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LIVINGSTON v. MCLEOD

October 16, 1962

David LIVINGSTON, as President of District 65, Retail, Wholesale and Department Store Union, A.F. of L. and C.I.O., Plaintiff,
v.
Ivan C. McLEOD, as Regional Director of the National Labor Relations Board, Second Region, Defendant



The opinion of the court was delivered by: TYLER

Plaintiff ('District 65') seeks a temporary injunction restraining the defendant Regional Director from conducting a representative election pursuant to the National Labor Relations Act (29 U.S.C. § 151 et seq.). The Regional Director has cross-moved to dismiss District 65's complaint or, in the alternative, for summary judgment.

Essentially, this case presents a problem of interpretation of the comparatively new and 'hybrid' procedure introduced in 1959 into the Act by Section 8(b)(7)(C), which blends the elements of an unfair labor practice and a representative proceeding (29 U.S.C. § 158(b)(7)(C)).

The pertinent statutory language makes it an unfair labor practice for a union or its representatives:

 '(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees:

 '(A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act,

 '(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or

 '(C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services.

 'Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8(b).'

 Although the parties assert different inferences to be drawn therefrom, the essential facts appear clear and beyond dispute.

 On July 24, 1962, Lyman T. Corbin, Co., Inc., a concern in the direct mailing industry, filed an unfair labor practice charge with the National Labor Relations Board, Second Region, alleging that District 65 was picketing the Company's premises in violation of Section 8(b)(7)(C) of the National Labor Relations Act. On the same day the Company also filed with this regional office a representation petition (Board Case No. 2-RM-1234) asking the Board to conduct a representation election to determine the Union's representative status.

 Pursuant to the provisions of Section 10(l) of the Act and Section 102.73 of the Board's Rules and Regulations, Series 8, as amended, 29 U.S.C.A.Appendix, this charge, designated Case No. 2-CP-175, was promptly investigated by direction of the Regional Director, From this investigation, which included interviews with representatives of both the Company and District 65, the Regional Director could have ascertained and allegedly did ascertain the following facts:

 District 65 had been engaged in an organizing campaign among Corbin's employees since February, 1962, distributing organizational leaflets and union authorization cards outside the employer's premises at least once a week. A leaflet dated March 5, for example, stated: 'By joining District 65, the Union for Direct Mail workers you can win for yourself the same wages and conditions that organized Direct Mail workers enjoy'.

 On June 29, District 65 distributed a leaflet stating, in pertinent part: 'We will very shortly approach your employer to set up negotiations for the Standard Direct Mail Agreement, which will mean substantial increases, benefits and better working conditions for all of you * * * We urge that those of you who have not signed cards to do so right away.' At about the same time, District 65 sent a letter to the Corbin employees which stated, inter alia:

 We now have the substantial majority of the workers signed up in your shop, and we are prepared to approach your employer for Union negotiation on your behalf, and to negotiate a contract which ...


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