PICKETT, Circuit Judge.
In this proceeding the National Labor Relations Board seeks enforcement of its order requiring the respondent union to cease and desist from picketing the Sapulpa Daily Herald, a newspaper published in Sapulpa, Oklahoma.
The union agrees that the object of the original picketing was to force or require the employer to recognize and bargain with the union as representative of the employees, and that it did not file a petition for election or representation under Section 9(c) of the Labor Relations Act. The issues presented relate to the Board’s determination that the union picketed the employer’s business without filing a representation petition within a reasonable period of time after the picketing began, as required by Section 8(b) (7) (C) of the 1959 Amendments to the Act.
The essential facts are not in dispute. The employer published a daily newspaper in Sapulpa, Oklahoma, and used 6 employees in its composing room, some of whom were members of the respondent union. Early in the year 1959, although not certified as their bargaining agent, union representatives demanded that the employer enter into bargaining with the union for the purpose of negotiating a contract for these 6 employees. It presented a contract to be signed by the employer which provided that the union was to be recognized as the exclusive bargaining representative of the employees. After several unsuccessful meetings the employer questioned the right of the union to represent the employees and thereafter suggested that they join in petitioning the Board for a representation election, and stated that if the union was certified as the exclusive bargaining agent then bargaining would be appropriate. The union representatives did not contend that it represented a majority of the employees, but threatened to picket the newspaper if the employer refused to recognize the union as the exclusive collective bargaining agent of the employees.
On October 5, 1959, orderly and peaceful picketing began, and continued until enjoined on December 7, 1959. Prior to December 1 the picket signs read “Sa-pulpa Herald unfair to I.T.U. Local 619.” These signs were changed on December 1 to read “Informational Picketing Sa-pulpa Herald does not employ members of Typographical Union No. 619.” On November 19, 1959 an unfair labor practice charge was filed alleging that the union’s picketing violated Section 8(b) (7) (C) of the Act, which became effective on November 13, 1959. The trial examiner who heard the complaint issued on the charge found that the picketing from the effective date of the statute until December 7, 1959 was more than reasonable time to file the petition within the statutory meaning. The Board accepted the examiner’s finding, but found it unnecessary to pass upon the purpose of the picketing after the picket signs were changed on December 1st, stating that, “the 18 days of picketing between November 13, 1959 and * * * December 1,1959, * * * was a ‘reasonable period of time’ within the meaning of * * * [Section 8(b) (7) (C)], in view of the duration of the picketing before November 13, 1959.”
The union urges that the matter was heard before the examiner upon the theory that reasonable time was to be tested by considering the entire period of picketing after November 13. It argues that when the Board based its finding of reasonableness on a shorter period, there was a prejudicial shift in the Board’s theory of a reasonable standard from that presented and considered at the hearing, and deprived the union of an opportunity to properly defend. There is no merit to this position. The findings by the Board that a time shorter than that advocated by the general counsel and considered by the examiner could not prejudice the union. It contended throughout that there was no unlawful picketing after December 1st, when the picket signs were changed, and that the question of reasonable time must be determined as of the period from November 13 to December 1. It had been picketing the employer with the object of requiring its recognition for a period of 40 days prior to the date when the statute became effective, and it continued picketing for this purpose for 18 days thereafter before the picket signs were changed. The picketing pri-
or to November 13 is only a circumstance which the Board might consider, along with all the other evidence in the case, in determining the reasonable time in which the representation petition should have been filed by the union to protect itself against an unfair labor practice charge. N. L. R. B. v. Local 239, International Brotherhood of Teamsters, etc., 2 Cir., 289 F.2d 41, cert. denied 368 U.S. 833, 82 S.Ct. 58, 7 L.Ed.2d 35. The union’s position before the trial examiner was that the 18 days of picketing after November 13 was not a reasonable time within which to file an election petition. Although the examiner did not make a finding on this period, the Board is free to do so when the examiner’s report is considered. The trial examiner is the agent of the Board and makes only recommendations in his report of proceedings which he has conducted. Although the Board should give weight to the recommendations and findings of the examiner, it is not bound by them and may make its own findings from the record. 31 Am.Jur., Labor § 297; Administrative Procedure Act, § 8(a), 60 Stat. 242, 5 U.S.C. § 1007(a); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Eclipse Lumber Co., 9 Cir., 199 F.2d 684, 36 A.L.R.2d 625.
The manifest purpose of Section 8(b) (7) (C) is to limit picketing for representative or organizational purposes and provide for expeditious representation elections. Department & Specialty Store Employees’ Union Local No. 1265, etc. v. Brown, 9 Cir., 284 F.2d 619, cert. denied 366 U.S. 934, 81 S.Ct. 1659, 6 L.Ed.2d 846. The unambiguous statutory language declares that picketing for such purposes is an unfair labor practice unless a petition for a representation election is filed with the Board within a reasonable time after the picketing commences. The maximum statutory reasonable time is 30 days. It may be less. In other words, the statute permits picketing only for a reasonable time in an attempt to secure union representation or recognition, but never for more than 30 days.
The statute does not provide specific standards for the measurement of a “reasonable period”, but delegates to the Board authority to make that determination in the ligTit of the facts presented in each case. The Board’s finding that the 18 days of picketing after the effective date of Section 8(b) (7) (C) was a reasonable time within which to file a petition for a representation election is amply supported by the record.
Free access — add to your briefcase to read the full text and ask questions with AI
PICKETT, Circuit Judge.
In this proceeding the National Labor Relations Board seeks enforcement of its order requiring the respondent union to cease and desist from picketing the Sapulpa Daily Herald, a newspaper published in Sapulpa, Oklahoma.
The union agrees that the object of the original picketing was to force or require the employer to recognize and bargain with the union as representative of the employees, and that it did not file a petition for election or representation under Section 9(c) of the Labor Relations Act. The issues presented relate to the Board’s determination that the union picketed the employer’s business without filing a representation petition within a reasonable period of time after the picketing began, as required by Section 8(b) (7) (C) of the 1959 Amendments to the Act.
The essential facts are not in dispute. The employer published a daily newspaper in Sapulpa, Oklahoma, and used 6 employees in its composing room, some of whom were members of the respondent union. Early in the year 1959, although not certified as their bargaining agent, union representatives demanded that the employer enter into bargaining with the union for the purpose of negotiating a contract for these 6 employees. It presented a contract to be signed by the employer which provided that the union was to be recognized as the exclusive bargaining representative of the employees. After several unsuccessful meetings the employer questioned the right of the union to represent the employees and thereafter suggested that they join in petitioning the Board for a representation election, and stated that if the union was certified as the exclusive bargaining agent then bargaining would be appropriate. The union representatives did not contend that it represented a majority of the employees, but threatened to picket the newspaper if the employer refused to recognize the union as the exclusive collective bargaining agent of the employees.
On October 5, 1959, orderly and peaceful picketing began, and continued until enjoined on December 7, 1959. Prior to December 1 the picket signs read “Sa-pulpa Herald unfair to I.T.U. Local 619.” These signs were changed on December 1 to read “Informational Picketing Sa-pulpa Herald does not employ members of Typographical Union No. 619.” On November 19, 1959 an unfair labor practice charge was filed alleging that the union’s picketing violated Section 8(b) (7) (C) of the Act, which became effective on November 13, 1959. The trial examiner who heard the complaint issued on the charge found that the picketing from the effective date of the statute until December 7, 1959 was more than reasonable time to file the petition within the statutory meaning. The Board accepted the examiner’s finding, but found it unnecessary to pass upon the purpose of the picketing after the picket signs were changed on December 1st, stating that, “the 18 days of picketing between November 13, 1959 and * * * December 1,1959, * * * was a ‘reasonable period of time’ within the meaning of * * * [Section 8(b) (7) (C)], in view of the duration of the picketing before November 13, 1959.”
The union urges that the matter was heard before the examiner upon the theory that reasonable time was to be tested by considering the entire period of picketing after November 13. It argues that when the Board based its finding of reasonableness on a shorter period, there was a prejudicial shift in the Board’s theory of a reasonable standard from that presented and considered at the hearing, and deprived the union of an opportunity to properly defend. There is no merit to this position. The findings by the Board that a time shorter than that advocated by the general counsel and considered by the examiner could not prejudice the union. It contended throughout that there was no unlawful picketing after December 1st, when the picket signs were changed, and that the question of reasonable time must be determined as of the period from November 13 to December 1. It had been picketing the employer with the object of requiring its recognition for a period of 40 days prior to the date when the statute became effective, and it continued picketing for this purpose for 18 days thereafter before the picket signs were changed. The picketing pri-
or to November 13 is only a circumstance which the Board might consider, along with all the other evidence in the case, in determining the reasonable time in which the representation petition should have been filed by the union to protect itself against an unfair labor practice charge. N. L. R. B. v. Local 239, International Brotherhood of Teamsters, etc., 2 Cir., 289 F.2d 41, cert. denied 368 U.S. 833, 82 S.Ct. 58, 7 L.Ed.2d 35. The union’s position before the trial examiner was that the 18 days of picketing after November 13 was not a reasonable time within which to file an election petition. Although the examiner did not make a finding on this period, the Board is free to do so when the examiner’s report is considered. The trial examiner is the agent of the Board and makes only recommendations in his report of proceedings which he has conducted. Although the Board should give weight to the recommendations and findings of the examiner, it is not bound by them and may make its own findings from the record. 31 Am.Jur., Labor § 297; Administrative Procedure Act, § 8(a), 60 Stat. 242, 5 U.S.C. § 1007(a); Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; N. L. R. B. v. Eclipse Lumber Co., 9 Cir., 199 F.2d 684, 36 A.L.R.2d 625.
The manifest purpose of Section 8(b) (7) (C) is to limit picketing for representative or organizational purposes and provide for expeditious representation elections. Department & Specialty Store Employees’ Union Local No. 1265, etc. v. Brown, 9 Cir., 284 F.2d 619, cert. denied 366 U.S. 934, 81 S.Ct. 1659, 6 L.Ed.2d 846. The unambiguous statutory language declares that picketing for such purposes is an unfair labor practice unless a petition for a representation election is filed with the Board within a reasonable time after the picketing commences. The maximum statutory reasonable time is 30 days. It may be less. In other words, the statute permits picketing only for a reasonable time in an attempt to secure union representation or recognition, but never for more than 30 days.
The statute does not provide specific standards for the measurement of a “reasonable period”, but delegates to the Board authority to make that determination in the ligTit of the facts presented in each case. The Board’s finding that the 18 days of picketing after the effective date of Section 8(b) (7) (C) was a reasonable time within which to file a petition for a representation election is amply supported by the record.
The union argues that the statute must be construed as giving the right to engage in reeognitional or organizational picketing for a period of 30 days before filing the required election petition, and that picketing before the effective date of the statute may not be considered in computing the required number of days. We have already said that the Board may determine the statutory period to be less than 30 days. We agree, however, that in making that determination the Board is confined to the picketing activity after the effective date of the statute. The dispute arose before this date and there was no change in the picketing until December 1, 1959. This does not prevent the application of the statute after it became effective. Local 74, United Brotherhood of Carpenters, etc. v. N. L. R. B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309; Jeffery-De Witt Insulator Co. v. N. L. R. B., 4 Cir., 91 F.2d 134, 112 A.L.R. 948. Although the Board gave consideration to the prior picketing as a circumstance which might affect its findings as to what was a reasonable time to act after November 13, its determination was limited to the union’s picketing activities after that date.
Consequently, Section 707 of the 1959 Act had no application in this instance.
The union contends that if the statute is construed to permit a period of less than 30 days to be a reasonable time for the filing of a 9(c) petition, there is no standard by which it may determine when filing is required, and, therefore, is constitutionally defective because of vagueness and indefiniteness. The answer to this contention is found in N. L. R. B. v. Local 239, International Brotherhood of Teamsters, etc., supra, 289 F.2d at 44-45, where the court said:
“The union suggests that a ‘reasonable period of time not to exceed thirty days’ must be read to mean ‘thirty days’ in the absence of ‘unusual compelling and extenuating circumstances,’ lest it be in danger of being so vague as to violate due process or constitute an unconstitutional delegation to the Board of legislative power. The statute plainly contemplates thirty days as the outer limit, with power in the Board, subject to review by the courts, to fix shorter periods as ‘reasonable’ ones according to particular fact situations. See Comment, 69 Yale L.J. 1393, 1424; 105 Cong. Rec. 18153 (remarks by Mr. Griffin). And as so construed, the constitutionality of this clause stands unimpaired. The standard of ‘reasonableness,’ employed daily by judges and administrators in countless rules of decision, is sufficient to shield authority granted an administrative agency from constitutional attack, just as is, for example, the standard of ‘the public interest,’ see New York Central Securities] Corp. v. United States, 287 U.S. 12, 24, 53 S.Ct. 45, 77 L.Ed. 138; McManus v. C. A. B., 2 Cir., 286 F.2d 414.”
Enforcement granted.