International Alliance of Theatrical Stage Local 611

National Labor Relations Board - Board Decisions

Jun 13, 1973

204 N.L.R.B. 145 (N.L.R.B. 1973)

INTERNATIONAL ALLIANCE OF THEATRICAL STAGE LOCAL 611 145
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the Unit-
ed States and Canada, Local 611 , AFL-CIO and
Kindair Corporation . Case 20-CP-415
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
June 13, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On December 8, 1972, Administrative Law Judge
Loe F. Lightner issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting briefs,
and the Respondent Union filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Administrative Law Judge: This pro-
ceeding was heard before me in Monterey, California, on
September 6 and 7, 1972, upon the complaint of General
Counsel and the answer, as amended, of International Alli-
ance of Theatrical Stage Employees and Moving Picture
Machine Operators of United States and Canada, Local
611, AFL-CIO, herein referred to as Respondent.' The
complaint alleges violations of Section 8(b)(7)(C) and Sec-
tion 2(6) and (7) of the Labor Management Relations Act,
1947, as amended (61 Stat. 136; 65 Stat. 601; 73 Stat. 519;
29 U.S.C. Sec 151, et seq.), herein called the Act. The parties
waived oral argument, and briefs filed by the General Coun-
sel, Respondent, and Charging Party have been carefully
considered.
1 A charge was filed on January 28, 1972. A complaint was issued on July
18, 1972.
1. THE BUSINESS OF THE EMPLOYER
Kindair Corporation, herein Kindair, is a California cor-
poration with its principal office in Monterey, California,
and is engaged in the ownership and operation of motion
picture theaters at various locations in California, including
Stembeck Theater and Cinema 70 in Monterey, Valley Cin-
ema Theater in Carmel, Globe Theater in Salinas , and Cine-
ma Theater in Soquel. During the year immediately
preceding the issuance of the complaint, a representative
period, in the course and conduct of its business operations,
Kindair received gross revenues in excess of $500,000. Dur-
ing the same period, Kindair procured motion picture film
valued in excess of $50,000, which film was transported to
Kindair's places of business in interstate commerce from
suppliers located outside the State of California.
The complaint alleges, the answer, as amended, admits,
and I find that Kindair is, and at all times material herein
has been, an employer engaged in commerce and in opera-
tions affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
11 THE RESPONDENT IS A LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Respondent, at all times material, is and has been a labor
organization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
The Issues
The principal issue raised by the pleadings and litigated
at the hearing is whether the Respondent engaged in con-
duct in contravention of the provisions of Section 8(b)(7)(C)
by picketing various theaters of Kindair, on and after July
29, 1971, for an object of forcing or requiring Kindair to
recognize or bargain with Respondent, as the collective-
bargaining representative of Kindair's employees, or to
force or require said employees to accept or select Respon-
dent as their collective-bargaining representative notwith-
standing that Respondent is not currently certified as the
representative of said employees under the provisions of
Section 9 of the Act.
Respondent denies the commission of any unfair labor
practice, and asserts that its picketing was primary picketing
and that the provisions of Section 8(b)(7)(C) are inapplica-
ble. As an additional affirmative defense, Respondent as-
serts the allegations of the complaint are barred by reason
of the provisions of Section 10(b) of the Act. A subsidiary
question, in the event the provisions of Section 8(b)(7)(C)
are applicable, raised by amended answer, is the application
of the so-called publicity proviso, and, in such event, wheth-
er an effect of such picketing was to induce any individual
employed by any other person in the course of his employ-
ment, not to pick up, deliver, or transport any goods or not
204 NLRB No. 37
146
to perform any services.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agency
The complaint alleges , the answer , as amended , admits,
and I find , at times material relative to each individual,2 that
Arthur E . Jackson and Al Pierce , business agents , and Rob-
ert Morgan , president , have been agents of Respondent,
acting on its behalf within the meaning of Section 2(13) of
the Act.
Background
The facts set forth under this section are undisputed.
Kindair acquired the Steinbeck Theater, in Monterey, in
1959. Subsequently, Kindair acquired the Globe Theater in
Salinas, Valley Cinema in Carmel, and Cinema Theater in
Soquel . These are described as 35 mm theaters . Kindair also
acquired the Cinema 70 Theater in Monterey which, unlike
the others , is a 70 mm theater.3
At each of the described theaters, Kindair had the follow-
ing job classifications : theater manager , assistant theater
manager, projectionist, cashier or box office girls, candy
counter girls, and janitorial services . The only employees
covered by collective-bargaining agreements have been pro-
jectionists.
When Kindair acquired the Steinbeck Theater in 1959,
it voluntarily recognized Respondent and entered into a
collective-bargaining agreement covering its projectionists.
Each theater, except Cinema 70, had one projectionist who
was a regular and worked a 4-day week , as well as a relief
man, who worked a 3-day week, and was supplied by the
Union under the contract. a However, at Cinema 70, two
projectionists worked simultaneously , inferentially 4 days a
week, and were relieved by two other projectionists on the
other 3 days.
Initially, Respondent was voluntarily recognized by Kin-
dair and separate contracts were signed for each theater. S
No Board certification was ever sought or obtained. The
most recent collective-bargaining agreements were three in
number . The Cinema 70 agreement was effective from June
19, 1967 , to June 18, 1968. The Cinema Soquel agreement
was effective March 28, 1967, to February 14, 1969. An
agreement covering the Globe, Steinbeck, and Valley Cine-
ma theaters was effective from April 16, 1966, to February
14, 1969.6
2 Jackson and Pierce were business agents for limited periods of time, but
had such duties during relevant specified time . Morgan was secretary, and
later president.
3 We are not herein concerned with Cinema Theater in Aptos, acquired by
Kindair in late 1969 or early 1970.
4 It as undisputed that the theaters are open 7 days a week , for an evening
performance. On Saturdays , Sundays, and holidays there were matinees. It
would appear reasonable to infer that relief men were , normally, regularly
assigned.
S The initial agreement was signed for Globe in 1961, Valley Cinema in
1966, Cinema is Soquel in 1967 , and Cinema 70 in 1967.
6 Each of these agreements contained a valid union shop provision. Each
agreement also provided that the Employer would give the Union sufficient
advance notice of vacancies , with preference in hiring to individuals who had
previously been employed in the specified classifications It is undisputed
that the Union undertook to provide essential relief operators, and did so,
at all times during the existence of these agreements.
Prior to the expiration of the Cinema 70 agreement on
June 18, 1968, several negotiating sessions were held. An
impasse resulted when the Employer persisted in its position
that two projectionists, working simultaneously, were un-
necessary and an unwarranted extra financial expense. The
Union persisted that it was national policy to have two
projectionists to a 70 mm booth, and asserted it was neces-
sary to operate the machines. By reason of the impasse, no
new agreement was reached. During the last negotiating
session , held on June 18, 1968, the day the contract was to
expire, Jackson, business agent, inquired of Matson, vice
president of Kindair, whether this meant the services of the
Union and the union employees would be no longer re-
quired. Matson responded in the affirmative.
Prior to June 18, 1968, Alfred Finley, Jr., and Harold
DeLine were the regular projectionists at Cinema 70. On
June 18, DeLine resigned to accept employment elsewhere.
The Union assigned James Russo, who had been a relief
man, to replace DeLine. Thus, Finley and Russo were the
regular projectionists on the evening of June 18. After the
contract expired at midnight, Russo and Finley were given
identical letters from Kindair, signed by Matson, reading:
"Effective with the close of business, June 18, 1968, your
services will no longer be required." The following day,
Kindair assigned its theater manager and assistant theater
manager to the work in the projection booth. This assign-
ment 'continued for a month or more, when the theater
manager and the assistant theater manager were relieved of
these duties as more fully explicated, infra.
Within 2 or 3 days, the Union commenced picketing Cin-
ema 70 and the other four theaters. The picket sign read:
"Kindair Corporation unfair, refuses to negotiate with Lo-
cal 611, AFL-CIO."
Under date of July 8, 1968, Don Kirke Erskine, president
of Kindair, by letter to Jackson, requested that the Respon-
dent remove the pickets from the four locations not in-
volved Shortly thereafter, Respondent discontinued
picketing at theaters other than Cinema 70. Simultaneously,
the picket sign was changed to read:
LOCK OUT
THIS
THEATER
does NOT employ
UNION members
Of I A T S E LOCAL 611 AFL-CIO
It is undisputed that this was the picket sign used at all times
thereafter.7
On September 10, 1968, Kindair, by letter, on the letter-
head of California Association of Employers, signed by
C. M. Roberts, regional manager, advised Finley and Rus-
so that there was an opening for one man at the Cinema 70
theater as projectionist. The letter indicated it would be a
one-man operation , and the position was being offered on
the basis of seniority. Under date of September 12, 1968,
Finley requested advice as to the conditions of employment.
7 What, if any, legend appeared on the reverse side of this picket sign is
obscure and unimportant.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE LOCAL 611 147
Russo responded with a similar inquiry, under date of Sep-
tember 16. Under date of September 17, 1968, Roberts ad-
vised Finley and Russo that they would receive the same
wages and working conditions that prevailed at the time of
their termination, except there would be no collective-bar-
gaining agreement between Respondent and Kindair.
It is undisputed that Finley, Russo, and the relief projec-
tionists employed by Kindair on June 18, 1968, have not
been reemployed by Kindair.
The two collective-bargaining agreements covering the
other four theaters, i.e., Cinema Soquel, Globe, Steinbeck,
and Valley Cinema, contained expiration dates of February
14, 1969 . Negotiating sessions were continuing on the expi-
ration date , and these agreements were continued , by agree-
ment of the parties , until and including February 27, 1969.
An impasse was reached over wage rates , and these con-
tracts expired, on February 27, 1969.
The projectionist employees at these four theaters were
advised by Kindair on February 27 that their services were
no longer required .8 It is undisputed that none of these
employees have in fact been employed by Kindair since that
date. All of the projectionists, described supra, on and after
June 19, 1968, as to Cinema 70, and on and after February
28, 1969, as to the other theaters, went back to the hiring hall
and received referrals to theaters other than Kindair thea-
ters, and have done so ever since.
During the first month, following February 27, 1969,
theater managers and assistant theater managers were as-
signed to the work of the projectionists. Thereafter individu-
als were hired off the street as projectionist employees and
replaced Respondent's members , with the exception that
only one projection operator operates the Cinema 70 where
previously there had been two. The schedule for these re-
placement employees is the same as the previous schedule,
a regular projectionist working four nights , and a replace-
ment three nights , in a seven-night week . These replace-
ments are not members of Respondent . At no time
subsequent to the expiration of the respective contracts were
any of these striking employees of Kindair advised that
unless they returned to work they would be permanently
replaced. Similarly, at no time subsequent to the expiration
dates of the respective contracts did Kindair notify the
Union of a request or demand that it man the jobs at the
various theaters of Kindair.
Commencing within 2 or 3 days after February 27, 1969,
and continuing ever since , Respondent has picketed these
other four theaters. The picket sign used , at all times, was
the "Lock Out" sign , set forth supra. The legend on the
reverse side of the picket sign used at the Valley Cinema
Theater read "Lock out this theater not-union AFL-CIO."
The legend on the reverse side of the other picket signs is
obscure.
The picketing, at all five theaters, commenced approxi-
mately one half hour prior to the start of the feature, and
continued until the patrons were in the theater . The pickets
would return when the patrons were leaving the theater. The
hours of picketing depended on whether there were mati-
8 It is undisputed that these projectionists would have returned to work
only on condition that Kindair had a collective-bargaining agreement with
Respondent.
nees or double features. Cinema 70 started its features at
8:30 p.m., while some other theaters started at 7 p.m. and
had two shows a night. Occasionally Cinema 70 had two
shows in one night. On Saturdays, Sundays, and holidays
there were matinees which would commence at 1:30 or 2
P.M .9 All of the theaters were picketed on each Friday and
Saturday, and some of the theaters were picketed on two
other nights, this latter picketing being rotated to cover all
theaters. This picketing continued, on the scale indicated,
up to the time of hearing herein.
No negotiating sessions between Kindair and Respon-
dent have been held since February 27, 1969. 10 No petition
for an election under the provisions of Section 9(c) of the
Act has been filed by either Kindair or Respondent.
It is undisputed that the picketing at Cinema 70, which
commenced shortly after June 18, 1968, and the picketing
at the other four theaters, which commenced shortly after
February 27, 1969, were the result of an economic dispute
between Kindair and Respondent.
Under date of May 5, 1969, by letter, Matson, vice presi-
dent, advised Jackson, business agent, that Finley, Russo,
and Krenz were not entitled to severance pay as they had
not been discharged, "but they were locked out after an
impasse in negotiations."
On November 26,1969, by letter, McMillin, special repre-
sentative of Respondent, advised Matson, in conformity
with telephone conversations on 3 successive days, ending
on the date of the letter, McMillin sought to ascertain, inter
alia, the possibility of a meeting to settle the existing dispute,
and that Respondent's doors were open for the purpose of
such discussion.
Under date of February 25, 1971, by letter, Forde, Inter-
national representative of Respondent, advised Matson that
he had returned from out of the state and had assumed his
former position and would be available "if there might be
a solution to the present problem" between Kindair and
Respondent.
Kindair made no response to the McMillin and Forde
letters.
Events After July 29, 1971
I have found, supra, that the picketing described contin-
ued during the Section 10(b) period, from July 29, 1971, to
the date of the hearing herein, September 6, 1972.
General Counsel and Charging Party contend that the
former employees abandoned their interdst in the strike, and
that the picketing was conducted by strangers. The evidence
is to the contrary, and is next set forth.
Robert Leroy Morgan was president of Respondent in
September 1972 and had been either president or recording
secretary since February 1969. Morgan credibly related that
he was the regular projectionist at the Globe, for a period
of 3 years, terminating at the time of the lockout on Febru-
ary 27, 1969. He had also worked, at unspecified times, at
the Soquel and Cinema 70 theaters. Morgan related that he
9I find it unnecessary to set forth under this section picketing which
occurred at hours when the theaters were closed.
10 The Union filed a charge in 1969, alleging that Kindair had failed to
bargain in good faith . The charge was dismissed for lack of ment . I find these
facts unimportant and of no consequence.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was on the picket line , at various theaters , on various dates,
from the commencement of the picketing , to and including
August 1972 . 11 Morgan asserted that Wason , whom he iden-
tified as the former relief operator at the Globe , was on the
picket line in August 1972. Morgan related that all members
of the Local , living within the geographical jurisdiction of
the Local , are required to picket or pay someone else to
picket for them out of their own personal funds.12
Erskine credibly related that Kindair obtained motion
picture films from National Screen Service . The delivery of
film was made by truck by Theater Transit Service, in the
early morning hours , between midnight and 3 or 4 a.m.,
usually on Wednesday morning . The theaters are not open
to the public at such times . The truck route from San Fran-
cisco was over Route 101 to the Globe Theater in Salinas,
then to the Valley Cinema in Carmel , then to Cinema 70 and
Steinbeck in Monterey , then to the Cinema in Soquel, and
then to other theaters in Santa Cruz , returning via San Jose
to San Francisco.
Erskine related picketing , which he observed, on the
morning of August 19, 1971, between 1:30 and 2 : 30 a.m., at
the Valley Cinema in Carmel. When Erskine arrived at the
theater and parked his car, he observed another car parked
in front of the theater. When the Theater Transit truck
arrived, a picket got out of the other car, with the picket sign
described supra, and commenced picketing . Bruce Alston,
operations manager for Kindair, was also present. The
truckdriver exchanged some words with Alston , got back
into his truck and left without making the delivery.
Erskine related there were 15 or 20 times that film was not
dropped, by reason of the pickets being present , and Kin-
dair would call National Film Service and pay for a messen-
ger to take the film to Greyhound for shipping. Kindair
would then have an employee go to Greyhound to pick up
the film.13
Erskine credibly related that , prior to the commencement
of the picketing, the truckdriver , who had a key to each
theater, would enter the theater , deliver the film, and pick
up the film to be returned . After the picketing commenced,
on occasion Kindair would have a theater manager or assis-
tant manager wait at the theater for the film drop , and the
theater manager would take the film to be returned out to
11 His testimony was given on September 7.
12 Don Kirke Erskine has been President of Kindair since 1959 . Erskine
asserted that the former employees of Kindair picketed for I or 2 months
after the strike began , and thereafter the pickets were strangers and did not
include former employees . Erskine denied that Morgan was employed by
Kindair on February 27 , 1969. Erskine , shown a list of 20 employees, given
notices their services were no longer needed at the time of the lockouts, who
filed claims for earned vacation pay, was unable to identify any of the 20
named except Furtado . It is undisputed that the claim of all 20 was paid by
Kindair, and the payroll journal reflects that all 20 were separated effective
February 27, 1969.
Erskine acknowledged he did not know all of the members of Respondent
at the present time, but asserted he did know all of them in February 1969.
Erskine then admitted that his knowledge was based on hearsay . Erskine
acknowledged that he had not personally gone to each theater on each
occasion to determine who was picketing, and did not know who did the
picketing each day of picketing , and that his recitation as to the identity of
the pickets was limited to his personal observations . On this conflict , I credit
Morgan.
13 However, it is obscure whether any of the other occasions recited oc-
curred on or after July 29, 1971 , or were poor thereto.
the truckdriver, who would not cross the picket line, and
receive the new film and take it into the theater . 14 I find it
reasonable to infer this condition existed after July 29, 1971.
Erskine credibly related that , prior to the commencement
of the picketing, Crest Sales Company furnished merchan-
dise for the vending machines in the theaters . At that time
the driver would deliver the merchandise into the theater
storeroom. Since July 1971, the driver advised Erskine he
would not cross the picket line, and he would then drop the
merchandise in the street , and Kindair employees would go
into the street, with handtrucks, and bring the supplies into
the theater. Erskine acknowledged no pickets were present
when the Crest driver appeared, but the driver advised that
he was aware that Kindair had a labor dispute. These deliv-
eries were normally made on Mondays through Thurs-
days.'I
Erskine related that, pursuant to a request by Alvin
Pierce, business agent for Respondent , he met with Pierce
in January 1972, at which Morgan, president of the Union,
and Matson were present . Erskine related that Pierce re-
quested Erskine to meet with Forde , International represen-
tative, for the purpose of reaching an agreement to end the
dispute. Pierce advised that he wanted to have "Union peo-
ple" in all of the theaters . In answer to a question as to
whether the theaters were still being picketed, Erskine relat-
ed that Morgan responded that all the theaters were being
picketed. Erskine asserted that when he inquired the reason
for the picketing , Pierce advised that pickets are being used
in order to bring Kindair to the bargaining table. No subse-
quent meeting has been held between Kindair and Respon-
dent.
It is undisputed that no petition for an election has been
filed by either the Respondent or Kindair.
Concluding Findings
The Supreme Court has held that earlier events may be
utilized to shed light on the true character of matters occur-
ring within the limitations period; and for that purpose
Section 10(b) ordinarily does not bar such evidentiary use
of anterior events . Local Lodge No. 1424, 1AM v. N.L.R.B.,
362 U.S. 411, 416 (1960).
It is undisputed that Kindair and Respondent arrived at
an impasse, in an effort to arrive at a new collective-bar-
gaining agreement, to replace an existing agreement , which,
by its terms, expired on June 18, 1968, relative to Cinema
70 in Monterey. Similarly, Respondent and Kindair arrived
at an impasse during negotiations for new collective-bar-
14 Kindair related that, on occasion , all of the film would be gathered in
one theater, for delivery to the truckdriver , who, inferentially , would leave
all of the film to be delivered at the one theater.
15 Erskine related that in January 1972, Kindair purchased some Zeon
lamps for the Globe Theater , in Salinas, from Western Theatrical Equipment
Company. Erskine asserted that he had been advised by Western Theatrical
Equipment Company that they would not install equipment purchased from
them because their employees would refuse to cross the picket line. Erskine
asserted that he was similarly advised by Pacific Theater Equipment Compa-
ny, when Kindair purchased equipment from them. It is undisputed that this
merchandise was delivered , even though there was a refusal to perform the
services formerly performed . These failures to perform services are at most
cumulative to the effect the picketing had on the failure to deliver the film,
which I have found . Accordingly , I find it unnecessary to determine if these
failures would negate an asserted defense of publicity picketing.
INTERNATIONAL ALLIANCE OF THEATRICAL STAGE LOCAL 611
gaining agreements covering the other four theaters, on
February 27, 1969. It is undisputed that the projectionist
employees, on the respective dates indicated, were advised
that their services would no longer be needed.16 There can
be no question that the resulting situation was a lockout, the
employees became economic strikers, and the picketing, at
the outset, was primary picketing for the purpose of obtain-
ing new collective-bargaining agreements. The question is
whether, by passage of time alone, such picketing can be
converted to recognitional picketing within the proscrip-
tions of Section 8(b)(7)(C) of the Act.
Respondent, in its brief, accurately calls attention to the
fact that the legislative history 11 clearly establishes that it
was not congressional intent, in enacting this Section, to
prohibit a primary strike picket line, where recognition had
been accorded, but was intended to preclude so-called
blackmail or extortionist picketing, for recognition, without
regard to the desires of the involved employees. Respondent
calls attention to a discussion of Section 8(b)(7) by Senator
McClellan, supra at 1175, wherein he talked of the compul-
sion of many persons who joined unions not of their own
free will and not with their consent but "simply by a Labor
boss walking into management's office, slapping a contract
on the desk and saying to management you sign it, put your
men into this Union or else we are going to picket you "
Senator McClellan said, "that form of shake-down picket-
ing is already taken care of in this bill." Senator McClellan
described organizational picketing as where union leaders
come to management and say "we will organize your men
and put them in the Union, irrespective of their wishes.
We'll make Union members of them or else we will picket
your plant and apply that economic pressure on you."
Respondent correctly urges that Congress in enacting
Section 8(b)(7) dealt only with the demands for initial recog-
nition of a union by an employer.
In the Sullivan Electric case 8 the Board held, inter aha•
Thus, by attributing a bargaining objective to the
Respondent's picketing and by resorting to a strictly
literal construction of the statute, it is arguable that the
picketing falls within Section 8(b)(7)'s prohibition
against picketing to force an employer "to recognize or
bargain with a labor organization as the representative
of his employees." [Emphasis supplied.] Nevertheless,
after analyzing the overall congressional purpose be-
hind the enactment of this section, we are convinced
that the words "recognize or bargain" were not intend-
ed to be read as encompassing two separate and unre-
lated terms. Rather, we believe they were intended to
proscribe picketing having as its target forcing or re-
quiring an employer's initial acceptance of the union as
in I have found it unnecessary to set forth Kmdair's understanding that
these employees would not report for work without a Union contract Erskine
acknowledged advising the respective theater managers that these employees
would not be permitted to work if they did appear for the purpose of report-
ing Matson, by letter to Jackson, business agent, on May 8, 1969, acknowl-
eded the regular and relief projectionists had not been permanently severed
Legislative History of the Labor-Management Reporting and Disclosure
Act of 1959 (two volumes , published by the National Labor Relations
Board , 1959) p 473-474, 985, 994-995, 1174-1193, 1433, 1518, 1582, 1720,
and 1858
18 Building and Construction Trades Council of Santa Barbara County, AFL-
CIO (Sullivan Electric Company), 146 NLRB 1086, 1087
149
the bargaining representative of his employees. When
viewed in this posture, it is clear that Sullivan had
recognized and extended bargaining rights to the Re-
spondents long before the disputed picketing com-
menced here and that such picketing therefore was not
designed to attain those statutory objectives.19
In the Whitaker Paper case 20 the Board held:
The issue presented here is whether or not picketing,
lawfully commenced and maintained during a strike by
a recognized incumbent statutory representative in
support of a collective-bargaining dispute with respect
to economic issues, was converted to picketing for a
recognitional objective within the meaning of Section
8(b)(7)(C) merely because the picketed company re-
placed the striking employees.
The legislative history renders it apparent that a
prime purpose for the enactment of Section 8(b)(7)(C)
was to deal with so-called "blackmail picketing." The
Board has found violations of this section in situations
involving attempts by unions to coerce employer recog-
nition by engaging in extended picketing rather than
filing a valid petition for an election under Section 9(c)
of the Act. The matter here before us, however, does
not present such a situation.
In the instant case, the Respondents struck in an
attempt to better the wages and working conditions of
their members who were employed by Whitaker. The
picketing engaged in by members of Respondents has
at all times been in connection with this strike.
In the Frank Wheatley Pump case 21 the Board found the
material facts the same as in Whitaker, supra, except that
more than I year elapsed from the beginning of the econom-
ic strike. The Board found this factual difference did not
create a different result.
I find, on the basis of the credible evidence herein, that
Respondent was initially voluntarily recognized by Kindair
to represent the projectionist employees, that collective-bar-
gaining negotiations, for renewal of existing contracts, re-
sulted in impasses in June 1968 as to Cinema 70, and
February 1969 as to the other theaters, as a result of which
the employees who were locked out commenced picketing,
and that the picketing was against the primary employer as
the result of economic disputes. This picketing continued up
to the time of hearing herein. It follows, and I find, that such
picketing was not for an object of recognition, and the mere
passage of time, without more, did not convert the picketing
to picketing for such a proscribed object.
The assertion of Kindair, in its brief, that the striking
19 See also international Hod Carriers' Building and Common Laborers'
Union of America, Local 840, AFL-CIO (Charles A Blinne, d/b/a C A
Blame Construction Company), 135 NLRB 1153 Accord Bay Counties Dis-
trict Council of Carpenters, AFL-CIO, et al (Jones and Jones Inc), 154 NLRB
1598, 1605-1606
20 Warehouse Employees Union Local No 570, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Whitaker Pa-
per Company), 149 NLRB 731, 734
21 Local Lodge 790, International Association of Machinists, AFL-CIO
(Frank Wheatley Pump & Valve Manufacturer), 150 NLRB 565, 566
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
former employees are no longer supporting the strike is
unsupported by the evidence herein . Similarly , the assertion
of Kindair , in its brief, that these former employees are now
permanently employed elsewhere , or no longer living in the
area, or retired , is without evidentiary support . It is undis-
puted , and I have found, supra under Background , that the
projectionist employees of Kindair , upon ceasing work for
Kindair, returned to their hiring hall and received referrals
on a normal basis thereafter . This evidence does not permit,
and would not support, a finding that they have obtained
permanent employment elsewhere . It is undisputed that
none have resumed employment by Kindair.
General Counsel , in his brief , correctly urges that an em-
ployer may refuse to bargain , at his peril, where he doubts
the Union's majority status, pending a bargaining order or
an election . We are not herein treating with a duty to bar-
gain . No one has exercised the right, provided under Section
9(c), to obtain an election and a determination of the
Union's majority status , or its absence.
Since I find the provisions of Section 8(b)(7) inapplicable
to the facts presented herein , I find it unnecessary to de-
termine the applicability of the so-called publicity proviso
of that Section , or whether the picketing induced individu-
als employed by other persons not to pick up, deliver, or
transport any goods or not to perform any services.
It is within the exclusive domain of Congress to determine
what conduct should be proscribed , to "eliminate the causes
of certain substantial obstructions to the free flow of com-
merce and to mitigate and eliminate these obstructions."
Section 1 of the Act. Congress has adopted , as Section 13:
"Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or
impede or diminish in any way the right to strike, or to affect
the limitations or qualifications on that right."
Accordingly, for the reasons set forth, I find Respondent,
by engaging in the conduct complained of, to the extent I
have found such conduct herein , has not engaged in con-
duct within the proscriptions of Section 8(b)(7)(C) of the
Act.
CONCLUSIONS OF LAW
1. Kindair is an employer engaged in commerce and in
activities affecting commerce within the meaning of Section
2(2), (6) and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent , by engaging in the picketing set forth
herein , has not engaged in unfair labor practices within the
meaning of Section 8(b)(7)(C) of the Act.
On the basis of the above findings of fact and conclusions
of law, upon the entire record as a whole , and pursuant to
Section 10(c) of the Act, I conclude that the complaint
should be dismissed.
ORDER
IT IS HEREBY ORDERED that the complaint be, and it is here-
by, dismissed in its entirety.