Hotel, Motel and Club Employees' Union Local 568

National Labor Relations Board - Board Decisions

Mar 30, 1962

136 N.L.R.B. 759 (N.L.R.B. 1962)

HOTEL, MOTEL & CLUB EMPLOYEES' UNION LOCAL 568 759
Hotel , Motel and Club Employees ' Union Local 568, AFL-CIO
and Marriott Motor Hotels , Inc. Case No. 4-CP-34. 01,arch 30,
1960
DECISION AND ORDER
On November 20,1961, Trial Examiner Louis Plost issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices , and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the General Counsel filed exceptions to
the Intermediate Report and a supporting brief. A brief in reply to
that of the General Counsel's was filed by the Respondent.
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, Fanning, and Brown].
The Board has reviewed the rulings made by the Tria)- 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, the briefs, and the entire record in
the case, and adopts the findings, conclusions, and recommendations
of the Trial Examiner only to the extent consistent herewith.
1. As more fully detailed in the Intermediate Report, the record
establishes that prior to July 10, 1961, Marriott Motor Hotels, Inc.,
was erecting a motor hotel in the Philadelphia, Pennsylvania, area,
the construction work being done by building contractors and their
subcontractors. At a general membership meeting of the Respondent
Union in June 1961, a report was made about the hotel, and Respond-
ent's officials were authorized to "organize, picket, or do whatever they
see fit. . . ." Subsequently, Respondent's executive board authorized
picketing of Marriott, and such picketing commenced on July 10, 1961.
Picketing continued from that date until August 25, when it was
enjoined. At no time did the Respondent file a petition under Sec-
tion 9(c) of the Act. Although no approach was made to Marriott
by the Respondent for a contract prior to the picketing, after picketing
began several pickets told one Marriott official that they were trying
to organize the hotel, and one picket stated that they were attempting
to secure a union contract from the hotel. Simultaneously with the
start of picketing, approaches were made by the Respondent asking
Marriott employees to join the Respondent Union.
In finding a violation of Section 8(b) (7) (C) of the Act, the Trial
Examiner did not find that the Respondent had picketed for one of
the objects proscribed by Section 8(b) (7). While maintaining that
136 NLRB No. 72.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it could be assumed that all picketing has organization as an "ulti-
mate" object, he nevertheless found that the picketing in question was
"informational" and completely divorced from the ultimate object of
organization. Nevertheless, he found that the picketing, though in-
formational in purpose, was violative of Section 8(b) (7) (C) because
it had an effect of inducing individuals employed by other persons in
the course of their employment to refuse to make deliveries and per-
form services.
Contrary to the Trial Examiner, we are of the opinion that the
Respondent's conduct clearly establishes that its picketing had as
objects both recognition of it by Marriott and organization of Mar-
riott's employees. As we construe Section 8(b) (7) (C) of the Act, a
finding of an object of organization, recognition, or bargaining is a
prerequisite to determining that picketing, conducted for more than 30
days in pursuit of any one of such objects without the filing of a
petition under Section 9(c) of the Act, is violative of Section
8(b) (7) (C).1 However, where such recognition or organization
picketing is merely "informational" in character, i.e., to advise the
public that the employer does not employ members of, or have a con-
tract with, the labor organization, the picketing falls within the pro-
tection of the proviso to Section 8('b) (7) (C) and no violation of that
section can be found unless, as the proviso itself prescribes, an effect
of such picketing is to induce any individual employed by any other
person in the course of his employment not to pick up, deliver, or
transport any goods or not to perform any services .2
In the instant case it is clear, as the Trial Examiner found, that
Respondent's picketing on and after July 10, 1961, did have the effect
of inducing individuals employed by other persons to refuse to make
deliveries and perform services. The picketing, therefore, was not
privileged under the mentioned 8(b) (7) (C) proviso and we accord-
ingly conclude that, by picketing in the described circumstances for
more than 30 days without filing a petition, Respondent violated
Section 8 (b) (7) (C) of the Act.
The Remedy .
Having found that the Respondent has engaged in certain conduct
violative of the Act, we shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the policies
of the Act. As we have found, contrary to the Trial Examiner, that
I International Hod Carriers ' Ruildin0 and Common Laborers ' Union of America , Locai
840 (Charles A. Blinne, d/h/a C A. Blinne Construction Company, 135 NLRB 1152
As our views on the interpretation to be placed on Section 8(b) (7) (C) have been fully
expounded in that and other cases recently issued , we find it unnecessary to comment on,
and do not adopt , any of the Trial Examiner 's findings, views , and expressions of opinion
as to the meaning and intent of Section 8(b)(7)(C).
2 See Local Joint Executive Board of Hotel and Restaurant Employees . etc, Local
No 681 ( Leonard Smitley and Joseph W. Drown d / b/a Crown Cafeteria), 135 NLRB 1183
HOTEL, MOTEL & CLUB EMPLOYEES' UNION LOCAL 568 761
the Respondents' picketing was conducted for an unlawful object, we
do not adopt the Trial Examiner's recommendation that an order be
entered merely directing the Respondent to cease and desist from
picketing for "informational" purposes "in such manner as to disrupt
deliveries and services." Rather, we shall order the Respondent to
cease and desist from picketing for an unlawful object in violation of
Section 8 (b) (7) (C) of the Act.
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 Respondent, Hotel, Motel and
Club Employees' Union Local 568, AFL-CIO, and their officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from picketing or causing to be picketed the
premises of Marriott Motor Hotel, where an object thereof is forcing
or requiring Marriott to recognize or bargain with Respondent as the
representative of its employees or forcing or requiring the employees
of Marriott to accept or select Respondent as their collective-
bargaining representative, in violation of Section 8(b) (7) (C) 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's business offices,
meeting halls, and all places where notices to its members are cus-
tomarily posted, copies of the notice attached hereto marked "Appen-
dix." 3 Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by official repre-
sentatives of the Respondent, be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60 consecutive
days thereafter. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for the Fourth Region signed
copies of the aforementioned notice for posting by the Charging
Party, the Charging Party willing, in places where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished
by the Regional Director for the Fourth Region, shall, after being
signed by the Respondent, as indicated, be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the Regional Director for the Fourth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondent has taken to comply herewith.
S In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted 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."
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER RODGERS, concurring :
I concur in the result reached by my colleagues, but I do not sub-
scribe to their interpretation of Section 8(b) (7) (C) that no violation
of this section can be found unless an effect of the recognition or organ-
ization picketing is to induce a work stoppage.
As fully set forth in the opinion of Member Leedom and nvyself in
Crown Cafeteria, 135 NLRB 1183, if there is "independent evi-
dence"-i.e., evidence apart from the language on the picket signs-
that the picketing is for a proscribed object, the so-called publicity
proviso does not protect that picketing, and a violation must be found
irrespective of whether the picket line induces a work stoppage. The
organization and recognition purposes of Respondent's picketing here
are clearly evidenced by authorization given at the Respondent's mem-
bership meeting, by the statements made by the pickets, and by the
efforts of Respondent to get Marriott's employees to become union
members. It is on this evidence that I rely to find Respondent's picket-
ing violative of the Act, and I find it unnecessary to consider what the
effects of that picketing were.
APPENDIX
NOTICE TO ALL MEMBERS OF HOTEL, MOTEL AND CLUB
EMPLOYEES' UNION LOCAL 568, AFL-CIO
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 notify you that :
WE WILL NOT, under conditions prohibited by Section
8 (b) (7) (C) of the National Labor Relations Act, picket or cause
to be picketed, or threaten to picket or cause to be picketed, Mar-
riott Motor Hotels, Inc., Philadelphia, Pennsylvania.
HOTEL, MOTEL AND CLUB EMPLOYEES'
UNION, LOCAL 568, AFL-CIO,
Labor Organization.
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.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut & Juniper Streets,
Philadelphia 7, Pennsylvania, telephone number Pennypacker 5-2612,
if they have any question concerning this notice or compliance with its
provisions.
HOTEL, MOTEL & CLUB EMPLOYEES' UNION LOCAL 568 763
INTERMEDIATE REPORT
STATEMENT OF THE CASE
On a charge filed July 11, 1961, by Marriott Motor Hotels, Inc. (Marriott), that
Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO (Respondent) has
engaged in and is engaging in certain unfair labor practices affecting commerce as
set forth and defined in the National Labor Relations Act, as amended, 29 U.S.C.
Section 151, et seq. (Act), the General Counsel of the National Labor Relations
Board (Board) by the Acting Regional Director for the Fourth Region, pursuant to
the Board's Rules and Regulations, Series 8, as amended, issued a complaint and
notice of hearing.'
With respect to the unfair labor practices the complainant alleged in substance
that the Respondent is not now, and was not at all times material herein, the certi-
fied representative of any of Marriott's employees, and has not filed a petition
under Section 9(c) of the Act to determine the bargaining representative of any of
Marriott's employees; nevertheless:
On July 10, 1961, Respondent commenced picketing Marriott and caused
Marriott to be picketed at its Philadelphia motel and restaurant. Said picketing
has continued to date and has continued for more than 30 days.
The effect of the said activity has been to induce individuals employed by
suppliers, service companies, common carriers, and other persons, in the course
of their employment not to pick-up, deliver or transport any goods to or from
Marriott's premises, or not to perform any services.
The complaint further alleged:
Respondent engaged in, and is engaging in, the activity described above, an
object thereof being to force and require Marriott to recognize and bargain
with Respondent as collective bargaining representative of the employees of
Marriott and to force and require the employees of Marriott to accept and
select Respondent as their collective bargaining representative.
The complaint alleges and the General Counsel contends that the conduct of the
Respondent, above described, constitutes violation of the Act within the meaning
of Section 8(b) (7) (C) thereof.2
The Respondent filed an answer denying that it had engaged in any of the unfair
labor practices as alleged.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
at Philadelphia, Pennsylvania, on September 26 and 27, 1961. All the parties were
represented, participated in the hearing, and were given full opportunity to be
1 A copy of the charge was served on the Respondent by registered mail on July 11, 1961
2 The pertinent portions of the Act alleged to have been violated read•
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 or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to recog-
nize 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 organiza-
tion is currently certified as the representative of such employees•
* * * * * * *
(C) where such picketing has been conducted without a petition under section
9(c) being filed within a reasonable period of time not to exceed thirty days from
the commencement of such picketing: Provided, That when such a petition has been
filed the Board shall forthwith, without regard to the provisions of section 9(c) (1)
or the absence of a showing of a substantial interest on the part of the labor
organization, direct an election in such unit as the Board finds to be appropriate and
shall certify the results thereof: Provided further, That nothing in this sub-
paragraph (C) shall be construed to prohibit any picketing or other publicity 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, unless
an effect of such picketing is to induce any individual employed by any other person
in the course of his employment, not to pick up, deliver or transport any goods or
not to perform any services.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heard, to examine and cross-examine witnesses, to introduce evidence, to argue
orally and to file briefs, proposed findings of fact, and/or conclusions of law with
the Trial Examiner. The parties argued orally on the record, and stated they would
not file briefs.
Upon the entire record and from his observation of the witnesses, the Trial Ex-
aminer makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Marriott Motor Hotels, Inc., owns and operates motels and restaurants in various
locations in the United States including a motel and restaurant located at Monument
Road and City Line Avenue, Lower Merion Township, Pennsylvania. Marriott
receives more than $500,000 gross revenues annually from the operation of its motels.
A majority of the guests of the above motels are transients who remain for less than
a month, Marriott, during the past year, had received goods and materials from
outside the Commonwealth of Pennsylvania valued at in excess of $50,000 to be
used in the operation of the aforesaid Philadelphia motel.
H. THE LABOR ORGANIZATION INVOLVED
The Respondent is, and has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Prior to July 10, 1961, the Marriott Motor Hotels, Inc., was erecting a motor
hotel in the Philadelphia, Pennsylvania, area, the construction being by building
contractors and their subcontractors. The hotel was practically completed and fur-
nished on July 12, 1961, on which day Marriott held an opening affair attended by
local officials and other VIP's. Paying guests were received on July 14.
Lawrence Stoltz, the Respondent Union's president, testified:
At the general membership meeting in June, the first Wednesday in June, the
report was given about the Marriott construction and the officials were given
the authority to organize, picket, or do whatever they seen fit at a date to be
set by the Executive Board.
The Executive Board met in July and authorized the picketing to commence
on the tenth day of July.
Stoltz further testified that the Respondent made no attempt to organize Marriott's
employees before July 10 and that:
No official of 568 ever approached any official of the Marriott Motel regarding
a labor contract.
However, Stoltz testified that "since July 10" the Respondent has "approached people
that work at Marriott and asked them to join the Union." The parties stipulated
that the Respondent "was not and is not now, currently certified as the representative
of any employees of Marriott." The Respondent has not filed a petition for
representation.
Stoltz further testified that the Respondent's executive board met July 5, 1961, and
authorized "informational picketing" of Marriott, the pickets to carry signs inscribed:
TO THE PUBLIC
MARRIOTT MOTOR LODGE
does not have a
LABOR CONTRACT
with
HOTEL, MOTEL & CLUB EMPLOYEES'
UNION, LOCAL 568-AFL-CIO
PLEASE DO NOT PATRONIZE
and also,
Hotel , Motel & Club Employees'
Union Local 568-AFL-CIO
HAS NO DISPUTE
with the
BUILDING
CONTRACTORS
or its
EMPLOYEES
on this job
HOTEL, MOTEL & CLUB EMPLOYEES' UNION LOCAL 568 765
On July 10, at 6 a.m., the Respondent began picketing Marriott, placing two pick-
ets, who carried the signs above set out, at each of the four entrances to the hotel
premises. The same signs were carried throughout all the picketing which continued
from July 10 to August 25 when on a petition by the Fourth Region's Acting Direc-
tor, Bernard Sarnoff,3 the Honorable Francis L. Van Dusen, Judge of the U.S.
District Court, Eastern District of Pennsylvania, issued a temporary injunction
restraining the Respondent's picketing.
Prior to this injunction, following a petition in the same court,4 the Respondent
stipulated and agreed not to picket one of the four entrances to the Marriott premises
which was to be reserved for the use of "contractors, subcontractors and their sup-
pliers," pending the Board's final decision.
As above found the Union's picketing of all entrances to Marriott began at 6 a.m.,
July 10.
Charles I. Meyers testified that he is Marriott's construction supervisor; that con-
struction was still going on July 10; that on the last day of the workweek ending
July 7, 400 employees of various contractors worked on the hotel building and were
scheduled to work July 10; that:
The construction workers usually arrive around 7:00 until 8:00 in the morning.
On this morning of July 10th they began arriving around 7:00 and instead of
driving into the parking areas as usual, they did not cross the picket lines, they
parked on Monument Road and stood on most of the left side of the road.
The Respondent objected to the admission of any evidence with respect to the
impact of the picketing on employees of the various contractors for the reason that
on August 8 it had stipulated that it would not picket an entrance reserved for con-
tractors' employees, pending a Board decision as hereinabove set out. The Trial
Examiner overruled the objection and took the testimony as being admissible as
background in order to make a complete record.5
Meyers further testified that Marriott itself employed 50 carpenters and laborers
scheduled to report on July 10, all of whom refused to pass the pickets; that on
July 11 the Marriott-employed carpenters reported and worked until 11 a.m. at
which time they were "removed from the job" by a Carpenters' agent who first told
Meyers "that they were instructed to honor the picket lines and they'd have to remove
the men "
Frank V. Grabowski testified that he is vice president of the Abacus Company; that
the Abacus Company had a contract with Marriott to clean the walls, swimming pool,
skating rink, and corridors of the hotel, the contract containing a time limit calling
for completion on July 12, 1961; that he started work on July 6; that on July 10,
he arrived at the Marriott Hotel with a crew of "15 to 25" men but:
We approached the Marriott Motel and we had four or five pickets in the drive-
way. We had stopped there because actually I couldn't get through with the car.
They had it blocked.
Grabowski further testified, without contradiction, that his employees refused to
enter the grounds and perform the work. He further testified:
Q. (By Mr. REISMAN.) Did you ever complete your contract to clean up
the Marriott Motel?
A. No, we did not.
Walter Stanley Najmola testified that he is employed as an "exterminator" by the
Western Exterminating Company; that on July 10, he had occasion to go to the
Marriott Motel in the course of his employment but did not enter; he testified:
I entered the driveway and I was stopped by the picket and I asked him what
was going on and he said they were having a dispute with the motel, and I said
well I was an exterminator and was here to service the hotel. He said no one
was allowed in today.
Q. Then what did you do?
A. I just turned around and left.
William W. Kincade testified that he is a driver-salesman for the Seven-Up Bottling
Company; that on July 10 he arrived at the Marriott Hotel to make his first
delivery there, found pickets and a large crowd of people blocking the entrance,
asked "what was going on"; was told "they were on strike" and turned around;
Civil Action 30111, August 25, 1961.
Civil Case 29966.
5N.L.R.B. v. Local 239, International Brotherhood of Teamsters etc (Stan-Jay Auto
Parts & Accessories Corp.), 289 F. 2d 41 (CA. 2).
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went across the street and telephoned his employer after which he left without
making the delivery. He testified on cross-examination.
Q. (By Mr. DAVIS.) Mr. Kincade, you said that you were stopped. Did
anyone physically stop you?
A. Well, I doubt if anyone would physically stop me
Q Then what do you mean when you say that you were stopped?
A. Well, I don't relish the idea of running over anyone.
Edmund F. Cooper testified that he is chief engineer of Marriott's Hotel in Wash-
ington, D.C ; that he was sent to Philadelphia where his duties included receiving
furniture for the hotel; that on July 11, he was informed by Mr. Van Bell of the
James Van Bell Company that they would not,deliver an order of carpet they were
installing for Marriott at Philadelphia "because of the picket line."
Felix Spatola testified that he is sales manager for Spatola & Sons, dealers in fruits
and produce; that on July 10, a company driver was sent to make a regular delivery
of produce to Marriott but returned without making the delivery; that after at least
three attempts to deliver to Marriott on succeeding days in the regular manner all
failed, he personally delivered produce to Marriott in his automobile.
Jacob Lloyd Larkins, the Marriott Hotel resident manager, testified that about
11 a.m , July 10:
During the course of making a tour of the various entrances through the prop-
erty, I came around the far rear parking lot, the northernmost parking lot, and
observed a truck of Mr. Brenner Hauling Company coming up Monument Road
to enter the Marriott Hotel.
* *
Q. Then what happened9
*
A. Two pickets who were at that point picketing that gate ran over to the
cab and engaged in conversation with the driver.
Larkins further testified that after "approximately five minutes conversation"
between the truckdriver and the pickets "the driver started his truck and left the area."
Barney W. Gamborg, Marriott's director of labor relations, testified that when he
arrived at the hotel on July 10, he saw the pickets; that he then went to each entrance
and spoke to the pickets; he testified:
Q. Can you tell us what you said to each picket and what the picket said
to you?
A. Well, very simply, I just asked what this was all about in every instance
and it was answered "We are trying to organize the hotel." They did not go
beyond this point, but merely answered my question and walked away from me.
Q. How did you know they were pickets?
A They had placards on, the sandwich board type.
Gamborg further testified that on July 12, Marriott held an opening party; that he
observed that as taxicabs approached the hotel entrance:
I noticed that two of the pickets would stop the cab-in other words by their
physical presence in front of the cab-
Q. They would stand in front, is that right?
A. Yes. And there was a picket on either side of the entrance. And when
the cab would stop they would converge on the driver.
I was able to see that after the conversation the cab driver therefore then would
turn around to the customer and shrug or something of this type, and the
customers then would get out in the street and have to walk up the driveway
to the hotel.
Joseph M. Hitzel , Jr., Marriott's general manager , testified:
Yes, on the occasion of the first Saturday in August when something was-when
in the company of two ladies between 8:30 and I'd say quarter to nine we de-
cided to drive-off the property on City Line Avenue upper entrance, and await-
ing the traffic flow opportunity to drive on City Line off the property, two
ladies were on the right and the picket that was standing very close to the side
of the car, the lady on the right asked what is it all about, and the picket replied
that we're attempting to secure a contract, a union contract from the Phila-
delphia Marriott Motor Hotel.
John Drew and Alice Walters, who acted as picket captains, testified, that the
pickets were instructed not to stop anyone or talk to anyone while picketing.
HOTEL, MOTEL & CLUB EMPLOYEES' UNION LOCAL 568 767
The Respondent contends that the object of its picketing Marriott was not to
force or require recognition by Marriott or to force or require Marriott's employees
to accept the Respondent as their bargaining agent but was solely for the purpose of
informing the public that Marriott had no union contract; however, the Respondent's
president, Stoltz, admitted that since July 10, the Respondent has "been in the
process of organizing the Marriott Hotels" because "That is our business."
The Trial Examiner credits the undenied testimony of Charles J. Meyers that
various craftsmen employed by Marriott refused to perform their work behind the
picket lines; credits the testimony of Frank V. Grabowski that employees of his
firm which was working on the Marriott job under contract with Marriott refused
to pass the picket line; credits the testimony of Walter S. Nalmola that he did not
enter the Marriott grounds to perform services which were being performed by his
employer because of the picket line and statements of the pickets; credits William
W. Kincade's testimony that he refused to make a delivery because he was told by
the pickets "they were on strike"; credits Felix Spatula that drivers for his company
refused to cross the Marriott picket line; credits the testimony of Jacob L. Larkins
that a delivery truck turned back after conversation between the driver and the
pickets; credits Barney W. Gamborg's testimony that on July 10, 1961, various
pickets at all the entrances told him "we are trying to organize Marriott," that
various taxicabs refused to take their passengers past the picket line; and credits the
testimony of Joseph M. Hitzel, Jr., that the pickets told a taxicab passenger the
Union was attempting to get a contract from Marriott.
The Trial Examiner further finds that deliveries were made in the usual manner
within a few days at most after the picketing began without any interference by the
pickets.
Conclusion
Picketing has long been recognized as a form of free speech, and as such is a
protected cornerstone of our constitutionally guaranteed Bill of Rights.
In labor relations picketing has become a traditional incident to a strike, known
as labor's method of advertising a dispute with an employer. Also traditional
among union members has become respect for a picket line, the refusal to cross
such a line or to work behind it. It has also become common for those sympathetic
with labor not to enter picketed premises.
However, as no right enjoyed by an individual is absolute but must at all times
be subject to the rights of others, Congress in framing amendments to the Act, recog-
nized the well-established customs which accompany picketing and did not frame
the Act to interfere with picketing when directed against an employer by his em-
ployees in a labor dispute, but when picketing disrupts the legitimate affairs of others
than employer and employee, that is, third parties not having any interest in the
labor dispute to which the picketing is incident, Congress curtailed the right to picket
as not an absolute right.
Picketing by a labor organization, although traditionally an incident to a strike,
sometimes is carried on without a strike having been called and where no labor
dispute exists. Such picketing may have more than any single purpose. The framers
of Section 8(b)(7) of the Act proscribed certain picketing as unfair labor practices,
picketing to compel recognition, organization of employees, or to compel bargaining
with other than a legal representative of employees, but where no labor dispute exists
the right to picket is not prohibited if it is carried on for the purpose of "truthfully
advising the public (including consumers) that an employer does not employ mem-
bers of or have a contract with, a labor organization" but as herein pointed out,
the right is sharply limited in that it may not "induce any individual employed by
any other person in the course of his employment" to refuse to deliver or pick up
goods or perform services.
Thus a narrow provision proscribes certain picketing while a narrower provision
recognizes the right subject to conditions. Thus where there is no labor dispute
informational picketing is made legal subject to certain limitations which protect the
rights of parties not those being directly picketed to carry on their business affairs.
It seems clear that the "informational " proviso has the purpose of protecting the
rights of strangers to a dispute , more so than the rights of employees who may have
no interest in the picketing union or in the benefits to be derived from membership
therein to be gained by picket-line warfare not of their choosing, which may be only
in reality "a softening up" process to cause their employer to recognize the organiza-
tion gratuitously picketing for their interest. One would be naive indeed were he to
believe that eventual recognition and a contract was not one purpose of the Re-
spondent's "information" effort, for as President Stoltz testified , organization is a
union 's business . Rightly so.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As above stated, the Respondent contends that its sole purpose in picketing
Marriott was "informational" and hence wholly protected:
unless an effect of such picketing is to induce any individual employed by any
other person in the course of his employment, not to pick up, deliver or trans-
port any goods or not to perform any service.
However, despite their signs and the instructions given them by the Respondent, the
pickets informed questioners that the Respondent was attempting to "organize"
Marriott . President Stoltz testified that the Respondent has been organizing Mar-
riott's employees beginning the day the picketing started . The pickets stopped taxi-
cabs and at least one truck, employees of Marriott working on the hotel building,
and other employees of strangers refused to perform services and deliveries were
refused.
However, the Trial Examiner will assume that although its ultimate object in
picketing Marriott is organization , the Respondent 's present object is "informational,"
completely divorced from the ultimate object of organization, but even giving full
credence to the Respondent's contention and considering only the "informational"
aspect of the picketing, it is clear that the Act was violated in that individuals
employed by other persons in the course of their employment refused to make
deliveries and to perform services in the course of their employment because of the
picketing.
The Trial Examiner is of the opinion that the recent decision of the Board in
the Calumet case 6 does not apply to the facts in the instant matter, being grounded
on Section 8(b) (4) (C) of the Act.
Conclusion
Upon the entire record and the evidence considered as a whole, the Trial Examiner
finds that the General Counsel has fully sustained the allegations of the complaint
to the effect that the Respondent beginning July 10, 1961, picketed the Marriott
Motor Hotel at Philadelphia, Pennsylvania. The effect of the activity described
hereinabove has been to induce individuals employed by suppliers , service companies,
common carriers, and other persons, in the course of their employment not to pick
up, deliver, or transport any goods to or from Marriott's premises, or not to perform
any services , the said conduct of the Respondent being violative of Section
8 (b) (7) (C) of the Act relating to "informational picketing."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The acts and conduct of the Respondent , set forth in section III, above , in con-
nection with the operations of Marriott described in section I, above , have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to and do lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain proscribed conduct, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has picketed Marriott for "informational rea-
sons" in a manner violative of Section 8(b) (7) (C) of the Act, the Trial Examiner
will recommend that the Respondent , its officers , representatives , agents, employees,
and all members and persons acting in concert or participation with them , cease such
picketing or causing such picketing.
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. Marriott is, and has been at all times material herein , engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is, and has been at all times material herein , a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By Picketing Marriott on and after July 10, 1961, thereby causing individuals
employed by other employers than Marriott in the course of their employment, to
6 International Hod Carriers , Building and Common Laborers ' Union of America, Local
No. 41, AFL-CIO ( Calumet Contractors Association ), 133 NLRB 512.
DETROIT RESILIENT FLOOR DECORATORS LOCAL 2265 769
refuse to make deliveries , or transport goods and individuals , and to refuse to per-
form services , ,the Respondent has engaged in proscribed conduct with the meaning of
Section 8 (b) (7) (C) of the Act.
4. The aforesaid conduct therefore is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Detroit Resilient Floor Decorators Local Union No. 2265, of the
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Mill Floor Covering , Inc. Case No. 7-CB-783.
March 30, 1962
DECISION AND ORDER
On August 31, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report, finding that Respondent had not violated Section
8(b) (3) and 8(b) (1) (A) as alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the Intermediate Report attached hereto. Thereafter the General
Counsel and Respondent filed exceptions, each with a supporting
brief.' 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 ,a and the entire record in this
case and finds merit in the General Counsel's exceptions. Accordingly,
the Board adopts the findings of the Trial Examiner only to the extent
consistent with this Decision and Order.
The complaint alleged that the Union violated Section 8(b) (3)
through its insistence that the Employer agree to a contractual pro-
vision under which the Employer would obligate itself to contribute
to a fund established for the promotion of the floor covering industry
in the Detroit area. The Trial Examiner found that this was a manda-
tory subject of bargaining, and that by insisting upon an agreement
containing such a provision, the Respondent had not violated Section
8(b)(3).
We briefly summarize the facts of the case. In February 1961, the
Union demanded recognition from the Employer as the exclusive rep-
resentative of its employees and was voluntarily recognized. A few
days later, the Employer met with representatives of the Union who
requested the Employer to execute a collective-bargaining agreement
identical with one already in effect between the Union and Floor
Covering Contractors, a multiemployer association in the Detroit
1 The Board accepted a brief amicus curiae offered by attorneys representing several
building construction industry trade associations , in support of the Trial Examiner's
holdings.
2 The Respondent's motion for oral argument is denied because in our opinion the record,
exceptions , and briefs adequately set forth the positions of the parties.
136 NLRB No. 76.