International Ladies' Garment Workers' Union

National Labor Relations Board - Board Decisions

Mar 23, 1962

136 N.L.R.B. 524 (N.L.R.B. 1962)

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent 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 labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has refused to execute an agreement with Local
697 containing the terms and conditions of employment offered to said union
by the employers on May 31, 1961 , and embodied in final form on June 23, 1961,
the Trial Examiner will order that the Respondent sign an agreement with Local 697
identical with that executed heretofore on June 23, 1961 , by Cloverdale Dairy and
Ohio Valley Dairy.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Union is, and during all times material herein was , a labor organization
within the meaning of Section 2(5) of the Act.
2. Respondent is engaged in, and during all times material herein was engaged in,
commerce within the meaning of Section 2(6) and (7) of the Act.
3. All driver-salesmen , plant employees and special order men of Respondent at
its Wheeling , West Virginia , plant; of Cloverdale Dairy at its Wheeling , West Vir-
ginia, plant ; and of Ohio Valley Dairy at its Martins Ferry, Ohio, plant , exclusive
of all other employees, garage mechanics, plant mechan ics, temporary employees,
professional employees, and supervisors as defined in the Act, constitute , and during
all times material herein , constituted a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Local 697 was during the year 1961 , an d at all times thereafter has been, the
recognized representative of all the employees in the above -described appropriate
unit , for the purposes of collective bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on June 23 , 1961, and at all times thereafter , to bargain collectively
with the above -named labor organization , the recognized representative of the em-
ployees in the above -described appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
6. By the aforesaid refusal to bargain , Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act and has thereby engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
International Ladies ' Garment Workers ' Union, AFL-CIO and
Saturn & Sedran , Inc. Cases Nos. 26-CB-136 and 26-CP-1
(formerly 10-CB-1124 and 10-CP-2) . March 23, 1962
DECISION AND ORDER
On May 23, 1960, Trial Examiner A. Norman Somers issued his In-
termediate Report in the above-entitled proceeding,' finding that the
1 An erratum was issued on May 24, 1960.
136 NLRB No. 44.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 525
Respondent Union had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermedi-
ate Report attached hereto. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and 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 In-
termediate Report, the exceptions, the brief and the entire record
in the case, and finds no merit in the exceptions. Accordingly, the
Board hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the modification indicated below 2
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM , dissenting :
Even assuming that the language on the picket sign after Oc-
tober 1, 1959, somehow falls within the second proviso to Section
8(b) (7) (C), the evidence in this case, which includes other union
conduct as well as the language of the picket signs, establishes that
recognition was an object of Respondent's picketing after Novem-
ber 13, 1959, the effective date of Section 8(b) (7) (C). The evidence
also establishes that Respondent picketed for recognition for more
than a reasonable time after November 13, 1959, without a petition
having been filed.' Accordingly, for the reasons stated in the dis-
senting opinion in Crown Cafeteria, 135 NLRB 1183, we would
find, contrary to our colleagues and the Trial Examiner , that Re-
spondent's picketing after November 13, 1959, violated Section
8(b) (7) (C) of the Act.
2 Our holding herein is predicated on the criteria we recently announced in the Crown
Cafeteria case , 135 NLRB 1183 Hence we find it unnecessary to pass upon that portion
of the Intermediate Report B, ( 3) entitled "Did Respondent meet the conditions of im-
munity of the excepting proviso, even though it be interpreted to embrace a subjective
test as well?"
3 See Stan-Jay Auto Parts and Accessories Corporation , 127 NLRB 958, 960
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case, with all parties represented, has been considered on the basis of the
consolidated complaint of the General Counsel and the answer and the motions
to dismiss filed by Respondent . The parties , by agreement , have waived a hearing
and have stipulated to a set of facts as the basis of the findings, conclusions, and
recommendations of the Trial Examiner.'
'The chronology is as follows : In Case No . 10-CB-1124 , the Employer filed a charge
and an amended charge on July 9 and 27 , 1959, respectively , alleging a violation of Sec-
tion 8 (b) (1) (A) of the Act, and on the basis thereof , the General Counsel, on August 20,
1959, issued a complaint alleging the same violation . On November 23, 1959, the Employer
filed the charge in Case No . 10-CP-2, alleging a violation of Section 8(b) (7) ; and on
December 4, 1959 , an order of consolidation issued along with the present consolidated
complaint , alleging violation of Section 8(b) (1) (A) and 8 (b) (7) of the Act Respondent
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The substantive issue presented is whether the picketing conducted by Respond-
ent at .the plant of the Charging Employer violated Section 8(b) (1) (A) and 8(b) (7)
of the Act, as amended by the Labor-Management Reporting and Disclosure Act
of 1959 (which, for brevity, we shall hereinafter refer to as the new law, or the the
1959 statute). Also raised by Respondent is a procedural issue concerning the
validity of the charge filed in Case No. 10-CP-2. (See footnote 1, supra.)
The parties have filed briefs, which have been duly considered. Upon the entire
record, there are hereby made the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
The Employer, Saturn & Sedran, Inc., makes and sells women's garments and
related products. It is a Tennessee corporation, with its office and plant in
Nashville, and its annual shipments out of the State exceed $50,000.
II. THE LABOR ORGANIZATION INVOLVED
International Ladies' Garment Workers ' Union , AFL-CIO, is a labor organization.
III. PROCEDURAL ISSUE: THE MOTION TO DISMISS THE CONSOLIDATED COMPLAINT
BASED ON THE CLAIMED DEFECTIVENESS OF THE CHARGE IN CASE NO . 10-CP-2
Respondent claims the charge in Case No. 10-CP-2, is "fatally defective and
void." By that token it claims to be entitled to dismissal of the consolidated com-
plaint. This is because it conceives the charge in Case No. 10-CP-2 to be the
jurisdictional basis for the only viable part of the consolidated complaint remaining
after the Supreme Court's decision in the Curtis Brothers case, rendered March 28,
1960 .2 As appears in the chronology set forth in footnote 1, the charge in Case No.
10-CB-1124 alleged violation of Section 8(b)(1)(A ) and that in Case No. 10-
CP-2 charged violation of newly enacted 8(b)(7). Both violations are alleged
in the consolidated complaint . The allegation of violation of 8(b ) (1) (A) is
founded upon the doctrine enunciated by the Board, in the Curtis Brothers case,
that picketing for recognition as such by a minority union is an infringement of em-
ployee rights in violation of 8 (b ) (1) (A) . This doctrine has now been laid to rest
by the Supreme Court's decision reversing the Board in Curtis Brothers and reject-
ing the so-called Curtis doctrine ( footnote i1, supra ). This disposes on its merits of
the portion of the consolidated complaint alleging a violation of Section 8(b) (1) (A),3
and leaves as the residue the allegation of violation of 8(b ) (7). Respondent 's claim
is that we do not reach the merits of that portion of the consolidated complaint be-
cause the charge in Case No. 10-CP-2 on which it is based is "fatally defective and
void ," with the result , as Respondent contends , that the portion of the consolidated
filed a motion to sever the cases, which was denied , and also a motion to dismiss the com-
plaint in Case No 10-CP-2 because of improper execution of the charge as disclosed by
testimony at the hearing in the Section 10(l) Injunctive proceeding in the district court
Ruling on that motion was deferred pending receipt of the transcript of that hearing.
On March 9 , 1960 , the parties executed the stipulation of facts referred to in the text,
which set forth the facts relating to both the procedural and substantive issues. On
March 29 , 1960, Respondent moved to dismiss the consolidated complaint on the ground
that the Supreme Court's supervening decision in the Curtis Brothers case , infra , handed
down on March 28 , 1960 , disposed of the allegation of violation of Section 8(b) (1) (A) on
the merits and that the merits of the alleged violation of Section 8(b) (7) could not be
reached because the charge in Case No 10-CP-2, on which that allegation was based,
was "fatally defective and void ." Decision was deferred pending receipt of briefs on all
the issues The 10 ( 1) injunctive proceeding , above referred to, culminated in a restrain-
ing order against Respondent Issued December 18, 1959 , and still in effect . Walter C
Phillips, Reg . Dir. v. International Ladies' Garment Workers' Union , Civ. 2806 M.D. Tenn.,
45 LRRM 2363
2 N L R B. v. Drivers , Chauffeurs and Helpers Local Union No 639, etc (Curtis
Brothers ), 362 U.S 274
3 Cf District 76, Retail, Wholesale and Department Store Union, AFL-CIO ( Chandler's
Philadelphia Shoe Store, Inc ), 127 NLRB 254 ; Automobile Mechanics Lodge No 701,
International Association of Machinists ( Berwyn Motor Sales, Inc ), 127 NLRB 577.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 527
complaint alleging violation of Section 8(b)(7) lacks the jurisdictional foundation
of a valid charge .4
The basis for the claim that the charge is "fatally defective" is recited in the 21st
paragraph of the stipulation of facts, as follows:
The charge in Case No. 10-CP-2 . . . was signed by the President of the
Employer, Sam Saturn, in blank on or about November 18, 1959, and subse-
quently filled in in all other respects by the Employer's attorney, Louis Left-
wich, Jr., in the said Sam Saturn's absence.
Respondent contends that this procedure was not in conformity with .the require-
in the Board's Rule and Regulations and Statements of Procedure. Section 102.11
of the Board's Rules and Regulations provides:
Such charge shall be in writing and signed, and shall either be sworn to . .
or shall contain a declaration by the person signing it, under the penalties of
the Criminal Code, that its contents are true and correct to the best of his
knowledge and belief. [Emphasis supplied]
The charge in Case No. 10-CP-2 is on ,the Board's standard printed form, and the
signature of Sam Saturn as president of the Employer is at the bottom immediately
below this printed declaration:
I declare that I have read the above charge and that the statements therein are
true to the best of my knowledge and belief.
Immediately below the signature is the following:
Willfully false statements on this charge can be punished by fine and imprison-
ment (U.S. Code, Title 18, Section 1001).
In a literal sense the charge thus does "contain" the declaration which the pertinent
section of the Rules prescribes. However, Respondent contends that the declaration
as signed is false, since the signer could not have "read the above charge," or vouch
for the truth of its contents, as the declaration recites.
Respondent claims that this is a materially false representation and as such is an
abuse of the Board's process. Whether that is so, however, would seem to me to
depend upon the purpose of the Board in requiring the oath or declaration. The
Act prescribes neither, and, in express terms, empowers the agency to issue a com-
plaint "Whenever it is charged that any person has engaged in . . . any . . . unfair
labor practice" (Sec. 10(b)). [Emphasis supplied.] The Board, however, acting
under the legislative or rulemaking power vested in it under Section 6 of the Act,
has from the beginning required that the charge be supported by an oath (i Fed.
Reg. 277), and later it provided for the present alternative of a declaration of the
truth of the charges under the penalties of the Criminal Code for any willfully false
statements in it (Series 5, promulgated August 18, 1948, 13 Fed. Reg. 4872). The
Board, insofar as I have been able to discover, has not had occasion to articulate
the purpose of this regulation. However, the purpose that spontaneously suggests it-
self is ,that of safeguarding the Board's processes against the abuse which would in-
* Since the 8(b) (1) (A ) and 8 ( b) (7) allegations stem from substantially the same course
of events ( see summary of the facts in discussion of the merits in the next section).
I have given preliminary consideration to whether the charge in Case No. 10-CB-1124,
alleging 8(b) (1) (A) and which is not attacked, would be sufficient to support the 8(b) (7)
allegation of the consolidated complaint , assuming the charge in Case No 10-CP-2 were
held void. This would be under the doctrine enunciated in National Licorice Co. v.
NLRB., 309 U . S 350, 369 , and reaffirmed in NLRB v. Fant Milling Co , 360 U . S. 301,
which permits prosecution of "unfair labor practices which are related to those in charge."
While that particular test would seem to be met here, there are special factors in an
8(b) (7) case which would seem to make a charge specifically alleging such a violation an
indispensable basis for investigating and prosecuting one This is because an 8(b) (7)
case brings into play such matters as a priority election under Section 9(c), and a priority
investigation of the charge and an injunctive proceeding under Section 10(1) Further,
the Board 's Rules and Regulations and Statements of Procedure would seem to indicate
that a necessary condition to proceedings relating to a possible violation of 8(b )( 7) Is the
filing of a charge specifically alleging one See subpart D of Rules and Regulations,
Series 8, and Statements of Procedure.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here in an irresponsible exercise by members of the public of the charging power: to
insure that that power be soberly exercised, a person filing a charge, is required to
declare, under the sanctions the Criminal Code for willfully false statements, that he
has read the declaration and its contents are true. Where the manner of execution
of the charge is such as to leave it bereft of that sanction, the presumed purpose of
the Rule in question is defeated, and the charge is, by that token, subject to attack.
On the other hand, where the charge as executed, despite a possible variance from
the strict requirement of the Rules, retains the contemplated sanction against willful
falsehood, then the purpose of the governing Rule has been met and the variance
becomes a technical one not impairing the fundamental validity of the charge.
With that in mind, I specifically requested the parties to include in their briefs a
discussion of whether a statement, even though thus signed in blank, nevertheless
retains the criminal sanctions of the false statements statute. I am indebted to the
conscientious researches of the respective counsel for the Charging Party and the
Respondent for such enlightenment as has been afforded me on the question .5 The
provision of the Criminal Code, whose sanctions the Board refers to in its form of
charge, Section 1001 of Title 18 U.S. Code, reads:
Whoever, in any matter within the jurisdiction of United States knowingly and
wilfully falsifies, conceals or covers up by any trick, scheme, or device a material
fact, or makes any false, fictitious or fraudulent statements or representations,
or makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined not more
than $10,000 or imprisoned not more than five years, or both.
Counsel have not unearthed any cases arising directly under the false statements
statute, and there probably are none. However, there are helpful analogies in de-
cisions arising under the comparable "false bank entry" statute (now Title 10
U.S.C. Sec. 1005) which, in language in force at the time of the cases below cited,
subjected to criminal liability "any officer . . . of a Federal Reserve bank . .. who
makes any false entry in any book, report," etc., with the requisite fraudulent in-
tent. In U.S. v. Giles, 300 U.S. 41, the false entry as such was made not by the
defendant, an officer, but by an innocent bookkeeper from whom the defendant, with
the intention of covering up his own shortages, withheld certain deposit slips, thereby
causing the bookkeeper of enter false balances. The Court held that the defendant
"made" the entries within the fair meaning and purpose of the statute, saying:
The word "make" has many meanings, among them "To cause to exist, appear
or occur," Webster's International Dictionary (2d ed.). . . To hold that it
applies only when the accused personally writes the false entry or affirmatively
directs another so to do would emasculate the statute--defeat the very end in
view.
5 The representatives of the General Counsel did not treat the question, but instead
argued that it "is beyond the scope of inquiry here " It is always a litigant's privilege
to preserve his position concerning relevance and indeed to try to persuade the deciding
officer to his position. However, by placing all his advocative eggs in the relevancy basket,
a litigant takes the risk that if this contention does not hold up, he will virtually have
defaulted to the opposition on the specific question raised. This is because the deciding
officer has been left without the guidance of any counterargument against which to test
the answer to the specific question which has been advanced by the opposition. That may
well have been the result here but for the helpful labors of Employer's counsel.
Government counsel's reason for deeming the question irrelevant is that "the truth or
falsity of the language of this charge is not now relevant," which rather misses the point,
since the question is not "the truth or falsity of this charge," but whether the charge as
executed is deprived of or retains the contemplated sanctions of the criminal code against
willful falsehoods . As Employer' s counsel aptly put it in candidly facing up to the issue:
No suggestion is made by respondent union that any matter contained in the charge
is actually a false statement, but we must, for the purpose of this discussion, assume
a case in which a false statement is made to the Board on a charge form signed by
an individual and later filled out by his attorney on the basis of information given
by his attorney. [Emphasis supplied.]
The next sentence in Government counsel ' s brief, that "the only relevant question is
whether the results of the investigation begun by the charge are sufficient to support a
complaint" begs the question at issue, which is whether there was a valid charge on which
there could even be any "investigation begun 11
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 529
The Court cited a decision of the Second Circuit involving the same provision,
Morse v. U.S., 174 F. 2d 539, which used language especially pertinent here, since it
rather assumed that in a case like Giles, just discussed, had the officer orally directed
the making of the false entry, as in essence, the president of the Employer orally
directed the filing of the charge, there would have been no question of his criminal
liability. It stated (p. 547) :
It is true that the defendant did not make any of the entries in the books or
reports with his own pen. All of them were made by the employees of the
bank as part of their routine work.
It seems to us that defendant is as fully responsible for any false entries which
necessarily result from the presentation of these pieces of paper which he
caused to be prepared as he would if he had given oral instructions in reference
to them or had written them himself. [Emphasis supplied.]
In view of the above, the Employer's counsel have put it rather modestly to their
case in submitting that "in strict [sic] legal theory, the individual signing the charge
would be responsible criminally for the false statement contained in the charge
form." This may be because, as they acknowledge in all intellectual candor, a
statement signed in blank presents difficulties in prosecution which one fully filled
in before signing does not. That difficulty is suggested in an extract from a text cited
in the brief filed by Respondent, thus:
To render a principal liable criminally for acts of his agent, the principal must,
however, as a general rule, have authorized, commanded, or connived at the
commission of the offense.6
It would seem enough for purposes of our inquiry that the signer of a charge does
not acquire immunity for the false statements in it by the mere fact that he signed
it in blank. Nothing to the contrary appearing, a necessary presumption here is
that the Employer's attorney filled in the charge pursuant to prior authority and with
strict fidelity to the instructions given by the signer.? On the latter assumption, it
would seem the signer of a blank charge would be no more immune for false state-
ments put in there pursuant to his own instructions than the officer of a bank who
causes a false entry to be made without entering it himself. Of course, there would
be greater difficulties of prosecution and to that extent the contemplated criminal
sanction against willful false statements is impaired. But criminal prosecutions
always present difficulties, and I do not see how we can go any farther than to satisfy
ourselves, as I am satisfied, that the mere fact that the charge was signed in blank
would not by that token relieve the signer of criminal responsibility for false state-
ments later filled in pursuant to his own prior authorization and advance knowledge.
The criminal sanction for false statements, as contemplated by the governing section
of the Board's Rules having been left intact, it would follow that the purpose of the
Rule has not been defeated by the manner of the execution of the charge and that
the charge was executed in substantial conformity with the Board's Rules.
Counsel for Respondent, however, see in the Employer's president's vouching for
having "read" a writing which had not yet come into existence as in itself a kind of
falsification, which abuses the Board's processes. While I would agree that the
signing of declarations in blank is not a procedure which is to be encouraged, one
can hardly ignore the exigencies which sometimes cause people to do so. The
entrusting to one's attorney of the task the filling in of the contents, with full knowl-
edge of what is to go into the document hardly lends itself to the denunciatory char-
acterization given to this procedure by Respondent. It may be that the procedure
of signing charges in blank, regardless of the innocence of purpose which would seem
manifest here, is undesirable and should be discouraged because it is susceptible to
abuse. But if that is to invalidate a charge without more, we should have a clear
6 22 Corpus Juris Secundum (Crim. Law) § 84, p. 149.
7The briefs of the General Counsel and of the Employer recite additional particulars
showing that to be the case. However, the stipulation of facts recites that it and the
formal documents, such as the charges, the pleadings, and the motions in this proceeding,
"shall constitute the entire record" (par 22). I am therefore confined to the facts as stipu-
lated. Indeed, I have not received nor have I consulted the transcript of hearing in the
10(1) injunctive proceeding on which Respondent relied when it first made the motion
here considered (footnote 1, Supra), for that too has been superseded by the stipulation
The conclusion I express in the text is but a presumption, here unrebutted, which flows
from the relationship of the attorney to the signer of the charge in this case.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indication to that effect from the Board in its rules; and the considerations for declar-
ing such a procedure invalid in and of itself are appropriately to be addressed to the
Board in its rulemaking capacity. As I interpret the Board's governing rule as
actually promulgated, 1 would not regard it as contemplating any sequence as
between signature and contents as an end itself: rather was it contemplated that the
person signing the charge assume full responsibility for its contents under penalty of
criminal sanctions for any willful falsehoods in it. Since, as I have concluded, the
president of the Employer, who signed the charge here, did so in a manner subjecting
him to such sanctions here, I conclude, in agreement with the district court in the
10(1) proceeding, that the charge was executed in substantial conformity with the
Board's Rules. That being so, the charge furnished the requisite jurisdictional
basis for including in the consolidated complaint the allegation of a violation of
Section 8(b) (7). This clears the path for our consideration of that allegation on
its merits.
IV. THE SUBSTANTIVE ISSUE: THE ALLEGED VIOLATION OF SECTION 8(b) (7)
A. The facts
The facts are recited in paragraphs 4 to 20 of the stipulation, and will be briefly
summarized here.8
Until November 1, 1958, the premises of the Charging Employer were occupied
by its predecessor, Epstein Harris Company, which conducted the same type of
business as the Employer. On May 12, 1958, Respondent demanded recognition
of Epstein Harris as bargaining agent for a unit of cutters. Upon refusal, Respond-
ent picketed the premises with the sign "Epstein Harris Company on strike for a
contract" (par. 1). Six of the cutters went out on strike at that time (par. 7). In
May 1958, Respondent filed unfair labor practice charges against Epstein Harris,
which were dismissed that same month for insufficient evidence (par. 5). On June 11
and 20, 1958, respectively, Epstein Harris and Respondent filed petitions for an
employee election under Section 9(c) of the Act, Epstein Harris claiming as appro-
priate an overall production and maintenance unit, and Respondent a unit of cutters
(par. 6). In a consolidated Decision and Direction of Election issued August 6,
1958, the Board upheld the unit claimed by Respondent ^ (dismissing at the same time
the petition of Epstein Harris), and an election was held thereon on August 21, 1958,
among the cutters (par 8). Interveningly, on July 2, 1958, the Union ceased picket-
ing and the six striking cutters offered to return to work, but their offers were
rejected because they had been permanently replaced (par. 7). Respondent there-
upon, on July 7, resumed picketing with new signs reading "ILGWU-CIO Employees
of Epstein-Harris Manufacturing Company on strike for Unfair Labor Practices"
(par. 8). Also on July 7 Respondent filed unfair labor practice charges, alleging
Epstein Harris had violated Section 8(a) (1) and (3) of the Act by refusing to rein-
state the striking cutters. These charges too were dismissed and the appeal therefrom
unsuccessfully taken (par. 8).
All eight ballots cast among the cutters on August 21, 1958, were challenged (par.
8). Between then and the ultimate disposition and counting of the challenges, the
Charging Employer acquired the employing premises. On November 1, 1958, it
bought the machinery and equipment of Epstein Harris, assumed the lease, severed
all connection with and commenced independent operations similar to those previ-
ously carried on by Epstein Harris (par. 10) 9 Respondent, however, continued to
picket the premises with the same sign as the one adopted on the resumption of
s Although as previously noted (footnote 7, supra) the stipulation recites that It and
the formal documents (charges, pleadings, and affidavits of service) "shall constitute the
entire record," the parties In their briefs have added undocumented particulars which do
not appear in the stipulation They lend clarity to some of the facts stated in the stipula-
tion, but do not change their basic essence For purposes of the summary here, however.
I must ignore them as directly established facts. Some of these additions are matters of
inference anyway from facts contained in the stipulation, and where warranted, I have
drawn such inference In the summary, I have resorted to paraphrase and a certain
amount of selectivity based upon the fact that the alleged violation of Section 8(b) (1) (A),
which was still an issue when the stipulation was prepared, is no longer such since the
Supreme Court's decision In Curtis Brothers (footnotes 2, 3, supra).
9 The briefs elaborate upon the cryptic expression "severed all connection" by furnish-
ing particulars which I must Ignore under the stipulation (footnote 8, supra) However
while the matter has no material bearing on the Issues , It is readily Inferable that one
or more principals of the Charging Employer had been connected with Epstein Harris
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 531
picketing on July 7 (par. 10), and on December 12, 1958, it filed against the Charging
Employer, as presumed successor to Epstein Harris, the same unfair labor practice
charges based upon the refusal to reinstate the six strikers as it had filed against
Epstein Harris in July. These too were dismissed (par. 12).
After a report by the Regional Director on the challenges to the ballots cast in the
August election and exception thereto by Respondent, the Board in a Supplemental
Decision and Direction sustained the challenge of four ballots and directed that the
remaining four be opened and counted. (par. 12). The count, made on March 27,
1959, showed that Respondent had failed to gain a majority of the votes and this
fact was formally recited in a Certificate of Results issued April 2 (pars 14-16).
While continuing the picketing as before, Respondent on May 1, 1959, changed
the picket sign to name the present owner, thus: "ILGWU, AFL-CIO. Picketing
Saturn & Sedran, Inc." (par. 17). Before this was done, Respondent's organizer,
during the counting of the ballots on March 27, 1959, when asked by the Employer's
attorney how long the picketing would continue, replied it would be until a contract
was signed (par. 15); and on about May 30, 1959, Respondent informed the Em-
ployer the picketing would cease if and when the latter would agree to reemploy the
striking cutters and give Respondent a contract (par. 18).
On September 14, 1959, as is officially noticed, the Labor-Management Reporting
and Disclosure Act of 1959, was passed, effective November 13, 1959. On October 1,
1959, Respondent substituted a new picket sign, reading:
Notice to Public. Saturn-Sedran, Inc, "Roberta Faye" Does not employ mem-
bers of ILGWU and is unfair to organized labor (par. 19).10
The picketing, except for the interval from July 2 to 7, 1958, was continuous
from May 12, 1958, to December 18, 1958, when enjoined by order of a United
States District Court in the 10(1) injunctive proceeding previously referred to
(footnote 1, supra).
B. Analysis and Conclusions
1. The contentions of the parties
To repeat what has been stated in another context: the consolidated complaint
alleges violations of Section 8(b)(1)(A) and of 8(a)(7); the portion alleging
8(b)(1)(A) is disposed of by the Supreme Court's decision in Curtis Brothers
(footnote 2, supra), which overruled the Board doctrine upon which the allegation
was founded. This leaves to be considered only the allegation of violation of
8(b)(7). The consolidated complaint recites a state of facts cognizable under (C)
of 8(b)(7). In the interpretation of that subdivision, the language of the other
subdivisions will be pertinent , so we quote the provision in its entirety.
Section 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 recognize or bargain with a labor organization as the repre-
sentative of his employees, or forcing or requiring the employees of an
employer to accept or select such labor organization as their collective
bargaining representative, unless such labor organization is currently certi-
fied as the representative of such employees:
(A) where the employer has lawfully recognized in accordance with
this Act any other labor organization and a question concerning repre-
sentation may not appropriately be raised under section 9(c) of this
Act,
(B) where within the preceding twelve months a valid election
under section 9(c) of this Act has been conducted, or
(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 commencement of such picketing: Provided,
That when such 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 substantial interest on the part of the labor organiza-
tion, 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 subparagraph (C) shall be construed to prohibit any picketing
30 We may infer that "Roberta Faye" denotes the brand name of the Employer's product.
641795-63-vol. 136-35
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Nothing in this paragraph (7) shall be construed to permit any act which
would otherwise be an unfair labor practice under this section 8(b).
As stated, the consolidated complaint predicates liability on the basis of facts
operative under (C),11 in substance, that Respondent, though not currently certified
as bargaining representative, has picketed the Employer's premises with an object
of forcing recognition, without a petition under Section 9(c) having been filed within
a reasonable period of time. The only items not in dispute are that Respondent has
not been certified and that it has picketed the Employer's premises. Disputed by
Respondent is that the picketing had as an object "forcing or requiring" recognition
from the Employer, and asserted by it is that its conduct in any event falls within
the immunity accorded to informational picketing in the second proviso.
This is the heart of the case, and for purpose of considering it, we may and I do
assume the affirmative to the subsidiary questions raised by Respondent, which are
whether, if recognition was an object of the picketing, it thereby had an object of
"forcing or requiring" it,12 and second, of whether, assuming the picketing otherwise
fell within the prohibitory scope of 8(b)(7), a "reasonable period" had elapsed
without a petition under Section 9(c) having been filed.13 Respondent's contention,
in essence, is that the facts as stipulated do not warrant a finding that at any time
after the effective date of the Act, it picketed with recognition or organization as an
object, and in proof points to the change in the legend of its picket sign adopted
since October 1, 1959. The General Counsel argues that even if the sign were in
exact conformity with the proviso, Respondent would not achieve immunity "if ex-
trinsic evidence shows the object to have been recognition," and claims such extrinsic
evidence to inhere in Respondent's declarations preceding the passage of the new
law Respondent retorts that there is no competent extrinsic evidence to warrant a
finding that the sign had the purpose other than to convey to the public the informa-
tion which is in it, and argues alternatively, that even if it could be deemed to have
an object of recognition or organization, it has achieved immunity because it has
met what it contends to be the two conditions of the proviso-its informational
nature, and the absence of any disruptive effects on pickup or delivery service at the
picketed premises.
2. The conditions of immunity of the excepting proviso
The question raised by the last contention has divided the district courts and also
our Trial Examiners. On the one hand, is the view expressed by District Judge
Miller in the injunctive proceeding in this case (footnote 1, supra.) that the ex-
cepting proviso "has no application . where 'an object' of the picketing is to force
[recognition or organization] even though another purpose of the picketing may be
to truthfully `advise the public [of the nonunion character of the picketed estab-
lishment].' " 14 On the other, is that stated by Judge Swygert in John C. Getreu v.
11 Subsection (B) does not apply, since the election was held more than a year before
passage of the new law
12 Cf Bakery Drivers v Wohl, 315 U S 769 ; Hughes et at v Superior Court of
California for Contra Costa County, 339 U S 460, 465, 468 Teamsters Local v Voght,
354 U S 284
13 Undoubtedly, as Respondent contends, a finding of whether the prohibited picketing
was engaged in must be baled upon conduct occurring and upon Itandards in force after
November 13, 1959, when the 1959 statute became effective But it does not follow that
the period of picketing which preceded may not be considered in connection with whether
a reasonable period of time has elapsed since the commencement of the picketing with-
out a 9(c) petition having been filed Thus viewed, the 3 weeks elapsing between Novem-
ber 13 and December 4. when the consolidated complaint issued, would seem quite reason-
able for the purpose of initiating a test of the Union's majority, assuming the picketing
had recognition as an object And quite apart therefrom, we can, at this stage, in the
manner of a tribunal in equity, which views the situation as of the time of decision, note
that the picketing, as is stipulated, continued until December 18, 1959, which is well
beyond the maximum of 30 days allowed for picketing encompassed by the body of (C) of
8(b) (7), even from the effective date of the new statute
14Accord: Judgo Bartels in Ivan C McLeod v Local 239, International Brotherhood of
Teamsters, etc, 179 F Supp 481 (D C.E N Y )
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 533
Bartenders and Hotel and Restaurant Employees Union, Local 58, etc. (Fowler
Hotel, Inc.), 181 F. Supp. 738 (D.C. N. Ind.), that:
. subparagraph (C) means that although " an object" of picketing may be
bargaining . . . it is immunized from the statute if "the purpose" of such
picketing is also truthfully to inform the public that the employer does not have
a contract with the union and further if the picketing does not curtail picking
up, delivery or transportation of goods or the performance of services.
The rationale of the latter interpretation, as expressed in the same opinion, is
that:
It is difficult, if not impossible, to imagine any kind of informational picketing
pertaining to an employer's failure or refusal to employ union members or to
have a collective bargaining agreement where another object of such picketing
would not be ultimate union recognition or bargaining. In most instances
certainly the aim of such informational picketing could only be to bring eco-
nomic pressure upon the employer to recognize and bargain with the labor
organization. To adopt petitioner's interpretation of subparagraph (C) would
make the second proviso entirely meaningless.
In seeming agreement with the above is the dictum of District Judge Dawson in
Ivan C. McLeod (Stork Restaurant) v. Chefs, Cooks, Pastry Cooks and Assistants,
Local 89, Hotel and Restaurant Employees Union, et al., 181 F. Supp. 742
(D C.S.N.Y.).
Among Trial Examiners of the Board who have dealt with the issue, supporting
the first view is Bartenders Union (Fowler Hotel) IR-24, where Trial Examiner
George A. Downing, in the very case in which Judge Swygert rendered his above-
cited opinion, arrived at the opposite result (March 31, 1960), and Retail Store
Employees Union Local 400, et al. (Jumbo Food Stores) IR-48, Trial Examiner
Thomas F. Maher, April 20, 1960 [136 NLRB 414]. They, in effect, construe
"purpose" as used in the proviso to mean the same as "object" in the body, and
hence interpret the proviso as requiring, as a condition to the immunity, that a
union have no other aim or objective than to disseminate the information contained
in the picket sign . Supporting the Swygert view are Trial Examiner James R. Hem-
ingway in Local Joint Executive Board, etc. (Crown Cafeteria), IR-(SF)-694,
April 6, 1960 [135 NLRB 1183] and Trial Examiner Arthur Leff in Local 239,
International Brotherhood of Teamsters, etc. (Stan-Jay Auto Parts), IR-17, March 23,
1960 [127 NLRB 958]. Their view is premised upon the irreconcilable contradic-
tion, alluded to by Judge Swygert, in granting, with one hand, immunity to picketing
having the purpose of conveying information and, with the other, condemning it if
it also has a recognitional or organizational object, of which no informational picket-
ing can be said to be altogether free.
The supporters of the opposite position point to the case of WKRG-TV, Inc,
123 NLRB 507, where the Board exonerated a minority union from liability under
its then prevailing Curtis Brothers doctrine on a finding that the picketing there had
as its sole purpose protecting the wage scale at rival unionized plants, with no object
of forcing recognition from the picketed establishment. This, they contend, demon-
strates that the second proviso does have some scope, however narrow. That con-
tention is difficult to follow. Picketing which is so utterly untouched by a
recognitional or organizational objective as in WKRG would fall altogether outside
the prohibition of any part of Section 8(b) (7), and would thus not need the except-
ing proviso to render it immune. To construe, because of the twinship of the words
in the dictionary, "purpose" as it appears in the proviso of (C) of 8(b) (7) is alto-
gether identical with "object" as it appears in the body, is thus, in effect, to make
the proviso read "Nothing in this subparagraph (C) shall be construed to prohibit
any picketing or other publicity which is not already prohibited by (C) or indeed,
by (A) or (B) either." This rather vividly bears out Judge Learned Hand's pro-
nouncement that it is a mark of a "mature developed jurisprudence . . . not to
make a fortress out of a dictionary, but to remember that statutes always have some
purpose to accomplish," 15 and further, that "words are not pebbles in alien juxta-
position," but "have only a communal existence," whereby "the meaning of each
interpenetrate[s] the other" and "all in their aggregate tak[e] their purport from the
setting in which they are used." 16 Heightening the absurdity of giving identical
meanings to "object" and "purpose," in accord with their concurrence in Webster's,
would be the fact that the immunity, which would thereby be limited to but what is
' Cabell v. Harklam, 148 F 2d 737, 739 (C.A. 2).
18 N L B B v. Federbush Company, Inc., 121 F. 2d 954, 957 (C.A. 2).
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immune without it, would be still further dependent upon its not having an "effect"
of disrupting service as prescribed in the "unless" clause of the proviso. The result
under such interpretation, is that the proviso is made even more restrictive than the
body. This should cause Senator Kennedy, who drafted (C) of 8(b)(7) in its pres-
ent form and his fellow conferees in the Senate, who proposed it with him, to raise
a surprised eyebrow. For it is clear that (C) in its present form was proposed in
conference as a compromise to soften the rigors of the House version of 8(b) (7),
which was substantially as it is now, but without the proviso.17
It should additionally be clear from the structure of the section as enacted that
Congress by the excepting proviso intended, in situations limited only to where there
was no established relation with another union as in (A), or a post-election repose
as in (B), to permit a kind of picketing which, but for the proviso, would have fallen
within the prohibition of the section. That could rationally pertain only to picketing
which by hypothesis did include the otherwise proscribed objective of recognition or
organization, but which met the conditions of having "the purpose of truthfully ad-
vising the public [of the nonunion character of the plant]" and of being free of any
effect of inducing disruption in deliveries and pickups at the plant. The question is
what meaning to ascribe to the words "the purpose" in a context which, as a matter
of rational inference, did not and could not have precluded recognition or organiza-
tion, at least as an ultimate, as distinguished from an immediate, object. Judge
Swygert did not expressly answer the question but the implication would seem to be
that there must at least be the genuine intention or "purpose" to convey the informa-
tion. Trial Examiners Hemingway and Leff are of the view that "the purpose" as
used in the proviso has only an objective connotation in the sense of purport. There
is much in the legislative history to support them, for one is rather struck by the
consistency with which the conferees in both the Senate and the House prior to
passage, stated the conditions of the proviso in objective terms connoting purport
and effect, rather than subjective purpose.18
17 The Senate version, like that of the House forbade recognitional or organizational
picketing substantially in the form of 8(b) (7) (A) and (B) (except that the post-
election period in (B) wis 9 months instead of 12). I Legislative History of Labor-
Management Reporting and Disclosure Art of 1959 (GPO 1959) (hereafter referred to as
"L.H ") 563 But the House version additionally prohibited recognitional and organiza-
tional picketing after lapse of a reasonable period for filing of a 9(c) petition, but with-
out the two provisos now in subsection (C) Id, at 683-685 (The body of present (C)
appeared in the House bill as (D) Preceding it as (C) was a proposed subsection, which
was deleted in conference, which would additionally have prohibited recognitional or
organizational picketing by a union lacking a sufficient showing of employee interest to
support a 9(c) petition ) Senator Kennedy, on behalf of himself and the maiority of the
Senate conferees (McNamara, Morse, and Randolph) Introduced S Res 181, proposing
that the conferees be instructed to "insist on the Inclusion in the conference agreement
of [certain] provisions" by way of a "Pronosed Compromise on Title VII [the LMRAI "
This last embraced Section 8(b) (7) exactly in its present form The resolution was de-
bated, but, so far as appears, not actually voted on However, the results in conference
were in accord with the "compromise" on 8(b) (7) as proposed in S Res 181 (II
L H. 1383).
18 Senator Kennedy's analysis which accompanied S Res 181 (footnote 17, supra) de-
scribed the proviso as follows (II L H 1384) :
2 Nothing should be done to stop picketing, in the absence of a contract or an elec-
tion which has the effect of notifying the public of nonunion conditions and asking
the employees to join the union.
(It has been suggested that the last expression of Senator Kennedy, which "equates
inaccurately the dissemination of information with the solicitation of union member-
ship" weakens its force as a guide to interpretation Jumbo Food, supra, IR-48, foot-
note 16. The supposed "inaccuracy," it would seem to me, gives it added force as a guide
to legislative purpose, for It denotes a recognition of the fact that informational picket-
ing addressed to the public, while enlisting the support of the consuming public, does also
have a normal effect of soliciting membership-a matter which would render the picketing
proscript under the body of 8(b) (7) but for the proviso )
Senator Kennedy, in orally reporting on the results of the conference, on September 3,
1959, said (II L.H 1431):
Second. Organizational picketing: The House bill would have forbidden virtually all
organizational picketing, even though the pickets did not stop truck deliveries or
exercise other economic coercion. The amendments adopted in the conference secure
the right to engage in all forms of organizational picketing up to the time of an
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 535
The structure of 8(b)(7) and the declarations noted in the last footnote lend
considerable force to Trial Examiner Hemingway's view, expressed in Crown Cafe-
teria, that "the conferees were more concerned here [referring to a period other
than one of "contract bar," as in (A) or of post-election repose, as in (B)] with
preventing disruption of services than they were with the subjective purposes of the
Union in picketing," and to Trial Examiner Leff's view in Stan Jay Auto Parts,
IR-17, supra, that "Congress in striking a balance between the competing interests
of a union to engage in organizational picketing and of an employer to be free from
economic pressures in the conduct of his business, drew the line in an 8(b)(7)(C)
situation not on the basis of ultimate picketing objectives, but on the type of
picketing pressures sought to be induced, allowing truthful informational organiza-
tional picketing that simply advertises a union's grievance and appeals for public
and consumer support, but outlawing, subject to the `reasonable period' provision,
other forms of organizational picketing appeals that are calculated to achieve con-
sequences of a more compulsive or disruptive character."
This would seem to me to be the reasonable method of giving effect here to the
classic canon that a "statute should be so construed so that effect is given to all its
parts, so that no part will be inoperative and superfluous, and so that one part will
not destroy another unless the provision is the result of obvious mistake or error"
Sutherland, Statutory Construction, 3d ed. § 4705.
3. Did Respondent meet the conditions of immunity of the excepting proviso,
even though it be interpreted to embrace a subjective test as well?
Measured by the objective standards of the proviso as thus interpreted, Respondent
is to be deemed to have satisfied the terms of the immunity: the picket sign "truth-
fully advis[ed] the public" that the Employer did not employ members of or have
a contract with Respondent; 19 and there is no claim that it had the effect of inducing
disruption of pickups or deliveries at the Employer's premises . However, to dispose
of the case exclusively on this basis would perhaps imply agreement with the General
Counsel that if the proviso were to be construed as laying down a subjective standard
Respondent, on the facts, fell short of meeting it. For the purpose of determining
this factual issue, I am assuming that the words "the purpose," as used in the proviso,
contrary to the starkly objective meaning given them under the interpretation just
discussed, connote some subjective aim or intent in the use of the informational
picketing. If there is such a requirement, then its limit, consistently with the obser-
election in which the employees can freely express their desires with respect to the
choice of a bargaining representative. When the picketing results in economic
pressure through the refusal of other employees to cross the picket line, the bill
would require a prompt election Purely informational picketing cannot be curtailed
under the conference report , although even this privilege would have been denied by
the Landrum-Griffin measure. [Emphasis supplied ]
(It has been suggested that the term "purely informational," as used in the last sentence,
means purely such in subjective purpose Jumbo Food, supra Taken in context with
the preceding sentence, which refers to the "results" of the picketing, it would seem clear
that the Senator is talking in terms of effect, not subjective design.)
The Senate committee print, issued on September 10, 1959, contains a "Section by
Section Analysis" of the new law, which describes the proviso of subsection (C) as
follows (I L H 966) :
(2) Picketing beyond the 30-day period or other publicity addressed to the public
and consumers are permitted, providing the effect of the picketing is not to induce
a disruption of services at the employer 's place of business . [ Emphasis supplied ]
The House conferees were in accord. Representative Thompson of New Jersey analyzed
the change in the House version effected at the conference in the same language as that
used by Senator Kennedy in the passage previously quoted (II L H 1720) And Repre-
sentative Griffin, coauthor with Representative Landrum of the bill which embodied
8(b)(7) as originally passed, inserted into the record a tabular comparison between the
House version and the one adopted in conference in which the changes made in the re-
striction on picketing in other than "contract-bar" and postelection contexts of (A) and
(B), respectively, and embodied in present (C), are described thus (II L H 1713):
Substitutes mandatory election procedure Informational picketing which does not
affect deliveries or service is not banned . [ Emphasis supplied.]
19 The General Counsel contends the purely informational character of picket sign was
impaired by the words "and is unfair to organized labor" at the end I would not think
so. They express the thought that precedes but in familiar derogatory union terminology.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vation that it does not preclude recognition or organization as an ultimate aim, is
that the informational picketing have a purpose consistent with its purport: that it
be genuinely intended "truthfully to advise the public" and that it not be intended,
under pretense of conveying the information, to be used as an instrument for wresting
recognition as an immediate objective. By way of example, a union which puts up
a picket line carrying informational placards immediately after refusal of a demand
for recognition, accompanied by threat of such a picket line in the event of refusal,
can be said to have been motivated by an intention not to convey the information
appearing on the placards as much as by a desire to use the picket line to back up
a demand for immediate recognition.20
But if there is one thing of which we may at least be certain is that the proviso
precludes a finding of the existence of such an objective from the mere use of the
informational picketing to which it alludes. For to guaranty the right to engage in
"picketing having the purpose of truthfully advising the public" at the same time
that such picketing is in itself made the basis of a finding that it had the object which
illegalized it would be indeed to have the proviso, in Judge Swygert's words, "serve
as a trap," 21-an intention which may not be attributed to Congress and which I
am certain it did not entertain. See footnotes 17 and 18, supra. At the very least,
then, even under an interpretation which reads the requirement of a subjective inten-
tion in the words "the purpose" as used in the proviso, the Respondent should have
the benefit of a presumption that it was sincere in its resort to the informational
picketing and was not using it as a pretext to wrest recognition or to force the
employees to join it as the price of withdrawing the picket line. It being a pre-
sumption, it must be overcome by extrinsic evidence to the contrary.
What is the "extrinsic evidence" which the General Counsel advances to overcome
the presumption of sincerity of purpose to which Respondent is entitled? Con-
cededly, there is none based on anything which occurred after October 1, 1959, when
Respondent adopted the new legend on the picket sign. (The General Counsel sug-
gests that the words "and is unfair to organized labor" at the end of the sign "neces-
sarily impli[es] a recognitional object." which seems rather farfetched. See foot-
note 19, supra. The General Counsel falls back on occurrences which preceded the
new law. He makes the point that the picketing began during the tenure of the
Employer's predecessor for the avowed purpose of recognition, and that while the
picketing which resumed on July 7, 1958, and which continued after the Employer's
acquisition of the premises on November 1, 1958, purportedly protested the non-
reinstatement by Epstein Harris of the striking cutters, it actually was intended to
force recognition, as mainfested by the declarations of the Respondent to the Em-
ployer in March and May 1959, respectively, that the picketing would cease if
Respondent were recognized. The contention is that the recognitional object mani-
fested by the Union's declarations in March and May of 1959, must be presumed to
have continued beyond October 1, 1959, even though Respondent, at that time,
adopted a sign which conformed with the proviso of the newly enacted 8(b) (7)
The above is derived from the presumption of continuity, originally propounded
in the labor relations field by the Ninth Circuit, to the effect that
A state of affairs once shown to exist is presumed to continue to exist until
the contrary is shown.22
The General Counsel has not mentioned the context of total legality in which the
Union's allusion to the recognitional object was made In March and also in May
1959, when the Union avowedly told the Employer that it would cease picketing
when it obtained a contract, the Labor-Management Reporting and Disclosure Act
had not been passed, nor was there then any indication that there would be an
enactment resembling present 8(b) (7) (C). Since Respondent's picketing for an
object of obtaining recognition was entirely legal at the time when it avowed that
objective it is entitled to the benefit of a presumption which overcomes that invoked
by the General Counsel. As noted by the Sixth Circuit, which applied the pre-
sumption of continuity propounded in the Ninth Circuit case previously cited (foot-
note 22) :
20 Cf Ryan Recognition, Organizational and Consumer Picketing 48 Georgetown Law
Jour 359, 366 McLeod v Local 239, International Brotherhood of Teamsters, etc, supra,
footnote 14
31 Getreu v Bartenders and Hotel and Restaurant Employees Union, Local 58, to.,
supra
22 N L.R B. v National Motor Bearing Company, 105 F. 2d 652, 660
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 537
It is a well-established rule of evidence that when the existence of a personal
relationship or state of things is once established by proof, the law presumes its
continuance until the contrary is shown or until a different presumption arises
from the nature of the subject matter. [Emphasis supplied ] 23
It would seem to me that the "different presumption aris[ing] from the nature
of the subject matter" would be that one who has acted in conformity with the original
statute will continue to act in like conformity with the amended one, unless the
contrary is shown. As applied to the facts here, a union which has picketed with
recognition as an object at a time when it was entirely in conformity with law for it
to do so will not, unless otherwise demonstrated, continue to do so with the same
object if it has interveningly been made illegal by statute. Appropriate here is the
observation made by Judge Bartels in McLeod v. Local 239, International Brother-
hood of Teamsters, footnote 14, supra, that:
Objectives can and do change and it is natural to assume that one intends to
comply with the law when that law is changed because "an unlawful purpose
is not lightly to be inferred." 24
More specifically as stated by the Second Circuit in the Bakery Workers case,
footnote 24, supra:
The fact that [a union] sought recognition at a time when it was lawful to do
so should not raise a presumption that it also sought recognition when it had
become unlawful to do so.
Judge Bartels, in Local 239, supra, issued a 10(1) injunction and distinguished the
Bakery Workers case on the ground that despite a change in picket sign made by the
union sometime after the new law went into effect, there was " `independent sup-
porting evidence' that the original objective survived as witnessed by the demand
made by the Union on November 20th, for the execution of a contract" and that
"after November 13 it did not withdraw its original demand for recognition made on
September 14, 1959 " It is to be noted that September 14, when the demand for
recognition in Local 239 was made, was the date of passage of the 1959 statute. The
contrast here is most apparent and gives added strength to the presumption of non-
survival of the original objective in this case. Here there is not only absent any
"independent supporting evidence" to overcome the presumption of legality of intent
underlying the picketing, but every occurrence after passage of the new law con-
firms the presumption in Respondent's favor In contrast with the Union in Local
239, Respondent's demand for recognition was made well before the new law was
even passed; in further contrast, Respondent utilized the grace period between pas-
sage of the new law and its effective date to do precisely what the grace period con-
templated-conform its conduct to the new law. It addressed its appeal directly to
the public, and for the first time specified the brand name of Respondent's product
(footnote 11, supra). This last has special significance in industries making con-
sumer products, where unions rely heavily on the public's patronage of products
which bear their label and its rejection of those which do not. The motive is one
which transcends that of the unionization of any particular shop, its purpose being
to preserve working standards by steering the bulk of the consumer's dollar to
establishments having contractual relations with them.25 This should give us sober
pause before we blithely dismiss a placard stating facts which are an integral part
of this process of consumer appeal as having a motivation other than what it
purports to have on its face Rather should it impel us to honor the presumption
Respondent is entitled to from the outset, which is that just as the picketing before
the new law had no motivation which rendered it unlawful, so too did the picketing
thereafter have no motivation which would render it illegal, and that its prior pur-
pose, which was in full accord with the old law, was now changed in accordance
x' N L R B v. Piqua Munising Wood Products Co , 1 09 F 2d 552 554 (C A 6)
21 Citing N L R B v T. A Mcpahey, Sr, et al, d/h /a Columbus Marble Worl s, 283 F
2d 406, 414 (CA 5), and NL R 13 v Local 50, Bakery & Confectionery Workers, etc.
(Arnold Bakers), 245 F 2d 542, 547 (CA. 2).
25 See Lorwin, The American Federation of Labor (1983 Brookings Institution), ch.
XIV, subsec 1 ("The Union-Label Trades Department"), p 367 See also proceedings of
the Third Constitutional Convention of the AFL-CIO (1959), vol I (Daily Proceedings),
Report of the Committee on Union Labels. Resolution No 173 (p 406), and address of
Jacob S Pototskv, president of Amalgamated Clothing Workers and chairmen of committee,
at p. 408 ; II (Executive Council Reports) Report of Union Label and Service Trade
Departments, p. 356.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the purport of the picket sign newly adopted during the grace period allotted
by Congress for bringing Respondent 's action into conformity with the new law 26
4. Summary statement
The sum of the foregoing is that the General Counsel has not established by a
preponderance of the evidence that the picketing here in question was other than for
its purported purpose-which was that of truthfully advising the public that the
Employer did not employ members of or have a contract with Respondent . I would
thus deem Respondent to have met the terms of the immunity granted by the proviso
of Section 8(b)(7), whether they merely be the objective ones of being informa-
tional in import and devoid of any effect of interfering with service, or whether they
entail the additional , subjective requirement that dissemination of information be the
genuine purpose of the picketing , to the exclusion of any immediate objective of
forcing the Employer to recognize , or the employees to join , the Respondent , as dis-
tinguished from "vague and speculative hopes" to that effect (Bakery Workers case,
footnote 24, supra, at 548).
Upon the foregoing findings and upon the entire record , I hereby make the
following:
CONCLUSIONS OF LAW
1. The Charging Employer is engaged in commerce within the meaning of the Act.
2. The Respondent Union is a labor organization within the meaning of the Act.
3. The Charging Employer filed charges in both proceedings herein which were in
substantial conformity with the Act and the Board's Rules and Regulations.
4. Respondent Union did not engage in unfair labor practices within the meaning
of Section 8 (b) (1) (A) of the Act, or of Section 8 (b) (7) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
RECOMMENDATION
Upon the findings and conclusions above and upon the entire record , it is recom-
mended that the consolidated complaint herein be dismissed.
20 The General Counsel urges that Respondent should have told the Employer it was no
longer seeking recognition . The picket sign was there for the Employer to read. If it had
any questions , it was open to it to ask the Respondent . This would seem a more equitable
requirement than one which puts Respondent to the burden of seeking the Employer out
to answer questions it has not been asked and, for aught that appears , the Employer may
not even entertain.
Lawson Milk Company and Myrtle Cobb. Case No. 8-CA-2546.
March 26, 1962
DECISION AND ORDER
On December 13,1961, Trial Examiner James V. Constantine issued
his Intermediate Report herein, finding that Respondent had engaged
in unfair labor practices in violation of Section 8 (a) (1), (2), and (3)
of the Act and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the 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 Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby ^afiirmed. The Board has
considered the Intermediate Report, the exceptions and brief, and the
136 NLRB No. 57.