Chicago Typographical Union No. 16

National Labor Relations Board - Board Decisions

Apr 14, 1965

151 N.L.R.B. 1666 (N.L.R.B. 1965)

1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DETERMINATION OF DISPUTES
Pursuant to Section 10(k) of the National Labor Relations Act,
and upon the basis of the foregoing findings and the entire record
in this proceeding, the National Labor Relations Board makes
the following Determination of Disputes.
1. Lathers employed by Gray Plastering Company, Inc., and by
I(laas Bros., Inc., who are represented by Wood, Wire and Metal
Lathers International Union, Local 374, AFL-CIO, are entitled to
perform the work of erecting metal studs to receive drywall
material on interior partitions in the Marcus J. Lawrence Memorial
Hospital at Cottonwood, Arizona, and in the Central Towers office
building in Phoenix, Arizona, respectively.
2. Central Arizona District Council of Carpenters, AFL-CIO,
United Brotherhood of Carpenters and Joiners of America, Local
1061, AFL-CIO, United Brotherhood of Carpenters and Joiners of
America, Local 1089, AFL-CIO, and R. E. Barrett, are not entitled,
by means proscribed by Section 8(b) (4) (D) of the Act, to force or
require the Employers to assign the above work to carpenters.
3. Within 10 days from the date of this Decision and Determina-
tion of Disputes, Central Arizona District Council of Carpenters,
AFL-CIO, United Brotherhood of Carpenters and Joiners of Amer-
ica, Local 1061, AFL-CIO, United Brotherhood of Carpenters and
Joiners of America, Local 1089, AFL-CIO, and R. E. Barrett, shall
notify the Regional Director for Region 28, in writing, whether
they will or will not refrain from forcing or requiring the Employ-
ers, by means proscribed by Section 8(b) (4) (D), to assign the work
in dispute to carpenters rather than lathers.
Chicago Typographical Union No. 16 and Alden Press, Inc.
Chicago Stereotypers Union No. 4 and Alden Press, Inc. Cases
Nos. 13-CC-404 and 13-CC-405. April 14, 1965
DECISION AND ORDER
On May 19, 1964, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled cases, finding that the Respondents
had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that they cease and desist therefrom
and take certain affirmative action. The Trial Examiner further
found that the Respondents had not engaged in certain other
unfair labor practices alleged in the complaint and recommended
that the complaint be dismissed with respect to the latter allega-
151 NLRB No. 152.
CHICAGO TYPOGRAPHICAL UNION NO. 16 1667
tions, all of the above being set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondents jointly filed exceptions
to the Trial Examiner's Decision, to the extent it was adverse to
the Respondents, and a brief in support thereof. The Charging
Party filed exceptions, and the General Counsel filed cross-exceptions,
to the Trial Examiner's failure to find all of the violations alleged
in the complaint. The General Counsel also filed a brief in support
of his cross-exceptions.'
The National Labor Relations Board has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision, the excep-
tions, the cross-exceptions, the briefs, and the entire record in these
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations except as modified below.
Southtown Economist, Inc., is a publisher of local newspapers
which utilized the services of Alden Press, Inc., for certain classified
advertising composing work. The Respondents picketed at South-
town with placards which, in essence, protested the alleged unfair
ness of Southtown's using Alden, a nonunion shop, to perform this
work. The picketing took place at entrances to Southtown's offices,
some of which were used by the public only and some of which
were used by employees of Southtown as well as by the public.
In addition, a loading dock used by employees of Southtown and
of other companies in connection with deliveries and shipments,
but not used by the public, was picketed.
We agree with the Trial Examiner that an object of Respondents'
picketing at Southtown was to force or require Southtown to cease
doing business with Alden because employees were not members of
Respondent Unions and covered by a contract with Respondents
and that, as the Respondents' primary dispute was with Alden,
Southtown was a secondary employer. As such picketing at South-
town was not confined to customers' entrances but extended also
to Southtown's employee entrances and truckloading facilities, we
conclude, contrary to the Trial Examiner, that Respondents' picket-
ing was designed and intended to induce and encourage individuals
employed by Southtown and by other neutral employers doing
business with Southtown not to perform services or to make deliver-
ies, and thus violated Section 8(b) (4) (i) (B) of the National Labor
Relations Act, as amended. We also adopt the Trial Examiner's
conclusion that by such picketing, as well as by the threats made
by Respondents' agents to President Sagan of Southtown to get
1 The Respondents have requested oral argument . Inasmuch as the record , the ex-
ceptions , the cross -exceptions , and the briefs adequately present the positions of the
parties , the request is denied.
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"tough" with Southtown and to "bring some pressure to bear" on
Southtown if Southtown's work then being performed by Alden
was not moved back to a union shop, the Respondents also violated
Section 8 (b) (4) (n) (B) of the Act.2
Apart from the picketing at the premises of Southtown, Respond-
ents also engaged in certain activities to advertise their aforesaid
labor dispute at various shopping centers and at the entrance to
city and county buildings in downtown Chicago, as more fully
described in the Trial Examiner's Decision. The Trial Examiner
concluded that such activities were not violative of Section 8 (b) (4)
(i) (B) as they were neither intended nor calculated to induce work
stoppages by employed individuals. He also concluded that such activi-
ties did not constitute, within the meaning of Section 8 (b) (4) (ii) (B),
restraint or coercion of the business establishments at the shopping
centers or of the county and city officials, because, as he found, the
activities were not directed against them but rather had as their
purpose and effect an appeal to the general public to support Re-
spondents in their labor dispute by not purchasing newspapers
from Southtown or placing classified advertisements with South-
town so long as Southtown continued to utilize the services of
Alden's nonunion shop to perform its classified and composing
work. With so much of the Trial Examiner's conclusion, we agree.
The Trial Examiner further concluded, however, that the afore-
said appeals to the general public at the shopping centers and at
the public buildings constituted unlawful restraint and coercion of
Southtown within the meaning of Section 8(b) (4) (ii) (B). In this
respect, we disagree with his conclusion and do not adopt it. The
proscription of Section 8(b) (4) (ii) (B), making it unlawful to
"threaten, coerce, or restrain any person" where an object thereof
is to force such person to cease doing business with any other
person, is limited in its reach by the so-called publicity proviso
to Section 8(b) (4). That proviso immunizes from the statutory
proscription "publicity other than picketing" where such publicity
is for the purpose of "truthfully advising the public, including
consumers and members of a labor organization ...." of a labor
dispute. For the reasons set out below, we hold that Respondents'
conduct at the shopping centers and at the public buildings comes
under the umbrella of the publicity proviso.
The question, of course, is whether Respondents' conduct at the
places in question is reasonably to be construed as picketing or as
"publicity other than picketing" within the statutory intendment.
2 We find it unnecessary to decide , however, whether, by its conduct at Southtown,
Respondents also violated Section 8 ( b) (4) (i) and (ii) (A) of the Act. Even if a find-
ing of the (A) violation were warranted in the context of this case , a remedial order
based thereon would not as a practical matter expand the scope of the remedy we
provide for the (B) violation.
CHICAGO TYPOGRAPHICAL UNION NO. 16 1669
Although the means used by Respondents to publicize their dispute
at these places entailed patrolling and the carrying of placards,
this circumstance alone does not per se establish that "picketing" in
the sense intended by Congress was involved. The Board has held
that not all patrolling constitutes picketing in the statutory mean-
ing of that term.3 As was stated by the Second Circuit Court of
Appeals in N.L.R.B. v. United Furniture Workers of America,
337 F. 2d 936, 940, "One of the necessary conditions of `picketing'
is a confrontation in some form between union members and em-
ployees, customers, or suppliers who are trying to enter the em-
ployer's premises." The patrolling in which Respondents engaged
at the shopping centers and public buildings involved no such
element of confrontation. At the shopping centers, the activity
was not limited to the area of any individual business enterprise,
it did not come to rest at any particular establishment, but con-
sisted rather of a general parading through large public areas. As
found by the Trial Examiner, the activity engaged in both at the
shopping centers and at the public buildings was not designed to
dissuade customers or others from patronizing the establishments
in the area being paraded, nor was it intended to halt deliveries
or to cause employees to refuse to perform services, and it did not
in fact produce such results. The General Counsel presented no
evidence to show, and we have no reasonable basis to infer, particu-
larly in the light of the language of the signs and the wording
of the handbills distributed, that any of the persons in charge of
the stores or other buildings, their employees, customers, or other
persons entering the buildings, considered that these locations were
in fact being picketed. Although admittedly designed as an appeal
to the public not to patronize Southtown, this activity did not occur
at places where Southtown conducted its business operations. We
note, moreover, that there is no affirmative evidence that South-
town papers were being sold at any of the establishments in the
areas where the parading in question was being conducted.
On all the evidence we find that Respondents' conduct at the
shopping centers constituted within the intent of the publicity
proviso to Section 8(b) (4) "publicity other than picketing" for
the purpose of truthfully advising the public that Southtown's
newspaper was produced in part by Alden with whom Respondents
had a labor dispute. We therefore conclude, contrary to the Trial
Examiner, that Respondents' publicity campaign conducted at the
shopping centers and in the vicinity of the city hall and county
buildings was not violative of Section 8(b) (4) (ii) (B).
3 See Jerseyville Retail Merchants Association, 144 NLRB 526; also see Service and
Maintenance Employees Union No . 399 (The William J Burns International Detective
Agency, Inc.), 136 NLRB 431, 433-437.
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner and
orders that the Respondents, Chicago Typographical Union No. 16
and Chicago Stereotypers Union No. 4, their officers, agents, and
representatives, shall take the action set forth in the Trial Exam-
iner's Recommended Order,4 with the following modification :
The following is substituted for paragraph 1(a) of the Recom-
mended Order :
"(a) Inducing or encouraging any individual employed by any
person engaged in commerce or in an industry affecting commerce
to engage in a strike or a refusal in the course of his employment
to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities or to perform any
services where an object thereof is either to force or require any
person to cease using, selling, handling, transporting, or otherwise
dealing in the products of Southtown Economist, Inc., or to cease
doing business with Southtown Economist, Inc., or to force or
require Southtown Economist, Inc., to cease doing business with
Alden Press, Inc." 5
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations not found herein.
4 The address of Region 13, given below the signature line in the Appendix attached to
.the Trial Examiner 's Decision , is amended to read : 219 S Dearborn St, Chicago , Illinois,
Telephone No. 828-7572.
8 The first indented paragraph of the notice beginning with the words "WE WILL NOT,"
is deleted and the following is substituted therefor:
WE WILL NOT induce or encourage any individual employed by any person engaged
in commerce or in any industry affecting commerce to use, manufacture , process,
transport , or otherwise handle or work on any goods , articles, materials , or com-
modities or to perform any services where an object thereof is either to force or
require any person to cease using , selling, handling , transporting , or otherwise deal-
ing in the products of Southtown Economist , Inc . or to cease doing business with
Southtown Economist , Inc , or to force or require Southtown Economist , Inc , to
cease doing business with Alden Press, Inc
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter heard by Trial Examiner Joseph I. Nachman , at Chicago , Illinois, on
February 6, 1964, involves a consolidated complaint 1 issued pursuant to Section 10(b)
of the National Labor Relations Act, as amended (herein called the Act), alleging
that Chicago Typographical Union No. 16 (herein called Local 16), and Chicago
Stereotypers Union No. 4 (herein called Local 4, and together with Local 16 called
Respondents ), violated Section 8(b) (4) (i ), ( ii) (A) and (B) of the Act , by picketing
Southtown Economist , Inc. (herein called Southtown ), and other persons herein-
after referred to, with an object of forcing or requiring Southtown to enter into an
agreement proscribed by Section 8(e) of the Act , and to cease doing business with
Alden Press , Inc. (herein called Alden ). Respondents filed their separate answers to
i Issued December 9, 1963 , upon charges filed October 14, 19G3. All events hereafter
related occurred in 1963 , unless otherwise noted.
CHICAGO TYPOGRAPHICAL UNION NO. 16 1671
the complaint admitting certain formal allegations, but denying the commission of any
unfair labor practice. At the hearing all parties were afforded full opportunity to
adduce pertinent evidence, to examine and „ross-examine witnesses, and to argue
orally on the record. Oral argument was waived. The General Counsel, Local 16.2
and the Charging Party each submitted a brief. Following the Supreme Court deci-
sion in N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760, 377
U.S. 58 (the so-called Tree Fruits case), I requested and the same parties submitted
supplemented briefs dealing with the effect of that decision on the proper disposition
of this case. All briefs have been duly considered.
Upon the pleadings, stipulations, evidence, and the entire record in the case,3 I
make the following:
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
Southtown is the publisher of a neighborhood newspaper circulating in South
Chicago. Its circulation is in an area bounded roughly by State Street on the east,
47th Street on the north, 114th Street on the south, and Cottage Grove on the west.
A number of its papers are sent daily from Chicago to points and places outside the
State of Illinois. Its annual gross revenue is in excess of $200,000, and it carries
advertisements placed by manufacturers of nationally sold products, such as Admiral
refrigerators and RCA television sets. In addition, Southtown carries advertisements
placed by firms doing business in the Chicago area, i.e., Walgreen Drug Stores, the
Fair Store, Carson Pirie Scott, Jewel Tea Company, Lerner Shops, and Kresge's.4
These are firms over whom the Board has asserted jurisdiction. See Walgreen Com-
pany, 114 NLRB 1168; The Fair, 68 NLRB 41; Carson Pirie Scott & Company, 69
NLRB 935; Jewel Food Stores, 111 NLRB 1368; Lerner Shops of Alabama, Inc., and
Lerner Stores Corporation, 91 NLRB 151; S.S. Kresge Company, 121 NLRB 374.
Alden is engaged at Chicago, Illinois, in the operation of a printing plant It
annually receives from and ships to points and places outside the State of Illinois,
commodities valued at in excess of $500,000.5
Upon the foregoing facts, I find and conclude that Southtown and Alden are
engaged in commerce. Mabee v. White Plains Pub. Co, 327 U.S. 178; Belleville
Employing Printers, 122 NLRB 350; Siemons Mailing Service, 122 NLRB 81.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the separate answers admit , and I find, that Local 16 and
Local 4 are labor organizations within the meaning of the Act.
III. THE FACTS 6
A. The nature of Southtown's operations and its business dealings with Alden
In connection with the publication of its newspapers,? Southtown has substantially
all of its composing room work done by outside firms, principally Westside Press
(herein called Westside). Included among the work Westside performed for South-
town was the composing of classified ads. The composing room employees at West-
side are represented by Respondents. About mid-September, Southtown awarded a
2 No brief was received from Local 4 I have assumed that Local 4 advances the same
arguments which are advanced by Local 16.
'After the close of the hearing, the General Counsel filed with me a written motion to
correct the record in certain particulars. No opposition to this motion has been received,
and it is now granted The motion has been marked TX Exhibit No. 1, and is made a
part of the record.
* The findings in the foregoing paragraph are based on the uncontradicted testimony
of Bruce Sagan, president of Southtown.
5 The findings in this paragraph are based on the uncontradicted testimony of Jerome
Spier, vice president of Alden.
' There are no credibility issues to be resolved. The evidence consists of a stipulation
of counsel, and the testimony of Jerome Spier, vice president of Alden, and Bruce Sagan,
president of Southtown, two witnesses called by the General Counsel As Respondents
called no witnesses, their testimony stands uncontradicted.
7 Southtown publishes the Southtown Economist, Southeast Economist, Suburbanite
Economist, and the Bulletin. Although there Is some overlapping, these circulate in dif-
ferent portions of the overall area set forth above.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract to Alden for the composing of classified ads, and thereafter such work was
performed only by Alden.8 Although some of Alden's employees are represented by
a union, its composing room employees are nonunion.
B. The Unions' demands upon Alden and Southtown
During the week of September 23, Hunt and Hollabaugh, president and organizer,
respectively, of Local 16, conferred with Spier, vice president of Alden. The burden
of the conversation, so far as Hunt and Hollabaugh were concerned, was that the
Union was concerned about the loss of Southtown's work, formerly performed in a
shop employing members of the Union, to Alden where the composing room employ-
ees are nonunion. In the course of discussion, Hunt told Spier that as Alden grew,
the latter's employees would eventually come to the Union to organize, and if Alden
would start with the Union now, he (Hunt) could help Alden grow. Spier dismissed
this suggestion by saying it was a matter for the employees to decide. Several days
later, in the course of a telephone conversation, Hunt told Spier that the moving of
this work from a union shop to Alden's nonunion shop, "was a very serious issue with
him." A few days later Hunt again telephoned Spier and reiterated "that the situa-
tion was very serious"; that he was under a lot of pressure because Southtown had
contracted the work in question to a nonunion shop.
During this period, officials of Local 16 also talked on several occasions with Sagan,
president of Southtown, in an effort to persuade Sagan to take the work of composing
classified ads away from Alden and give it to a shop employing members of Respond-
ents. The first of these was a telephone call by Hunt to Sagan during the week of
September 21. At this time Hunt asked Sagan to move the work Alden was doing
back to a union shop, and suggested several plants where Sagan might get the work
done; Sagan argued that the plants Hunt mentioned could not do the work within the
required time schedules and that he really had no place to send the work other than to
Alden. Finally, Hunt told Sagan that they had mutual friends in political life whose
aid he would enlist in an effort to get Sagan to return the work to a union shop. In
the week of September 29 Hunt again had a telephonic discussion with Sagan, telling
the latter that certain labor organizations had passed a resolution condemning his
(Sagan's) removal of work from a union shop, and that if the work remained in a
nonunion plant, the Union would have to give wide publicity to the message that
Southtown was unfair, and as Southtown's newspapers circulated in what Hunt called
a "union community," publicizing the "message" referred to would hurt Southtown.
On or about October 16 James O'Donahue, assistant secretary-treasurer of Local 16,
talked with Sagan at the latter's office. In the meantime picketing which will be
hereafter more fully discussed, had taken place beginning on October 11. O'Donahue
told Sagan, in substance, that he had been selected to head a drive to force Southtown
to put the classified composition work back into a union shop; that his union was
planning some things "that would hurt," and suggested that the matter be settled now
"before things really got started" because things were "going to get rough." O'Dona-
hue did not state what form the union's action would take, or when it might be
expected to occur. In the course of this discussion Sagan complained to O'Donahue
about the fact that Southtown's premises had been picketed, and O'Donahue replied
"that there was more to come." Sagan also told O'Donahue that the problem could
be solved if Local 16 organized Alden's composing room employees, and with this
end in view, and at O'Donahue's request, Sagan agreed to and did meet the following
day with Organizer Hollabaugh 9 Sagan explained in detail his reasons for concluding
that only Alden could furnish the work, within the time limitations required by
Southtown, stated he had a contract with Alden with which he had to comply, and
again suggested that Local 16 organize Alden's employees. Hollabaugh, however,
suggested that Sagan go with him to look at plants where Local 16 represented the
employees, with a view of sending the work there. During this meeting O'Donahue
again stated that he hoped Sagan "would do something before things got tough" for
Southtown.
C. The picketing
On October 11, and again on October 14, (the intervening days being a weekend)
the main office of Southtown located at 728 West 65th Street was picketed. This
office is at the intersection of 65th Street and Emerald Avenue, the building occupied
by Southtown having entrances on both streets. The main entrance and the one
s Except for composing classified ads, Westside continued to perform work for South-
town, as it had in the past.
0 Present at this meeting, held in Sagan's office, were Hollabaugh, O'Donahue, Sagan, and
Lerner, general manager of Southtown
CHICAGO TYPOGRAPHICAL UNION NO. 16 1673
which apparently is more frequently used by the public, is on 65th Street. On
Emerald Avenue there are three entrances: One is a loading dock, which apparently
is used only for the receipt of merchandise, and not by the public. The other two
entrances are used by employees and by the public; one going to the circulation depart-
ment, and the other to the editorial department. Members of the public transacting
business relating to classified ads, would use only the 65th Street entrance. The picket-
ing which was conducted on both 65th Street and Emerald Avenue, began about 9
am., and continued until about 5 p.m., on October 11, and for several hours on
October 14. The number of pickets varied from two to nine. The signs carried by
the pickets read:
UNFAIR TO UNION LABOR
SOUTHTOWN ECONOMIST
published by
BRUCE SAGAN
Typesetting and Stereotyping of Classified Pages
Is Now Being Performed By the Non-Union
SHOP OPERATING AT
5060 North Kimberly Avenue
MEMBERS OF CHICAGO TYPOGRAPHICAL AND STEREOTYPERS
UNIONS (AFL-CIO) ARE BEING DENIED WORK THEY HAVE
Performed For Mote Than Fifty (50) Years
Chicago Typographical Union No. 16
Chicago Stereotypers Union No. 4
THIS IS INFORMATIONAL PICKETING to
There is no showing that the pickets spoke to any employee performing services at
Southtown's premises, or that there was any refusal to perform services at the picketed
premises of Southtown.
On October 18 picketing occurred at the Evergreen Plaza Shopping Center, 95th
and Western Avenue, Evergreen Park, Illinois. This shopping center consists of
about 40 retail establishments dealing in a variety of goods and services, including
among others, a branch of Montgomery Ward and Fair Store, Henry G. Lyttons, and
Carson Pirie Scott, the latter two being department stores operating in the Chicago
area, and a Walgreen Drug Store which sells papers published by Southtown. Most of
the stores in this shopping center advertise in one or more of the newspapers South-
town publishes. As part of this shopping center there is a large parking lot for
customers of the stores operating therein. While the record is not entirely clear on
the point, the picketing at this location was apparently conducted in the same manner
as the picketing at the Hyde Park Shopping Center, hereafter referred to.
Also on October 18, Respondents picketed a suburban office of Southtown, Located
9818 South Western Avenue, Evergreen Park, Illinois. This office is about two blocks
from the Evergreen Plaza Shopping Center previously referred to. At this location a
full staff of editorial and office personnel are employed, single copies are sold, and
subscription orders are taken. Advertisements, both classified and display, may be
placed at this office. The record does not indicate the duration of the picketing at
this location, but Sagan observed the pickets for about 20 to 30 minutes . There is no
showing of any refusal to perform services at these premises because of Respondent's
picketing.
On October 22, Respondents picketed the New Hyde Park Shopping Center at 55th
and Lake Park; the 53d and Kimbark Shopping Center; and the 63d and Halstead
Shopping Area, all located within the area served by Southtown's papers.
The new Hyde Park Shopping Center consists of about 20 retail stores dealing in
a variety of goods and services. One of these is Cohn and Stern, Incorporation (herein
called C & S), a retailer of men's furnishings, which advertises in papers published by
Southtown to the extent of about $1,000 a year.11 The picketing at this location
lasted about 2 hours while the various establishments were open for business. It
consisted of several individuals wearing the aforementioned sign walking continuously
back and forth on the sidewalk in front of all the stores One picket confined his
10 The parties stipulated that this sign was used in all picketing herein referred to It
is also admitted that in each instance of picketing, the picket carried a supply of leaflets,
a copy of which is in evidence, that they distributed generally to motorists and passersby.
Both Respondents admit that they authorized, and are responsible for, all picketing herein
referied to.
"The stipulation of the parties recites that two establishments in the Hyde Park
Shopping Center do or have advertised in Southtown's newspapers The stipulation does
not show whether the other firm is a current advertiser, or the nature of its business.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patrolling to the area immediately in front of the premises of C & S for periods of
5 to 10 minutes at a time. The number of times this happened is not disclosed by
the record.
The 53d and Kimbark Shopping Plaza consists of 12 retail stores dealing in a
variety of goods and services. The only store in this shopping center advertising in
Southtown's papers is Par Drug, Incorporated, whose advertising with Southtown
during the past year was in excess of $1,000. The picketing at this location also
lasted about 2 hours, and consisted of persons wearing the aforesaid signs walking
continuously back and forth in front of all the stores with no more time being spent
by the pickets in front of Par Drug than was spent in front of any other store.
The intersection of 63d and Halstead is the center of a high density retail area
extending for several blocks in all directions. Along Halstead Street, between 63d
and 65th Streets, there are about 65 retail stores dealing in a variety of goods and
services, including Hamburgs, a women's apparel shop. Each year since 1954, Ham-
burg has placed advertising in Southtown's papers to an extent of more than $1,000.
Other stores in this shopping center who advertise in Southtown's newspapers are
Sears Roebuck, Wieboldt's Department Store, Chicago City Bank and Trust Company,
Walgreen Drug, and Howard Clothes. Advertising by these ran from $2,000 to over
$10.000 a year by each advertiser. During the evening hours of October 22, pickets
wearing the aforementioned signs patrolled along Halstead Street, between 63d and
65th Street, and along 63d Street, on both sides of the intersection of Halstead Street,
apparently while the establishments in the area were open for business. Approxi-
mately one-third of the establishments along the area patrolled as aforesaid, advertise
or have advertised in Southtown's papers. On at least two occasions, the pickets
walked past Hamburgs, but they were not in front of Hamburgs for any greater period
of time than was necessary to walk past that establishment, nor for any greater period
of time than was spent in front of any other establishment along the patrolled route.
Except for Hamburgs, the record does not show whether the other advertisers above-
mentioned by name are located in the area patrolled by the pickets as above set forth.
On or about November 15, Respondents picketed an entrance commonly shared
by the city hall and Cook County buildings in the "Loop" area of the city of Chicago.
These buildings are about 6 miles north of the northernmost limits of the circulation
area of the Southtown's papers. The buildings referred to house various governmental
agencies of the city and county, including among others, the circuit and superior
courts, county assessor, county treasurer, sheriff, the License Bureau and the Depart-
ment of Water and Sewers. While many of the agencies housed in the aforesaid
building do no newspaper advertising, the clerk of the circuit court, the county
treasurer and the county assessor do, from time to time, place advertisements con-
nected with their official duties, in newspapers published by Southtown. During 1963
such advertisements ran to a figure in excess of $25,000.
D. Discussion and concluding findings
The General Counsel contends that by picketing the premises of Southtown,
Respondents induced and encouraged individuals employed by Southtown to refuse
to perform services, and that said picketing and the picketing at the various shopping
centers and at the city and county buildings, as set forth above, constituted restraint
and coercion of Southtown, of the stores in the aforementioned shopping centers, and
of officials housed in the city and county buildings who, in their official capacity,
advertise in Southtown's paper. With respect to object, the General Counsel con-
tends that Respondent's conduct being to force or require Southtown to commit itself
to give the work of composing classified ads only to firms employing members of
Respondents, violated Section 8(b)(4)(A); and also being to force or require South-
town to cease doing business with Alden, the picketing additionally violated Section
8(b) (4) (B).12
"Section 8(b) (4) (1), (ii) (A) and (B) of the Act makes it an unfair labor practice
for a labor organization or its agents-
(4) (1) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in any industry affecting commerce to engage in, a
strike or a refusal In the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services; or (u) to threaten, coerce or restrain any per-
son engaged In commerce or In an industry affecting commerce, where in either
case an object thereof is:
(A) forcing or requiring any employer or self-employed person . . . to enter
into any agreement which is prohibited by Section 8(e) ;
CHICAGO TYPOGRAPHICAL UNION NO. 16 1675
In support of their contention that the aforementioned conduct was not in violation
of the Act as urged by the General Counsel, Respondents advance the following
contentions:
1. Respondents' dispute was with Southtown, hence the picketing which, it is
claimed, was directed only at the latter, was protected primary activity. In this con-
nection Respondents disclaim any dispute with Alden.13 Respondents urge that these
activities were simply the method employed to notify the public that Southtown had
contracted the work in question to a nonunion shop.
2. The evidence fails to establish that an object of Respondents' conduct was to
force Southtown to "enter into" a "contract or agreement" of any kind; and if such
object be found, then the "contract or agreement" sought is not one prescribed by
Section 8(e).
3. The evidence fails to establish that the picketed establishments are engaged in
commerce or in an industry affecting commerce.
4. If the Act be construed to proscribe the conduct engaged in by Respondents, it
is violative of the first amendment and hence unconstitutional.
Applying the statutory provisions to the facts of the instant case, the first question
to be determined is did Respondents induce or encourage any employed individual to
engage in a work stoppage, within the meaning of Section 8(b) (4) (i), or threaten,
coerce, or restrain any person within the meaning of Section 8 (b) (4) (ii). I treat first
with the question of inducement under Section 8(b) (4) (i). The Board originally
took the view, as announced in Perfection Mattress & Spring Company, 129 NLRB
1014, that picketing at the premises of a secondary employer necessarily invited action
by employees to refrain from working behind the picket line, and hence constituted
inducement of employees to engage in a work stoppage. In the more recent Tree
Fruits case,14 however, the Board abandoned the rationale of Perfection Mattress,
supra, and now holds that picketing at the premises of a secondary employer does
not per se constitute inducement of neutral employees, "nor does it raise an irrebut-
table presumption as to the intent or probable consequences of the picketing." And
whether such picketing was "intended or calculated" to induce a work stoppage, said
the Board, "is to be determined by all the evidence in that particular case and not
by an a priori assumption" (132 NLRB 1176-1177). I understand this to mean
that absent an actual work stoppage, or some conduct by the picketing union from
which an inference may reasonably be drawn that the picketing was intended to, or
had the necessary effect of an appeal to the secondary employees to engage in a
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person, . .. .
Provided, That nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or primary picketing,
s s t s s s t
. . . Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public, including consumers and
members of a labor organization, that a product or products are produced by an
employer with whom the labor organization has a primary dispute and are distributed
by another employer, as long as such publicity does not have an effect of inducing
any individual employed by any person other than the primary employer in the course
of his employment to refuse to pick up, deliver, or transport any goods, or not
perform any services, at the establishment of the employer engaged in such
distribution , . . .
Section 8(e) provides-
(e) It shall be an unfair labor practice for any labor organization and any em-
ployer to enter into any contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain from handling, using, selling,
transporting or otherwise dealing in any of the products of any other employer, or
to cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforceable and void: . . .
"The General Counsel concedes that such picketing did not constitute "inducement"
or "encouragement" of any employed individual to engage a work stoppage. The General
Counsel urges a violation of Section 8 (b) (4) (1) only with respect to the picketing of
Southtown
14132 NLRB 1172. The 8(b)(4)(ii) aspects of the Board's decision in that case, and
the Supreme Court's decision therein (377 U S 58), will be discussed post.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work stoppage, no violation of Section 8(b) (4) (i) may be found, and that the
burden rests with the General Counsel to prove a work stoppage or facts from which
the aforesaid inference may appropriately be drawn.
In the instant case there is no evidence of any work stoppage either at the picketed
shopping centers, the city and county buildings, or at Southtown's premises. Indeed,
the only thing the General Counsel proved was that picketing at the aforesaid loca-
tions did occur. I find nothing in the Union's conduct, or in the circumstances of
the picketing, to support an inference that such picketing was "Intended or calculated"
to be an appeal to any employee to engage in a work stoppage Accordingly, I find
and conclude that the evidence fails to establish that Respondents induced or
encouraged any employed individual to engage in a work stoppage within the meaning
of Section 8(b) (4) (I) of the Act.
Turning now to the Section 8(b) (4) (ii) aspects of the case, consideration will first
be given to the applicability of the recent Supreme Court decision in N.L.R.B. v.
Fruit and Vegetable Packers & Warehousemen, Local 760, (Tree Fruits Labor Rela-
tions Committee, Inc.) 377 U.S. 58, the so-called Tree Fruits case, to the facts of the
instant case. In that case the Board had held (132 NLRB at 1177), that picketing
of a Safeway store with banners appealing to the public not to buy certain apples being
sold in the picketed store, because of a labor dispute which the picketing union had
with the producer of the apples, constituted a threat to, and restraint and coercion of
Safeway, within the meaning of Section 8(b) (4) (ii), because of the clear legislative
intent, as the Board found, to proscribe consumer picketing. The Supreme Court did
not disagree with the Board's holding that picketing there involved constituted a threat
to, and restraint and coercion of Safeway; it disagreed with the result reached by the
Board, because, as the Court held, the legislative history did not clearly reveal, as
the Board had held, a congressional purpose to bar an appeal to the public not to buy
particular products produced by a disfavored employer. The Court went on to point
out that had the union in that case appealed to the public not to deal with Safeway
at all, because the latter sold the products of an employer with whom the union had
a dispute, there would have been a violation of the statute, because in such a case
the union's appeal would have gone "beyond the goods of the primary employer and
[sought] the public's assistance in forcing the secondary employer to cooperate with
the union in its primary dispute" (377 U.S. 58, 55 LRRM at 2963-2964). In such
cases, said the Court, the picketed employer "stops buying the struck product, not
because of a falling demand, but in response to pressure designed to inflict injury on
his business generally" (id. at 2967).
Applying the foregoing to the facts of the instant case, I find and conclude that the
picketing at the shopping centers was not directed at the business establishments doing
business there, and hence did not constitute a threat to, or restraint or coercion of
them. For the same reason the picketing at the City County Buildings did not
threaten, coerce or restrain the public officials there located. The purposes and
effect of this picketing was, I find and conclude, just what Respondents claim it was, an
appeal to the general public not to purchase papers published by Southtown and not
to place classified ads therein on order to force Southtown to terminate its business
relations with Alden, or have both suffer the economic consequences of reduced busi-
ness.15 The same is true of the statements made to Sagan by Hunt, Hollabaugh and
O'Donahue, all as set forth above. And, as hereafter discussed, so far as Section
8 (b) (4) (B) is concerned, this pressure on Southtown was not closely confined to
Respondent's labor dispute with Alden, but created a separate dispute with Southtown,
a secondary employer. Cf. Tree Fruits case, supra, at 2967.
Accordingly, I find and conclude that by the aforesaid picketing and oral state-
ments to Sagan, Respondents threatened, coerced, and restrained Southtown and
Alden, within the meaning of Section 8 (b) (4) (ii) of the Act.
There remains for consideration the question whether Respondents' threats to, and
restraint and coercion of Southtown and Alden, as above found, had an object
proscribed by Section 8(b)(4)(A) or (B) of the Act. The uncontradicted evidence
is that the demand made by Respondents on Southtown was that the latter take the
work in question away from Alden, a nonunion employer, and give said work only
to an employer under contract with Respondents. Such a provision, the Board has
consistently held. is proscribed by Section 8(e) because it "dictates to the employer
those persons with whom he shall be permitted to do business...." (Patton Ware-
house, Inc, 140 NLRB 1474 at 1486), order enforced on this point Truck Drivers
"The evidence shows that the vast majority of the advertising done Eby the shop owners
and by the public officials, is so-called "display" advertising The composition of display
advertising is work which Southtown permitted to remain with Westside.
CHICAGO TYPOGRAPHICAL UNION N0. 16 1677
Union Local No. 413, etc. (Patton Warehouse, Inc.) v. N.L.R.B., 334 F 2d 539, 55
LRRM 2884 (C.A.D.C.). To the same effect see District No. 9, International Associ-
ation of Machinists, AFL-CIO (Greater St Louis Automotive Trimmers and Uphol-
sterers Association, Inc.) 134 NLRB 1354, enfd 315 F. 2d 33 (C.A.D.C.); California
Association of Employers, 145 NLRB 1475; Joint Council of Teamsters No. 38, et al.,
Arden Farms Co., et at., 141 NLRB 341. While the Board has drawn no such distinc-
tion, Respondents' demand in the instant case does not fall in the category of one
designed only for the protection of union standards, but constitutes rather a boycott
of all contractors not signatory to a union agreement, a distinction which the Court
of Appeals, in the Local 413 case, supra, held to be the critical factor distinguishing a
valid agreement from one proscribed by Section 8(e). As Respondents' threats to,
and coercion and restraint of Southtown was to force or require the latter to agree
not to deal with any employer not under contract with Respondents, I find and con-
clude that Respondents thereby violated Section 8(b) (4) (A) of the Act.1c
Respondents' demand on Southtown was that it not do business with Alden. It is
thus clear, and I find, that an object of Respondents' conduct was to force or require
Southtown to cease doing business with Alden, and, therefore, that Respondents also
violated Section 8(b) (4) (B) of the Act.
Respondents' contention that they had no dispute with Alden, but only with South-
town, because the latter is the one that deprived their members of the work in ques-
tion, and therefore, that there is no secondary boycott, the only conduct to which
Section 8(b)(4)(B) is applicable, is without merit under Board and court decisions.
See Sound Shingle Co., 101 NLRB 1159, enfd. 211 F. 2d 149 (C.A. 9); Ocean Ship-
ping Service, Ltd., 146 NLRB 723. I also find without merit the two remaining con-
tentions advanced by Respondents; namely, (1) that there is no showing that any
person allegedly threatened, coerced, or restrained, is engaged in commerce, and (2)
that if Section 8(b)(4) of the Act be construed to proscribe the conduct engaged in
by Respondents, it is unconstitutional. As to (1) Respondents admitted, and I have
found, that Southtown and Alden are engaged in commerce, and they are the only
"persons" I have found to have been threatened, coerced, or restrained. As to (2),
the Board assumes the constitutionality of statute it is charged with administering until
the contrary is determined by the courts. Rite-Form Corset Company, Inc., 75 NLRB
174.
IV. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, it will be
recommended that they be required to cease and desist therefrom, and take certain
affirmative action necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Southtown and Alden are employers engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Respondents are labor organizations within the meaning of Section 2(5) of
the Act.
3. By the picketing and oral statements, all as set forth above, Respondents
threatened, coerced, and restrained Southtown and Alden, and that objects of said
conduct were (1) to force or require Southtown to enter into an agreement prohibited
by Section 8(e) of the Act, and (2) to force or require Southtown to cease using,
selling, handling, transporting, or otherwise dealing in the products of, or to cease
doing business with Alden, and thereby engaged in unfair labor practices proscribed
by Section 8(b) (4) (A) and (B) of the Act, as more fully set forth above.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
16I have found, as hereafter set forth, that for the purposes of Section 8(b) (4) (B),
Southtown is a secondary employer, and only threats to, or coercion and restraint of the
latter violate that section. However, for the purposes of Section 8(b) (4) (A), the dis-
tinction between primary and secondary activity is of no relevance ; either violates the last
mentioned section. The Associated Contractors of Essex County, Inc, 141 NLRB 858 ;
Chicago and Illinois Hairdressers Association, 120 NLRB 936, 940 For this reason,
I have found that Respondents' conduct, to the extent that it was directed at Alden, to
be violative of Section 8(b)(4)(A), but not violative of Section 8(b)(4)(B), and have
framed my Recommended Order accordingly.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The evidence fails to establish that Respondents induced or encouraged any
employed individual to engage in a work stoppage, and that allegation of the com-
plaint should be dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is hereby ordered that Respondent, Chicago
Typographical Union No. 16 and Chicago Stereotypers Union No. 4, their respective
officers, agents , representatives , successors and assigns , shall:
1. Cease and desist from:
(a) Threatening , coercing , or restraining Southtown Economist , Inc., Alden Press,
Inc., or any other person engaged in commerce or in an industry affecting commerce,
where an object thereof is to force or require Southtown Economist, Inc., to enter
into any agreement prohibited by Section 8(e) of the National Labor Relations Act,
as amended.
(b) Threatening, coercing, or restraining Southtown Economist, Inc., or any
other person engaged in commerce, or in an industry affecting commerce, where an
object thereof is to force or require Southtown Economist, Inc., to cease using,
selling, handling, transporting, or otherwise dealing in the products of, or to cease
doing business with Alden Press, Inc.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act.
(a) Post at their respective business offices and meeting halls in Chicago, Illinois,
copies of the attached notice marked "Appendix." 17 Copies of said notice, to be
furnished by the Regional Director for Region 13 of the Board, shall, after being duly
signed by an authorized representative of each Respondent, be posted by Respondents,
respectively, immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days, thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
each Respondent to insure that the notices posted by it are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of the aforesaid notice to the Regional Director
for Region 13 of the Board, for posting by Southtown Economist, Inc., and Alden
Press, Inc., said companies being willing, at all locations where notices to their
employees are customarily posted.
(c) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps they have severally taken to comply herewith.18
17 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice will he further amended by the substitution of the
words "a Decree of the United States Court of Appeals, Enforcing an Order" for the
words "a Decision and Order."
18 In the event that this Recommended Order Is adopted by the Board , this provision
shall be modified to read, "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps they have severally taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF CHICAGO TYPOGRAPHICAL UNION No. 16,
AND CHICAGO STEREOTYPERS UNION No. 4
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Southtown Economist, Inc., Alden
Press, Inc., or any other person engaged in commerce or in an industry affecting
commerce, where an object thereof is to force or require Southtown Economist,
Inc., to enter into an agreement prohibited by Section 8(e) of the National
Labor Relations Act, as amended.
WE WILL NOT threaten, coerce, or restrain Southtown Economist, Inc, or any
other person engaged in commerce or in an industry affecting commerce, where
PERMA VINYL CORPORATION 1679
an object thereof is to force or require Southtown Economist , Inc., to cease
using, selling, handling, transporting , or otherwise dealing in the products of,
or to cease doing business with Alden Press, Inc.
CHICAGO TYPOGRAPHICAL UNION No. 16,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
CHICAGO STEREOTYPERS UNION No. 4,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , Midland
Building, 176 West Adams Street , Chicago, Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
Perma Vinyl Corporation and International Ladies' Garment
Workers Union , AFL-CIO. Case No. 12-CA-2946. April 14,
1965
DECISION AND ORDER
On December 23, 1964, Trial Examiner John F. Funke issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in his attached Decision. The Trial
Examiner further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and
lie recommended the dismissal of these allegations. Thereafter,
the General Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the briefs, and the entire
record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the modifications
hereinafter set forth.
The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (1) of the Act by engaging in certain conduct,
151 NLRB No. 157.