International Ladies' Garment Workers' Union

National Labor Relations Board - Board Decisions

Jul 30, 1962

137 N.L.R.B. 1698 (N.L.R.B. 1962)

1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities.
THE WILLIAM I. BURNS INTERNATIONAL
DETECTIVE AGENCY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building , 906 Grand Avenue, Kansas City, Missouri , Telephone Number,
Baltimore 17-7000, Extension 731, if they have any questions concerning this notice
or compliance with its provisions.
International Ladies ' Garment Workers ' Union , AFL-CIO and
Coed Collar Company
International Ladies' Garment Workers ' Union , AFL-CIO and
Adrian 's, Inc. Cases Nos. 10-CP-3 and 10-CP-5. July 30, 1961
DECISION AND ORDER
On May 4, 19G0,-Trial Examiner Charles INV. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the Charging Parties and the General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are, hereby affirmed. The Board has considered the Inter-
mediate report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions. Accordingly, the Board adopts
the Trial Examiner's evidentiary findings but not his conclusions or
recommendations, as indicated below.
The complaint alleges that the Union violated Section 8(b) (7) (B)
by picketing Coed, a manufacturer, and Adrian's, a retail store, since
December 15, 1959, with an object of forcing Coed to recognize and
bargain with the Union as the representative of Coed's employees,
and forcing such employees to select the Union as their representative.'
As the Trial Examiner found, the Union established a picket line
at Coed on July 21, 1959, with signs stating that Coed was "unfair to
organized labor" and that fellow employees had been locked out at the
Gordo plant (operated by another corporation, F.G. & W. Company,
which had some common officers and common ownership interests with
'There is no contention that the Union was seeking to obtain recognition from or
organize Adrian's.
137 NLRB No. 181.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 1699
Coed and Adrian's) and asking Coed's employees to "join us." In or
about early August the Union changed its picket signs at Coed to
state that its object in striking Coed was "members-only" recognition
and the signs also expressly solicited Coed employees to join the
Union. At or about the same time in August, the Union also began
picketing Adrian's, directly appealing for a consumer boycott of
Coed products.
Except for a brief interruption in early October 1959, when the
Union won a representation election for F.G. & W. employees, the
picketing of Coed continued at Adrian's until after December 15, 1959,
the initial date of the violation alleged herein. The picketing simi-
larly continued at Coed until November 30, 1959, which was 2 days
before the holding of a scheduled election pursuant to a representation
petition filed by Coed. Upon withdrawing its picket line at Coed,
the Union advised both Coed and the Regional Director that it now
was no longer interested in organizing Coed's employees or securing
recognition of any sort from Coed. The Union further told Coed and
the Regional Director that it might nevertheless picket Coed in the
future purportedly to protest unfair labor practices of F.G. & W.
On December 2, the Union lost the Board election held at Coed and
filed timely objections. The same day it lost this Coed election, the
Union resumed picketing at Coed, this time with signs stating that
the picketing was because of unfair labor practices of F.G. & W. and
that Coed was "allied with" F.G. & W. The consumer picket signs of
Coed products remained unchanged at Adrian's, however. On Decem-
ber 15 the Regional Director overruled the Union's objections to the
Coed election and he thereupon certified that the Union was not the
collective-bargaining representative of Coed's employees. The Union
nevertheless continued picketing at Coed and at Adrian's until later
restrained by orders of the United States district court. It is this
picketing, after dismissal of the Union's election objections, which is
the basis for the violation alleged in the complaint.
Finding that the Union had an organizational and recognitional
object in picketing Coed during the several months immediately pre-
ceding the December 2 election at Coed, the Trial Examiner neverthe-
less concluded that the Union had completely abandoned such ob-
jects when it resumed picketing Coed on December 2 after a 2-day
hiatus and despite the unbroken picketing of Coed at Adrian's.
Unlawful motivation in picketing situations, as intent in dis-
charge case, is not often proved by admission? Rather, the motive for
the act in question, be it discharge or picketing, must be ascertained
from the context of preceding and subequent as well as attendant cir-
cumstances. While denials or disavowals of unlawful objective may
2F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658, 660 (CA 2).
1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be discounted because they are self-serving, they nevertheless are
not to be credited merely because they are uttered.
In view, among other factors, of the preelection objects of the
picketing at Coed and of Coed products at Adrian's, and considering
the continued picketing of Coed products at Adrian's and the resump-
tion of picketing at Coed on the very day the Union lost an election
there and after only a 2-day break, albeit with different signs at Coed
but not at Adrian's, we scarcely can credit the Union's claimed aban-
donment of an organizational and recognitional object at Coed. Prior
to the election on December 2, the Union's picketing was concededly for
organization and recognition. The postelection picket signs at Coed,
which were changed on the very day of the election, purported to
signify that the Union was picketing Coed to protest unfair labor
practices committed by F.G. & W., a company not shown to have been
"allied" with Coed or to have constituted a "single employer" with
Coed. Moreover, for some months prior to the election, the Union
made no mention that its picketing at Coed had a "protest" object.
We are satisfied, considering all the circumstances, that an object of
the Union's picketing of Coed and Adrian's since December 15, 1959,
was forcing or requiring Coed to recognize and bargain with the Union
as the representative of Coed's employees, and forcing or requiring
such employees to accept or select the Union as their collective-
bargaining representative. Since all the other elements of a violation
of Section 8(b) (7) (B) are present, we reverse the Trial Examiner
and sustain the complaint.
THE REMEDY
The Union did not cease picketing Adrian's until December 18, 1959,
and did not cease picketing Coed until January 11, 1960. In view of
the lapse of time since the Coed election and issuance of the court's
aforementioned injunction, our Order shall only require 3 the Union
to refrain from engaging in recognitional or organizational picketing
of Adrian's and Coed where within the preceding 12 months a valid
election shall have been conducted.
CONCLUSIONS OF LAW
1. Coed and Adrian's are each engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section
2 (5) of the Act.
3. By picketing Coed and Adrian's since December 15, 1959, with
an object of forcing or requiring Coed to recognize or bargain with
8 See Retail Store EntpZoyee8' Union Local No. 692 , Retail Clerks International Associa-
tion, AFL-CIO (Irvins, Inc.), 134 NLRB 686
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 1701
it as the collective-bargaining representative of Coed's employees, or
forcing or requiring such employees to accept or select it as their
collective-bargaining representative, although contrary to the results
of a valid election under Section 9(c) held within the preceding 12
months, the Union has engaged in an unfair labor practice within the
meaning of Section 8(b) (7) (B) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act as amended, the National Labor
Relations Board hereby orders that the Respondent, International
Ladies' Garment Workers' Union, AFL-CIO, Tuscaloosa, Alabama,
and its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from picketing or causing to be picketed, or
threatening to picket or cause to be picketed, Coed Collar Company
or Adrian's, Inc., with an object of forcing or requiring Coed to
recognize or bargain collectively with it as the representative of Coed's
employees, or to force or require the employees to select it as their
collective-bargaining representative, where within the preceding 12
months a valid election under Section 9 (c) of the Act has been con-
ducted which the Respondent Union did not win.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in Respondent Union's business offices and meeting halls,
copies of the notice attached hereto marked "Appendix." 4 Copies of
said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Respondent Union, be
posted by it immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to its members are customarily posted. Rea-
sonable steps shall be taken by Respondent Union to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Tenth Region signed
copies of the afore-mentioned notice for posting by Coed and Adrian's
in places where notices to employees are customarily posted. Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall, after being duly signed by the Union, be returned forth-
with to said Regional Director for such posting.
4 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
have been taken to comply herewith.
CHAIRAlAN MCCULL OCH, dissenting :
For the reasons ably stated by the Trial Examiner in his Inter-
mediate Report, I would affirm the Trial Examiner and dismiss the
complaint.
Even with due respect for the skepticism with which my colleagues
regard the Union's conduct in the instant case, I, like the Trial Exam-
iner, find it difficult to conceive of what more the Union could have
done to comply with the newly enacted statutory provisions short of
permanently abandoning its picketing even for a permissible object.
I do not read Section 8 (b) (7) as requiring such a result.'
6 See Local 344, Retail Clerks International Association , AFL-CIO; Retail Clerks Into-
national Association, AFL-CIO (Alton Myers Brothers, Inc ), 136 NLRB 1270; Teamsters
"General" Local No . 200 International Brotherhood of Teamsters , etc (Bachman Furni-
ture Company ), 134 NLRB 6 70; and Local 259, International Union United Automobile.
Aircraft and Agricultural Implement Workers of America, UAW, AFL- CIO (Fanelli Ford
Sales, dnc ), 133 NLRB 1468
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Coed Collar Company, herein called Coed, and by
Adrian's, Inc., herein called Adrian's, both of Tuscaloosa , Alabama, the General
Counsel on December 28, 1959, issued his complaint herein against International
Ladies' Garment Workers' Union, AFL-CIO, herein called the Respondent. The
complaint alleged violation of Section 8(b) (7) of the Act, in that since December 15,
1959, the Respondent picketed Coed and Adrian' s with the object of requiring Coed
to recognize and bargain with the Respondent as collective -bargaining representative
of Coed's employees and to require Coed's employees to select Respondent as such
representative , although Respondent was not the representative of such employees,
and although a valid election had been held in the preceding 12-month period.
In due course the Respondent filed its answer denying the commission of unfair
labor practices.
Upon due notice , a hearing was held at Tuscaloosa , Alabama, on March 8, 1960,
before Trial Examiner Charles W. Schneider. All parties were represented at the
hearing and were afforded full opportunity to be heard , to examine and cross -examine
witnesses , to introduce relevant and material evidence, to engage in oral argument
on the record , and to file briefs and proposed findings. On April 18 , 1960, a stipu-
lation to correct the official transcript of record was filed , signed by counsel for all
parties. The stipulation is hereby approved and the transcript is corrected
accordingly.
On April 18 and 22 , 1960, respectively , the Respondent and the General Counsel
filed briefs, which have been considered.
Upon the basis of the entire record in the case , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES INVOLVED
Coed Collar Company is an Alabama corporation with its principal office and
place of business in Tuscaloosa , Alabama, where it is engaged in the manufacture
of ladies' neckwear on a seasonal basis. Coed Sportswear Company is an Alabama
corporation operating on the same premises and engaged in the manufacture of
ladies' sportswear on a seasonal basis. The two companies are commonly owned,
directed , and controlled . The Board has found them to constitute a single employer
within the meaning of the Act. (Coed Collar Company and Coed Sportswear Com-
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 1703
pany, Case No. 10-RM-277, not published in NLRB volumes. ) The two concerns
are herein referred to jointly as Coed.
Coed annually manufactures , sells, and distributes at its plant products valued in
excess of $50,000, of which products valued in excess of $50,000 are shipped from
said plant in interstate commerce directly to States of the United States other than
Alabama.
Adrian 's, Inc., is an Alabama corporation with its principal office and place of
business in Tuscaloosa , Alabama, where it is engaged in the retail sale of general
merchandise . Adrian's annually derives a gross income from its retail sales in
excess of $500,000, and annually receives merchandise valued in excess of $250,000
directly from outside the State of Alabama.
Delete Sportswear Company occupies space in Coed 's plant , and is engaged in
sales activity for Coed.
In June 1959 F .G. & W. Company was a manufacturer of women 's garments with
a plant located in Gordo , Alabama, some 25 miles from Tuscaloosa.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that International Ladies' Garment Workers ' Union , AFL-CIO, is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
In June 1959 F . G. & W., Coed Collar, Coed Sportswear , Delite , and Adrian's had
some common officers and some common ownership interests , as follows:
F G & IX CO.
Officer Office
Chester Goldstein ------------------------- President -----------------------------------
Adrian Goldstein__________________________ Vice President ______________________________
Alvin Frankfort___________________________ Vice President ______________________________
Henry Waugh ----------------------------- Secretary -Treasurer _________________________
Stock
interest
2/9
1/9
1/3
1/3
COED COLLAR
Chester Goldstein ------------------------- President ----------------------------------- 34%
Adrian Goldstein__________________________ Vice President______________________________ 16%
Stan Bloom------------------------------- Secretary -Treasurer _________________________ 50%
COED SPORTSWEAR
Chester Goldstein _________________________ President --------------------------------- 34%
Adrian Goldstein __________________________ Secretary-Treasurer _________________________ 16%
Stan Bloom------------------------------- Vice President ______________________________ 50%
DELITE SPORTSWEAR
Chester Goldstein ------------------------- President ----------------------------------- 68%
Adrian Goldstein -------------------------- Vice President -Treasurer____________________ 32%
ADRIAN'S
Chester Goldstein ------------------------- President ----------------------------------- 59%
Adrian Goldstein __________________________ Vice President-Secretary -------------------- 40%
Furniss Goldstein _________________________ Treasurer ----------------------------------- 1%
During 1959 F.G. & W. processed some garments for Coed. The extent of this
involvement, and whether it was substantial or minimal in terms of total production
1704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at F.G. & W. or Coed, is not clear from the record. The goods were transported
between the plants by truck or by company station wagon.
THE DISPUTE AT GORDO
In June 1959 the Respondent Union demanded recognition as collective-bargaining
representative of the employees of F.G. & W. in Gordo. F.G. & W. declined to recog-
nize the Respondent. In July that plant closed under circumstances which the Re-
spondent claims constituted an unlawful lockout and unfair labor practices. These
claims, as yet undecided, were the subject of an unfair labor practice hearing. (Case
No. 10-CA-4203.) [129 NLRB 1105.]
THE PICKETING AT COED
On July 21, following the closedown at Gordo, the Respondent established a
picket line at Coed in Tuscaloosa. Two different picket signs were carried. One
said:
YOUR FELLOW
EMPLOYEES
LOCKED OUT
at GORDO
PLANT
JOIN US FOR JUSTICE
INTERNATIONAL LADIES
GARMENT WORKERS UNION
A.F. of L. 610
The other sign said:
CO-ED COLLAR
and
SPORTSWEAR
UNFAIR
to
ORGANIZED
LABOR
International Ladies Garment
Workers Union A.F. of L. 610
Picketing continued at Coed with these signs for about 2 weeks, during which
period Coed filed 8 (b)(4), or secondary boycott, charges against the Respondent.
The Respondent then changed the picket signs to read as follows:
EMPLOYEES
of
CO-ED COLLAR
ON STRIKE
for
MEMBERS ONLY
CONTRACT
INTERNATIONAL LADIES GARMENT
WORKERS UNION A.F. of L.-C.I.O.
JOIN THE
I.L.G.W.U.
FOR BETTER
WORKING
CONDITIONS
INTERNATIONAL LADIES GARMENT
WORKERS UNION A.F. of L.-C.I.O.
FOR HIGHER
WAGES
JOIN THE
I.L.G.W.U.
INTERNATIONAL LADIES GARMENT
WORKERS UNION A.F. of L.-C.I.O.
The picketing at Coed continued with these signs until November 30, 1959, at
which time it was discontinued for several days, to be resumed with new signs under
circumstances related hereinafter.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 1705
At no time did the Respondent make an oral request for recognition at Coed.
Shortly after the picketing began, Coed filed a petition with the Board requesting
an election. The Board dismissed the petition, saying that it could not conclude
under the circumstances that the picketing "constitutes a current demand to repre-
sent all the employees in the unit," and that therefore no question concerning repre-
sentation existed. (Coed Collar Company and Coed Sportswear Company, et al.,
Case No. 1Q-RM-277.)
THE PICKETING AT ADRIAN'S
On or about August 8, 1959, the Respondent began to picket Adrian's establish-
ment in Tuscaloosa, using the following sign:
TO SHOPPERS ONLY
PLEASE DO NOT BUY
COED-DELITE PRODUCTS
HANDLED BY THIS STORE.
WE ARE NOT STRIKING OR
PICKETING THIS STORE
OR ITS EMPLOYEES OR
SUPPLIERS. WE ARE PICKETING
COED-DELITE PRODUCTS ONLY.
INTERNATIONAL LADIES GARMENT
WORKERS UNION A.F. of L.-C.I.O.
In the meantime, while this action was taking place at Tuscaloosa, F.G. & W. had
filed a petition for a collective-bargaining election among its employees at Gordo.
Following the dismissal by the Regional Director of charges of refusal to bargain
filed by the Respondent against F.G. & W., a consent-election agreement was entered
into concerning F.G. & W., and the picket lines were discontinued. The consent
election was held at Gordo on October 7, 1959; the Respondent won the election
and was certified as the bargaining representative there. Several collective-bargaining
sessions were then held, but without substantial result, and on October 15 the Re-
spondent resumed picketing at Coed and at Adrian's with the signs last described.
At Adrian's this picketing continued until restrained by order of the United States
district court on December 18, 1959. At Coed, however, the picketing was suspended
from November 30 to December 2, under circumstances to be described.
THE 8(b) (4) AND (7) CHARGES; THE ELECTION AT COED
Beginning on July 22 Coed and Adrian filed a series of secondary boycott charges
against the Respondent alleging violation of Section 8(b) (4) of the Act by the
picketing. All of these charges were dismissed by the Regional Director. Those
dismissals were affirmed by the General Counsel upon appeal.
Section 8(b) (7) of the present Act-the subject of the instant complaint-became
effective 60 days after the enactment date of September 14, 1959. On November 18,
1959, Coed filed a charge of violation of 8(b)(7), docketed as Case No. 10-CP-1,
and simultaneously filed a petition for election, docketed as Case No. 10-RM-283.
On November 25, 1959, pursuant to the authority vested in him by Section 102.77
of the Board's Rules and Regulations, Series 8, the Regional Director directed that
an election be held among Coed's employees. At the same time, in accordance with
Section 102.81 of the Rules and Regulations, the Regional Director declined to issue
a complaint in Case No. 10-CP-1.1
On November 30, 1959, the Respondent sent a telegram to the Regional Director
stating, in sum, that it was withdrawing its present picket line at the Coed plant, and
that it was no longer engaged in a campaign to organize Coed's employees or to have
Coed recognize the Respondent as a bargaining representative, either exclusive or for
members-only, of such employees. The Respondent further said that any future
picketing at the Coed plant would have "as its sole objective the advertising to the
public of the unfair labor practices engaged in by F.G. & W. Company at Gordo,
Alabama." Accordingly the Respondent requested that the Regional Director with-
draw the direction of election. On the same date the Respondent notified Coed to the
same effect, and withdrew its picket line at Coed.
The Regional Director declined to withdraw the direction of election.
The election was held on December 2, 1959. Of the 100 valid votes counted, 7
were cast for the Respondent, 93 against it. The Respondent filed objections to the
election, which were overruled by the Regional Director who thereupon-on De-
1 The section provides that where the Regional Director directs an election in con-
nection with an 8(b) (7) charge he shall decline to issue a complaint on the charge.
1706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember 15 , 1959-certified that the Respondent was not the collective -bargaining
representative of Coed 's employees.
PICKETING AFTER NOVEMBER 30
On the day of the election , December 2, the Respondent resumed picketing at the
Coed plant using new picket signs, as follows:
PICKETING
BECAUSE OF
UNFAIR LABOR
PRACTICES
AT F.G. & W. CO.
INTERNATIONAL LADIES GARMENT
WORKERS UNION. AFL-CIO
CO-ED COLLAR CO.
DELITE SPORTSWEAR
Allied with
F.G. AND W. CO.
UNFAIR TO
ORGANIZED
LABOR
INTERNATIONAL LADIES GARMENT
WORKERS UNION. AFL-CIO
THE INSTANT CHARGES
On December 7, 1959, Coed filed another charge of violation of Section 8(b) (7),
and on December 16 Adrian did likewise. These are the basis of the instant com-
plaint . Upon the Regional Director's application the United States district court,
about December 18, restrained the picketing at Adrian's and about January 11, 1960,
restrained it at Coed, pending final disposition of the matter by the Board.
During the picketing at Coed truckdrivers, employees of other employers did not
make pickups or deliveries of goods or materials at Coed. This situation prevailed
at all times during the picketing at Coed until the restraining order was issued in
January. There is no evidence that any employee failed to cross the picket line
at Adrian's.
The F.G. & W. plant at Gordo has not operated since August 1959. Under date
of December 29, 1959, the Company was formally dissolved by agreement of the
stockholders.
CONCLUDING FINDINGS
The complaint alleges that since December 15, 1959, the Respondent has picketed
Coed and Adrian with the object of forcing and requiring Coed to recognize and
bargain with the Respondent as the collective-bargaining representative of the em-
ployees of Coed and to force and require those employees to accept and select
the Respondent as their collective-bargaining representative.
Inter alia-and so far as here involved-Section 8(b)(7) of the Act prohibits
picketing for the objectives stated in the complaint, where the union is not the cur-
rently certified bargaining representative of the employees, and a valid election has
been held within the preceding 12 months. It has been seen that the Respondent
was not the certified representative of Coed's employees, and that an election had
been held within the preceding 12 months. If the Respondent's object in the picket-
ing after December 15, 1959, was as stated in the complaint, an unfair labor practice
has been made out-unless certain affirmative defenses are to be sustained. How-
ever, I do not find it necessary to consider these defenses. I find determination of
the question as to the Respondent's objective dispositive of the case.
The Respondent's contention is that its object in instituting the picketing at Coed
was to publicize the alleged unfair labor practices at F.G. & W. Within 2 weeks,
however, the Respondent began to picket for recognition and for organization of
Coed's employees. This the evidence clearly establishes and the Respondent con-
cedes. This situation continued through November. After November 30, 1959,
the Respondent contends, the object of the picketing was solely to bring pressure
to bear on F.G. & W. in the negotiations and to induce it to reopen, and to advise the
public of unfair labor practices at F.G. & W. It has been seen that in September
the Board found that it was unable to conclude that the picketing constituted a
demand to represent all the employees of Coed.
INTERNATIONAL LADIES' GARMENT WORKERS' UNION 1707
At Adrian's, the Respondent says, its objective was that stated in the picket sign:
To induce the public not to buy Coed products. The focus of the action there,
however, was the same as at Coed: the dispute at F.G. & W.
The "object" of concerted action of employees has been defined as "an act
required in good faith by them of the employer as the condition of their voluntarily
ceasing their concerted action against him." International Longshoremen's and
Warehousemen's Union, Local 8, et al. (General Ore, Inc.), 126 NLRB 172, and
section 777 of the Restatement of the Law of Torts.
It seems plain to me that the original picketing at Coed and Adrian' s had as its
object the application of pressure upon F.G. & W. in connection with the Respond-
ent's controversy there. Such an object is not within the proscription of Section
8(b)-(7), as I read the section The motive for this action was the Respondent's
belief that all the companies constituted one employing or economic unit, or were
allies, and could be legitimately picketed at any point in the system in connection
with the dispute at F.G. & W.2 Whether that view is correct need not be determined.
I have concluded for other reasons that the complaint should be dismissed.
Following the filing of the 8(b) (4) charges the Respondent supplemented its
objective in the picketing. It seems obvious that it did so in order to insulate its
action against the charges. This, however is neither unlawful nor necessarily sinister.
A party may legitimately change or modify a course of action to insure compliance
with the law. Sincere effort to do so is indicative not of disregard, but of respect, for
law. Of course, one may not merely pretend compliance, or engage in subterfuge
cloaking illegal motives.
Here I find no substantial ground to question the Respondent's assertions and
testimony as to the object of its picketing. That some truckdrivers did not cross
the picket line at Coed is not controlling under the state of law existing prior to
the effective date of Section 8(b)(7). For if the object of the pre-December picket-
ing was not unlawful (and there is no contention here that it was) the consequences
did not make it so. The present statute-perhaps requiring a different conclusion-
does not operate retroactively or ex post facto
In my opinion the ultimate objective of the picketing continued throughout the
controversy to be the exertion of pressure on F.G. & W., and in that respect never
changed. Whether such an objective was violative of Section 8(b)(4) we need not
determine, since the question is not presented. But the existence of that objective
was constant. Thus, when the consent-election agreement was arrived at at
F.G. & W. the picketing at Coed and Adrian's was suspended And when the nego-
tiations at F.G. & W. proved unsatisfactory to the Respondent, the picketing was
resumed. I think the conclusion follows that the picketing at Coed sand Adrian's was
at all times in support of the Respondent's efforts at F.G. & W. and that the stated
purpose of securing recognition and members at Coed was subordinate to and a mere
concomitant of that objective At Adrian's, as indicated, I think the objective was
the same as at Coed.
The enactment of Section 8(b)^(7) and the filing of charges thereunder intro-
duced a new element into the situation. For now picketing to force or require
recognition of a union not currently certified, or to force or require employees to
accept or select such an organization as their representative, became illegal under
the conditions specified in the amendment. The section presents a number of novel
and weighty questions of interpretation; enough at least to warrant prudent counsel
to advise a change in action to insure compliance with the law. Again the Respond-
ent apparently sought to comply, and there is no evident ground to question its sin-
cerity. Absent such ground the Respondent's attempt to bring its conduct within
the law should be recognized and given full faith and credit. When during the course
2 For discussion of the "ally" doctrine, according to which ostensibly separate employers
may he attacked as primary disputants in a labor controversy, see Douds v. Metropolitan
Federation of Architects, Engineers, Chemists and Technicians, Local 231 (Pro)ect
Engineering Company 75 F Supp 672 (D C N Y.) ; National Union of Marine Cooks and
Stewards, and its Portland Local, CIO, at al. (Irwin-Lyons Lumber Company), 87 NLRB
54, 56, 84; United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at
(J G Pay and Sons Company), 118 NLRB 286, revd 251 F 2d 771 (CA 1) ; NLR.B. v
Business Machine and Office Appliance Mechanics Conference Boaid, Local 459, Inter-
national Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Co ),
228 F 2d 553 (CA 2) , International Die-Sinkers Conference, San Jacinto Die Sinkers
Lodge #410; et at (General Metals Corporation), 120 NLRB 1227; Local No. 24, Inter-
national Brotherhood of Teamsters, etc. (ACE. Transportation Co, Inc ), 120 NLRB
1103, set aside 266 F 2d 675 (CAD C) ; Warehouse and Distribution Workers Union,
Local 688, et at (Bachman Machine Company ), 121 NLRB 1229, set aside 266 F. 2d 599
(CA. 8)
1708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of a legitimate action the law is modified to make unlawful motives theretofore
valid, it should not be lightly presumed that efforts to eliminate those motives from
the action are not genuine. I therefore find that throughout the picketing the Re-
spondent's object, that is, the action which would have resulted in the cessation
of the picketing, was the satisfactory solution of its controversy with F.G. & W., and
the reopening of that plant.
The Respondent's communications to the Regional Director and to Coed in late
November constituted effective notice that the objectives at Coed of recognition and
organizing were being abandoned. The picketing was thereupon discontinued for
several days. When it was resumed it was with new picket signs declaring pur-
poses not violative of Section 8(b)(7). There is no evidence suggesting that these
declarations, and the Respondent's supporting testimony, were not genuinely reflective
of the Respondent's design after November 30, 1959. In the face of such specific
disclaimers, and in the absence of any evidence tending to negate them, it cannot
be presumed that the Respondent's objectives continued as before. If the Respond-
ent's action was not effective to evidence a change of objective, it is difficult to con-
ceive how such a change could be evidenced or manifested other than by the
permanent abandonment of all picketing, regardless of purpose. I do not think
that such abandonment is a prerequisite to a credible defense. It is true, as the
General Counsel says, that once a motive for action is established, there is gener-
ally a presumption that the motive persists until evidence indicates that it no longer
exists. See, for example, Local 222, International Ladies' Garment Workers' Union,
AFL-CIO (Valley Knitting Mills, Inc.), 126 NLRB 441, and cases cited therein.
The rule is a presumption, however, and rebuttable. It is not conclusive. In the
instant case, in my judgment, the evidence rebuts the presumption. There is no
basis for conclusion that the Respondent's disclaimers were mere pretexts. Whether
the picketing could be carried on validly now, in view of the dissolution of F.G. & W.,
is not presented and need not be decided.
It is therefore found that the evidence does not sustain the allegations of the
complaint to the effect that since December 15, 1959, the Respondent has picketed
Coed and Adrian with the object of forcing and requiring Coed to recognize and
bargain with the Respondent as the collective-bargaining representative of the
employees of Coed, and to force and require those employees to accept and select
Respondent as their collective-bargaining representative.
It is therefore unnecessary to consider other questions, such as (1) whether
peaceful picketing of the kind here involved, absent evidence of specific incidents
of force or threat, constitutes "forcing or requiring" within the meaning of Section
8(b)(7); (2) whether the section is applicable only to action directed to securing
exclusive recognition, and is inapplicable to attempts to achieve members-only rep-
resentation; 3 (3) whether the Regional Director's summary direction of election
is reviewable in this proceeding, and if so the validity of his action, and against
what standards it is to be measured; and (4) whether F.G. & W., Coed, and Adrian
are allies, and if so, the effect thereof on this controversy.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
3If it is the former, the effect of the Board's September decision holding that the evi-
dence did not manifest such an object, would probably have to be considered.
Twin County Transit Mix, Inc. and Local 282, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Teamsters , Warehousemen , Helpers
and Production Workers , Local 424, Ind ., Party to the Con-
tract. Case No. 2-C.A-3164. Jelly 30, 1962
DECISION AND ORDER
On April 24, 1962, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
137 NLRB No. 184.