 30, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Upon charges duly filed by Times-Journal, Inc.,
and Big Apple Supermarket of Marietta, Inc.,' the
General Counsel of the National Labor Relations
Board, by the Regional Director of Region 10 issued
a consolidated complaint on May 20, 1969, against
Atlanta Typographical Union No. 48 alleging that
Respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section
8(b)(4)(ii)(B) of the National Labor Relations Act,
as amended, by threatening, coercing, and
restraining various persons' with the object of
forcing or requiring them to cease doing business
with Times-Journal. On May 28, 1969, Respondent
(herein also referred to as the Union), filed an
answer denying the commission of any unfair labor
practices.
On July 9 and 10, 1969, the parties executed a
stipulation by which they waived a hearing before a
Trial Examiner and the issuance of a Trial
Examiner's Decision and Recommended Order and
agreed to submit the case to the Board for findings
of fact, conclusions of law, and an order, based
upon a record consisting of the charges, order
consolidating cases , the complaint and notice of
hearing, the answer, and the stipulation.
On July 5, 1969, the Board approved the
stipulation of the parties and ordered the case
transferred to the Board, granting permission and
time for the filing of briefs. Thereafter, the General
Counsel and Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
Upon the basis of the stipulation, briefs, and the
entire record in this case, the Board makes the
following:
'Times-Journal , Inc., hereinafter also referred to as Times-Journal, filed
a charge on April 29, 1969. Big Apple Supermarket of Marietta, Inc.,
hereinafter also referred to as Big Apple , filed a charge on May 6, 1969,
and an amended charge on May 20, 1969.
'Saul's Department Store , hereinafter also referred to as Saul's,
Johnson 's Tire Service, hereinafter also referred to as Johnson' s; Dupre's
Furniture Store , hereinafter also referred to as Dupre 's; and Big Apple
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Times-Journal, Inc., is a Georgia corporation with
its principal office and place of business located in
Marietta, Georgia, where it is engaged in the
publication, printing, and sale of a daily newspaper,
the Marietta Daily Journal. Times-Journal
subscribes to a national wire service, publishes
nationally syndicated features, and advertises
national brand products. During the past year,
Times-Journal had a gross volume of business in
excess of $200,000. We find that Times-Journal,
Inc., is and has been at all times material herein, an
Employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the purposes of the Act to assert
jurisdiction herein.3
Saul's (engaged in the retail merchandising of dry
goods and other products in Marietta, Georgia),
Johnson's (engaged in the sale of tires and related
products and services in Marietta, Georgia), Dupre's
(engaged in the retail sale of furniture and related
merchandise in Marietta, Georgia), and Big Apple
(engaged in the retail sale of grocery and related
products under the name of K-Mart in Marietta,
Georgia), are persons engaged in commerce or in an
industry affecting commerce within the meaning of
Section 8(b)(4) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Atlanta Typographical Union No. 48 is a labor
organization within the meaning of Section 2(5) of
the Act.
Ili. THE UNFAIR LABOR PRACTICES
A. Facts
In the course of a labor dispute with
Times-Journal, Respondent Union called a strike
and, in support thereof, asked many of the
merchants who regularly advertise in the Marietta
Daily Journal to refrain from doing so during the
dispute. Among those who refused to comply with
that request were Saul's, Johnson's, Dupre's, and
Big Apple, all of whom utilize specific product type
advertisements. The Union told Saul's that it would
"handbill the store to request that the public not
buy the products advertised in the paper."
Thereafter, Respondent stationed two to four
individuals in front of each of these establishments.
The Individuals wore sandwich signs reading:
'Belleville Employing Printers , 122 NLRB 350
180 NLRB No. 164
ATLANTA TYPOGRAPHICAL UNION 48
Stand up for Unionism
fair wages and working conditions
DON'T BUY
products advertised by this store
in the SCAB-RAT produced
MARIETTA DAILY JOURNAL
Support local union workers by asking
your merchants and friends not to
advertise in this newspaper
They "stood and at times walked in front of the
customer entrances to the business," and distributed
handbills containing essentially the same message as
the sandwich signs . Some of the "pickets" carried
copies of Marietta Daily Journal advertisements of
the picketed store's products, which were shown to
inquiring customers and passersby. Such individuals
were uniformly told that the Union did not want
them to' cease trade with the picketed store but
merely to refrain from purchasing the advertised
products. During the course of the above-described
activities, there were no work stoppages or
interruptions of deliveries.
B. The Issue Involved and Contentions of the
Parties
For engaging in the foregoing conduct,
Respondent is charged with violating Section
8(b)(4)(ii)(B), which prohibits a labor organization,
inter alia , from picketing a neutral employer with an
object of forcing the neutral to cease doing business
with any person. The proviso to this section exempts
primary picketing from the prohibition . Respondent
asserts that, at worst, it was conducting peaceful
consumer product picketing' at a secondary site
which it contends constitutes lawful primary
picketing under the Tree Fruits' decision. In that
case the Supreme Court held that Congress did not
proscribe all peaceful consumer picketing at
secondary sites, but only that which, by the
forbidden means, enlists "the public' s assistance in
forcing the secondary employer to cooperate with
the union in its primary dispute" by "ceas[ing] to
trade with" or by "put[ting] pressure upon the
primary employer ." Picketing at a secondary situs
"which urges the public to refrain from trading with
a retailer who sells the struck goods" encroaches
into the area designated by Congress as the
"isolated evil" of "shutting off the patronage of a
secondary employer" and is unlawful . For, when a
union's appeal would "inflict injury on [the
secondary employer ' s] business generally" it is not
1015
"closely confined to" and an extension of "the
primary dispute," but "creates a separate dispute
with the secondary employer": In such
circumstances, "the latter stops buying the struck
product, not because of falling demand, but . . . in
order to prevent the loss of sales of other products." 6
The General Counsel contends that the message
of the signs used here, calling for a boycott of
"advertised products" without specifically naming
those products, is tantamount to an appeal to the
customers not to patronize the neutral stores
generally and, thus, a violation of Section
8(b)(4)(ii)(B). He asserts that Respondent has not
met its burden of identifying the struck products at
the secondary situs by having some of the pickets
carry the newspaper advertisements on their person,
since even the advertisements which were carried
were shown only to those customers who inquired.
Therefore, the General Counsel urges, potential
customers, seeing signs and wishing to cooperate
with the Union would have no choice but to refrain
from all trade with the store picketed.
Respondent defends its approach of limiting the
picket sign designation as "the products advertised
in the struck newspaper" on the ground that no
attempt was made to cause a cessation of customer
trade in other products of the neutral employers,
and asserting that further specificity in product
identification would not have been practical because
the neutral employers "advertise hundreds of items
in a newspaper during a given week, and frequently
change the items advertised." It argues that it took
all reasonable precautions to limit its appeal to the
struck product by having the pickets carry copies of
current advertisements on their person ready to
show any inquiring customer and could not
reasonably be expected to have its picket signs fully
and accurately reflect the advertisements carried in
the struck newspaper.
C. Discussion and Conclusion
Had Respondent confined its picketing activity at
secondary sites to an appeal against the purchase of
the struck newspaper, the necessary precautions
would have been fairly simple. When it elected
instead to attempt to establish a countervailing
weapon against the drawing power of the newspaper
'Respondent alternatively contends that it has not engaged in picketing
at all, but rather , in "publicity other than picketing" within the meaning of
the Section 8(bX4) proviso, for it asserts the pickets did not "patrol."
Although the stipulation of facts states that the pickets "at times stood and
at times walked in front of the customer entrances to the business," we do
not rely upon such evidence to reject this contention . Board precedent as to
whether there is picketing in a statutory sense does not rest on semantics
but on the context of the "confrontation." See Alden Press. Inc 151
NLRB 1666, 1669 . See also Red Wing Products. Inc, 167 NLRB No
151, (TXD ). In the circumstances presented herein , we find that the
confrontation involved constituted picketing
'N.L R.B v. Teamsters , Local 760 , Fruit & Vegetable Packers, 377
US. S8
'Quotes from the Supreme Court ' s Tree Fruits decision.
1016 DECISIONS OF NATIONAL LAPOR RELATIONS BOARD
for the product advertised therein it assumed the
added burden of pursuing such a course in a manner
to insure that its actions would not affect the
secondary employer's business beyond the sale of
the product advertised. The test is not Respondent's
good faith in the matter, but whether its activity
actually transgresses into the area of "isolated evil."
And we cannot permit a union to shift its burden of
struck product identification to the public to which
it is appealing for support
We conclude that Respondent's picketing of
Saul's, Johnson's, Dupre's, and Big Apple did not
adequately identify the struck products so as to fall
within the Tree Fruits exception to the 8(b)(4)(ii)(B)
prohibition on secondary situs picketing. While the
picket signs called for a boycott of the struck
products only, the failure of the signs to intelligibly
identify those products, effectively converted the
appeal to one for a total boycott Nor is the
illegality of the appeal removed by the additional
circumstance that a few of the pickets kept copies of
the advertisements in their possession, ready to show
inquiring passersby. The realities of the situation
demand that the legality of the Union's appeal be
judged by a reading of the signs. The prohibitions of
8(b)(4)(B) are applicable unless the picket signs
themselves adequately inform potential customers of
the actions they are asked to take.
Thus, in actuality, the picketing here sought to
induce customers to refrain from all trade with the
secondary employers in order to force the latter to
cease advertising in the Marietta Daily Journal. By
engaging in such activity, Respondent violated
Section 8(b)(4)(ii)(B) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom and take certain
affirmative action as provided for in the Order
hereinafter, to remedy and remove the effects of the
unfair labor practices and to effectuate the purposes
of the Act.
CONCLUSIONS OF LAW
practices affecting commerce within the meaning of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Atlanta Typographical Union No. 48, its officers,
agents, and representatives, shall-
1. Cease and desist from threatening, coercing,
and restraining Saul's Department Store, Johnson's
Tire Service, Dupre's Furniture Store, Big Apple
Supermarket of Marietta, Inc., and any other
person engaged in commerce or in an industry
affecting commerce, where an object thereof is to
force the above-named perscns, or any other person,
to cease doing business with Times-Journal, Inc.,
under circumstances prohibited by Section
8(b)(4)(ii)(B) of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business office and meeting hall in
Marietta, Georgia, copies of the attached notice
marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
10, after being duly signed by authorized
representatives of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said Notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail to the Regional Director for
Region 10, sufficient copies of said Notice, to be
furnished by him, for posting by Times-Journal,
Inc., Saul's Department Store, Johnson's Tire
Service, Dupre's Furniture Store, and Big Apple
Supermarket of Marietta, Inc., if willing.
(c) Notify the said Regional Director, in writing,
within 10 days from the date of this Order, what
steps have been taken to comply herewith.
'In the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
1. Times-Journal, Inc., is a person engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act
2. Atlanta Typographical Union No. 48 is a labor
organization within the meaning of Section 2(5) of
the Act.
3. The picketing by Respondent, Atlanta
Typographical Union No. 48, of Saul's Department
Store, Johnson's Tire Service, Dupre's Furniture
Store, and Big Apple Supermarket of Marietta,
Inc., constituted violations of Section 8(b)(4)(ii)(B)
of the Act.
4. The aforesaid unfair labor practices are unfair
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
WE WILL NOT, in any manner prohibited by Section
8(b)(4)(ii)(B) of the Act, threaten, coerce, or restrain
Saul's Department Store, Johnson's Tire Service,
Dupre's Furniture Store, Big Apple Supermarket of
Marietta, Inc., or any other person engaged in
commerce or any industry affecting commerce where an
object thereof is to force or require the above-named
ATLANTA TYPOGRAPHICAL UNION 48 1017
persons, or any other person to cease doing business This is an official notice and must not be defaced by
with Times-Journal, Inc. anyone
ATLANTA This notice must remain posted for 60 consecutive days
TYPOGRAPHICAL UNION from the date of posting and must not be altered, defaced,
No. 48 or covered by any other material.
(Labor Organization) Any questions concerning this notice or compliance
Dated By with its provisions, may be directed to the Board's Office,
730 Peachtree NE., Atlanta, Georgia 30308, Telphone
(Representative) (Title) 404-526-5760.