Before SMITH, KAUFMAN and ANDERSON, Circuit Judges.
The National Labor Relations Board petitions the court for enforcement of its order of May 19, 1964, 147 NLRB No. 4, requiring Local 239, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to halt recognitional or organizational picketing of Abbey Auto Parts Corp., Bethpage, Long Island, New York, in violation of Section 8(b)(7) (B)*fn1 of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq .) and to post appropriate notices. We find the order invalid because not based on substantial evidence on the record as a whole, and deny the petition for enforcement.
Abbey Auto Parts Corporation (Abbey) with nine employees, and Bethpage Auto Parts, Inc. (Bethpage) with two employees, had withdrawn from a multi-employer collective bargaining arrangement with the Union a sufficient time prior to the signing of a new agreement with the other employers. Shortly thereafter, in April 1962, Abbey and Bethpage pursuant to Section 9(c)(1)(B) of the NLRA filed individual petitions with the Board asserting their timely withdrawal from the multi-employer unit and requesting elections to determine union representation. The Board agreed and on April 15, 1963 ordered elections. A week prior to the date set for elections at Abbey the Union sent the company a letter wherein it stated that it would picket the premises for the purpose of informing the public that the establishment was non-union, but would not in any way interfere with Abbey's business and was not at all interested in organizing Abbey's employees, the Union's purpose being only to protect union interests in the general area. Picketing commenced on May 6, 1963 with the Union representatives carrying two types of placards, one of which read,
To the Public Please Be Advised Abbey Auto Parts is Non-Union
This Jeopardizes our Union Standards Please Do Not Patronize
Don't Buy at Abbey Non-Union
The Union also distributed handbills to Abbey customers as they entered an adjacent parking lot. On May 10, 1963, the Union resoundingly lost the election.
The picketing and handbilling continued after the election, and in addition many of Abbey's customers were approached and requested not to do business with Abbey. In the meantime the election had not yet been held at Bethpage, and the Union commenced picketing around that establishment with signs identical to those used at Abbey except for the name, and an identical letter was sent to the Bethpage management. On July 3, Bethpage's employees also voted the Union down; however, the picketing continued as it had at Abbey. But Bethpage and the Union reached an accord and entered into an agreement about a month later after picket Lewis Sherman, the brother of the Local's president, informed Bethpage that a possible way to eliminate the picketing would be to sit down and meet with the Union.
After the agreement was signed by Bethpage, Lewis Sherman was assigned to the Abbey picket line. Abbey's president claimed that Sherman, while present at Abbey, approached him and told him that unless Abbey sat down with the Union, as Bethpage had done, the Union would never leave Abbey alone. Meanwhile, on May 29 Abbey had filed unfair labor practice charges against the Union alleging that the Union's picketing violated § 8(b)(7)(B) of the Act.
The Trial Examiner found that the Union engaged in unfair labor practices within the meaning of § 8(b)(7)(B) by picketing Abbey for recognitional and organizational purposes at a time when a valid election under § 9(c) had been conducted within the preceeding twelve months. The ...