Center for United Labor Action

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 873 (N.L.R.B. 1975)

CENTER FOR UNITED LABOR ACTION
Center for United Labor Action and Sibley , Lindsay
and Curr Company . Case 3-CC-808
July 30, 1975
SUPPLEMENTAL DECISION AND ORDER
On November 14, 1974 , Administrative Law Judge
Sidney J. Barban issued the attached Decision ' in
this proceeding . Thereafter , General Counsel and the
Charging Party filed exceptions and briefs , and the
Respondent filed an answering brief and cross-
exceptions and a brief in support thereof.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge, as
herein modified , and to adopt his recommended Or-
der.
We agree with the Administrative Law Judge's
conclusion that Respondent CULA is not a labor or-
ganization within the meaning of Section 2 (5) of the
Act and his reason for reaching this conclusion;
namely , that to qualify as a labor organization under
our Act the organization must be selected and desig-
nated by employees for the purpose of resolving their
conflicts with employers and Respondent clearly
does not meet such a test. We do not agree , however,
with the Administrative Law Judge 's subsidiary find-
ing that Respondent exists in part for the purpose of
dealing with employers concerning employee labor
relations matters.
The evidence shows that Respondent is one of sev-
eral branches of the parent CULA and that the gen-
eral aims and purposes of CULA and its branches
are to assist minorities , women , consumers , and espe-
cially workers in their asserted struggle against orga-
nizations which are adversely affecting their rights or
interests . In the context of employer-employee rela-
tions, CULA and its branches join and support em-
ployees in their protest against alleged employer in-
justices and seek to rally public opinion in favor of
the employees ' cause . In the course of such activities,
the parent CULA and Respondent have supported
strikes by joining in the picketing and leafleting of
employers and, in certain instances, engaged in fund-
raising activities on behalf of strikers; however, nei-
ther organization has ever sought to deal directly
with employers concerning employee labor relations
matters.
The Administrative Law Judge found that Re-
spondent is an organization in which employees par-
1 The Administrative Law Judge inadvertently issued the attached as a
Decision instead of a Supplemental Decision . The Board Decision issued at
209 NLRB 814 (1974).
873
ticipate and that there can be no question that Re-
spondent does concern itself with employee griev-
ances , wages, hours of employment, and conditions
of work, and with labor disputes. Although recogniz-
ing that Respondent does not deal directly with em-
ployers, the Administrative Law Judge postulated
that it made very little difference whether or not Re-
spondent had direct contact with an employer, since
its picketing, leafleting, and related activities were
designed to cause the employer to act in accordance
with Respondent's expressed desire. Hence, the Ad-
ministrative Law Judge concluded that Respondent,
by acting on its concern through picket line and re-
lated activities, demonstrated that it exists in part for
the purpose of dealing with employers over employee
labor relations matters.
The difficulty we find with the Administrative Law
Judge's reasoning is that it equates support for what
is considered to be a social cause with the desire to
represent the individuals in the furtherance of their
cause . Many present day labor disputes are viewed
by some as problems which extend beyond the con-
fines of the plant involved and have an impact on the
community at large or, in some instances, on the Na-
tion itself. In such circumstances, it is not unusual for
social activist groups, newspapers, and clergy to ac-
tively support the employees' cause and to seek to
marshal public opinion in support of it. It would also
be uncommon if, among those who belong to such
organizations , there were not some individuals who
would meet the definition of employees under our
Act. But are we then to conclude that any organiza-
tion which engages in strike-supporting activities ex-
ists , at least in part, for the purpose of dealing with
employers over employee labor relations matters?
We believe that such a conclusion would be ridicu-
lous on its face. Support for a cause, no matter how
active it may become, does not rise to the level of
representation unless it can be demonstrated that the
organization in question is expressly or implicitly
seeking to deal with the employer over matters af-
fecting the employees.
Here, the evidence clearly indicates that Respon-
dent in no way exists for the purpose of dealing with
employers over employee problems. While individual
members of the parent CULA have on occasion as-
sisted employees by joining with them in forming
committees which have dealt with employers over
employee problems, we cannot hold that- the parent
CULA or Respondent is bound by the individual ac-
tion of its members? The only representation of em-
ployees by CULA has been before various state
agencies and commissions which in our judgment has
no bearing on CULA or Respondent 's status as a
2 No formal membership is required in CULA or its branches.
219 NLRB No. 158
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization within the meaning of our Act.
Accordingly, on the basis of the evidence before us,
we conclude that the parent CULA and Respondent
do not exist, either in whole or in part , for the pur-
pose of dealing with employers concerning employee
labor relations matters.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBER KENNEDY , dissenting:
The majority dismisses the complaint in this case
on the grounds that Respondent 's Center for United
Labor Action (CULA) at Rochester is not a labor
organization within the meaning of Section 2(5) of
the Act. That conclusion , in my view , is directly con-
trary to the conclusion of law required by the facts
found by the Administrative Law Judge . According-
ly, I dissent . I would find that Respondent CULA
has violated and is continuing to violate Section
8(bx4)(i) and (ii)(B) of the Act.
No issue has been raised as to the scope or the
object of Respondent CULA's picketing underlying
the charge filed in this case . Rather, the contested
issue in this case concerns the character of
Respondent 's institutional activities and whether
those activities bring it within Section 2(5) of the Act.
Without attempting to regurgitate the entire factual
findings of the Administrative Law Judge , I will set
forth briefly those facts which are material to that
part of Section 2(5) of the Act which defines as a
labor organization any organization which , inter alia,
exists for the purpose "in part" of dealing with em-
ployers concerning certain enumerated matters.
Until February 1974 the Amalgamated Clothing
Workers of America was engaged in a labor dispute
with Farah Mfg., Inc ., pursuant to which the Amal-
gamated Clothing Workers embarked upon a na-
tionwide boycott campaign . Respondent CULA in
concert with the ACWA embarked upon a campaign
to persuade the public not to do business with certain
establishments dealing in Farah 's products . Accord-
ingly, at various times it picketed Charging Party
Sibley's Rochester , New York, store with signs urg-
ing customers to boycott the Charging Party, and
CULA further distributed leaflets and literature in
3 Our dissenting colleague , arguing that CULA acted "in concert with
ACWA," overlooks the parties ' agreement to sever the agency question
from this case and eliminate all reference to ACWA from the complaint.
the Rochester area to accomplish the same purpose.
The signs carried by the pickets bore the nomencla-
ture "CULA."
Respondent CULA is one of several branches of
the Center for United Labor Action which has its
central headquarters in New York City. It is a loosely
organized entity run by a self-appointed chairman
and committee . CULA has described itself (and its
branches, including Respondent) in its publications
in the following manner:
The Center for United Labor Action is an asso-
ciation of working men and women devoted to
the improvement of working conditions and the
advancement of all workers of all races and na-
tionalities in the struggle against the U.S. corpo-
rations. It helps to organize the unorganized and
aims to make existing labor organizations more
effective.
The principal slogan used by Respondent CULA is:
If you haven't got a union-fight to get one!
If you have one-fight to make it fight!
One of Respondent's pamphlets states:
We believe that every worker should have a
union, which provides the basic organization he
or she needs to fight for a fair deal . But we also
stand for the revival of militant unionism which
fights not only for higher wages, but also for
equal treatment for women and racial minori-
ties.
Accordingly, Respondent and the central CULA
support union strikes by joining the picketing and
leafleting of employers and raising funds for strikers.
Deborah Lain, chairwoman of Rochester CULA, tes-
tified that Respondent's normal activities include
joining picket lines to assist any union to gain recog-
nition or picketing in behalf of employees who have
been discharged. In this regard, the record shows
that CULA picketed and boycotted Korvettes in
New York City in support of the Amalgamated
Clothing Workers dispute with Farah and assisted
striking seafood workers from Virginia in picketing a
Campbell Soup plant in New Jersey. CULA has also
represented discharged employees before the State
Unemployment Compensation Commission in oppo-
sition to the employer's position and has represented
employee interests before local governmental agen-
cies concerned with industrial safety in employer's
operations . As Respondent states in one of its leaf-
lets:
The CULA is an independent national labor or-
ganization aimed at helping protect the hiring
standards of all working people-employed and
unemployed , unionized and nonunionized.
CENTER FOR UNITED LABOR ACTION 875
Members of CULA have formed and participated in
committees of employees which have bargained with
employers. Respondent CULA has also participated
in union organizing drives and has passed out litera-
ture to employees in conjunction with another
union's literature distribution activities.
The parties herein stipulated that "employees with-
in the meaning of the Act participate in Respondent
CULA." Indeed, on this and the other foregoing
facts, the Administrative Law Judge concluded that
Respondent CULA does exist in part for the purpose
of "dealing with employers with respect to griev-
ances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work," all as provided
in Section 2(5) of the Act. The Administrative Law
Judge further decided, however, that CULA was not
a labor organization within the meaning of the Act
because in his view the Act should be applied only to
organizations selected and designated by employees
to bargain with employers on behalf of that
employer's employees. Such reasoning in specious.
In Phelps Dodge Corporation v. N.L.R.B., 313 U.S.
177 (1941), the employer contended that it was not
an unfair labor practice for an employer to refuse
employment to an applicant because of the
applicant's union membership or activity, on the
grounds that the applicant was not the employer's
"employee," within the meaning of Section 2(3) of
the Act. The Court rejected such a narrow construc-
tion of the Act and indeed found the class of employ-
ees to extend into the general labor market and not
to be confined simply to the employees of the em-
ployer. And, of course, Section 2(3) of the Act pro-
vides:
The term "employee" shall include any em-
ployee, and shall not be limited to the employees
of a particular employer, unless the Act explic-
itly states otherwise... .
Cf. Chemical Workers v. Pittsburgh Plate Glass Co.,
404 U.S. 157 (1971). Therefore, since it is conceded
that Respondent CULA is an organization in which
employees participate, it is clear that Respondent
CULA meets the first of the two requirements for
including it in the definition of labor organization of
Section 2(5) of the Act; i.e., "any organization of any
kind . . . in which employees participate.... "
The Administrative Law Judge found that Re-
spondent CULA also fulfills the second requirement
of the definition of Section 2(5); i.e., "which exists
for the purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or condi-
tions of work." No other conclusion is warranted un-
der long-established legal principles. In N. L. R. B. v.
Cabot Carbon Company and Cabot Shops, Inc., 360
U.S. 203 ( 1959), the Court addressed the issue wheth-
er an "Employer Committee" established by the em-
ployer for the purpose of meeting regularly with
management to consider and discuss problems of
mutual interest , including grievances , was, in light of
the legislative history , a "labor organization" within
the meaning of Section 2(5) of the National Labor
Relations Act. The Court held that they were labor
organizations within the meaning of the Act and re-
jected the court of appeals ' theory that an employee
committee which does not "bargain with " employers
in "the usual concept of collective bargaining" and
does not engage in "dealing with " employers is there-
fore not a statutory labor organization.
Moreover , in Porto Mills, Inc., 149 NLRB 1454
(1964),4 the Board demonstrated that it would read
Section 2(5) as broadly as Congress intended . In that
case the Board concluded that the Comite Pro-De-
fensa de los Trabajadores de Porto Mills met the re-
quirements of Section 2(5), despite the fact that the
purpose of its existence was to oppose the entry of
any union into the plant . It had never sought to "bar-
gain" with the employer on any subject . But, the
Board held , the Comite had "dealt with" the employ-
er when it demanded the discharge of an employee
who was leading a union organization drive 5
Why then should the result be different for Re-
spondent CULA here, when its declared purposes in-
clude picketing for reinstatement of discharged em-
ployees , for a boycott of a manufacturer with whose
labor policies it disagrees , or to aid and indeed fi-
nance employee organizing activities? I submit that if
the Comite is a labor organization , then a fortiori
CULA is a labor organization.
Accordingly , I find that Respondent CULA is a
labor organization as defined by Section 2(5) of the
Act, and I would find that it has violated Section
8(b)(4)(i) and (ii)(B) of the Act.
4 Member Jenkins dissented on a separate issue.
5In N.L.R.B. v. Kennametal, Inc, 182 F.2d 817 (C.A. 3, 1950), the court
held that an informal group of employees who came together to present
their grievances met the standards of Sec. 2(5) and was a labor organization.
The court so held despite the absence of any steps towards formal organiza-
tion.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This mat-
ter was originally heard before Administrative Law Judge
Herbert Silberman, at Rochester, New York, on January 8
and 9, 1974, upon an amended consolidated complaint
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against Center for United Labor Action I (herein "Respon-
dent" or, sometimes , "Rochester CULA"), in Case 3-
CC-808 , and against the Rochester Joint Board of the
Amalgamated Clothing Workers of America , AFL-CIO-
CLC (herein "ACWA") and its agent , The Center for Unit-
ed Labor Action, in Case 3-CC-810. Thereafter Judge Sil-
berman dismissed the complaint on the basis of the plead-
ings . Upon appeal from that action , the Board in a
Decision and Order dated March 20 , 1974 (209 NLRB
814), set aside Judge Silberman 's Order dismissing the
complaint and ordered a hearing de novo on the issues
raised by the allegations of the complaint.
Pursuant to the order of the Board , this matter was
heard before me at Rochester , New York, on September 19
and 20, 1974, upon the allegations of the amended consoli-
dated complaint, as further amended at the hearing, and
the. answer thereto.2 At the inception of the reopened hear-
ing, the consolidated complaint alleged , in substance, that
Respondent CULA was an agent of ACWA, and that
ACWA and Respondent CULA had violated Section
8(bX4Xi) and (ii)(B) of the Act by certain picketing activi-
ties at or near the premises of the above -named Charging
Party (herein "Sibley"). After the opening of the hearing,
the General Counsel offered an agreement executed by
ACWA and General Counsel in settlement of the allega-
tions of the complaint as they pertained to ACWA. There
being no objection from any party, and after noting that
the settlement agreement was in regular form , I approved
the settlement, and granted General Counsel's motions to
sever Case 3-CC-810, and to eliminate all reference to
ACWA from the complaint . Respondent CULA's amend-
ed answer to the amended complaint denies the commis-
sion of the unfair labor practices alleged.
Upon the entire record in this case, from observation of
the witnesses , and after due consideration of the briefs filed
by the General Counsel, Respondent CULA, and Sibley,; I
make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Sibley is a New York corporation engaged in the opera-
tion of a retail clothing store in the city of Rochester, New
York. During a recent annual period, Sibley sold and dis-
tributed clothing and related products with a gross value in
excess of $500,000 and, during the same annual period,
Respondent's name appears as corrected at the hearing.
2 The amended consolidated complaint was issued November 21. 1973,
based on a charge filed in Case 3-CC-308 on October 15, 1973, and on a
charge filed on October 17, 1973, and an amended charge filed on October
31 1973, in Case 3-CC-310.
3 Two communications have been received in the nature of statements of
concern over the possible impact of the decision in this case upon the rights
of labor unions to picket and the right of citizens to urge boycotts and
exercise the right of free speech . One is a telegram received at the outset of
the hearing from District 1199P National Union of Hospital and Health
Care Employees , AFL-CIO (received as ALI Exh . 1). and the second a
letter received since the close of the hearing from the Coordinator of the
Anti-Racism Commission of the Episcopal Diocese of Rochester . This letter
has been marked and is received as ALI Exh . 2, and my reply thereto has
been marked and is received as ALJ Exh. 3. The parties have been served
with these documents . I have considered the telegram and the letter in the
nature of communications amicus curiae.
received goods at its place of business of a value in excess
of $50,000 which have been transported in interstate com-
merce directly from States of the United States other than
the State of New York.
Farah Manufacturing Company, Inc. (herein "Farah"),
is a Texas corporation engaged in the State of Texas in the
manufacture and distribution of men's and boys' pants.
During a recent annual period, Farah shipped products
valued in excess of $50,000 in interstate - commerce. See
Farah Manufacturing Company, Inc., 202 NLRB 666 (1973).
Sibley during the period material herein was a customer of
Farah and sold and distributed Farah products in its Roch-
ester store.
It is found that Sibley and Farah are employers engaged
in commerce or in an industry affecting commerce within
the meaning of the Act.
II. SUMMARY OF FACTS AND ISSUES
Until February 1974, ACWA was engaged in a labor
dispute with Farah pursuant to which ACWA embarked
upon a nationwide campaign to persuade consumers not to
purchase Farah products . Between June 1972 and Febru-
ary 1974, as part of this campaign , ACWA from time to
time picketed Sibley's store in Rochester and requested
customers not to buy Farah products sold by Sibley. Re-
spondent CULA , observing that Sibley was the only store
in Rochester which continued to sell Farah products and
also that the ACWA activity had not caused Sibley to
cease selling Farah products, embarked upon a campaign
to persuade Sibley customers to stop doing business with
Sibley altogether , as a means of putting pressure on Sibley
to cease handling Farah products . To this end, Respondent
CULA at various times picketed Sibley's Rochester prem-
ises with signs urging customers to boycott Sibley and dis-
tributed leaflets and literature in the Rochester area re-
questing that customers boycott Sibley. Respondent's
counsel asserts that the critical issue to be decided in this
matter is whether or not Respondent CULA is a labor or-
ganization, inasmuch as the Act states that only a labor
organization or its agents may violate Section 8 (b)(4)(B).°
Respondent CULA asserts that it is not a labor organiza-
tion within the meaning of the Act. General Counsel and
Sibley contend that it is.
III. THE FACTS
A. Structure and Activities of CULA
The Center for United Labor Action has a central, or
headquarters office in New York City (referred to herein at
"CULA," as distinct from Respondent CULA, which is a
branch of CULA). According to Deborah Lain, chairwom-
an of Respondent CULA, and Gavrielle Gemma, a mem-
4 The findings of Judge Burke in Goldfarb v. The Rochester Joint Board of
the Amalgamated Clothing Workers of America, AFL-ClO-CLC and The
Center for United Labor Action (Sibley, Lindsay & Curr Co.) 85 LRRM 2622
(1974). involving the same circumstances , indicate a considerable degree of
interrelationship between ACWA and CULA in carrying out their activities
against Sibley . However , the record in the instant case is less complete than
that considered by Judge Burke. General Counsel has stated that "the agen-
cy question" has been severed from the case before me. (Tr. 55.)
CENTER FOR UNITED LABOR ACTION 877
ber of the steering committee of CULA, the organization is
very loosely organized . CULA is apparently run by a chair-
man and a steering committee who seem to be either self-
appointed or accepted by a consensus of those persons who
participate in CULA's activities . Several branch offices of
CULA exist in different places in the United States with
the permission of CULA. Rochester is one of these. The
New York City office of CULA is a clearinghouse for in-
formation from the branches and, in turn, disseminates in-
formation and matters of policy to the branches (which, it
is said , the branches are not required to follow ). To assist
in this information gathering and dissemination process,
and to publicize its work , CULA publishes a monthly tab-
loid-size newspaper called "United Labor Action ." In ap-
pearance and content it resembles many other independent
labor press publications except that it seems to carry no
outside advertising .5 CULA also publishes pamphlets em-
phasizing the plight of minorities , women, consumers, and,
for the most part, workers in asserted struggle against em-
ployers , utilities , monopolies , etc. It was testified that Re-
spondent CULA purchases these various publications from
CULA, and in turn sells or otherwise distributes them in
the Rochester area.
Like the CULA in New York City, Rochester CULA is
run by a chairperson and a steering committee selected in
much the same way as in the parent organization. It is
denied that the Rochester CULA has any members in the
normally accepted sense , inasmuch as no dues or fees are
charged, apparently no obligation to the organization is
required , and no evidence of affiliation is issued . However,
lists are kept of those who show interest in the organiza-
tion , or who regularly participate in its activities , or make
donations to the organization . In literature designed for the
public , however, such participants are frequently referred
to as "members ." Some of these participants , including
members of the Rochester CULA steering committee, are
employees of other employers . It was stipulated that "em-
ployees within the meaning of the Act participate in Re-
spondent CULA."
Respondent CULA maintains an office in Rochester. It
has a telephone which is listed in the telephone classified
directory under the heading of "Labor Organizations" (this
apparently based upon the understanding of the telephone
company, and not at the request of Rochester CULA). In
addition to the various publications of CULA which it re-
ceives , Rochester CULA is in communication with CULA
by telephone and by mail, and receives advice , aid, and
assistance from CULA from time to time . Rochester
CULA also prepares and distributes from time to time mi-
meographed material, run off in its own office, which has
the same tone and general content as the material put out
by CULA. Participants in Rochester CULA also contri-
bute material to the publications put out by CULA. Roch-
ester CULA has had contact with some other branches of
S One leaflet issued by Respondent CULA soliciting subscriptions to
United Labor Action asserts : "Bosses swear at it We swear by it" "We
believe that the only answer to the national anti-labor offensive . . . is a
united labor movement . . . United Labor Action will keep you informed
and in touch with the events and struggles of the labor movement across the
country."
CULA directly and is advised of the activities of other
branches through issues of United Labor Action and, pre-
sumably , through participant -members of CULA . The tes-
timony and the material in the record is convincing that
CULA and its branches have the same general purposes
and objectives and engage in the same general activities in
their separate areas.6
First and foremost , CULA and its branches, including
Rochester CULA, are strongly oriented toward union or-
ganization as a mechanism for the improvement of work-
ers' wages and working conditions . In two publications
(Resp. Exhs. 3 and 4), CULA describes itself and its activi-
ties as follows:
The Center for United Labor Action is:
an association for working men and women devoted
to the improvement of working conditions and the ad-
vancement of all workers of all races and nationalities
in the struggle against the U. S. corporations. It helps
to organize the unorganized and aims to make existing
labor organizations more effective.
One of the principal slogans of the organization used by
Rochester CULA, asserts "If you haven't got a union-
Fight to get one! If you have one-Fight to make it fight!!
(G.C. Exh. 24.) In this same leaflet, put out by Rochester
CULA,- it is stated, "We believe that every workers [sic]
should have a union, which provides the basic organization
he or she needs to fight for a fair deal. But we also stand
for the revival of militant unionism, which fights not only
for higher wages , but also for equal treatment for women
and racial minorities."
In pursuance of these purposes, CULA and its branches,
as shown by its literature, support strikes by various unions
for varied union objectives, by joining in picketing of em-
ployers , issuing leaflets in support of the strikers, and offer-
ing encouragement and sometimes small financial sup-
port.' Rochester CULA also helped in raising funds for the
Farah strikers. In addition to the support given ACWA at
Sibley, CULA also engaged in picketing and boycott activ-
ities against Korvettes in New York City in support of the
ACWA dispute with Farah. It also assisted certain striking
seafood workers from -Virginia in picketing a Campbell
Soup plant in New Jersey which used seafood produced at
the struck plant. Deborah Lain, who is the chairwoman of
Rochester CULA, testified that it would be a normal activ-
ity for the organization to join union picket lines to assist a
union to gain recognition from an employer, or to picket in
behalf of employees who have been discharged: However,
6 Respondent 's brief argues Rochester CULA is not "responsible" for the
activities of the New York City office , or the participant-members of that
office . (Br. p. 13) This misses the point . The purposes for which Rochester
CULA exists, and therefore the activity in which it may be expected to
engage, may be gleaned from the purposes and activities of other segments
of the same organization, particularly since Respondent asserts it is but part
of the whole with integrated objectives.
7 Respondent , while admitting responsibility for the publication and dis-
tribution of the literature , stated during the hearing that it did not accept
responsibility for the truth of the matter contained therein . However, in the
absence of evidence to the contrary, I believe that statements by CULA in
its official publication as to the purposes and activities of the organization
and its branches, as well as statements by Respondent CULA, may properly
be relied upon in considering the purposes of Respondent and the types of
activities it is likely to engage in.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she denied that the organization would approach an em-
ployer directly on behalf of such discharged employee.
There have been instances in which CULA has represented
discharged employees before the state unemployment com-
pensation commission in opposition to the employers' posi-
tion, or before local governmental agencies concerned with
industrial safety at an employer's operation.
In Rochester, Respondent gave help and assistance to
employees of one plant who wanted to organize a union by
issuing leaflets for those employees and serving as a central
point for contact by employees of that plant who were in-
terested in that drive. In one of these leaflets (G.C. Exh.
24), Respondent states, inter alia: "We should explain that
the Center for Union Labor Action is not a union, and
could not ourselves conduct an organizing drive. C.U.L.A.
is a nationwide organization of workers from many indus-
tries, some union, some no-union. The C.U.L.A. exists to
help workers struggle for better wages and working condi-
tions through united action. . . . Hopefully, we can act as
a central point through which workers from different de-
partments and plants can come together and share infor-
mation. . . . When we have contact with enough workers
to begin active organizing, we will contact you about the
possibility of a meeting with a union (or unions)."
However, in another leaflet (G.C. Exh. 13), Respondent
stated: "The C.U.L.A. is an independent national labor
organization aimed at helping protect the living standards
of all working people-employed and unemployed, union-
ized and non-unionized."
When another plant in Rochester was being actively or-
ganized by a labor organization, Respondent CULA had
reference to this organizing drive printed in an issue of
United Labor Action (G.C. Exh. 29), and passed out copies
of United Labor Action to employees at the same time the
labor organization was passing out leaflets. (G.C. Exh. 46.)
Participant-members of CULA and Respondent CULA
are reported as attending labor union functions and parti-
cipating in them. CULA publications, which were appar-
ently distributed by Rochester CULA, acclaim the actions
of participant-members of CULA and its branches in orga-
nizing unions, forming grievance committees, and in deal-
ing with employers on behalf of employees.
In addition, CULA and Rochester CULA have engaged
in and supported campaigns in support of the United Farm
Workers, for equal treatment for women and for minori-
ties, against monopolies , against raises in the prices
charged by utilities , and have been concerned with similar
and related civil rights and consumer issues.
IV. ANALYSIS AND CONCLUSIONS
In this case Respondent CULA, in order to aid Farah
employees and ACWA in their strike to compel Farah to
recognize and deal with ACWA as the employees ' bargain-
ing representative , engaged in picketing and other activities
s Respondent contends that what was meant was that CULA is a national
organization composed of laboring people . In another leaflet (G.C. Exh. 11),
Respondent describes CULA as "an independent organization of working
people . We have members and supporters working in plants, restaurants,
hospitals , etc., in Rochester and all around the country."
designed to effect a total consumer boycott of Sibley be-
cause the latter continued to sell Farah products. The law
has been settled since the decision of the Supreme Court in
N.L.R.B. v. Fruit & Vegetable Packers & Warehousemen,
Local 760, and Joint Council No. 28 of IBT [Tree Fruits
Labor Relations Committee, Inc.], 377 U.S. 58 (1964), that,
while a union may lawfully engage in activities advocating
a consumer boycott of the specific products of the produc-
er with whom the union has a primary dispute, it is a viola-
tion of Section 8(b)(4) of the Act for a labor organization,
or its agents, to engage in activities urging a total consumer
boycott of a person to cause that person to stop doing
business with the producer with whom the union has its
dispute.
As the Supreme Court has further held since Internation-
al Brotherhood of Electrical Workers, Local 501, et al. [Sa-
muel Langer] v. N.L.R.B., 341 U.S. 694, there is no consti-
tutional free-speech right to engage in secondary boycotts
prohibited by the Act. See also Fruits & Vegetable Packers
& Warehousmen, Local 760, et al. [Tree Fruits] v. N.L.R.B.,
308 F.2d 311, 317 (C.A.D.C., 1962).
The critical issue posed herein, therefore, is whether Re-
spondent CULA is a labor organization -within the mean-
ing of the Act. If not, on this record, it cannot be held to
have violated the Act .9
Section 2(5) of the Act states that "[t)he term `labor orga-
nization' means any organization of any kind, or any agen-
cy or employee representation committee or plan, in which
employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work."
It is conceded that Respondent CULA is an organiza-
tion in which employees participate. It is, however, disput-
ed that Respondent "exists for the purpose . . . of dealing
with employers.... " There is no evidence that Respon-
dent, or the organization with which it is affiliated, or any
other branches of that organization, have ever sought to
deal with an employer directly, in the name of the organi-
zation, concerning employee grievances, wages , hours, or
conditions of employment, or concerning labor disputes.
However, there is evidence that CULA and its branches
advocate and encourage such action, and that participant-
members of CULA and its branches engage in this sort of
activity, as CULA has related with quite evident approval
in its publications.
Respondent has many of the aspects of a labor union. In
a number of ways it acts as a labor union would. On occa-
sion it has described itself as a labor organization (and on
others has denied it), and, in the circumstance of this case,
Sibley undoubtedly would have little reason to consider
Respondent's objectives as different from those of ACWA,
which is clearly a labor organization within the meaning of
the Act.
There is no question but that Respondent does concern
itself with employee grievances, wages, hours of employ-
ment, and conditions of work, and with union labor dis-
putes. However, so far as this record shows, Respondent
9 As previously noted , General Counsel has disclaimed any contention
that Respondent should be held responsible because it acted on behalf of
ACWA or as its agent.
CENTER FOR UNITED LABOR ACTION 879
acts upon that concern by urging and assisting employees
to obtain union representation , by urging employees to en-
gage in concerted action for improvement of their condi-
tions and the adjustment of their grievances , and by aiding
and supporting employees in their concerted action against
their employers and others . Such aid and assistance has
included joining picket lines of the employees and their
unions , picketing with them against their employers, and
issuing leaflets and other material supporting the griev-
ances, labor disputes , and objectives of the striking em-
ployees and their unions.
This raises the immediate question as to whether Re-
spondent, by becoming so involved and identified with the
demands of the employees and their unions upon the em-
ployers concerned , is not thus in a very real sense "dealing
with employers" within the meaning of the Act. It is a
difficult question . For example : If Respondent went to an
employer on behalf of a discharged employee and demand-
ed that he take the employee back and threatened to picket
the employer if he refused , that would certainly constitute
dealing with an employer within the meaning of the Act.
See N.L.R.B. v. Cabot Carbon Company and Cabot Shops,
Inc., 360 U.S. 203 ( 1959). However , if Respondent , without
first going to the employer , picketed him and issued leaflets
at his premises with exactly the same message, activities
clearly within the purposes of Respondent (and quite nor-
mal conduct for a labor organization ), should that be held
any less evidence of a purpose of dealing with the employer
concerning the employee 's grievance over the discharge? In
either case the purpose is to cause the employer to act in
accordance with Respondent 's expressed desire.
The only case bearing upon this issue of which I am
aware is Local Unions Nos. 8505, 8915, 5899, 7788, and
8161, District 30, United Mine Workers of America (Harold
Fuel Company, Inc.), 146 NLRB 652 (1964), in which the
Board considered whether two roving bands of miners
came within the definition of labor organizations within
the meaning of the Act. In that case the miners were con-
cerned that their medical and hospital benefits would be
lost because mine operators in their area were not making
payments into the UMW welfare and retirement fund pro-
vided by the union contract . The miners constituted them-
selves into two groups (referred to in the decision as "rov-
ing pickets") which went from mine to mine in the area
and spoke to the employees at each mine in an effort to get
them to quit work . They seldom spoke to the mine opera-
tors except to ask permission to talk to the employees. In
one instance one roving band asked an operator if he
would work under the UMW contract; when he and his
employees refused, the roving band departed leaving no
picket behind . In one instance , the band asked a mine su-
perintendent to shut down the mine to force payments to
the fund ; when the superintendent refused , the band left,
leaving no picket behind. In another instance members of
one band used abusive language toward a mine operator.
In some instances mine operators requested meetings with
representatives of the roving bands . At such meetings, ac-
cording to the decision , although there was discussion of
"cessation of picketing ," "[n]o suggestion , request , or offer
pertaining to the welfare fund or wages, hours, or other
specific working conditions , was made" by either side. At
no time was any picket sign carried by the roving bands,
although there was evidence of mass picketing and threats
of violence , apparently addressed to employees. The Trial
Examiner held, with subsequent Board approval, that in
the absence of "some attempt to discuss or treat with the
employer, or persuade or petition him" (146 NLRB at 659),
these circumstances did not show a purpose of dealing with
employers within the meaning of the Act , and that the rov-
ing bands therefore were not labor organizations within the
meaning of Section 2 (5) of the Act.
I am not persuaded that this decision, dealing with the
seemingly aimless activities of ad hoc groups of- employees
principally concerned with communicating with other em-
ployees, should be controlling in the present situation in-
volving a highly purposed group , with a continuous exis-
tence, which exists clearly, in part, to petition and persuade
employers to specific conduct in labor disputes , at the very
least . In a very practical , as well as a legal sense, labor
organizations do deal with employers by means of pres-
sures exerted by mass action , by picketing and by leaflet-
ing. The picket line carries the message and not infrequent-
ly the employer 's response is an accommodation with the
objectives of the concerted action with which he is con-
fronted . Therefore , I find that Respondent CULA, through
picket line and related activities , does exist in part for the
purpose of dealing with employers with respect to griev-
ances, labor disputes , wages, rates of pay, hours of employ-
ment, or conditions of work.10
However, while I find that Respondent CULA does
"deal with employers" within the meaning of the Act by its
picketing and related activities , and thus comes within the
literal definition of a labor organization within the mean-
ing of the Act, I am also convinced that such a result tends
to warp the structure and distort the policy and purposes of
the Act . As the Supreme Court has frequently had occasion
to remind us, "it is a familiar rule that a thing may be
within the letter of the statute and yet not within the stat-
ute, because not within its spirit, nor within the intention of
its makers." See N. L.R.B. v. Fruit & Vegetable Packers,
Local 760, supra, 377 U.S. at 72 . From the beginning, it has
been clear that the National Labor Relations Act seeks to
accomplish its purposes ( 1) by providing a procedure by
which employees might select representatives , if they
choose, to deal with their employer concerning their em-
ployment problems, and (2) by protecting employees in the
various aspects of the exercise of that choice .iIAt is a basic
101 find it unnecessary , therefore , to pass upon the further argument that
by encouraging, inducing, and motivating others (including its own partici-
pant-members) to deal with employers concerning labor disputes, wages,
hours, and working conditions , and by glorifying and approving such ac-
tions by its participant-members and others, Respondent, in fact, is in-
volved , through those it has motivated , in dealing with such employers.
Thus I do not pass upon whether CULA (or Respondent) can successfully
disassociate itself from responsibility for the actions of its steering commit-
tee members and or its other participant-members in dealing with employ-
ers, while at the same time claiming in its publications that such actions
carry out the purposes of the organization.
11 Sec. I of the Act provides, inter ala, that it is "the policy of the United
States to eliminate the causes of certain substantial obstructions to the free
flow of commerce and to mitigate and eliminate those obstructions ... by
protecting the exercise by workers of full freedom of association , self-orga-
nization , and designation of representatives of their own choosing, for the
Continued
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenet of the Act that by investing the employees ' chosen
representative with authority to deal with the employer and
to resolve labor disputes with the employer in the interests of
the employees , a degree of regularity and stability can be
achieved in labor relations which would diminish burdens
on and interruptions to interstate commerce . It is thus the
purpose of the Act to create circumstances favorable to the
resolution of such labor disputes.
From the outset , Congress clearly expected , as has since
normally been the case, that labor organizations would be
the representatives chosen to carry out the purposes of the
Act. Thus Section 7 of the Act provided, and still does, that
"[e]mployees shall have the right . . . to form, join, or as-
sist labor organizations, to bargain collectively through
representatives of their own choosing .... " The later
amendments to the Act in numerous sections confirm the
understanding of the function of the labor organization as
the representative , or the potential representative, of the
employees who may participate in that organization in
dealing with their employer concerning the employees'
work-related problems. 2
I am thus convinced that the authors of the original Act,
as well as those who have since worked to amend it, in-
tended that the term "labor organization" as used in the
Act should be applied to organizations selected and desig-
nated by employees (who are, or may be, members of or
participants in such organizations ) for the purpose of resolv-
ing the employees ' conflicts with employers. This does not
mean that labor organizations cannot , or do not, have a
wider scope . But this purpose is basic. And it is this pur-
pose which is lacking in Respondent CULA and the orga-
nization of which it is a part. They do not exist for the
purpose of adjusting or resolving the disputes in which they
become involved. For this reason I find that Respondent
CULA is not a labor organization within the meaning of
the Act.
Sibley voices concern in its brief that by holding Re-
purpose of negotiating the terms and conditions of employment or other
mutual aid or protection."
12 See, e.g., Sec. 9(b)(7) (limiting picketing to force an employer to accept
a labor organization as the employees' representative); 9(d) (where after
setting forth the mutual obligations of employers and representatives of
employees in bargaining, Congress provided that these are the "duties im-
posed upon employers, employees, and labor organizations"); and 9(e) and
(f) (special rules concerning bargaining contracts entered into by labor orga-
nizations as representatives of employees.)
spondent CULA not to be a labor organization , the Board
will thus encourage outside organizations like Respondent
to engage with impunity in boycotts in the course of labor
disputes which Congress has condemned in the Act as con-
trary to the public interest , and, indeed , open an avenue by
which labor organizations can achieve objectives in fact
which are forbidden to such unions by law. This is a valid
concern . Secondary boycotts in labor disputes have been
declared an evil , burdening and obstructing interstate com-
merce contrary to the labor policy of the United States.
However, even though Congress has provided in the Act
that such activity is prohibited only when accomplished by
a labor organization or by those acting in behalf of a labor
organization , this does not mean that labor organizations
may avail themselves of nonunion groups to avoid the
strictures of the law , or that such nonunion groups may
escape responsibility for their activities on behalf of labor
organizations which may violate the Act. See e .g., Team-
sters Local 695 and its Agents James Marketti et al. (Wiscon-
sin Supply Corporation), 204 NLRB 866 (1973).13 However,
as I have previously had occasion to note, this issue is not
presented in the case before me and I do not pass upon the
responsibility of Respondent CULA because it acted on
behalf of ACWA or as its agent.
Upon the above analysis and for the reasons stated, I
find that Respondent CULA did not violate the Act, and I
shall recommend that the complaint in this matter be dis-
missed.
CONCLUSIONS OF LAW
1. Sibley and Farah are each employers engaged in com-
merce or in an industry affecting commerce within the
meaning of Sections 2(6) and (7) and 8(b)(4) of the Act.
2. Respondent CULA is not a labor organization within
the meaning of Sections 2(5) and 8(b)(4) of the Act.
3. Respondent CULA, by its picketing and other activi-
ties encouraging and inducing customers and others to
boycott Sibley, did not violate the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
13 Sibley's brief also argues that those who instigate or further a course of
conduct which could reasonably be expected to result in a violation of the
Act should be held responsible for the result . Such is clearly the law in the
area of secondary boycotts . See Selby-Battersby and Company and Associated
Builders and Contractors of Maryland, Inc. v. N.L R.B, 259 F .2d 151 (C.A. 4,
1958)