Department & Specialty Store, Etc., Local 1265

National Labor Relations Board - Board Decisions

Mar 19, 1962

136 N.L.R.B. 335 (N.L.R.B. 1962)

DEPARTMENT & SPECIALTY STORE, ETC ., LOCAL 1265 335
Department & Specialty Store Employees ' Union, Local 1265,
AFL-CIO and Oakland G. R. Kinney Company, Inc. Case No.
f2O-CP-1d. March 19,,1962
DECISION AND ORDER
On September 21, 1960, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter the General Counsel and the Charging Party filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs and the entire record in the
case 1 and adopts the findings and conclusions of the Trial Examiner
only to the extent consistent with the decision herein.
The Trial Examiner found that the Respondent had not violated
Section 8 (b) (7) (B) of the Act because the picketing involved was
not for an object of recognition, bargaining, or organization, and
therefore was not prohibited by Section 8(b) (7). He recommended
dismissal of the complaint in its entirety. We are in agreement with
the Trial Examiner that the complaint should be dismissed , but for
different reasons.
On March 12, 1959, the G. R. Kinney Corporation established a
Kinney retail shoestore at Oakland, California. The store employed
nine individuals, none of whom was represented by a labor
organization.
About the middle of 1959 three business agents of Respondent Local
1265 went to the store and asked permission of the manager to talk to
the employees about joining the Union. When their request was de-
nied, the business agents stated that they did not see any local sales
people on the floor, and that the Union would be glad to^furnish com-
petent help. They then left.
'At the hearing the parties stipulated that the Trial Examiner should receive in evi-
dence designated portions of the court reporter 's transcript in Brown v. Department c6
Specialty Store Employees' Union, Local 1265, AFL-CIO, 187 F. Supp . 619 (D .C. N. Calif.),
and all exhibits introduced by the parties in that proceeding.
136 NLRB No. 29.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 3, 1960, the same business agents went to the store
and asked the manager whether the Company had changed its posi-
tion about their talking to the employees, and were told that it had
not. The business agents then told the manager that they would ad-
vertise to the public that the store was nonunion and did not meet
union conditions. When the manager asked which conditions were
not met, one of the union agents said ". . . strike that from the con-
versation. We are going to advertise your store because it is non-
union." On leaving, one of the business agents handed the district
manager a card bearing the name of Local 1265's executive secretary
and stated that if the district manager had any questions to call the
executive secretary.
On February 4, 1960, Kinney received a letter from Local 1265
stating that it intended to engage in an "advertising campaign" to
inform the public that Kinney's store did not operate under fair union
conditions; that its "exclusive purpose" was to persuade the public
not to patronize Kinney and to urge them to shop in retail stores
where Local 1265s members were employed. The letter continued :
We do not claim at this time to represent a majority of the em-
ployees of your store, nor is it any part of the purpose of our
advertising campaign to secure a Union contract covering these
employees. In fact, our Union will refuse to enter into any such
contract until and unless a majority of your employees at your
store voluntarily without any coercion of any kind designate the
Union as their collective bargaining representative.
On February 5, 1960, two pickets appeared in front of the Kinney
premises carrying signs and leaflets for distribution to patrons of the
store. The picket signs read :
THIS STORE DOES
NOT OPERATE UNDER AFL-CIO
UNION CONDITIONS
PLEASE DO NOT PATRONIZE
Department & Specialty
Store Employees Union
Local 1265
The leaflets indicated that Kinney did not have a contract with a
labor organization, or employ members of a labor organization, and
appealed to the public not to patronize Kinney's. The picketing was
peaceful and at no time did it interfere with the pickup, delivery,
or transportation of goods to or from Kinney, nor did it induce any
individual employed by persons other than Kinney to refuse to per-
form services for Kinney.
DEPARTMENT & SPECIALTY STORE, ETC., LOCAL 1265 337
On February 17, 1960, Kinney filed an unfair labor practice charge
alleging, inter,alia, that Local •1,265 had. violated Section 8(b) (7) of
the Act, and on the same day filed a petition for a representation peti-
tion. Pursuant to 8(b) (7) (C), the Regional Director conducted an
expedited election on April 18, 1960. All nine employees voted against
representation by Local 1265 and the results of the election were certi-
fied on April 29, 1960. Picketing and the distribution of leaflets at
the premises of Kinney continued after the election and the certifica-
tion of results.
As stated, in dismissing the complaint the Trial Examiner found no
evidence that the picketing had as an object organization, recognition,
or bargaining within the meaning of Section 8(b) (7) (B). We dis-
agree. Two days before the Respondent began to picket, two of its
business agents renewed their request to the Company for permission
to talk to employees about joining the Union. The next day, Respond-
ent followed up this request with a letter to the Company disclaiming
a bargaining objective "unless a majority of your employees at your
store voluntarily without any coercion of any kind designate the
Union as their collective bargaining representative." The leaflets dis-
tributed by the pickets advertised that the Company did not have a
contract with, or employ members of, a labor organization. We find,
in these circumstances, that the picketing had for an object organiza-
tion or bargaining as defined in Section 8 (b) (7).
Though in disagreement with the Trial Examiner on the above
point, we nevertheless agree with him that Respondent's conduct did
not violate Section 8(b) (7) (B). The picket signs utilized by Re-
spondent prior to the election stated that Kinney "did not operate
under AFL-CIO Union conditions." We find that the picket signs,
when considered together with the leaflets distributed by the pickets,'
were substantially for the "purpose of truthfully advising the public
(including consumers)" that the Company did not "employ members
of, or have a contract with," the Respondent. It therefore follows that
Respondent's picketing, conducted before and after the filing of Kin-
ney's representation petition and 8(b) (7) (C) charge, conformed with
the requirements of the publicity proviso to Section 8(b) (7) (C).'
That section provides that such publicity proviso picketing is per-
missible and not in violation of the Act nor subject to an expedited
election procedure unless it has the effect of inducing stoppages of
deliveries or services. It follows that, as there were no such stoppages,
the expedited election in this case was improperly directed and held.
Section 8(b) (7) (B) of the Act prohibits recognitional or organiza-
tional picketing within 12 months of a valid election. A violation of
2 The leaflets stated that Kinney did not have a contract with a labor organization or
employ members of a labor organization and, as did the picket signs, appealed to the
public not to patronize Kinney.
3 See Crown Cafeteria, 134 NLRB 1214.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (7) (B) then is dependent on the validity of the April 18, 1960,
expedited election, as both the General Counsel and the Respondent
agree.
In view of the foregoing, we find that, as an expedited election pur-
suant to Section 8 (b) (7) (C) should not have been conducted, the
April 18 election was not valid for the purposes of 8(b) (7) (B).
Therefore the picketing following that election was not prohibited by
8(b) (7) (B). Accordingly, we shall dismiss the complaint in its en-
tirety and order that the expedited election in Case No. 20-RM-326
be set aside.
[The Board dismissed the complaint and set aside the election in
Case No. 20-RM-326.]
MEMBER LEEDOM, dissenting :
As reflected in the majority opinion, the record contains evidence,
independent of the language of the picket signs, that an object of
Respondent's picketing before the election was organization of Kin-
ney's employees. Thus, the situation here is virtually the same as in
Crown Cafeteria, reconsidered, supra, in which Member Rodgers and
I dissented from the majority view that independent evidence con-
cerning the object of picketing is immaterial if only the picket signs
conform to the language of the publicity proviso to Section 8 (b) (7)
(C). "Here, too, the majority, although relying on independent
evidence to establish that the Respondent's object was organization
or bargaining, ignores that evidence in reaching its conclusion that
the picketing was for protected publicity purposes. I cannot agree
that evidence which is relevant to establish `object' becomes irrelevant
when the issue is `purpose.' "
For the reasons set forth in the dissenting opinion in Crown Cafe-
teria, reconsidered, and in the majority opinion in the initial Crown
Cafeteria decision, I would on the facts in this case find that the
picketing herein was not protected by the publicity proviso to Section
8 (b) (7) (C) ; that absent the timely petition, the picketing would
therefore have violated that section of the Act; and that the expedited
election conducted by the Regional Director was consequently a valid
election for the purposes of Section 8(b) (7) (B). As it is clear that
the picketing continued after the election, and the certification of the
results thereof, for the same object of organization, I would find that
the Respondent thereby violated Section 8(b) (7) (B), as alleged, and
would enter an appropriate order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner at San',
Francisco , California , on July 7, 1960 . It was heard upon a stipulation that the Trial'
DEPARTMENT & SPECIALTY STORE, ETC., LOCAL 1265 339
Examiner should receive in evidence designated portions of the reporter's transcript in
Brown v. Department & Specialty Store Employees' Union, Local 1265, AFL-CIO,
187 F. Supp. 619 (D.C. N. Calif.), and all exhibits introduced by the respective par-
ties in that proceeding. It was further stipulated that after the Trial Examiner had
examined said reporter's transcript and exhibits he might, if he deemed it necessary,
reconvene the hearing for the taking of further testimony. Having examined said
reporter's transcript and exhibits the Trial Examiner, by Order dated August 2, 1960,
closed the hearing.
The complaint alleged, in substance, that Department & Specialty Store Employees'
Union, Local 1265, AFL-CIO, herein called Respondent or Local 1265, picketed the
premises of Oakland G. R. Kinney, herein called Kinney or the Company, within 12
months following an expedited election conducted pursuant to Section 8(b) (7) (C)
and 9(c) of the Act at which the employees of Kinney voted unanimously against
representation by Respondent with an object of forcing or requiring Kinney to recog-
nize or bargain with Respondent or forcing or requiring Kinney's employees to accept
Respondent as their collective-bargaining representative notwithstanding Respondent
was not currently certified. The aforesaid conduct of the Respondent is alleged to
have violated Section 8(b) (7) of the Act.
Respondent's answer admitted the picketing as alleged but denied the objective as
alleged; it put in issue the authority of the Regional Director to hold the expedited
election under Section 8(b) (7) (C) and 9(c) (an appeal from said Regional Di-
rector's action is pending before the Court of Appeals for the Ninth Circuit); it
denied the commission of unfair labor practices under Section 8(b)(7) of the Act.
Respondent's answer then asserted eight separate affirmative defenses. These may
be summarized as an attack on the validity of the expedited election; an allegation
that the picketing was protected under the proviso to Section 8(b)(7)(C) and Sec-
tion 13; a disclaimer of the unlawful objective of the picketing; and an allegation
that the picketing did not obstruct the flow of commerce nor harm or injure the
public interest.
Briefs were received from the General Counsel and Respondent by September 13.
Upon the aforesaid stipulation, the transcript and the exhibits, 1 make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Oakland G. R. Kinney, a California corporation , operates a retail shoe store in
Oakland, California. The Oakland store, the only store involved in this proceeding,
is one of a nationwide chain of some 500 stores owned and operated by G. R. Kinney
Corporation of New York, New York, the parent corporation of Kinney The chain
is operated as a single , integrated enterprise doing an annual gross volume of business
in excess of $10,000,000. During the past year Oakland G. R. Kinney received mer-
chandise valued in excess of $50,000 shipped directly to it from points outside the
State of California.
I find that Respondent is engaged in commerce within the meaning of the Act.
If. LABOR ORGANIZATION INVOLVED
Department & Specialty Store Employees' Union, Local 1265, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Upon the stipulated record herein I find that the G. R. Kinney Corporation estab-
lished Kinney at Oakland on March 12, 1959. Walter Gottinger was manager of
Kinney, which employed nine persons. At no time material herein did any labor
organization represent these employees.
At a time fixed by Gottinger as April or May of 1959 but fixed by the union repre-
sentatives as August or September of that year 1 Gottinger received a visit from three
representatives of Local 1265. These were Alvin William Kidder, William J. Devine,
and Daniel E. Breault, all business representatives. According to Gottinger, Devine
acted as spokesman for the three, but according to both Kidder and Devine the spokes-
man was Kidder and I so find. Kidder introduced himself and the others to Gottinger
and asked permission to talk to the employees. Gottinger told them it was against
1 In the order closing the hearing I have found that the date of this visit was immaterial.
641795-63-vol. 136-23
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company policy for them to talk to the employees during working hours and on com-
pany premises. The union representatives then left.
On February 3, 1960, the same three union representatives again visited the store
and saw Gottingen. (Again I find that Kidder, not Devine, did the talking.) Accord-
ing to Kidder, he reintroduced himself and his companions to Gottinger and asked
if the Company's policy with respect to talking to employees had changed. When
he was told it had not Kidder told Gottinger that he had been instructed by Mr.
Mathiesen 2 to advertise to the public that the store was nonunion and did not meet
union conditions of work. District Manager Rowen was at the store at the time and
Kidder told him of the Union's contemplated action and left a card with Mathiesen's
name and telephone number with Rowen. There is no substantial difference between
the testimony of Kidder and Devine and that of Rowen and Gottinger except that the
latter testified that when permission to address the employees was denied Kidder told
them that the store would be boycotted and there would be trouble. Kidder and
Devine deny use of the word "trouble." 3
On February 4, 1960, Local 1265 sent, and Kinney received, the following letter
(Trial Examiner's Exhibit No. 2, Petitioner's Exhibit No. 2 in Case No. 39,139):
KINNEY SHOE CORPORATION,
10323 E. 14th Street,
Oakland 3, California
FEBRUARY 4, 1960.
GENTLEMEN: This is to notify you that our Union intends to engage in an
advertising campaign to inform the public that your store does not operate under
fair Union conditions.
In this advertising campaign it is our exclusive purpose to persuade the public
not to patronize your company and to urge that members of the public shop in
retail stores where our Union members are employed under Union conditions.
We do not claim at this time to represent a majority of the employees of your
store, nor is it any part of the purpose of our advertising campaign to secure
a Union contract covering these employees. In fact, our Union will refuse to
enter into any such contract until and unless a majority of your employees at
your store voluntarily without any coercion of any kind designate the Union as
their collective bargaining representative.
Any statements heretofore made to you which can be construed as inconsistent
with this communication are hereby unconditionally withdrawn and specifically
repudiated.
Yours very truly,
RLMmp
DEPARTMENT & SPECIALTY STORE
EMPLOYEES' UNION LOCAL 1265,
RUSSEL L. MATHIESEN,
Secretary-Treasurer.
On February 5, 1960, two pickets appeared at the Kinney premises carrying signs
and leaflets for distribution to patrons of the store. The picket sign (Trial Exam-
iner's Exhibit No. 2, Petitioner's Exhibit No. 3, Case No. 39,139) read:
THIS STORE DOES
NOT OPERATE UNDER
AFL-CIO
UNION CONDITIONS
PLEASE DO NOT PATRONIZE
Department & Specialty
Store Employees Union
Local 1265.
2 Russell L. Mathiesen, secretary-treasurer of Local 1265 Mathiesen testified that he
was prompted to send his representatives to Kinney because three rival stores in Los
Angeles had complained that Kinney was not paying wages comparable to their collective-
bargaining contract scale.
3In the order closing the hearing it was found unnecessary to resolve this issue of
credibility. On the basis of the stipulated record I find that Kidder gave Gottinger and
Rowen a clear warning that Local 1265 intended to advertise to the public the fact that
Kinney was nonunion No further finding either can or need be made
DEPARTMENT & SPECIALTY STORE, ETC., LOCAL 1265 341
The picketing was peaceful 4 and at no time did it interfere with the pickup, delivery
or transportation of goods to or from Kinney, nor did it induce any individual
employed by persons other than Kinney to refuse to perform services for Kinney.
The leaflets (Trial Examiner's Exhibit No. 2, Petitioner's Exhibit No. 4 in Case 39,
139) were on the stationery of Local 1265 and read:
A MESSAGE TO THE PUBLIC
The employees of this store do not enjoy union wages, hours and other work-
ing conditions, nor do they have the advantage of the many other benefits of
Union membership, such as union-negotiated medical and hospital benefits and
the like.
This store and the employees who work here are in competition with the
many other fair Union stores in the area where Union conditions prevail for
the members of our Union. Your patronage of this store breaks down these
fair wages and working conditions which prevail in Union stores and threatens
the jobs of our members at those stores.
Our members are your friends and neighbors who have obtained Union con-
ditions and job security through their Union. By their efforts your living
standards and your security are likewise protected.
We are sure that you will not wish to harm these many hundreds of our
members in the community by giving your patronage to this store and its em-
ployees who do not meet Union standards. We seek your help in securing and
maintaining these standards.
PLEASE DO NOT PATRONIZE KINNEY'S
Department & Specialty Store
Employees' Union, Local 1265
R.C.I.A., AFL-CIO.
On February 17, 1960, Kinney filed a charge with the Regional Office of the
National Labor Relations Board (Case No. 20-CP-8) alleging that Respondent
herein had violated Section 8(b) subsections (1)(4) and (7) of the Act and on the
same day filed a petition for a representation election (Case No. 20-RM-326).
Pursuant to Sections 8(b)(7)(C) and 9(c) of the Act the Regional Director directed
an election among all selling and nonselling employees of Kinney except guards
and supervisors. Due to litigation which is not a part of the record herein 5 the elec-
tion was not held until April 18, 1960. All nine employees voted against representa-
tion by Local 1265 and the results of the election were certified on April 29, 1960.
Picketing and the distribution of leaflets at the premises of Kinney continued
following the election and the certification of results and no charge was filed alleging
that Kinney had unlawfully recognized or assisted any labor organization. The
General Counsel contends that this post-election picketing is proscribed by Section
'8(b)(7)(B).
B. Conclusions
A large part of Respondent's brief is devoted to an attack upon the validity of the
order of the Regional Director directing an expedited election in Case No. 20-RM-
326.6 The charge alleging violation of Section 8(b) (7) (C) was dismissed by the
Regional Director when the election was ordered? Both counsel for the Respondent
and for the General Counsel are in apparent agreement that the validity of the
Regional Director's order is a proper issue in a proceeding brought under Section
8(b) (7) (B) where the picketing which initiated the 8(b) (7) (C) charge is continued
after the election. In view of my findings herein I do not find it necessary to reach
* Gottinger testified that on two occasions the Company called the Oakland police because
it was thought the pickets were too vigorous in the distribution of the leaflets . The police
came, talked to the pickets, and left.
5 See Department & Specialty Store Employees Union, Local 1265 v Brown, 187 F. Supp
865 (D.C. N Calif.) An appeal is presently pending from the decision of district judge
dismissing the application for an injunction restraining the election ( Department &
Specialty Store Employees Union , Local 1265 v. Brown, No. 16,843 (CA. 9) )
G The election was pursuant to Sections 8(b) (7) (C) and 9 (c) of the Act and the Board's
Rules and Regulations , Sections 101.23(b) and 102 77(b).
7 Board's Rules and Regulations , Sections 101.24( a) and 102 81(a).
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that awkward determination since this case may be disposed of on the 8(b)(7)(B)
issue without reaching 8(b) (7) (C) and its second proviso.e
I find the determinative issue presented by the stipulated record in this case is
whether or not the picketing and distribution of leaflets by Respondent constituted
conduct proscribed by Section 8(b)(7), which reads:
SEc. 8 (b) It shall be an unfair labor practice for a labor organization or its
agents-
(7) to picket or cause to be picketed, or threaten to picket, 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:
Although the case has been briefed extensively the facts in the stipulated record
raise only that a simple issue, i e , whether or not the objective of the picketing was
unlawful under the Act. To be unlawful it must have had for its object either recog-
nition by the Employer or organization of his employees. There is not an iota of
evidence in the stipulated record to support ,the conclusion that either purpose
fostered the picketing. At no time, either antecedent to or following the commence-
ment of the picketing, was any demand, oral or written, express or implied, made by
the Respondent upon the Employer for recognition or for a collective-bargaining con-
tract. To the contrary, in its only written communication to the Employer the
Respondent expressly stated that it would not accept a contract until a majority of
the employees voluntarily designated the Union as their collective-bargaining agent.
No action and no words inconsistent with this disclaimer of bargaining status
can be found in the record. In fact, I do not find that the General Counsel has
made any claim that the picketing was motivated to force or require recognition by
the Employer.
The General Counsel does contend, however, that the immediate objective of the
picketing was the organization of the employees with the ultimate goal, of course,
of recognition and a contract. Again, however, the record is bare of any efforts on
the part of the Respondent to organize the employees. On at least two occasions
representatives of Respondent visited Kinney. On each occasion they requested per-
mission to speak to the employees, were denied permission and left without speaking
to any employee. At no time, according to this record, did they solicit any em-
ployees to join the union, nor did they distribute union literature or authorization
cards nor call any meetings. No direct or indirect contact of any kind was estab-
lished between the employees and the union representatives for the purpose of re-
cruiting union membership. In fact, the visits to Kinney were not the inspiration of
the Union, they were provoked by complaints from competitors of Kinney with
whom Respondent had contracts that Kinney, by maintaining nonunion conditions
of employment, was a threat to the business of the union stores and a consequent
threat to union standards of employment. Neither the picket signs nor the leaflets
urged employees to join the Union. The picketing was directed solely to advertising
$ I do agree that a serious question of due process is posed unless the facts upon which
a Regional Director finds an election under Section 8(b) (7) (C) Is warranted ins - be put
In issue in a formal hearing. For the Regional Director's Order directing the election and
dismissing the 8(b) (7) (C) charge is based upon an administrative investigation absent
confrontation and cross-examination of witnesses, and the right to litigate the second pro-
viso to 8(b) (7) (C) Is denied the Respondent (The courts and the Board may hold that
the second proviso applies equally to all subparagraphs of Section S(h) (7), but this is a
position in which the General Counsel does not appear to concur ) To hold that a Re-
gional Director may deprive a respondent union of such exemption as the second proviso
affords by directing an election, dismissing the 8(b) (7) (C) action, and subsequently issuing
complaint under subparagraph (B) would appear to sacrifice due process to administrative
legerdemain, a sacrifice I do not anticipate the courts will view with favor The General
Counsel, in his brief to the Court of Appeals in Department S Specialty Store Employees
Union, Local 1265 v Brown (C A 9), states that the validity of the directed 8(b) (7) (C)
election and the claim of exemption under the second proviso may be fully litigated In an
8(b) (7) (B) proceeding which results from picketing following an expedited election The
Board's Rules and Regulations do not so expressly provide but contemplation of the dilemma
which faces the respondent union when the charge of violation of subparagraph (C) is
administratively dismissed suggests that this is the procedural answer.
DEPARTMENT & SPECIALTY STORE, ETC ., LOCAL 1265 343
to the public that nonunion conditions prevailed at Kinney. In a community as
highly organized as San Francisco and as cognizant of the disparity between union
and nonunion conditions of employment and the ultimate effect of the replacement
of the former by the latter upon community living standards, such an appeal car-
ried economic impact .9 But the statute does not refer to the effect of the picketing
but to its object. While the General Counsel may urge that an economic coercion
stems from threat of economic loss which inevitably makes the employees of the
picketed employer more susceptible to organization, the short answer is that any
picketing by an unrecognized union has such a derivatively coercive effect and that
if the Congress had intended to bar all picketing by unrecognized or uncertified
unions it could easily have done so. Instead it took care to specify the objectives
which it considered unlawful and to leave unions otherwise free to engage in pri-
mary picketing. The Congress is neither uninformed in labor-management rela-
tions nor inept in draftsmanship. The amendments, including Section 8(b)(7),
were passed after long and acrimonious debate. To say that Congress did not intend
to engraft the distinction between immediate and ultimate purposes of picketing
into the section is to rob the objective clause of all sense and meaning. The
Congress understood that the ultimate objectives of every labor organization are the
recruitment of membership, the enlistment of the unorganized, and the negotiation
of collective-bargaining contracts. The ban of 8(b)(7) was directed to a specific
abuse described as "blackmail" picketing. This is picketing which seeks, by the
direct economic coercion which results from picketing intended to stop the delivery
and pickup of the employer's merchandise by picket line appeals to the employees
of other employers to cease doing business with the picketed employer, to force the
employer to recognize and the employees to accept a union which the employees
have not voluntarily selected as their bargaining representative. The picketing here-
in cannot be so described.
I have read the district court cases cited in the brief of General Counsel and
find them inapposite.10 In each the district judge found that either a demand for
recognition had been made prior to the picketing, that the picket signs demanded
recognition and a contract, that the picketing was for a new contract after loss of an
election, or that the Union admitted that recognition was its objective." The
instant case is distinguished by the absence of any of these factors.
On the other hand, the General Counsel does not refer to and fails to distinguish
such cases as Ivan C. McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local
89, Hotel and Restaurant Employees Union, AFL-CIO, etc. (Stork Restaurant),
280 F. 2d 760 (C.A. 2); Robert E. Greene v. International Typographical Union
and Local 285 (Charlton Press, Inc.), 186 F. Supp. 630 (D.C. Conn.); 12 and
Getreu v. Bartenders and Hotel and Restaurant Employees Union, etc., (Fowler
Hotel), 181 F. Supp. 738 (D.C. Ind.). While each of these cases dealt with
Section 8('b) (7) (C) and its controversial provisos, in each the court was compelled
to distinguish between the immediate and ultimate objective of the picketing.
Although I am not relying on the proviso clause to sustain my finding herein (al-
though I believe the picketing here does fall within the exemption of the second
proviso) and do not find it necessary to determine whether or not the proviso to
subsection (C) applies to other subsections, I do hold that the language and reason-
ing used ,in these cases is equally applicable in reaching the determination which must
be made here, i.e., was the picketing unlawful because it was proscribed by the
general objective clause of 8(b) (7).
In the Stork Restaurant case the picket signs advertised that the employees did
not enjoy union conditions and that the club did not have a contract with the respond-
ent unions. The district court was reversed in its holding that such picketing was
"recognitional picketing proscribed by the Act." The court stated:
The reasoning employed by the court below was that since the unions carried
signs stating that they did not have a contract with the unions, this indicated
6 The record discloses that Kinney estimated its overall loss at 30 percent of its antici-
pated volume.
io Sympathetic though I am to the dilemma of the General Counsel in the instant case,
the citing of inapposite cases serves only to make the task of the Trial Examiner more
time-consuming and to delay the issuance of reports
"In John J Cuneo v United Shoe Workers of America. etc (Q T Shoe 111fg Co ). 181
F Supp. 324 cited in the brief, the injunction was granted to halt physical violence and
other coercive conduct pending an election The case in no wise relates to any isrue herein.
12 Cf. Robert E. Greene v . International Typographical Union and Local 285, 182 F. Supp.
788, cited by General Counsel.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unions wanted to obtain such a contract and thus wanted to force the
employer to recognize and bargain with the unions.... To say that the carry-
ing of signs stating that the employer has no contract with the union is proof
of recognitional picketing is .to ignore the letter and, we think , the spirit of the
statute.
The court then went on to find that the picketing was unlawful only to the extent
that it might have influenced other employees not to make deliveries . This finding
was made despite the fact that prior to January 14, 1960, the unions had admittedly
sought recognition and had only announced a change in the objective of their
picketing on that date . Disposing of such inference as might be drawn from this
fact the court said:
The unions clearly announced the change in objective on January 14, 1960,
and took action to modify their activity so as to bring it within the sphere of
allowable informational picketing permitted by the Act. Their prior objective
should not conclude the unions from engaging in lawful activity at a later time.
In the Arnold Bakers case we rejected the application of a presumption of the
continuity of a state of affairs in construing the legality of picketing where
there is no independent evidence to support such a presumption . N.L.R.B. v.
Local 50, Bakery and Confectionery Workers, 245 F. 2d 542, 547 (2 Cir.
,1957). There was testimony by the president of one of the unions in the
instant case that the unions had the objective of informing the public of the
conditions of employment so as to establish wages and conditions which prevail
in the industry and that the signs would be withdrawn if that object were
attained even if no contract resulted . There is no substantial independent evi-
dence to warrant the conclusion that an object of the picketing was for recogni-
tion and to force or require the employer to bargain with the unions as the
agents of the employees.
In the second Typographical Union case the Regional Director had petitioned
for an order to show cause why the defendants (respondents ) should not be
punished for contempt for continuing to picket in violation of the injunction issued
in the first case (picketing in violation of Section 8(b) (7) (C) ). In dismissing the
petition Judge Anderson, who had issued the original injunction , stated:
The N.L.R.B., however, argues that in spite of an ostensible showing of pur-
suing a purpose of truthfully advising the public as set forth in the second
proviso, the unions and their leaders actually never abandoned the objective of
forcing or requiring the employer to bargain with or recognize the unions, and
refer to the testimony of the local union's officials who said that it was their
hope and desire that the picketing would result in getting the employer to sit
down and talk with them and eventually rehire the employees on terms and
conditions agreeable to the unions . This claim by the N.L.R.B . confuses an
immediate purpose with an ultimate objective and fails properly to interpret
congressional intention in dealing with those two things . When Congress placed
the second proviso in Section 8(b) (7) (C) it could hardly have been so naive as
to suppose that the unions in making use of it would be motivated solely by the
urge to inform and educate their fellow men . Picketing is a weapon used by
the union in a contest with employers . They picket under the second proviso
"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 ." Why? Because the union hopes to win sympathetic or coopera-
tive action from the public which in turn will, through some sort of influence or
pressure , bring the employer around to doing what the signs say he is not
doing, i.e. dealing with the union . The N.L.R.B.'s position is that if the
immediate , intermediate or ultimate object of the picketing is for recognition or
bargaining , the picketing , ipso facto , cannot qualify under the second proviso.
It considers that Section 8(b) (7) deals with organizational or recognitional
picketing except for the second proviso which deals with an entirely separate
kind of category of picketing and that the two categories are somehow mutually
exclusive . It seems, however , much more realistic to suppose that Congress
framed a general rule covering the field of recognitional and organizational
picketing and then excepted from the operation of the rule a comparatively in-
nocuous species of picketing having the immediate purpose of informing or
advising the public , even though its ultimate object was success in recognition
and organization.
Again, in denying the petition of the Regional Director for an injunction in Getreu
v. Bartenders Union, Judge Swigert was guided by the same distinction . He stated:
DEPARTMENT & SPECIALTY STORE, ETC., LOCAL 1265 345
With regard to the first contention, it is petitioner's position that the proviso
has no application where "an object" of the picketing is recognition on bar-
gaining and is carried on under circumstances proscribed by Section 8(b)(7).
I do not so interpret the statute. I think subparagraph (C) means that although
"an object" of picketing may be bargaining, as it admittedly is in this case, it
is immunized from the statute if "the purpose" of such picketing is also truth-
fully to inform the public that the employer does not have a contract with the
union and further if the picketing does not curtail picking up, delivery or
transportation of goods or the performance of services. It is difficult, if not
impossible, to imagine any kind of informational picketing pertaining to an
employer's failure or refusal to employ union members or to have a collective
bargaining agreement where another object of such picketing would not be
ultimate union recognition or bargaining. In most instances certainly the aim
of such informational picketing could only be to bring economic pressure upon
the employer to recognize and bargain with the labor organization. To adopt
petitioner's interpretation of subparagraph (C) would make the second pro-
viso entirely meaningless.
The Board itself has held that picketing by a union after defeat at an election may
be for a purpose other than recognition.13 In Radio Broadcast Technicians Local
Union No. 1264, etc. (WKRG-TV, Inc.), 123 NLRB 507, complaint was issued
under the ill-fated Curtis doctrine 14 when the respondent union picketed the em-
ployer after loss of the election. The Board affirmed the Trial Examiner's finding
that the purpose of the picketing of WKRG was to prove to the other stations in
Mobile that it was more profitable to operate with a union than without and, by so
proving, to enable Respondent to continue to deal with the union stations and
preserve the existing level of wages and working conditions. Under Curtis the
Board sought to ban all picketing by a minority union for the purpose of obtaining
recognition and a contract because the Board construed such picketing to be co-
ercive within the meaning of Section 8(b)(1)(A). In WKRG the Union had rep-
resented the employees but had been defeated in an election following dispute over
a new contract. It commenced picketing after it had instituted a boycott campaign
against the station among advertisers and union members in Mobile, and was told
that "they" could not understand why there was no picket line. Although the
Union's aims would obviously have been satisfied by recognition and a contract
the Trial Examiner found that the objective was to prevent the other stations from
putting into effect the "combo" operation 15 which was the source of the dispute at
WKRG. One of the most effectual means of preserving union standards at the
other stations was to divert advertising from WKRG to the union stations. This,
he found, was the primary and immediate purpose of the picket line and such picket-
ing did not come within the recognitory picketing ban of Curtis. The Trial Examiner
was affirmed by the Board without opinion.
Even more devastating to the General Counsel' s case is his failure to answer the
decision of Judge Burke in denying the Regional Director's application for an injunc-
tion herein. Since the Judge, unlike the Trial Examiner, had only to find a reason-
able cause to believe that Section 8(b) (7) (B) had been violated, his failure to make
such a tentative finding would seem to require discussion in the General Counsel's
brief. There is none. Since I am in complete accord with the language and reason-
ing of the District Judge I shall cite the following from his decision:
If the words "where an object thereof" are to be construed as including the
ultimate object of organization, all informational picketing designed to dis-
courage patronage of non-union stores must come within the scope of that
13 General Counsel has cited representation cases in which the Board, in effect, equated
picketing by an unrecognized union with a demand for recognition These cases were de-
cided under the Board's wide discretionary authority to determine a question concerning
representation , an authority not subject to judicial review.
"Drivers, Chauffeurs, etc., Local 639 (Curtis Brothers, Inc ), 119 NLRB 232, reversed
274 F 2d 551 (CAD C ), unanimously affd 362 U S 274 Other Curtis cases cited by
the General Counsel appear to ignore the distinction between immediate and ultimate
objectives of picketing and to find a recognitory purpose despite a disclaimer by the Union.
I do not think any facile disposition may be made of this issue under the statute in view
of its legislative history.
15 Under the "combo" operation the existing practice of using only engineer-technicians
on the radio control boards would be eliminated and announcers as well as technicians
would operate the boards. This would result in an economy for the Company and a loss
of jobs for the Union.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language. A more reasonable construction would require than an unlawful
object be so demonstrated and connected with demands made by the Union
during picketing as to provide an acceptable basis for the conclusion that such
activities were, in fact , designed to accomplish the proscribed purpose. This
court can find no evidence of demands , unlawful or otherwise , which can be
fairly identified with the picketing which gives rise to this action . A finding
that "reasonable cause" for belief that such purpose is present must therefor
be a conclusion predicated upon conjecture , speculation and distrust of that
quality of honesty which should be presumed to exist in union organizations to
the same extent that it is presumed to exist in the individuals who compose it.
This court can reach no such conclusion.
Concluding ,16 I find no evidence that the picketing of the Respondent Union herein
was in violation of Section 8 (b) (7) (B ) of the Act.
Upon the basis of the above findings of fact and upon the stipulated record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
2. Oakland G . R. Kinney is an employer within the meaning of Section 2(2) of
the Act.
3. Respondent has not engaged in any unfair labor practices within the meaning
of Section 8(.b) (7) (B ) of the Act.
RECOMMENDATIONS
It is hereby recommended that the complaint herein be dismissed in its entirety.
' Although the constitutional issue has not been raised before me I believe that an
effort to ban peaceful , truthful , informational picketing , even within the 12 -month period
following an election , would be in direct conflict with so much of Thornhill v. Alabama,
310 U .S. 88, as has survived the ravishment of subsequent decisions . ( See, however,
Giboney v. Empire Storage & Ice Co., 336 U.S. 490; International Brotherhood of Teamsters,
etc., Local 309 v. Hanke, 339 U . S. 470; Local Union No . 10, United Association of Journey-
men Plumbers , etc. v . Graham , 345 U.S. 192; International Brotherhood of Teamsters,
et at. v. Vogt, Inc., 354 U.S. 284.)
Latex Industries , Incorporated and Mayme Hess. Case No.
8-CA-2484-.. March 19, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner William J. Brown issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had discharged Mayme Hess in violation of Section
8(a) (1) and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He found further that the Respondent did not violate
Section 8(a) (3) in such discharge. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
136 NLRB No. 35.