General Teamsters, Packers, Food Processors, Etc.

National Labor Relations Board - Board Decisions

Jun 23, 1958

120 N.L.R.B. 1577 (N.L.R.B. 1958)

GENERAL TEAMSTERS, PACKERS, FOOD PROCESSORS, ETC. 1577
pending delivery to it. We do not agree. The Employer paid for
and acquired title to the poultry. When the Employer then sold and
delivered it to a company which shipped over $50,000 worth of goods
out of State, the transaction, we find, constituted indirect outflow,
notwithstanding the fact that the Employer realized no profit on
the transaction.2
As the Employers' total indirect outflow therefore exceeded $100,-
000 in 1957, we find that it would effectuate the policies of the Act
to assert jurisdiction a
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance within the agreement of the parties, we find that
the following employees constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act : All employees engaged in the processing of poultry or
eggs at the Employer's Indianapolis, Indiana, plant, excluding truck
drivers, office clerical employees, guards, professional employees, and
supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above-
Decision and Direction of Election.
2 Cf. International Association of Bridge, Structural & Ornamental Iron Workers, AFL.
Local Union No. 84,112 NLRB 1059, 1064, footnote 2.
a The T. H. Rogers Lumber Company, 117 NLRB 1732,
General Teamsters , Packers, Food Processors and Warehouse -
men Union Local No. 912, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America:I
Con Hansen and Richard King and H. A. Rider & Sons. Case
No. 20-CB-521. June 23,1958
DECISION AND ORDER
On September 24, 1957, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom.
i The Board having been notified by the AFL-CIO that it deems the Teamsters ' certifi-
cate of affiliation revoked by convention action, the identification of this Union is hereby
amended.
120 NLRB No. 199.
1578 , DECISIONS OF -NATIONAL LABOR RELATIONS BOARD -,
and take -certain "affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondents
filed exceptions to the Intermediate Report-together with a supporting
brief.
--. 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 [Members Rodgers, Bean, and Jenkins].
On, December 9, 1957, the Respondent and the Charging Party
jointly filed a motion for dismissal , asserting that they had "com-
promised. and finally settled all their disputes and differences,"
stipulating that the charge in this proceeding "may be dismissed with-
out prejudice," and requesting an order "dismissing the matter." The
notion does not explain the circumstances of the settlement between
the Respondents and the Charging Party, does not show the measures
the Respondents have taken to remedy the unfair labor practices found
by the Trial Examiner to have been committed, and does not provide
'any assurance that the Respondents will not, in the future, again en-
-gage in similar illegal conduct. In these circumstances, we have re-
viewed the substantive merits of this case because we have decided
that the policies of the Act can best be effectuated by a Board order
requiring appropriate remedial action in the-event the Trial Examiner
was correct in his findings that the Respondents violated the Act a
Accordingly, we hereby deny the motion for dismissal.
The Board has reviewed the rulings made by the Trial Examiner 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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, _ with the following additions and
modifications 3
1. The Respondents assert that the Board is barred from making
-any unfair labor practice finding in this case by Section 10 (b) of the
-Act a The Respondent Union requested recognition from Rider as
the'bargaining representative of its employees on September 10, 1956.
The original charge in this proceeding was filed on May 6, 1957. The
Respondents contend that Section 10 (b) bars reliance by the Board
2International Longshoremen 's Association, Independent, et al. (New York Shipping
Association, Inc., et al ), 118 NLRB 1481.
8 We reject any implication in the Intermediate Report to the effect that organizational,
as distinct from recognition , picketing by a minority union is present herein and violates
the Act. Our unfair labor practice findings, like the Trial Examiner' s, are grounded on
our agreement with his conclusion that the Respondent Union was picketing for recog-
.nition. Building Material & Dump Truck Drivers Local No. 42 0, International Broth-
erhood o f Teamsters, Chauffeurs, Warehousemen and Helpers of America ( Fisk & Mason),
120 NLRB 135.
+ The portion of Section 10 (b) relied upon by the Respondents reads, "Provided, That
no complaint shall issue based upon an untair labor practice occurring more than six
months prior to the filing of the charge with the Board and the service of a copy thereof
,upon the person against whom such charge is made. . . .
GENERAL TEAMSTERS, PACKERS, FOOD PROCESSORS, ETC . 1579
upon the evidence pertaining to the request for recognition because it
occurred more than 6 months before the charge was filed. However,
Section 10 (b) is a statute of limitation,' not a rule of evidence.6
Accordingly, the section does not preclude the use of evidence as back-
ground in order to evaluate conduct engaged in within 6 months of the
filing of a charge.' The Respondents' request for recognition has
been used in this case only as background in our finding, upon the
entire record, that the Respondent Union's continued picketing,
which has remained unchanged from its inception, was designed to
obtain recognition from Rider.
2. We find, for the reasons set forth in the Curtis 8 and Alloy 9 cases,
that the Respondents violated Section 8 (b) (1) (A) of the Act by
picketing for recognition and by demanding that Rider execute a
collective-bargaining agreement containing a union-security provi-
sion, when the Respondent Union did not represent a majority of
Rider's employees.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, General Team-
sters, Packers, Food Processors and Warehousemen Union Local No.
912, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Con Hansen and Richard King, and
their officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Restraining or coercing employees of H. A. Rider & Sons in
the exercise of the rights guaranteed in Section 7 of the Act, by picket-
ing Rider, by demanding that Rider execute a collective-bargaining
contract, or by engaging in any other conduct, for the purpose of
forcing Rider to recognize the Respondent Union as the exclusive bar-
gaining representative of Rider's employees when the Respondent
Union does not represent a majority of such employees in an appro-
priate unit.
(b) Attempting to cause Rider to discriminate against its em-
ployees in violation of Section 8 (a) (3) of the Act.
(c) In any other manner restraining or coercing employees of
H. A. Rider & Sons, or of any other employer, in the exercise of rights
ON. L. R. B. v. A. E. Nettleton Co., at al., 241 F. 2d 130 ( C. A. 2) ; N. L. R. B. v . Itasca
Cotton Manufacturing Company, 179 P. 2d 504 (C. A. 5).
8 Axelson Manufacturing Company, 88 NLRB 761, 766.
7 Paint, Varnish & Lacquer Makers Union , Local 1232, AFL-CIO, at al. ( Andrew Brown
Company), 120 NLRB 1425.
8 Drivers, Chauffeurs, and Helpers Local 639 , International Brotherhood of Teammsters,
Chauffeurs, Warehousemen and Helpers of America , AFL-CIO ( Curtis Brothers, Inc.),
119 NLRB 232.
°International Association of Machinists , Lodge 942, AFL-CIO (Alloy Manufacturing
Company, eto.), 119 NLRB 307.
1580 .- DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, including specifically the right
to refrain from engaging in any or all of the activities guaranteed
thereunder, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent Union' s business
offices, meeting halls, and all places where notices to its members are
customarily posted, copies of the notice attached hereto marked
"Appendix." 1° Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being duly signed by
authorized representatives of the respective Respondents, be posted by
the Respondents immediately upon receipt thereof and be maintained
by them for a period of sixty (60) consecutive days thereafter. Rea-
sonable steps shall be taken by the Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail signed copies of the notice attached hereto marked "Ap-
pendix" to the Regional Director for the Twentieth Region for post-
ing, H. A. Rider & Sons willing, at all locations where notices to,
Rider's employees are customarily posted. Copies of said notice, to,
be furnished by the Regional Director for the Twentieth Region,
shall, after being duly signed by authorized representatives of the Re-
spondents, be forthwith returned to the said Regional Director for
Rider's posting.
(c) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
'° In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, the notice shall be amended by substituting for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF GENERAL TEAMSTERS, PACKERS, FOOD
PROCESSORS AND WAREHOUSEMEN UNION LOCAL No. 912, INTER-
NATIONAL BROTHERHOOD of TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA AND TO ALL EMPLOYEES OF H. A.
RIDER & SONS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT restrain or coerce the employees of H. A. Rider &
Sons , or of any other employer, in the exercise of the rights
GENERAL TEAMSTERS, PACKERS, FOOD PROCESSORS, ETC. 1581
guaranteed in Section 7 of the Act, including specifically the
right to refrain from engaging in any or all of the activities
guaranteed thereunder, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
WE WILL NOT, by means of picketing or by any other conduct;
attempt to cause H. A. Rider & Sons to enter into a collective-
bargaining agreement with us, until such time as we are the
lawfully constituted bargaining representative of Rider's
employees.
WE WILL NOT attempt to cause H. A. Rider & Sons to discrimi-
nate against its employees in violation of Section 8 (a) (3) of
the Act. -
GENERAL TEAMSTERS, PACKERS, FOOD
PROCESSORS AND WAREHOUSEMEN
UNION, LOCAL No. 912, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS,
CHAUUEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA,
Labor Organization.
'CON HANSEN,
An Individual.
RICHARD KING,
An Individual.
Dated----- ---------- By -------------------------------------
(Representative )' ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on July 3, 1957,1 by H. A. Rider & Sons,
herein called Rider, the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel 2 and the Board, by the Regional
Director for the Twentieth Region (San Francisco, California), issued his complaint,
dated July 8, 1957, against General Teamsters, Packers, Food Processors and Ware-
housemen Union Local No. 912, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL-CIO, Con Hansen and Richard
King, herein cojointly called Respondents, and on occasions the aforementioned
labor organization is referred to herein as the Union, alleging that Respondents had
engaged in and were engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (b) (1) (A) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the amended charge and complaint, together with notice of hearing
thereon, were duly served upon each Respondent and upon Rider.
The original' charge was filed on May 6, 1957.
a This term specifically includes counsel for the General Counsel appearing at the
hearing
1582 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically, the complaint, as amended at the hearing, alleged that Respondents.
(1) since on or about September 11, 1956, have been demanding that Rider recog-
nize the Union as the exclusive collective-bargaining representative of Rider's em-
ployees despite the fact that at no time has the Union been designated or selected
as such representative; (2) threatened to establish a picket line at Rider's plant if
Rider did not comply with the aforementioned demand, (3) -since on or- about Sep-
tember 11, 1956, in furtherance of the aforesaid threat, has maintained a picket line
at Rider's plant; and (4) by said acts and conduct, including the continuing picketing.
of the plant after the employees here involved had rejected, at a Board-conducted'
election, by a vote of 16 to 1,3 the Union as their bargaining- representative, have
restrained and coerced Rider's employees in the exercise of the rights guaranteed in.
Section 7 of the Act.
On July 17, 1957, Respondents duly filed a joint answer denying the commission
of the unfair labor practices alleged.
Pursuant to due notice, a hearing was held on July 25, 1957, at San Francisco,
California, before the duly designated Trial Examiner. The General Counsel,
Respondents, and Rider were represented by counsel. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to introduce evi-
dence pertinent to the issues, to argue orally at the conclusion of the taking of the
evidence, and to file briefs on or before August 15, 1957.4 A brief has been received
from counsel for Rider which has been carefully considered.
Upon the entire record -in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
I. H. A. RIDER & SONS' BUSINESS OPERATIONS
H. A. Rider & Sons is a copartnership consisting of H. A. Rider, his wife Bella,
and his two sons, Clinton and Allison. The partnership has its principal offices and
place of business at Watsonville, California, where it is engaged in the production
of--apple cider. During 1956, Rider's out-of-State shipments of cider exceeded
$50,000.
Upon the above admitted facts, the Trial Examiner finds that during all times
material herein, H. A. Rider & Sons has been, and now is, engaged in commerce
within the meaning of the Act and that it will effectuate the purposes of the Act
for the Board to assert, jurisdiction in this proceeding.
IT. THE LABOR ORGANIZATION INVOLVED
General Teamsters , Packers, Food Processors and Warehousemen Union Local
No: 912, International Brotherhood of -Teamsters , Chauffeurs ,--Warehousemen and
Helpers of America, AFL-CIO, is a labor organization admitting to membership
employees of H. A. Rider & Sons. -
III. THE UNFAIR LABOR PRACTICES
A. The pertinent facts 8
The Board in its Decision and Direction of Election found and the credible
evidence in the instant proceeding is in substantial accord (117 NLRB 517) :
For a period of 2 years, beginning in the ' summer of 1954, the Union fhas
made a series of demands on the Employer to sign a contract recognizing-the
8 Said election was held pursuant to the Board's Decision and Direction of Election,
117 NLRB 517
At Respondents' request the time was extended to August 30, 1957
6 Certain evidence was adduced at the hearing relating to events occurring more than
6 months before the filing and service of the charge herein. Said evidence was received,
,not as a basis for any finding of untair labor practices, but solely for such effect it might
have in elucidating, evaluating, and explaining the character and quality of Respondents'
alleged illegal conduct after the cutoff date It is well settled that Section 10 (b) of the
Act allows consideration of related acts transpiring prior to the statutory, limitation date
for the purpose of throwing light on the specific conduct within the-period in issue.
N. L. R. B. v. Fredrica Clausen, d/b/a Luzerne Hide & Tallow, 188 F. 2d 439 (C. A. 3) ;
N. L. R. B v. General Shoe Corporation, 192 F. 2d 504 (C. A. 6) ; Superior Engraving
Company v. N. L. R. B., 183 F. 2d 783 (C. A. 7) ; N. L. R B. v White, Construction and
Engineering Company, Inc., 204 F. 2d 950 (C. A. 5) ; N. L. R. B. v. Ozark Dam Con-
GENERAL TEAMSTERS, PACKERS, FOOD PROCESSORS, ETC. 1583
Union as th'e representative of the Employer's employees.' On September 10,
,1956,-at about 10 a- m.,., two of the union's representatives 6 called on the
Employer and presented it with a contract and requested the. Employer- to
sign it. When the Employer declined and suggested to the 'Union that they
first get the employees, to join the. Union, the -union representatives. stated in
effect that this required "too-much work." The Employer then indicated that
it would request an election., The union representative thereupon said that
"One Iway is to put up a picket line and see how, many of your men will cross
it:" The- meeting ended with the union agent stating that if the Employer
wanted to do it "the hard way" the Union would establish a picket line. At
about 4 `p, in. that same afternoon the Union sent -a letter 'to the Employer,
received by, the latter the following morning, in which the Union stated in,
substance that it was contemplating the commencement of an organizational
drive among the employees, 'and that it would not ask the Employer to sign
a contract until a majority of its employees had indicated a desire to be
affiliated with it .7 On the very morning the Employer received this letter,
two-union pickets appeared at the Employer's premises with a sign "TO THE
EMPLOYEES OF H. A. RIDER AND SONS JOIN THE TEAMSTERS
LOCAL 912." The Employer filed the instant petition on September 12, 1956.
The picketing was still in progress at the time of the hearing in this proceeding.
In addition to the facts set forth immediately above, the record clearly reveals,
and the Trial Examiner finds, that on March 29, 1957, an election, pursuant to
the aforesaid Board Decision and Direction -of Election, was conducted under the
auspices of the Regional Director for the Twentieth Region; that the Union received
1 vote out of the 17 ballots cast; 8 that since the establishment of the picket line on
September 11, and up to the time of the hearing the manner of picketing has con-
tinued unchanged; that the picketing was done in the following manner: On days
when the plant was in full-operation, a single picketeer parked his car across, the
road from the plant and either placed his picket sign 9 on the car bumper or inside
the car against a window in a position that the legend thereon was discernible
struetors , 203 F. 2d 139 (C. A. 8) ; Banner Die Fixture Company, 109 NLRB 1401 ;
Florida Telephone 'Corporation, 88 NLRB 1429 ; Sun Oil Company, 89 NLRB 833. It is
also well settled that to prove Respondents had engaged in unfair labor practices it must
be shown that the acts and conduct relied upon occurred within the 0-month period or
extended into said period. Joanna Cotton Hills Co. v. N. L. R. B.,,176 F. 2d 749 (C. A. 4) ;
Stewart-Warner Corp v N. L R B, 194 F 2d 207 (C. A. 4) , Superior Engraving Co. v.
N. L.' R. B., supra; Universal Oil Products Company, 108 NLRB 08.
e Namely, Respondent Hansen, secretary-treasurer of Local 912, and Respondent King,
president of Local 912.
7 The letter, dated September 10, which Clinton Rider mistakenly testified herein was
not received by his firm until September 13, reads in part as follows
We are contemplating the commencement of an organizational drive among your
employees to enlist their membership in the Teamsters Union Local 912.
Many 'employers are fearful of the consequences of Union organization and'en-
deavor by speeches and conduct to persuade the employees not to join the Union.
Studies have indicated that this attitude on the part , of the employers is primarily
due to lack of understanding of the goals of the Union and a belief that operating-
under a Union contract would place too great an overhead burden on the business.
Nothing could be further from the truth. Throughout California there are thous
sands of employers who 'have benefited from unionization because of increased effi.
ciency and morale of the working force.
Rest assured that we will not ask you to sign a contract until a majority of your
employees have indicated a desire to be affiliated with our Union.
In the event you have any questions, contact the undersigned. No other officer,,
agent or employee of ourr Union has any authority to speak on behalf of this Local,
Union.
-
, - -
Very truly yours
CON HANSEN, -
Secretary-Treasurer.
s,The record 'discloses that the normal complement of the unit found by the Board to be
appropriate is about 15 or 18.
9 Reading • , -
TO THE EMPLOYEES OF H A RIDER & SONS JOIN
THE TEAMSTERS LOCAL 912
1 584 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to persons passing the car; the picketeer would normally arrive between 8 and 9
a. in., leave for lunch before 12 noon, return between 1 and 1 : 30 p. in . and leave
for the day about 4: 30 p. m.io -
The credible and undenied testimony of Clinton and Allison Rider also shows
that since the repudiation at the polls of the Union by the employees on March
29, 1957, the picketeer, whenever a truck came to the plant, would patrol the
roadway with his sign and warn the driver away; that when trucks were not present
the picketeer spent most of his time sitting in his car; that the picketing has caused
disruption of normal truck service into and out of the plant and to the loss
of business.
Counsel at the hearing stipulated that if Respondent Hansen was called as a
witness, "he would testify in accordance with" the affidavit he gave to a Board agent
on May 14, 1957. Said affidavit, which was received in evidence without objection,
states, among other things , that : there is a sign on the wall in the Union 's offices
stating that Rider is "unfair to Local 912"; that "on the whole" the Rider picket line
is being observed by members of the Union who are employed elsewhere but that
neither he nor Respondent King has instructed any union member to observe the
Rider picket line; the Union has not taken "any punitive action against any member
who has crossed the picket line"; when employers inquired about the picket line he
stated that it was an "organizational picket line," adding, on occasion, "I don't be-
lieve our members would cross the picket line"; in addition to the picket line "our
attempts to organize the employees -have involved passing out leaflets"; the last
`time leaflets were distributed to Rider's employees was prior to Christmas 1956;
Respondent King "just before Christmas [1956] contacted the employees at their
work and tried to get them to meetings and other union affairs. . . . About Febru-
ary [19571 King tried to set up a meeting by calling one of the employees at his
home"; the picketeer was instructed to refer all persons inquiring about the picket
line to the Union's offices; on or about September 10, 1956, "I made a demand for
recognition to Rider and at the same time presented for [sic] apple packing shed
contract but I did not leave it"; and "Some time prior to the commencement of the
picketing I told the Riders that some 20 different companies have signed agreements
with us concerning processing and packing of apples and we would like him to go
along with the group. All our contracts contain a union shop clause. However, I
did tell the Riders that every aspect and clause of the contract was subject to negotia-
tion. We have never insisted on the inclusion of a union shop clause in our contract
with H. A. Rider. We never made any counter-offer. Until we represent a majority
we are not demanding recognition nor a contract of any kind from H. A. Rider
& Sons."
In the light of the Trial Examiner's observation of the conduct and deportment at
the hearing of Clinton Rider, and after a very careful scrutiny of the record, all of
which has been carefully read, and parts of which have been reread and rechecked
several times; and being mindful of the contentions of the parties with respect to the
importance which each has placed upon the credibility problems here involved, and
of the fact,that some of the events about which he testified took place over 2 years
prior to the opening of the hearing, the Trial Examiner finds that Clinton Rider's
testimony to the effect that at the meeting held on September 10, 1956, attended by
H. A. Rider, Clinton Rider, Allison Rider , Hansen , and King, Hansen presented to
Rider a union-shop "cider" contract and then said, to quote Clinton Rider, "They
wanted to get the. industry all signed up and we were one of the last ones that hadn't
signed up, and that if we wouldn't go along with them, then they would put out a
picket"; the Trial Examiner further finds that at no time after September 10, 1956,
has the Union rescinded its demand that Rider execute- a union-shop contract nor
did any union representative after February 1957 contact, or attempt to contact, any
Rider employee through any of the ordinary methods traditionally resorted to by
unions to organize workers.
B. Concluding findings
Section 8 (b) (1) (A) of the Act makes it an unfair labor practice for a labor
organization to "restrain or coerce employees in the exercise of the rights guaranteed
in Section 7'"and comparably, Section 8 (a) (1) makes it an unfair labor practice
m Rider's employees normally came to the plant before ,8 a. in. (sometimes between 5
and 5 • 30 a. m.) and left for the day after 4: 30 p. in (sometimes they left as late as
10:30 P. in.).
GENERAL TEAMSTERS; PACKERS; FOOD PROCESSORS; `ETC. 1585
for an employer, "to interfere with, restrain , or coerce employees in the exercise of the
rights guaranteed in Section 7." -
Section 7, in relevant part , provides that:
Employees shall have the right to self-organization , to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, and to engage in -other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right to
refrain from, any or all such activities.
Uncontroverted credible evidence here clearly establishes that not only did all but
one of Rider's employees demonstrate on March 29;'-1957, their desire "to refrain"
from "form[ ing]," "join[ing ]," or "assist[ing]" the Union,'but it affirmatively shows
that-at no time material herein did the Union represent a majority of said employees.
But despite complete rejection of the Union in March 1957, and at all times material
the lack of representative status as required by Section 9 (a). of the Act, the Union,
nonetheless, sought, to bring economic pressure directly upon the employees to force
-them to join the Union in order to protect their jobs. Such conduct constitutes
coercing the employees in the exercise of their guaranteed 'right to refrain from join-
ing the Union. Such a finding becomes inescapable when consideration is given to
the fact that the picketing had the purposes of (a) coercing Rider into recognizing
the Union as the. exclusive collective-bargaining representative of its employees and
signing a union-shop contract with it, thus forcing the employees to join, even though
the employees had declined to be represented by the Union; and (b) forcing Rider to
coerce its employees to do that which in the exercise of their Section 7' rights they
had decided to do, to wit: not to select the Union as their collective-bargaining
representative.
The picketing then, no matter how viewed, had an'unlawful' purpose, i. e., either
to compel'the employer to violate-the law or to•restrain and coerce employees with
respect to joining or not joining the Union. And'since the'picketing had an unlawful
purpose, it was not within the free speech guarantee of Section- 8 (c) of the Act nor
that of the Constitution of the United States.,
The Supreme Court of the United States, withih'recent `years, in cases involving
facts similar to those now before us, has condemned the unlawful use of economic
power by unions to compel',employers'to violate the,law. For example, in Giboney
v. Empire Storage & Ice Co, 336 U. S. 490,11` the Court held` that picketing is some-
thing more than' free speech and upheld, as constitutional, State injunctions of peace-
ful picketing which had been undertaken, -as here, for unlawful' objectives.
In, Giboney, -the Court•upheld' a State ' injunction against peaceful picketing which,
as the Court, had found, had as its purpose the forcing of a company to violate a
-State statute . In so holding, the Court said (at page 503)• "... it is clear that
appellants were doing more than exercising a right of free speech or press.... They
were exercising their economic power together -with that of their allies to compel
Empire to abide by union rather than by. State regulation of trade." [Emphasis
supplied.]
In the Gazzam case, the employer had been asked by the union to sign a contract.
None of, the employees were members of the union . The employer answered that
it was a matter for his employees to decide and gave the union permission to visit
and solicit his employees. After meeting and polling the employees, the union was
still unsuccessful in getting a majority' of adherents. The, union then started to
picket the employer's premises and the picketeers carried signs "Unfair to organized
labor." A second contract was offered by the union which provided that, present
employees not be required to join the union. This was refused by. the employer
for similar reasons. The picketing was enjoined by the Washington State courts
as a violation of public policy against employer coercion of employees' choice of a
bargaining representative as embodied in a State statute very similar in wording
,to Sections 7 and 8 (a) (1) of the Act. The United'States Supreme Court, relying
on Gib'oney, upheld the injunction, stating at p. 540:
Here, as in Giboney,, the union was- using its economic power with that of
its allies to compel respondent to abide by union policy rather than by the
declared policy of the State. That State policy guarantees workers free choice
n See also Building Service Employees International Union v. Gazzam, 339 U S 532;
Hughes' v. Supersor Court of California, 339 U. S. 460;, International Brotherhood of
Teamsters, etc., Local 309 v. Hanks, 339 U. S 470; Local Union No 10, United Associa-
tion of Journeymen, Plumbers and Steam fitters, et al. v. Graham, 345 U. S. 192.
483142-59-vol. 120-101
-1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of representatives for-bargaining purposes. If respondent had complied with,
petitioners' demands and had signed one of the tendered contracts and lived
up to its terms, he would have thereby coerced his employees. The employees
would have had no free choice as to whether they wished to organize or what
union -would be-'their representative.' [Emphasis supplied.]
,The Court with reference to free speech said at-p. 537,: - - -
But since picketing is more than speech and establishes a locus in quo that has
far more potential than inducing action or nonaction than the message pickets
can, convey, this Court has not hesitated to uphold a State's restraint of acts
and conduct which are an abuse of the right to picket rather than a means
of peaceful and truthful publicity.
In Vogt. V. International Brotherhood of Teamsters (270 Wis. 321, 74 N. W.
(2d) 749,12 a case much like -the one here-presented, the court had before it- a
statute which forbade unions to (a) coerce or intimidate an, employee in the enjoy-
ment of his legal rights, including the right to refrain from joining'the union, or
(b) to coerce, intimidate, or induce an employer to interfere with any of his em-
ployees in the enjoyment of their legal rights, including the right to refrain from
joining the labor organization. 'The union in the case picketed for organizational
or recognition purposes, even though the employees had previously indicated to the
,union that they did not desire to join' it. The court'held that the picketing was
coercive and hence unlawful, stating:
Picketing may be more than free speech. . . . One would be credulous indeed
to believe under the circumstances that the Union had no thought of coercing
the employer to interfere with its employees in the right to join or refuse to
join defendant Union. We have not the slightest doubt-that it was the hope
of the Union that the presence- of pickets at plaintiff's place of business would
interfere with its operations and deprive it of delivery services, thus bringing
pressure upon.it to coerce its employees to join the,Union.
In Pappas v. Stacey (151 Me. 36, 116A. 2d 497, appeal dismissed- by the Supreme
Court for lack of a substantial Federal question 350 U. S. 870), the court, con-
struing a Maine statute that guaranteed the right of employees to organize into
unions aind• bargain collectively, "free from interference, restraint or coercion by
their employers or other persons," held that peaceful 'picketing for organizational
purposes was coercive. The court said:
A coercive force is generated by the picketing to,'secure new members "for the
union. .It'-is, apparent that-this force is applied to-the employer 'to urge his
employees to join; the union to save -his business, and to the employees to join
to save their livelihood. • . - - - -
In reaching-for-the employees, there is a steady, and exacting-pressure upon
the employer, to, interfere with the free choice of the employees in the matter
of organization. To say that the picketing is not designed to bring about such
action,,is,toforget an, obvious purpose of picketing-to cause economic loss
to: the: Business during noncompliance by the employees with the requests of
the union.13 ,
The "contention' advanced by the Union that its letter of September 10, 1956,
-directed'to'Rider, wherein, it maintained that its activities at Rider were solely for
the purpose of organizing the employees and were not to, be construed as an attempt
to, secure recognition as the representative of the employees involved or for a
collective-bargaining agreement covering such employees, successfully refutes any
intent of unlawful conduct'on its part, is wholly without substance or merit.14
-' Affirmed by the United States Supreme Court on June 17, 1957.
1e Of course, under the Act coercion which derives from picketing is not proscribed
where it is employed in the exercise of rights guaranteed in Section 7; however, it is
.proscribed where, as in the instant case, it is used in derogation or circumvention of the
employees' rights under said section.
u In its Decision and Direction of Election, 117 NLRB at p. 518, the-Board found :
Although the Union concedes that it demanded a contract on the morning of Sep-
tember 16, 1956, nonetheless it asserts that its letter-of the same ' day constituted an
unequivocal disclaimer, and that its picketing on the morning of September 11, 1956,
GENERAL TEAMSTERS, PACKERS, FOOD PROCESSORS, ETC. 1587
,Uncontroverted credible evidence establishes that the Union's demands for recog-
nition and for a contract were accompanied by threats to impair Rider' s normal
business operations; and that the Union, on the other hand, completely abstained,
commencing from February 1957, from making any effort to reach the employees
involved through any of the ordinary methods traditionally resorted to by unions
to organize workers.
Upon consideration of all the evidence, the Trial Examiner is convinced, and
finds, that an object of the Union's picketing was intended to force or require
Rider to recognize the Union as the exclusive collective-bargaining representative
of Rider's employees and to enter into a union-shop contract with it without regard
to the desires of the employees involved. Such action is clearly violative of Section
8 (b) (1) (A) of the Act and the Trial Examiner so finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the, Respondents, set forth. in section III, above, occurring in
connection with the operations of H. A. Rider & Sons, set forth in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and, such of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. .THE REMEDY
Having found that Respondents have violated Section 8 (b) (1) (A) of the
Act, it will be recommended that they be ordered to cease and desist therefrom
and that they take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. H. A. Rider & Sons, Watsonville, California, is an employer within the
meaning of Section 2 (2) of the Act. '
2. General Teamsters, Packers, Food Processors and Warehousemen Union Local
No. 912, International Brotherhood of Teamsters, Chauffeurs,-Warehousemen and
Helpers of America; AFL-CIO, is a ^ labor organization within the meaning of
Section 2 (5) of the Act.
3. By picketing the plant of H. A. Rider & Sons for the purposes of coercing and
restraining Rider's employees, Respondents have engaged in and are engaging' in
unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The unfair labor practices found herein are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act. - ,
(Recommendations omitted from publication.] - •
was not inconsistent therewith: It contends therefore that no question concerning
representation exists. We do not agree. It is clear from the record that for a
period of more than 2 years the Union repeatedly made demands for recognition on
the Employer,' and that within less than, 24 hours before the_ picket line in question
appeared at the Employer's premises, it not only reiterated its demand for a con-
tract but threatened to establish a picket line in order to force the Employer to
grant it a contract. It is equally significant that the picket, line was established pre-
cisely as threatened. . Moreover,, we note that on the very day that the Union wrote
its letter which it asserts as a disclaimer , it told the Employer, in response to its
suggestion that it organize the employees first before demanding recognition, that this
was "too much work." From the record as ,a whole, and from these facts in partic-
ular, we are convinced that the picketing was inconsistent with an unequivocal dis-
claimer, and that the Union's manifest purpose was to induce the Employer to exe-
cute a contract although it had no representative status among the employees in
question.'
1 See Jerome E. Mundy Co ., Inc., 116 NLRB 1487 ; Casey Metcalf Machinery Co.,
et al ., 114 NLRB 1520.