not to cross a union picket line, the picketing is not thereby rendered illegal, and in the absence of something more, there is no reasonable cause to find concerted action among the pickets and the employees who refuse to cross the line, nor does the Act provide otherwise. The Act does proscribe the acting in concert of one union with the employees of another so as to influence the secondary employer's dealings with the charging or primary employer. But there is no indication of that in this case.
In National Labor Relations Board v. International Rice Milling Co., 1951, 341 U.S. 665, 71 S. Ct. 961, 95 L. Ed. 1277, the union, not certified, picketed Rice Milling Co. in the hope of securing recognition as the collective bargaining agent of the mill employees who were non-union. The Board dismissed the company's complaint; the Circuit Court reversed.
The Supreme Court, however, reinstated the Board's decision based on the following facts. During the picketing two employees of a neutral employer were encouraged not to drive their truck to the mill for an order of goods in the course of their employment.
The goal of the picketing was recognition of the union. But no employee participated therein. The Court assumed without deciding that this conduct was calculated to force the neutral employer to stop doing business with the charging employer and to pressure the latter into recognizing the union. The Court held that the stopping of the truck did not amount to the concerted activity proscribed by the Act (8(b)(4)(D)). There, as here, there was no attempt by the union to induce any action more widespread than that described, and no inducements were applied except at the picket line. The Court said, 341 U.S. at page 671, 71 S. Ct. at page 964:
'A union's inducements or encouragements reaching individual employees of neutral employers only as they happen to approach the picketed place of business generally are not aimed at concerted, as distinguished from individual, conduct by such employees. Generally, therefore, such actions do not come within the proscription of 8(b)(4), and they do not here.'
So, too, in the case at bar, and in the absence of additional factors, no injunction will issue because of the refusal of neutral employers' employees to cross the line, as related heretofore.
Nor is a distinction to be drawn here between Douds v. Local 50, supra, and the instant case based on the failure of the suppliers' drivers herein to cross the picket line. Under the Rice Milling case, supra, and independent voluntary decision not to cross the line is not, in the absence of something more, the concerted activity condemned by the Act.
Hence, I cannot say that the refusal of the suppliers' drivers to cross the picket line in this case constitutes reasonable grounds for the petitioner to find the illegal concert of action proscribed by the Act.
Mr. D. J. O'Connor testified that two of his nine employees were members of the Sandhogs union, of which he himself had been a member for about 23 years until December 1958 when his membership was terminated. He testified further that Mr. McCann, a New York Business Agent of Local 147 of the Sandhogs in New York, in company with Mr. Boyce, Business Agent of Local 147 in New Jersey, anda Mr. McDonald, called upon him on November 6, 1958 and said that he 'wanted all (Local) 147 men there, that he had a lot of men that wasn't working.' Mr. O'Connor testified that he 'said it was a non-union job * * * and it is going to be done as non-union, but I will hire union men if they come along.' To this, testified Mr. O'Connor, Mr. McCann said, '* * * he would be back the next day with men and throw the compressor over the side.' Thereafter, according to Mr. O'Connor, Mr. McCarnn 'talked to the superintendent which is O'Keefe, and Mike Turkely,' both members of the Sandhogs, whereupon Messrs. O'Keefe and Turkely left their jobs to which they have never returned. Mr. O'Connor testified that during the visit by Messrs. McCann, Boyce and McDonald 'there must have been around 50 men altogether' present, a few of whom he recognized as members of Local 147. He said that they 'just stirred around.' When the union workers left the job, it was necessary for Mr. O'Connor to substitute his night shift for them and to hire new workers for that shift.
Assuming the illegality of this conduct by the Sandhogs, there is no evidence before me which provides reasonable basis for petitioner to believe that the other respondents had agreed thereto. I am not unmindful of the evidence indicating contemporaneous presence of the representatives of the Sandhogs and the other respondents on the picket line. But contemporaneous presence on the picket line standing alone is not sufficient basis from which an agreement to participate in the other activities of the Sandhogs may reasonably be found by petitioner, especially in view of the conduct of the other respondents.
At the hearing, a motion by respondents present to strike that testimony relating to the activities of the Sandhogs as not binding upon them was reserved. In view of petitioner's failure to adduce any evidence that would tend to establish such a connection between that respondent and the other three who appeared, that motion will now be granted.
A union may peacefully picket an employer for recognition with impunity.
And this it may do after and in spite of the prior certification of another union.
That being so, and in the absence of any evidence that the picketing in this case produced or tended to produce any of the results condemned by 8(b)(4)(D), no injunction will issue. Granting that petitioner need only demonstrate reasonable grounds to believe his allegations to be true in order to obtain the relief he seeks, something beyond a bare assertion is required in reaching even this minimal standard.
On the evidence in this case I cannot find that the petitioner has reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated. Accordingly the petition will be denied and an order should be presented.