Wire Service Guild, Local 222

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1234 (N.L.R.B. 1975)

1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wire Service Guild, Local 222, The Newspaper Guild,
AFL-CIO-CLC and The Miami Herald Publish-
ing Company . Case 12-CC-873
June 30, 1975
DECISION AND ORDER
On August 21, 1974, Administrative Law Judge
Robert Cohn issued his Decision in the above-
entitled proceeding, fording that the Respondent had
engaged in certain unfair labor practices alleged in
the complaint and recommending that it cease and
desist therefrom and take certain affirmative action
as set forth in the attached Administrative Law
Judge's Decision. The Respondent filed exceptions
and a brief in support thereof, and the Charging
Party filed an answering brief.
The Board has reviewed the rulings of the
Administrative Law Judge made at the hearing and
finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has consid-
ered the Administrative Law Judge's Decision, the
exceptions, the briefs, and the entire record in this
proceeding, and hereby adopts the findings, conclu-
sions , and recommendations, only to the extent
consistent herewith.
The facts, which are more fully described in the
attached Administrative Law Judge's Decision, may
be summarized as follows: United Press Internation-
al, herein the UPI, and the Respondent, as represent-
ative of certain employees of UPI, have been parties
to a collective-bargaining agreement which expired
on March 15, 1974, a part of a nationwide agreement
which covered the approximately seven employees of
the UPI at the Miami location. On March 18,1 when
it became apparent that the negotiation for a new
contract would not be consummated in the near
future, the Respondent commenced a strike against
UPI and a picket line was placed at points around
the Miami Herald Building in which the UPI has
office space and in which some of its news-gathering
equipment is located.
The picket line was placed at points around the
building where employees, including the approxi-
mately seven members of the UPI bargaining unit,
enter and leave in going to and from work. At that
time the picket signs bore the legend in large letters,
"Wire Service Guild AFL-CIO-CLC on strike
against United Press International."
On March 18, after the commencement of the
strike, Lester C. Kjos, chairman of the Respondent's
Miami operations, received a hand-delivered letter
from the Herald's counsel in which the Respondent
I Unless otherwise specified all dates refer to the year 1974
was informed that UPI's offices were located at room
450 in the Herald Building, and indicated that
continuation of the picketing at any place other than
"the area of the corridor extending between the
doorway to Room 450 and the doorway to Room 449
at the above building would constitute a violation of
the Labor Management Relations Act and requires
that appropriate legal action will be taken."
Although Kjos did not directly respond to the
letter, he did inform the Herald's general manager,
Carter, soon thereafter that Respondent could
arrange to remove the pickets if UPI employees left
the building. Carter replied that the Herald was
dependent upon the services of the UPI and would
not ask them to leave the building. Around the same
time Respondent added additional language to the
picket signs which stated: "Not intended to appeal to
anyone other than UPI employees to cease work."
The foregoing additional language was approximate-
ly one-fifth the size of the other language on the
picket sign, but was nevertheless clearly visible and
readable. There is no evidence that the Respondent
orally or otherwise induced employees of neutral
employers not to cross the picket line, but, to the
contrary, Respondent affirmatively sought to induce
known union members working for employers with
whom there was no dispute to cross the picket line,
explaining the limited nature of the dispute.
Unfair labor practice charges in this matter were
filed on March 19. The Respondent did not remove
the pickets from the outside of the Herald building
until the strike was settled on or about April 15.
The record shows that the pickets patrolled from
the public driveway going under the building along
the walk-in entrance at the front of the building. The
picketing took place at the entrances which the UPI
employees normally use to go in and out of the
building. Other employees, suppliers, servicemen,
and customers also use the entrances near where the
Respondent maintained pickets.
The Administrative Law Judge indicates, and
indeed no party disputes, that, with one exception to
be discussed below, the picketing was rigorously
tailored to meet the proscription of Moore Dry
Dock.2 The picketing was limited to times when UPI
employees were working or were scheduled to work;
during the time of the picketing the primary, UPI,
was engaged in its normal business; and the picket
signs clearly disclosed that the dispute was with the
primary employer, the UPI. The disagreement
between the parties, and the one criteria which is in
dispute, is whether the picketing was reasonably
close to the situs of the dispute.
2 Sailor's Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547 (1950).
218 NLRB No. 186
WIRE SERVICE GUILD, LOCAL 222 1235
Relying on Retail Fruit-& Vegetable Clerks' Union
(Crystal Palace Market),3 and certain cases involving
ambulatory picketing,4 the Administrative Law
Judge found significant the fact that the Respondent
did not directly respond to the Miami Herald's
invitation of March 18 to confine its picketing to the
corridor inside the building, as close as possible to
the Respondent's headquarters office in Room 450.
The Administrative Law Judge interpreted the
Respondent's silence to support the inference that
the picketing was not conducted so as to minimize its
impact on neutral employees, but was for a second-
ary objective.
To demonstrate its true objective, in the view of the
Administrative Law Judge, the Respondent was
required to respond to the neutral employer's
"initiative," and its failure to do so or to raise any
objections or alternatives 'compelled the conclusion
that an object of Respondent's picketing in this case
was to force or require persons to cease doing
business with UPI in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act.
Accordingly, the Administrative ]Law Judge con-
cluded that the Respondent's conduct evidenced a
secondary object. For the reasons stated below, we
do not agree.
Initially, we find that the precedents relied upon by
the Administrative Law Judge are factually distin-
guishable from those involved here and the law cited
in support of his position is inapposite. In Crystal
Palace Market, the employees of a "neutral" or
"secondary" employer had refused to cross the picket
line in a common situs picketing situation, and had
been so induced by the respondent union. Moreover,
the Board specifically found that the picketing was
not in all instances in the immediate vicinity of any
business operated by the primary employer. But
more important, the Board found that there was
enough physical space inside the area to which the
picketing union was invited to effectively picket.
The other major case relied on by the Administra-
tive Law Judge, AAA Motor Lines, Inc.,5 is also
inapposite . For in that case the Board was concerned
only with the manner in which ambulatory picketing
at the premises of neutral employers could be
accomplished without enmeshing neutral employers.
The Board did not intend that the holding in that
case with respect to "initiative" be expanded to apply
to a case where the picketing occurs at the primary
employer's normal place of business , as here. AAA
involved the picketing of the primary's trucks at the
premises of neutral employers, primarily warehousers
and terminal operators , with whom the primary did
3 116 NLRB 856, 858-859 (1956 ), enfd., 249 F .2d 591 (CA. 9, 1957).
4 See cases cited in the attached Decision, fns., 14, 15, and 16.
5 Local Union #612, International Brotherhood of Teamsters, Chauffeurs,
business. The primary's trucks would be on the
premises of such neutral employers only for short
periods of time to make deliveries or pickups. Most
of these neutrals did business with numerous other
trucking companies.
Thus, in AAA the respondent, under Moore Dry
Dock standard 3, was responsible for picketing
reasonably close to the primary's trucks to avoid, if
possible, enmeshing neutral employers. The issue was
whether the union could picket in the street at the
main gates or entrances to the warehouses and
trucking terminals involved and thereby increase the
possibility of enmeshing neutrals or whether it should
have attempted to get close to AAA's trucks. Of
course, if the union had entered the warehouse or
terminal operator's premises without permission, it
might have been subject to arrest for trespassing. The
issue as stated by the Administrative Law Judge and
accepted by the Board was simply whether the
initiative lies with the picketing union to ask permis-
sion to enter the neutral's property and picket
reasonably close to the primary's truck (between the
headlights) orwhether it lies with the picketed neutral
employer to issue such an invitation. Since the union
was responsible for meeting the Moore Dry Dock
standards, the Board in agreement with the Adminis-
trative Law Judge found that such initiative logically
must be taken by the picketing union. Had the union
requested and been denied such permission, it could
have picketed at the main entrances.
But here we are not dealing with ambulatory
picketing at the situs of a neutral, for the Herald
Building is also the situs of the primary, UPI.
Picketing outside the primary's place of business at
entrances normally used by the primary's employees,
customers, and suppliers has always been reasonable
under the Moore Dry Dock standards. An exception
arises where a reserved gate is established; however,
we are not faced with that issue here. In sum, the
Board did not intend that the "initiative" holding of
AAA be extended from the ambulatory picketing
situation to picketing at the primary's customary and
normal place of business.
As for the letter to the Respondent by the
"neutral" employer, the Herald, we find that the
letter proposed no alternatives and was conclusion-
ary and final in tone requiring no answer or initiative
by the Respondent. The letter arbitrarily set up a
picketing area to limit the Respondent's activity.
The hallway in question, as delineated by the
Miami Herald, measured 30 or 35 by 5 feet. Lighting
in the hallway, at the time of the strike admittedly
was below normal because of the Herald's policy of
Warehousemen and Helpers of America a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America Ind. (AAA
Motor Lines, Inc.), 211 NLRB 608 (1974).
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conserving electricity due to the energy crisis, and
there is some question whether the signs would be
readable. The hallway by room 450 was too narrow
to support more than one or two pickets, and
certainly not the three or four pickets which the
Respondent felt necessary for effective picketing.
Moreover, the record shows that the Respondent's
business in the Herald building was not exclusively
limited to room 450. Technicians, under contract
with the UPI, service UPI teletype machines in
offices on the fourth and fifth floors. In addition,
UPI Manager Herndon testified that UPI employees
go to the fifth floor on a daily basis to perform job
functions and that UPI photographers would have
occasion to look at the photographs in the Herald's
photography department on the fifth floor every day.
If Respondent's pickets stationed themselves closely
in front of room 450, as demanded by the Herald,
they would in all probability have missed UPI-
employed and UPI-contracted servicemen going into
the Herald building in connection with UPI-related
employment. Additionally, the record indicates that
both management and employees confer with UPI
personnel on a daily basis on other floors than the
fourth and in rooms other than near room 450.
Thus, had the pickets restricted themselves to the
hallway in front of room 450, as demanded by the
Herald, their ability to reach UPI personnel on a
daily basis would have been severely impaired.
Perhaps equally important, their ability to influence
Herald employees who normally supply information,
photographs, and other services to UPI, but who
seldom enter room 450 offices, not to provide such
services for UPI would be rendered ineffective.
Accordingly, we find that the Herald's attempt to
limit the picketing of the Respondent to a location
near room 450 not only was impractical but would
have seriously impaired the Respondent's right to
engage in a valid and legal strike to put pressure on
the primary employer, the UPI.
• We find that the Respondent by picketing reason-
ably close to the situs of the primary dispute, in front
of those entrances of the Herald building where UPI
employees contacted employees and UPI business
associates would normally enter and leave, fully met
Moore Dry Dock standards. We conclude, therefore,
that the Respondent at all times limited its picketing
to a primary objective and met all reasonable
6 Moreover, we note , contrary to the findings of the Administrative Law
Judge that the response by Union Official Kjos to the inquiry of Herald
General Manager Carter in a telephone conversation around March 19 that
the pickets would be removed from the building if UPI were removed from
the Herald building does not in our opinion constitute evidence of an
unlawful object. Rather, we interpret such bare request , standing alone, as
further evidence that Respondent was attempting to adhere as closely as
possible to the proscriptions of Moore Dry Dock, and thus was not violative
of Sec . 8(b)(4) See Truck Drivers & Helpers Local Union No 592 (Estes
Express Lines, Inc), 181 NLRB 790, 791 (1970) Nor do we find any ment in
standards to minimize enmeshing neutral employ-
ers.6
All these above considerations, in combination,
persuade us, contrary to the Administrative Law
Judge, that the record as a whole does not reflect an
illegal object behind the picketing by the Respon-
dent. We shall, therefore, dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBERS KENNEDY and PENELLO, dissenting:
We agree with the Administrative Law Judge's
conclusion that Respondent Union's picketing vio-
lated Section 8(b)(4)(i) and (ii)(B) of the Act. In our
judgment, the reasons offered by the majority as
justification for reversing the Administrative Law
Judge do not address the ultimate legal issue-
namely, whether Respondent's picketing was de-
signed to accomplish an object proscribed by Section
8(b)(4)(B).
In early 1974, Respondent and United Press
International (UPI) sought to renegotiate their
existing collective-bargaining agreement. On March
18, Respondent commenced a strike against UPI in
support of its bargaining demands. Since UPI
occupied a suite of offices in a building owned by the
Charging Party (Herald), a picket line was estab-
lished at points around' the Herald building where
employees and customers entered. In an effort to
geographically circumscribe the picketing to the
extent possible, Herald's general manager (Carter)
dispatched a letter to a local official of Respondent
(Kjos) indicating that the Union was "authorized
and requested" to picket only in the corridor leading
to UPI's suite.
Respondent never replied by letter or other written
communication to Carter's request. Kjos did, howev-
er, call Carter on the telephone a few days later in
order to, "inform Mr. Carter what our legal basis was
and what would happen if UPI left . . . ." 7
According to Kjos, he told Carter, "[y]ou have the
option in this thing if you want to get rid of us in
front of your building, as you obviously do. Of
the conclusion of the Administrative Law Judge that the Respondent was
obligated to show "initiative" and bargain with the Herald if it were not
satisfied with the picketing limitations set forth in the Herald's letter of
March 18 The legality or illegality of picketing under Sec 8(bX4XB) is not a
subject for collective bargaining , but is an issue the Board must decide
under the Act.
7 While Kjos indicated in response to a leading question that his phone
call may have been prompted "to a degree" by Carter's letter, he
acknowledged that he was following "instructions from my people in
Atlanta asking me to do this."
WIRE SERVICE GUILD, LOCAL 222 1237
course , if the UPI bureau isn't here, we won't be
here." Kjos testified that the conversation ended
when Carter replied that the Herald had considered
asking , UPI to leave the premises but had rejected the
idea "because we wanted to continue their news
service." At no point during this conversation did
Kjos indicate that compliance with Carter's request
to relocate the picketing would render the picketing
ineffective either by virtue of space limitations in the
corridor or by virtue of an inability to reach all UPI
employees. Indeed, Carter's request to picket inside
the building was apparently not even discussed.
Respondent's picketing of the entrances to the
Herald building continued for the duration of the
strike, During this period, there were no further
communications between Kjos and Carter.
On these facts, the Administrative Law Judge
concluded that an object of Respondent's picketing
was to "force or require persons to cease doing
business with UPI in violation of Section 8(b)(4)(i)
and (iLi)(B) of the Act." We agree.
As with all picketing alleged to violate Section
8(b)(4)(B), . the primary focus of our inquiry here is to
determine from all of the evidence whether "an
object" of the picketing was to enmesh Herald and
other neutral employers in Respondent's dispute with
UPI." When the picketing, as here, is conducted at a
"common situs ," the Board relies heavily upon
compliance with the four guidelines established in
Sailor's Union of the Pacc (Moore Dry Dock
Company), 92 NLRB 547 (1950). In the instant case,
the only guideline which has been placed in issue is
that which requires the picketing to be "limited to
places reasonably close to the situs of the dispute."
Unlike our colleagues,, we find that Respondent's
picketing did not satisfy this standard. Respondent
made no effort whatsoever to limit the picketing so as
to minimize its effect on neutral employers. The
dispute here was with UPI. Accordingly, the "situs of
the dispute" is obviously the suite of offices leased by
UPI. Rather than picket the suite entrance as
requested by Herald, however, Respondent elected to
picket the entire building. Respondent contends that
picketing at the building entrances was, in fact,
"limited to places reasonably close to the location of
the situs."
We were faced with a similar issue in AAA Motor
Lines, Inc., 211 NLRB 608 (1974). There, a union
engaged in a dispute with a trucking company
picketed the entrances to terminals operated by
8 In addition to UPI , for example, the Herald also rented office space to
United Airlines and the Social Security Administration at the time of the
picketing.
9 Respondent's prestrike notification to Herald that picketing would be
confined to "the same building entrances" normally used by UPI employees
is obviously not a request to enter the building and picket the UPI suite.
Compare the union requests in Estes Express Lines, Inc., 181 NLRB 790,
neutral employers whenever trucks owned by the
primary employer were making deliveries. The
General Counsel argued that in order to comply with
Moore Dry Dock the picketing should have been
located within the terminal gates and confined to the
trucks themselves (i.e., "between the headlights").
Since the neutral employers had never invited the
pickets inside the entrances, and the union had never
requested permission to do so, the Administrative
Law Judge in that case determined that "[t]he issue
in this case boils down to a question of whether the
initiative lies with [the] picketing union to ask
permission to picket between the headlights or with
[the] picketed neutral employer to issue such an
invitation before picketing at the entrance to the
neutral's premises is `limited to places reasonably
close to the location of the situs.' " The Board
adopted the Administrative Law Judge's conclusion
that this burden rested with the picketing union and,
"since the [union] did not take the initiative, its
picketing failed to meet the third test set forth in
Moore Dry Dock and is, thus, evidence' proving the
[union's] secondary objective."
In the instant case, not only did Respondent fail to
seek permission to confine the picketing to the situs
of the dispute (i.e., entrance to the UPI suite) before
establishing picket lines around Herald's building,9
but it' completely ignored Herald's invitation and
request to do so. Accordingly, the evidence in
support of a secondary object here is considerably
stronger than it was in AAA Motor Lines, Inc., supra.
In our judgment, a union which chooses to ignore a
neutral employer's efforts to limit common situs
picketing by inviting the union on its premises may
not thereafter disclaim "an object" of embroiling that
neutral or any other neutral in its dispute.10
Our colleagues find that Respondent's picketing at
the building entrances did, in fact, comply with the
Moore Dry Dock standards because picketing in the
corridor leading to the UPI suite would have been
ineffective. We reject this contention as a basis for
reversing the Administrative Law Judge for two
reasons: (1) Respondent never questioned the effec-
tiveness of inside picketing as a basis for insisting
upon outside picketing, and (2) the inside picketing
would indeed have been proper under Board
precedent.
The majority finds that given the size of the
corridor in question, and given the fact that not every
individual associated with UPI invariably utilizes the
795 (1970), and Teamsters "General" Local Union No 200 (Reilly Cartage,
Inc) 183 NLRB 305 (1970).
10 The majority apparently seeks to distinguish AAA Motor Lines, Inc,
supra and Reilly Cartage, Inc., supra, on the basis that the picketing there-
unlike here-was ambulatory. The important factor, however, is not
whether the picketing is ambulatory or stationary, but whether it is
"common situs."
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UPI suite , Respondent 's acquiesence to Carter's
request "would have seriously impaired the Respon-
dent 's right to engage in a valid and legal strike to
put pressure on the primary employer , the UPI."
These considerations might now be relevant had they
been raised at the time of the picketing . " They were
not raised at the time of the picketing and thus may
not now be relied upon as a basis for concluding that-
Respondent's continuation of outside picketing did
not evidence a secondary object.
In their eagerness to twist Respondent's picketing
into a form which will satisfy the Moore Dry Dock
requirements , our colleagues lose sight of the
ultimate issue to be decided in this case . We are not
concerned with whether the picketing actually
conformed with Moore Dry Dock-we are concerned
with whether the picketing was intended to accom-
plish an object proscribed by Section 8(b)(4)(B). It
must be remembered that Moore Dry Dock is not an
end in itself; it is not a "litmus test" dispositive of the
ultimate legal issue . Moore Dry Dock is merely a
means to an end; an evidentiary aid to be used in
determining the underlying question of a statutory
violation.12
It is for this reason that we find our colleagues'
emphasis upon the limitations of inside picketing to
be misplaced . For, even assuming the correctness of
their conclusion that the limitations on inside
picketing made the outside picketing permissible
under Moore Dry Dock-a conclusion which we do
not accept-this does not automatically mean that
the outside picketing lacked a secondary object. The
limitations in question were never offered by Respon-
dent as justification for continued outside picketing
and thus may not now be relied upon as evidence of
a primary object.13
Finally , we disagree with our colleagues' attempt to
legitimatize the outside picketing under Moore Dry
Dock by finding that the inside picketing "would
have seriously impaired the Respondent 's right to
engage in a valid and legal strike .... " The
majority relies upon two factors : ( 1) space limita-
tions, and (2) an alleged inability to reach all UPI
employees.
With respect to the first factor , all parties agree that
the hallway in question provides 150-175 square feet
of floor space between the entrance to the UPI suite
and the entrance to adjacent offices-clearly a
sufficient amount to enable Respondent 's three of
four pickets to reach the seven UPI unit employees
11 As noted earlier, Kjos' statement to Carter was that the pickets would
be removed from the entrances only if UPI left the building
12 International Brotherhood of Electrical Workers, Local Union 861
(Plauche Electric, Inc), 135 NLRB 250, 255 (1962)
13 For this very same reason , our colleagues may not seek to distinguish
the cases cited by the Administrative Law Judge on the basis that there-
without impairing ingress and egress to the UPI
suite."'
With respect to the effectiveness of inside picketing
in terms of reaching the appropriate employees, it is
undisputed that all UPI employees and supervisors
(i.e., the "primary" employees) work out of the UPI
suite on the fourth floor, Respondent has not
excepted the Administrative Law Judge's finding
that "all UPI employees who utilize such news-
gathering equipment in the course of their duties use
Room 450 [the UPI suite] as their workbase, and
their normal and usual work function is to make
ingress and egress from that room to the fifth floor."
Respondent does rely heavily, however, upon
evidence that UPI equipment which is leased to the
Herald and which is located on Herald premises is
serviced by RCA employees who occasionally
proceed directly to the equipment in need of repair
without first checking into the UPI suite. Such
services are provided pursuant to a nationwide
maintenance contract which UPI has negotiated with
RCA for the maintenance of all UPI-leased equip-
ment. These service employees are, therefore, neutral
employees of RCA and not primary employees of
UPI.
In Retail Fruit & Vegetable Clerks' Union, Local
1017 et at. (Crystal Palace Market), 116 NLRB 856,
858-859 (1956), enfd. 249 F.2d 591 (C.A. 9, 1957), the
Board explained that:
In developing and applying these standards, the
controlling consideration has been to require that
the picketing be so conducted as to minimize its
impact on neutral employees insofar as this can be
done without substantial impairment of the effective-
ness of the picketing in reaching the primary
employees.
In our judgment, application of this standard to the
circumstances presented herein requires a finding
that only inside picketing would conform with Moore
Dry Dock requirements. Such picketing would have
reached all primary employees of UPI and would
have had a minimal impact upon neutral employees,
including the RCA servicemen. Indeed, Respon-
dent's opposition to inside picketing based.in part
upon an alleged inability to reach the RCA service-
men clearly establishes an intent to enmesh neutrals
in its dispute with UPI.
For the foregoing reasons-including Respon-
dent's failure to request inside picketing; its failure to
unlike here-the physical conditions adjacent to the primary employers'
premises were suitable for effective picketing
14 Moreover , given the proximity of the pickets to anyone passing by in
the hall, it seems clear that the writing on the picket signs would be visible
even if the lights were turned down to conserve energy
WIRE SERVICE GUILD, LOCAL 222 1239
respond to the Herald's invitation for inside picket-
ing; its failure to conform with the Moore Dry Dock
standards; and its belated assertion that inside
picketing would be ineffective-we conclude that an
object of Respondent's picketing of the Miami
Herald building was to force or require persons to
cease doing business with UPI in violation of Section
8(b)(4)(i) and (ii)(B) of the Act 15
15 We also agree with the Administrative Law Judge that Kos'
statements to Carter, quoted earlier, in which Kjos indicated that
Respondent would not have been satisfied with anything less than the
removal of UPI from the building as a condition of removing the pickets
further evidence an unlawful secondary object.
DECISION
$500 million. The Herald is a subscriber and customer of
UPI, and the latter rents office space and has some of its
news-gathering equipment located in the Herald building
in Miami, as discussed more fully herein.
Based upon the foregoing, I find that the Herald and
UPI are now, and have been at all times material, engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act,2 and that the Board would assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
STATEMENT OF THE CASE
ROBERT Coln., Administrative Law Judge: Upon a
charge filed March 19, 1974,1 by the Miami Herald
Publishing Company (hereinafter called the Herald), the
General Counsel of the National, Labor Relations Board,
by and through the Regional Director for Region 12,
issued a complaint and notice of hearing on May 9 against
Wire Service Guild, Local 222, the Newspaper Guild,
AFL--CIO-CLC (hereinafter the Respondent or Union).
The complaint, in essence, alleges that the Respondent
engaged in picketing, and in threats to continue picketing
the Herald with an object of forcing or requiring the
Herald and other persons engaged in commerce to cease
doing business with United Press International (herein
called UPI).
By its duly filed answer, the Respondent admitted
picketing UPI from on or about March 18 until April 15,
but denied that by engaging in such picketing, or by any
other conduct, it violated the National Labor Relations
Act, as amended (herein the Act).
A hearing was conducted before me in Miami, Florida,
on June 4 upon the issues in which all parties were present
and represented by counsel Subsequently to the hearing,
posthearing ^ briefs were filed by all parties, which have
been duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
The Herald is a Florida corporation engaged at Miami in
the' publication of a newspaper, and has a gross annual
volume of business in excess of $300,000. UPI, a New York
corporation, is engaged nationwide in the business of
gathering, selling, and disseminating news stories and news
pictures to radio and television stations located through the
United States. In 1972, UPI had gross receipts in excess of
i All dates hereinafter refer to the calendar year 1974 unless otherwise
indicated
2 l[n its brief, Respondent admits that "The Herald is involved in
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
UPI and the Respondent, as representative of certain
employees of UPI, have been parties to a collective-
bargaining contract which was effective from March 16,
1972, to March 15, 1974. This was apparently a nationwide
agreement which encompassed the approximate seven
employees of UPI in the Miami office thereof.
For some time prior to March 15, UPI and the
Respondent had been engaged in collective bargaining
looking toward the consummation of a new agreement.
However, when it became apparent that those negotiations
were not to be immediately successful, Lester Kjos, branch
chairman of the Respondent's Miami unit,3 dispatched a
letter to the Herald's general manager, on March 15, as
follows:
Mr. Beverly R. Carter
General Manager
Miami Herald Publishing Co.
Dear Mr . Carter:
Per instructions by the Wire Service Guild, Local 222
The Newspaper Guild, AFL-CIO-CLC I hereby
inform you of the possibility of a strike by Guild
members against United Press International.
We are required to assure all landlords and owners of
buildings housing UPI bureaus that in the event of a
strike we intend to maintain orderly picket lines in a
demonstration of our grievances while keeping deco-
rum. We further have every intention of picketing in
front of the same building entrances we daily and
interstate commerce, . .
3 Kjos is admitted to be an agent of the Respondent within the meaning
of the Act.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
historically use for access to the building of our place of
employ.
Respectfully,
Lester C. Kjos
Branch Chairman
Miami WSG
UPI Unit
On March 18, Respondent commenced a strike against
UPI, and a picket line was placed at points around-the
Herald building in Miami where employees and customers
made ingress and egress. At that time the picket signs bore
the legend "Wire Service Guild AFL-CIO-CLC on strike
against United Press International."
On March 18, after commencement of the strike, Kjos
received the following letter (which was hand delivered by
the Herald's counsel):
Mr. Lester Kjos
Wire Service Guild
UPI Unit
Miami, Florida
Dear Mr. Kjos:
Please be advised that the Wire Service Guild, Local
222 The Newspaper Guild, AFL-CIO-CLC, its mem-
bers , allies and confederates are authorized and
requested to picket only United Press International's
offices which are located at Room 450, The Miami
Herald , One Herald Plaza , Miami, Florida.
It is considered that a continuation of the picketing at
any place other than the area of corridor extending
between the doorway to Room 450 and the doorway to
Room 449 at the above address will constitute a
violation of the Labor Management Relations Act and
appropriate legal action will be taken.
S/ BEVERLY R. CARTER
Respondent has never responded by letter or other
written communication to the Herald's letter of March 18.
However, on the second or third day of the picketing,
Respondent added some language to the picket signs, as
follows: "Not intended to obstruct anyone other than UPI
employees." This. was later amended to state: "Not
intended to appeal to anyone other than UPI employees'to
cease work." Branch Chairman Kjos conceded that the
foregoing additional language (which was characterized as
a "disclaimer"), was approximately one-fifth the size of the
other language on the picket signs . (See G.C. Exh. 3).
Although, as previously noted, Respondent did not
respond by written communication to the Herald's March
18 letter, within the next day or two Branch Chairman
Kjos telephoned General Manager Carter for the purpose
of advising him "what our legal basis was and what would
happen if UPI left....."4 Kjos stated that the Herald had
4 Testimony of Kjos.
5 Credited testimony of Carter . There was not substantial variance in the
testimony of the two men respecting the foregoing telephone conversation;
however, Kjos conceded that he remembered some things and didn't
remember others, and that he was "fuzzy" after having told Carter that the
latter had an` option" in the matter. Under all circumstances, I credit Carter
an option in the matter, to wit: that the Respondent could
arrange to remove their pickets from in front of the
building if the Herald could arrange to have the other UPI
employees in the building leave. Carter replied that the
Herald was dependent upon the services of UPI and would
not ask them to leave the building, to which Kjos
responded that the Respondent would have to let the
NLRB decide the outcome.5
In view of the foregoing, Respondent did not remove its
pickets from the outside. of the Herald building until the
strike was settled on or about April 15. As previously
noted, the charges in this matter were filed on March 19.
As respects the location of UPI's employees and
equipment in the Herald building, the evidence shows that
its offices are located on the fourth floor of the building in
an office Room 450. Such office is located at the end of a
corridor some 30 to 35 feet from the next closest office
(Room 449). The corridor is approximately 5 feet wide and
10 feet highs The evidence further shows that all the UPI's
employees and supervisors work in that office although
some of UPI's news-gathering equipment is located on the
fifth floor of the building. However, all UPI employees
who utilize such news-gathering equipment in the course of
their duties use Room 450 as their workbase,` and their
normal and usual work function is tp make ingress and
egress from that room to the fifth floor.
The only deviation from the foregoing description of
work activities, is in the case of RCA (Radio Corporation
of America) servicemen who service the UPI equipment on
the fifth floor. That is to say, UPI has a nationwide service
contract with RCA for the servicing of their teleprinters
and telex machines. Service on this equipment is apparent-
ly of two types: a scheduled maintenance visit of once
every 6 months, and demand maintenance calls in the
event the machinery breaks down. Only.on such occasions
would servicemen maintaining UPI's equipment proceed
directly from the outside of the building to the fifth floor
without first proceeding to Room 450. The record is vague
as to the frequency with which such demand service calls
are required. UPI manager Ray Herndon testified that it
"could be several times a day or several times a week or
maybe only once a month. Its hard to tell with equipment
like that." 7
As respects the effect of the picket line on other
employees or customers , Kjos testified that after the
Respondent put the "disclaimer" language on the signs, the
picketers "actively sought people we knew to be union
members and asked them to go in . if they are just going
in for the Herald. For the UPI, no." He recalled an
instance on the second day of strike when he told some
telephone company employees that "this is not a strike
against the Herald, that we want you to go in there .. .
and the guy says fine." He cited another instance when two
employees of the Florida Power and Light Company read
the sign and appeared as if they were going to leave. Kjos
to the extent that their versions differ.
6 See Resp. Exhs. 1 and 2.
7 Some of UPI 's equipment located oil the fifth floor is serviced by UPI
employees whose work stations are located in Room 450. That is to say,
there are no UPI employees stationed on the fifth floor to take care of this
equipment.
WIRE SERVICE GUILD , LOCAL 222 1241
ran after them and assured them that they could go inside,
and they did.
B. The Issue
The issue to be resolved is whether Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act by picketing in
front of the Herald's building following the Herald's
invitation to picket inside the building, and by Kjos'
telephone conversation with Carter, above described.
C. Analysis and Concluding Findings
All parties are in apparent agreement that since UPI
rents office space from the Herald in the latter's building,
and the two employers are not joint or allied in any way,
but carry on a regular business relationship, i.e., the Herald
utilizes the services: and equipment of UPI, the case
involves picketing at a "common situs" - i.e., premises
jointly occupied by primary and secondary employers.8 In
such a situation the Supreme Court early pointed out that
the Board was required to give effect to the "dual
congressional objectives of preserving the right of labor
organizations to bring pressure to bear on offending
employers in primary labor disputes and of shielding
unoffending employers and others from pressures and
controversies not their own."9
In evaluating the question of whether in any given
situation the Union's picketing constitutes primary or
secondary activity, the Board in Sailor's Union of the
Pacific (Moore Drydock Company), 92 NLRB 547 (1950),
established guide lines or standards to be utilized in
resolving the issue .1° The Board in Retail Fruit and
Vegetable Clerks Union, Local 1017, et al. (Crystal Palace
Market), 11 explained how the standards should be con-
stnied:
The gist of these standards is that where picketing
occurs at premises which are occupied jointly by
primary and secondary , employers,- the timing and
location of the picketing and the legends on the picket
signs must be tailored to reach the employees of the
primary employer; rather than those of neutral employ-
ers. If these standards are observed, the picketing is
lawful, and any, incidental impact thereof on neutral
employees at the common .situs will not render it
unlawful (Citing cases). Where however, there is any
deviation from these standards, the Board, with judicial
approval, has held that the picketing has violated
Section 8(b)(4XA) of the Act (Citing cases). In
developing and applying these standards, the control-
ling consideration has been to require that the picketing
s It should be additionally noted that the Respondent does not represent
any of the employees of the Herald or of the other tenants occupying the
building (United Airlines and the Social Security Administration). The
latter two employers occupied space on the sixth floor of the building at the
time.
9 N.L.RB. v. Denver Building and Construction Trades Council (Gould &
Prersner), 341 U.S. 675 (1951).
1'o The four criteria are: (a) The picketing is limited strictly to times when
the silos of the dispute is on the secondary employer's premises; (b) at the
time of the picketing the primary employer is engaged in its normal business
at the situs; (c) the picketing is limited to places reasonably close to the situs
of the dispute ; and (d) the picketing clearly discloses that the dispute is with
the primary employer.
be so conducted as to minimize its impact on neutral
employees insofar as this can be done without substantial
impairment of the effectiveness of the picketing in
reaching the primary employees. (Citing case).
Crystal Palace involved a "common situs" situation in
that the primary employer, along with other employers,
operated retail stands or shops in the Crystal Palace
Market in San Francisco. There, as here, the Respondent
Union commenced picketing outside of the market, and on
the first day of the picketing rejected the primary
employer's offer to bring the pickets inside the market and
post them at the particular stands involved in the contract
dispute. There, the Union stated that it rejected the offer
because it did not include permission to picket the primary
employer's nongrocery stands ; here, the Union contends
that the corridor is not an adequate place to conduct its
picketing because of space and light limitations as well as
the fact that picketing in such locations might not reach
employees servicing UPI's equipment on the fifth floor of
the building. However, I note that the Respondent in the
instant case did not cite such, limitations or suggest
alternatives, and the Board in Crystal Palace deemed it
significant that the Respondent Union there did not
propose to the primary employer that its offer be enlarged
to include picketing inside the market of such other
operations of the primary employer:
Such "inside" picketing would have been adequate to
achieve any lawful purpose of Local 648, and would
have minimized the incidental effect on the neutral
lessees.12
12 Thus, had Local 648 been content to picket alongside the various
grocery and nongrocery stands operated by Long, as well as the other
stands involved in the primary dispute , there would have been no need for
employees of neutrals to cross any of the picket lines.
Confirming the proposition that Respondent here was
not seeking to minimize the impact of the picketing on
neutral employees is the conversation between Kjos and
Carter on or about March 19. Kjos initiated the call for the
purpose of advising Carter of the Herald's option to
remove UPI from its premises as a means of eliminating
the Respondent's picketing.
The thrust of such a statement under the circum-
stances,12 reveals that the Union would not have been
satisfied with anything less than the removal of UPI from
the building as a condition of removing the pickets. Similar
statements have been held to constitute evidence of an
unlawful object.13
11 116 NLRB 856, 858-859 ( 1956), enfd. 249 F.2d 591(C.A. 9).
12 It is sigiuficant that at no time during the conversation did Kos
suggest that the Herald's authorization to picket in the corridor was
inadequate because of space , lighting, or capacity to reach and notify
primary employees of the existence of the dispute.
13 E.g., Local 307, Plumbers- United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO, et aL (Meyer Plumbing; Inc.), 187 NLRB 652 (fn. 1)
(1970); International Brotherhood of Electrical Workers, Local No. 11, AFL-
CIO (L. G. Electric Contractors, Inc.), 154 NLRB 766 (1965).
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In a recent case ,14 the Board (adopting the fmdings and
conclusions of the Administrative Law Judge) found a
violation of this section of the Act because the Respondent
Union did not take the initiative of requesting the neutral
employer for permission to come inside its property to
engage in dockside picketing. While it is well established
that the Moore Dry Dock standards are not to be applied on
an indiscriminate "per se" basis but are to be regarded
merely as aids in determining the underlying question of
statutory violation,15 it would seem appropriate to consider
this factor of "initiative" in resolving the ultimate issue of
objective.16 The failure of the Respondent Union, in this
case to respond to the neutral employer's "initiative,"
coupled with its failure to propose to the neutral employer
that the offer to be enlarged to satisfy any deficiencies
which the Respondent may have claimed to exist lead me
to conclude, and I therefore fmd, that- an object of
Respondent's picketing in this case was to force or require
persons to cease doing business with UPI in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act.17
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent as set forth in section
III, above, occurring in connection with the operations of
the Herald and UPI described in section I, above, have a
close, intimate, and substantial relationship to trade,
14 Local Union No. 612, Teamsters' etc. (AAA Motor Lines, Inc), 211
NLRB 608 (1974).
15 International Brotherhood of Electrical Workers, Local 59 (Plauche
Electric Inc.), 135 NLRB 250,255 (1962).
16 Cf. Teamsters "General' Local Union No. 200 (Reilly Cartage, Inc),
183 NLRB 305 (1970), where the Union requested the neutral employer's
permission to engage in dockside picketing but such request went
unanswered. The Board held that, under such circumstances, the Union
could fairly assume that access to the neutral's property would be denied,
and that the Union's picketing outside the terminal did not violate the
Moore Dry Dock standard(3), or otherwise evidence a secondary objective.
17 I have not overlooked the evidence that on a couple of occasions, Kjos
sought to induce known union members to cross the picket line. The natural
impact of such proof is that the Union did not intend that persons having
business with neutral employers should cease such activity because of the
traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
Upon the foregoing fmdings of fact, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Miami Herald Publishing Company, and United
Press International, Inc., are employers engaged in
commerce within the meaning of Section 2(6) and (7) and
Section 8(b)(4) of the Act.
2. Wire Service Guild, Local 222, The Newspaper
Guild, AFL-CIO-CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By inducing and encouraging individuals employed
by the Herald, or other persons engaged in commerce, to
engage in a strike or a refusal in the course of their
employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services with an object
of forcing or requiring the Herald to cease doing business
with UPI, Respondent has violated Section 8(b)(4)(i) and
(ii)(B) of the Act.is
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
picket line . However, it is well established that a picket 's placard constitutes
a signal for other workers to engage in-or not engage in-certain conduct
(N.L.R.B. v. Denver Bldg. Trades Council, 341 U.S. 675), and that it is
reasonable to infer that other employees or customers -of the neutral-not
known by the Umon-failed or refused to cross the line. It is equally well
established that specific proof of intent is unnecessary and that a man is
held to intend the foreseeable consequences of his conduct (The Radio
Officers' Union of the Commercial Telegraphers Union, v. N LR.B., 347 U.S.
17 (1954)). Accordingly, the Union here may be held to have intended such
compliance by others with the "signal" connoted by the picket line.
18 The Board has consistently held that a threat to continue unlawful
picketing constitutes restraint and coercion within the meaning of Section
8(b)(4)(ii)(B) of the Act. See International Brotherhood of Electrical Workers,
Local 11 (L. G. Electric Contractors, Inc.), 154 NLRB 766, 776 (1965).