Local 239, Int'l Brotherhood of Teamsters,Etc.

National Labor Relations Board - Board Decisions

Jun 1, 1960

127 N.L.R.B. 958 (N.L.R.B. 1960)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 239 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Stan -Jay Auto
Parts and Accessories Corporation . Cases Nos. 2-CB-2690 and
2-CP-7. June 1, 1960
DECISION AND ORDER
On March 23, 1960, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a brief in support of the
exceptions.
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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exception noted below i and the
following additions and modifications.
The Respondent argues that its picketing of the Company's premises
after November 13, 1959, the effective date of the Labor-Management
Reporting and Disclosure Act of 1959, was not unlawful because: (a)
Section 8(b) (7) (C) is inapplicable to peaceful picketing; (b) the
picketing was not conducted for a reasonable time from November 13
to the issuance of the complaint, a period of only 17 days, so as to
require the filing of a representation petition; (c) informational
picketing cannot be enjoined under the second proviso to Section
8(b) (7) (C) unless its intended rather than its actual effect is to
induce employees of suppliers or customers of the picketed employer
to refuse to cross the picket line; and (d) in determining the object
of the picketing consideration cannot be given to events which pre-
ceded November 13. We agree with the Trial Examiner that these
arguments are without merit.
(a) The contention that Section 8 (b) (7) was not intended to outlaw
peaceful picketing for certain proscribed objectives, but only picket-
'The complaint in Case No 2-CB-2692 alleges that the Respondent violated Section
8(b) (1) (A) by picketing the Company's premises with an object of forcing and requiring
the Company to recognize and bargain with the Respondent as the statutory representa-
tive of the Company's employees, although the Respondent did not represent a majority
of such employees The Trial Examiner found a violation on the basis of the Board's
decision in Curtis Brothers , Inc, 119 NLRB 232. However , since the issuance of the
Intermediate Report , the Supreme Court has reversed the Curtis decision and has held
that peaceful picketing for recognition by a minority union does not violate Section
8(b) (1) (A). Accordingly, we do not adopt the finding of 8(b ) ( 1) (A) violation, but shall
diinuss the complaint in Case No 2-CB-2692.
127 NLRB No. 132.
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 959
ing accompanied by force such as violent or mass picketing, is appar-
ently based on a supposed analogy to Section 8(b) (1) (A). In the
Curtis case,' the Supreme Court said that Section 8(b) (1) (A) "is a
grant of power to the Board limited to authority to proceed against
union tactics involving violence, intimidation, and reprisal or threats
thereof. . . ." However, in the same case the Court also said (362
U.S. 290, 291) :
. .. Congress in the Taft-Hartley Act authorized the Board to
regulate peaceful "recognitional" picketing only when it is em-
ployed to accomplish objectives specified in § 8 (b) (4) . . . the
Labor-Management Reporting and Disclosure Act of 1959.. .
goes beyond the Taft-Hartley Act to legislate a comprehensive
code governing organizational strikes and picketing . . . . While
proscribing peaceful organizational strikes in many situations, it
also establishes safeguards against the Board's interference with
legitimate picketing activity. See § 8(b) (7) (C). [Emphasis
supplied.]
Further, there is no legislative history to support the Respondent's
contention with respect to the alleged restrictive scope of 8(b) (7).
On the contrary, the legislative history is all to the effect that by
8 (b) (7) Congress sought to outlaw peaceful picketing for certain
proscribed objectives. Thus, Representative Griffin, cosponsor of the
Landrum-Griffin Bill, said : 3
[8 (b) (7) ] is intended to prohibit blackmail recognition picket-
ing by unions which do not represent the employees . . . . The
customary method employed to force employers [to sign contracts
irrespective of the wishes of employees] is to place pickets around
their plants or shops. Such picketing, even when peaceful, will
frequently cause small employers to capitulate. The picket line
is a signal for truckers not to pick up or deliver goods to em-
ployees of maintenance contractors. Pickets also deter many
customers from entering retail or service establishments. In the
face of such tactics employees whose jobs are in jeopardy as they
see their employer's business choked off are soon coerced into
joining the picketing union even though they might prefer an-
other union. In many cases their employer forces them in a par-
ticular union by signing a compulsory membership agreement
with the picketing union.
Finally, the words "forcing or requiring" in Section 8(b) (7), upon
which the Respondent relies for its argument, have their exact counter-
2 N.L R B. v Drivers, etc , Local Union No. 639 , 362 U S. 274, 290.
3 NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of
1959 ( U S Government Printing Office , 1959 ), p. 1523. See also id at pp. 82, 472, 474,
944, 994 , 1377, 1462 , 1499, 1518, 1813.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part in Section 8 (b) (4) and the Supreme Court specifically held, even
before the Curtis decision, that the latter section prohibits peaceful
picketing for certain objectives.4 We conclude, therefore, that peace-
ful picketing for objectives proscribed by Section 8 (b) (7) is unlawful.
(b) The picketing of the Company's establishment began on Sep-
tember 21, 1959, and continued thereafter until it was enjoined on
January 15, 1960. The new Act became effective on November 13 and
the complaint issued on November 30, 17 days thereafter. The Re-
spondent contends that the 17 days was not a reasonable period within
which it was required to file a representation petition or face the
prospect of having its picketing enjoined.
Section 8(b) (7) (C) prohibits picketing for organization or recog-
nition where it "has been conducted without a petition under Section
9 (c) being filed within a reasonable period of time not to exceed thirty
days from the commencement of such picketing . . ." The Act does
not define a "reasonable period of time" although it does place an out-
side limit on such period. The language of the section as well as the
legislative history indicates that picketing may be enjoined in less than
30 days. Thus, Representative Griffin, commenting on 8(b) (7) (C),
said : 5
Of course, the picketing may be enjoined in less than 30 days if
the Board finds the circumstances are such as to make it unreason-
able to permit it to continue and it must be stopped at the end
of 30 days.
The picketing for organization and recognition had been going on
continuously for almost 2 months before the new Act became effective.
In the light of this background, we agree with the Trial Examiner
that the 17 days of additional picketing thereafter was a reasonable
period of time in which to require the Respondent to file a representa-
tion petition or face enjoinment of the picketing.
(c) The second proviso to Section 8(b) (7) (C) provides:
... That nothing in this subparagraph (C) shall be construed
to prohibit any picketing or other publicity for the purpose of
truthfully advising the public (including consumers ) that an em-
ployer 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.
4 International Brotherhood of Electrical Workers, Local 501, et al. v. N.L.R.B., 341
U S. 694, 701-703 ; N L. I? B. v Denver Building and Construction Trades Council, et al.
( Gould & Preasner ), 341 U.S. 675, 691.
6 NLRB, Legislative History of the Labor- Management Reporting and Disclosure At of
1959 (U.S. Government Printing Office, 1959 ), p. 1812.
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 961
When picketing began in September 1959, the Respondent notified
the Company's suppliers that the Company was being picketed. This
notice was never rescinded. No deliveries or pickups were made
through the picket line during the entire period of the picketing. A
number of witnesses credibly testified as to specific refusals to make
deliveries through the picket line after the new Act became effective.
One of these incidents occurred on November 20, 1959, the others
occurred in December 1959 and January 1960.
The Respondent disclaims responsibility for these refusals to make
deliveries through the picket line. It contends that in order to in-
validate informational picketing it must be established not only that
employees of other employers refused to cross the picket line but that
this was the intended effect of such picketing.6 There is no legislative
history to justify qualifying the word effect in the manner urged by
the Respondent. Commenting on this section of the conference bill,
Representative Griffin said : '
The second proviso to the subsection [8(b) (7) (C)] makes an
exception of picketing or other publicity directed to consumers
which is for limited purposes and which does not have the effect
of inducing employees of others to refuse to cross the picket line
to make pickups and deliveries and to perform services. Any
type of publicity, including picketing, which has this effect is not
protected by the proviso.
Similarly, a Senate Committee analysis of the final bill says of the
proviso : 8
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.
Even assuming arguendo, therefore, that the Respondent engaged in
only informational picketing after November 13, we nevertheless find
such picketing unlawful because of its effect on employees of customers
and suppliers . Moreover , the Respondent should reasonably have
anticipated that the picket line would induce employees to refuse to
cross it, particularly in view of the earlier letter to the Company's
9 Member Fanning finds it unnecessary to decide this issue in this case. He agrees with
the Trial Examiner, for the reasons stated in his Intermediate Report, that in the circum-
stances of this case the Respondent intended or could reasonably anticipate that the effect
of its picket line, even though couched in terms of information to the public , would be
the inducement of sympathetic action by employees of other employers . Indeed, the
Respondent had warned the Company before the picketing began that it would set up a
picket line to stop all deliveries if its demands were not met . The record shows that the
Respondent's picketing resulted in virtually a complete cessation of deliveries across the
picket line.
7 See footnote 5, supra.
81d. at pp. 966-967. See also id. at p. 1431.
560940-61-vol . 127--62
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suppliers notifying them of the establishment of the picket line, the
failure to rescind such notice, and the failure to take any steps to
insure that the picket line would not have its normal effect. Accord-
ingly, we find that its picketing was intended to disrupt services at the
Company's place of business.
(d) The Respondent asserts that no consideration can be given to
events which preceded the effective date of the new Act in determining
the objective of the picketing. The Trial Examiner found that the
objective of the picketing both before and after the effective date of
the new Act was the same-organization and recognition. We agree
with him.9 We note particularly that after the new Act became effec-
tive, the Respondent's pickets continued to carry the old signs for a
time, the Respondent proposed a "deal" to the Company whereby the
latter would sign a collective-bargaining contract with the former in
return for the cessation of the picketing, and the Respondent unsuc-
cessfully sought to persuade Company employees to become members
of its organization.10
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 239, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, its officers, representatives, and agents, shall:
1. Cease and desist from :
(a) Picketing or causing to be picketed, or threatening to picket
or causing to be picketed, Stan-Jay Auto Parts and Accessories Cor-
poration, Long Beach, New York, under conditions prohibited by
Section 8 (b) (7) of the Act, where an object thereof is forcing or
requiring the aforesaid Company to recognize or bargain with the
Respondent as the representative of its employees, or forcing or
requiring the employees of the aforesaid Company to accept or select
the Respondent as their collective-bargaining representative.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent's business offices,
meeting halls, and places where notices to its members are customarily
posted, copies of the notice attached hereto marked "Appendix." 11
9 N L R B. v. Pennsylvania Greyhound Lines , Inc, 303 U S . 261, 268-270: N L R B v
Falk Corporation, 308 U S . 453, 460 ; N.L R B. v . Link-Belt Company, 311 U.S 584, 588.
iu In his analysis of the "second proviso," in the Intermediate Report , the Trial Ex-
aminer discusses the General Counsel's contention that if picketing has both a proscribed
objective and an informational purpose it is unlawful . We consider it unnecessary to pass
on this discussion in view of the finding that the picketing was unlawful even if it was
informational only , because of its effect in stopping deliveries and pickups.
"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."
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 963
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by official representa-
tives of the Respondent, be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the aforementioned notice for posting by Stan-Jay Auto
Parts and Accessories Corporation, the Company willing, in places
where notices to employees are customarily posted. Copies of said
notice, to be furnishedby the Regional Director for the Second Region,
shall, after being signed by the Respondent, as indicated, be forth-
with returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint in Case No.
2-CB-2692 be, and it hereby is, dismissed.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 239, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS. CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AND TO ALL EMPLOYEES OF STAN-JAY AUTO PARTS AND
ACCESSORIES CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT, under conditions prohibited by Section 8 (b) (7)
of the Act, picket or cause to be picketed, or threaten to picket or
cause to be picketed, Stan-Jay Auto Parts and Accessories Cor-
poration, Long Beach, New York, where an object thereof is to
force or require the aforesaid Company to recognize or bargain
with us as the representative of its employees, or to force or re-
quire the employees of the aforesaid Company to accept or select
us as their collective-bargaining representative.
LOCAL 239, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Stan-Jay Auto Parts and Accessories Corporation,
herein called the Company, against Local 239, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, herein called the
Respondent, the General Counsel issued separate complaints in Case No 2-CB-2692
on November 19, 1959, and in Case No. 2-CP-7 on November 30, 1959. Both
cases are based upon picketing activities engaged in by the Respondent at the
Company's place of business on and after September 21, 1959. The complaint in
Case No. 2-CB-2692 alleges in substance that the Respondent engaged in unfair
labor practices within the meaning of Section 8(b) (1) (A) and Section 2(6) and (7)
of the National Labor Relations Act, 61 Stat. 136, as amended, herein called the
Act, by conducting such picketing with an object of forcing Stan-Jay to recognize
and bargain with the Respondent as the exclusive bargaining representative of its
employees, notwithstanding that the Respondent did not then represent a majority
of the Company's employees in an appropriate unit. The complaint in Case No.
2-CP-7 alleges in substance that the Respondent engaged in unfair labor practices
within the meaning of Section 8(b)(7)(C) and Section 2(6) and (7) of the Act,
by conducting such picketing with the object of forcing employer recognition and
employee acceptance of the Respondent as bargaining agent, without filing a petition
under 9(c) of the Act within a reasonable period of time from the commencement
of such picketing. The Respondent duly filed answers to each of the aforesaid com-
plaints, denying the commission of the alleged unfair labor practices. In Case No.
2-CP-7 the Respondent also affirmatively alleged that the activities therein com-
plained of were in the exercise of constitutional rights guaranteed by the United
States Constitution. By order of the Board's Regional Director, duly made pursuant
to the applicable Board's Rules and Regulations the two cases were consolidated for
purposes of hearing.
A hearing, with all parties represented by counsel, was held before the duly
designated Trial Examiner at New York City on January 25, 26, and 27, 1960. At
the close of the hearing, ruling was reserved on a motion made by the Respondent
to strike all testimony with respect to any acts or activities occurring after November
30, 1959, the date of the complaint in Case No. 2-CP-7. That motion is now denied
for reasons to be indicated below in the course of the consideration of the Respond-
ent's specific contentions. Ruling was also reserved on motions made by the
Respondent to dismiss both cases upon the ground that no unfair labor practices
were proved. Such motions are disposed of in accordance with the findings of fact
and conclusions of law made below. At the end of the hearing, the General Counsel
and the Respondent argued their contentions orally upon the record. Thereafter, on
February 24, 1960, they filed briefs which have been considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Stan-Jay Auto Parts and Accessories Corporation, a New York corporation with
its principal office and place of business at Long Beach, New York, is engaged in
business essentially as a jobber in the sale and distribution of replacement parts for
automobiles and trucks and related products. More than 95 percent of the Com-
pany's business is in the form of sales made to customers engaged in the business of
operating garages, service stations, automobile repair shops, or like establishments,
who either resell the products they purchase from the Company or use such products
in connection with repair jobs for customers of their own. Less than 5 percent of
the Company's business is in the form of sales directly to the consumer public.
During the period from October 1, 1958, to September 30, 1959, a representative
annual period, the Company purchased automobile parts having a value in excess of
$50,000 that were shipped to its place of business in interstate commerce directly from
States of the United States other than the State of New York. It is found, oppositely
to the contention of the Respondent, that the Company's operations are basically of a
nonretail character; that it is engaged in commerce within the meaning of the Act;
and that its operations meet the standards fixed by the Board for the assertion of
jurisdiction. See NLRB Release R-576; New Pacific Lumber Co., 119 NLRB 1307;
1308; Jos. McSweeney & Sons, Inc., 119 NLRB 1399, 1401.
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 965
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Local 239, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
As noted above, the alleged unfair labor practices arise out of picketing activities
,conducted by the Respondent at the Company's premises on and after September
21, 1959. When the picketing began, the Company employed five employees besides
a female bookkeeper, but that number was reduced to three as a result of layoffs
during the course of the picketing. The Company's employees have never been rep-
resented by any labor organization. It is conceded that none of them has ever
joined the Respondent or designated it as a bargaining representative. It is likewise
conceded that no petition under Section 9(c) of the Act involving employees of the
Company has ever been filed by the Respondent or by anyone else.
About 90 percent of the employees engaged in the Company's line of business
and located within the area of the Respondent's geographical jurisdiction have
collective-bargaining contracts with the Respondent, according to Samuel Krieger,
the Respondent's business representative. The Respondent holds to the philos-
ophy-so Krieger's testimony reflects-that unorganized jobbers in the industry are
in a position, because of their inferior employment standards, to compete unfairly
with jobbers who are under contract with the Respondent; that the nonunion jobbers
thus represent a threat, not only to the economic security of their organized com-
petitors, but derivatively to the preservation of the labor standards enjoyed by the
employees in the organized segment of the industry; and that, consequently, it is
important to the Respondent that the unorganized employers be made to fall in line.
Prior to the events to be narrated immediately below, the Respondent did not
engage in any active organizational campaign to enlist the membership of the
Company's employees.
B. The Respondent's demands upon the Company
On September 14, 1959, Samuel Krieger called, uninvited, on Alan Jay, the
Company's president, at the latter's place of business. Krieger was accompanied
by Mac Sherman, the Respondent's recording, secretary, and a third person whom
the record does not identify. The respective accounts of Jay and Krieger differ
sharply as to what occurred at their meeting that day.' On the basis of my appraisal
of the testimony of both witnesses, but relying in the main on the version given by
Jay, who impressed me as the more credible of the two, I believe, and find, that
substantially the following took place:
Krieger informed Jay that the Respondent was engaged in an organizational drive
in the industry and had succeeded in obtaining contracts with other jobbers. It
was now the Company's turn, announced Krieger, and he wanted the Company's
employees to join the Respondent and the Company to sign a contract with it. In
response to Jay's inquiry as to what good this would do the Company, Krieger
explained that it would enable the Company to join the jobbers' association and
thereby develop a more cooperative relationship with its competitors; moreover,
that a contractual relationship with the Respondent would provide considerable
advantages to the Company's employees, particularly in the form of hospitalization
and other welfare benefits. Jay asked why the Respondent did not approach the
employees directly if it wanted them to join. Krieger replied that he did "business"
directly with the employer, and that he was not "worried" about the employees,
implying that if the Company agreed first to accept the Respondent there would be
no difficulty in getting the employees to fall in line.
When Jay demurred, stating that the Company's employees already enjoyed
benefits equal to those the Respondent had to offer and that he saw no advantage
to the Company in going along with the Respondent's request, Krieger made clear
that the Respondent "meant business." He expressly warned Jay, "If you don't
join up, we will throw a picket line up and you get no stuff, no deliveries. and you
are out of business." Somewhere along the line, perhaps at this point. Krieger pro-
duced and exhibited to Jay a contract form containing the Respondent's standard
contract provisions, to which the Company would be expected to agree. The docu-
1 Mac Sherman and the unidentified representative of the Respondent, who were the
only others present at the meeting, were not called as witnesses.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment included , inter aha, provisions for recognition of the Respondent as an exclusive
bargaining agent and for a union shop. Jay told Krieger he would not sign any
contract until he had an opportunity to consult with his attorney . Krieger agreed
to Jay 's request that he be allowed to show the contract form to his attorney. Before
releasing the contract form to Jay , however, the Respondent ' s representatives took
the precaution of removing from it the signature page and inscribing on the top
sheet the following handwritten notation : "These are the terms and conditions we
hope to win for your employees ." Jay, at the insistence of the Respondent 's repre-
sentatives , gave them the name and telephone number of his attorney and also his
consent to have them communicate directly with the Company 's attorney that eve-
ning. With that, the meeting ended.
As arranged , a representative of the Respondent got in touch with the Company's
attorney that evening . The record does not detail what was said. But it is reason-
ably to be inferred from the events which followed that the Respondent 's demands
were rejected
On the morning of September 21, 1959, exactly 1 week after Krieger and the others
called on Jay , the Respondent began picketing the Company's premises . During the
intervening week, so far as appears, the Respondent made no effort to organize
the Company 's employees through direct solicitation.
About an hour or so after the picketing began, Krieger approached Donald M.
Marcote, the Company 's treasurer and vice president , outside the Company 's store.
Krieger asked Marcote when the Company was going to "join " the Union . Marcote
replied that his employees had informed him that they did not want the Union and
that the Company therefore would not go along. Krieger thereupon declared that
the employees did not want to join only because they felt the Company did not want
them to. He told Marcote that Marcote could, if he wanted to, force the employees
into the Union , adding that Marcote ought not to have any misgivings about doing so
as membership in the Union would actually prove beneficial to the employees
Marcote and Krieger then had a discussion about the benefits the Union could
provide. When Marcote insisted that the Company 's employees already enjoyed
equal or better benefits, Krieger declared that if that were so the Company had
nothing to lose by "joining" the Union , as it would not cost the Company anything.
Krieger then offered Marcote a "deal." He told him that if the Company "joined"
the Union , the Respondent would require that only two of the Company's then
employees become members. But Marcote was unwilling to agree 2
The record details one further discussion between Jay and Krieger that bears on
the Respondent 's picketing objectives It took place on November 20, 1959, a week
after the provisions of Section 8(b) (7) became effective. At that time picketing had
already been in progress for a period of 2 months . The discussion was initiated by
Krieger who opened the door of the store and asked to speak to Jay After some
preliminary talk of no particular importance here , Krieger suggested that a "deal" be
made under which the Respondent would settle with the Company on the basis
of "two men in the Union with a union shop clause in the contract ." Krieger indi-
cated that if such a settlement were made the Respondent would withdraw its picket
line and proceed against a nearby unorganized competitor of the Company ; otherwise
it would continue with its picketing activities Jay told Krieger that he was not in a
position to make any such deal because one of his employees had stated he would
quit if forced into the Union and another had also expressed in no uncertain terms
his opposition to the Union .3 Jay suggested that Krieger again contact the company
lawyer through whom , apparently , the Company had earlier proposed a one-man
compromise Krieger , however, reiterated that the Union was unwilling to accept
any proposal less than a contract covering two of the Respondent 's then employees
and a union -shop clause which would require employees hired by the Company
in the future to join after 30 days?
2 The findings made above as to Marcote s conversation with Krieger on September 21,
1959 , are based upon Marcote 's uncontindicted testimmn-
The record ieflects that on November 20, the Company had three employee,
s The findings concerning the November 20 discussion are ba,ed upon Tai c credited
testimony Krieger admitted having a conversation with Tay at that time and di scussing
with him the possibility of a conipiomi,e lint he i eited it was Jay, not lie, who
brought up the subject Krieger would have it believed that he expressed a complete
disinterest in any compromise , and that his only response to Jay was, "We are not look-
ing to organize your men ; we are not looking to get a contract . We are looking to inform
the trade and the neighborhood that you are nonunion ." However, as will more fully
appear below , the pickets at that time were still carrying signs appealing to the Company's
employees to join the Respondent Krieger 's version did not impress me as credible.
LOCAL 2 3 9 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 967
C. The picketing and its effects
The picketing which began on September 21, 1959 , continued without interruption
during business hours every day, except Sundays, until January 15, 1960. It ended
after the United States District Court for the Eastern District of New York issued
a decision granting the Regional Director's petition for a temporary injunction in a
Section 10 ( 1) proceeding based upon the complaint in Case No . 2-CP-7 5 The
picketing at the beginning was conducted by four or more pickets at a time. In
addition to carrying placards , the pickets shouted derogatory slogans concerning the
Company ("scab shop ," "slave wages"), directed customers of the Company to
competitors ' shops, and handed out leaflets urging the Company 's employees to join
the Union and the Company 's customers to patronize shops represented by the
Respondent . 6 After the early days of the picketing the number of pickets was re-
duced to two Except possibly for the first day of the picketing , when the record
reflects some blocking of ingress to the Company 's premises , the picketing appears to
have been conducted in an orderly and peaceful manner.
On September 21, 1959, and for sometime thereafter , the pickets carried signs
with the following legend
LOCAL 239 1 B. of T.
WANTS THE EMPLOYEES OF
STAN-JAY
452 LONG BEACH BOULEVARD, LONG BEACH
TO JOIN THEM TO GAIN UNION WAGES,
JOB SECURITY AND WORKING CONDITIONS,
AUTOMOTIVE PARTS AND SPECIALTY PRODUCTS.
DRIVERS, HELPERS, WAREHOUSEMEN, TEAMSTERS
210-01 NORTHERN BOULEVARD, L.I.
That was the only sign carried during approximately the first 2 months of the
picketing , except that on occasions beginning about the last week of October one or
more of the pickets intermittently carried a sign identical in wording to the one
described above save for the addition of the words "IS STINGY" after "STAN-JAY"
on the third line of the sign.
Sometime afterward a new sign made its appearance , with the following legend:
TO THE
PUBLIC
PLEASE BE ADVISED
STAN-JAY
AUTO PARTS
DOES NOT
EMPLOY MEMBERS OF, NOR HAS A
CONTRACT WITH ANY LABOR UNION
INCLUDING LOCAL 239, I.B. of T.
There is a dispute as to when that sign first appeared; also as to whether , after its
appearance , it was carried to the exclusion of all other signs Krieger testified that
the "To the Public" sign was substituted , originally in crayon form , later in printed
form , on November 13, 1959, the date Section 8(b)(7) of the Act became effective,
and that thereafter no other sign was carried by the pickets . Several witnesses for
the General Counsel testified , on the other hand , that the "To the Public" sign
did not appear until about the end of November or the first week of December,
and that even after its appearance there were one or more occasions when signs
earlier in use were carried concurrently with it On all the evidence , I am persuaded
and find , contrary to Krieger 's uncorroborated testimony , that the "To the Public"
sign was not substituted for the earlier signs until sometime after November 24.7
S McLeod v Local 2 99, International Brotherhood of Teamsters, etc (Stan-Jay Auto
Parts ), 179 F Supp 481 (D C , E N.Y ).
The record does not clearly show over what period the leaflets were distributed There
is no specific evidence that any leaflets appealing to the Company's employees to join the
Union were distributed after November 13 1959
7 1 was particularly impressed by the testimony of employee Joseph Morrison, who was
interviewed by the Board 's field examiner on November 24, 1959 Morrison testified that
in the course of the interview lie was asked to describe the sign the pickets were carrying,
and, to make sure, he went outside and copied the legend of the sign on a piece of paper.
The record Morrison made at the time was introduced in evidence ; it identifies the sign
first described above.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am not similarly persuaded, however, that the Respondent continued to use either
of the earlier signs after the "To the Public" sign was introduced. It is quite
evident that the "To the Public" sign was designed-I believe after the Respondent
received notice of the charge in Case No. 2-CP-7 8-to conform to the language
used in the second proviso to Section 8(b)(7)(C), and I think it unlikely that the
Respondent, having once revised its picketing signs in an effort to come within the
shelter of that proviso, would thereafter have reverted to the signs previously used.
The record reflects that after the "To the Public" signs were substituted for the
organizational signs, the Respondent did not wholly abandon its attempts to induce
the Company's employees to join. Thus, employee Joseph Morrison testified that
shortly before Christmas 1959, Krieger spoke to him at some length about the
advantages of joining the Union and promised to obtain for him an immediate
raise of $5 if he did so. Employee Theodore O'Neil corroborated Morrison's testi-
mony to that effect, and testified that he, too, was solicited by Krieger at that time
to support and join the Union.9 In early January Krieger told Morrison-as appears
from the latter's undenied testimony-that if the Company's employees signed up,
the Respondent would go around the corner and give an unorganized competitor of
the Company "a taste of the same medicine we gave you."
When the picketing began, the Respondent notified the Company's suppliers that
the Company was being picketed. So far as appears, that notice was never there-
after rescinded. No deliveries and no pickups were made across the picket line by
outside carriers or suppliers throughout the period of the picketing. On the few
occasions when outside carriers did make deliveries to the Company's premises,
it was done under cover of darkness after the pickets had left for the day. To
accommodate itself to the situation thus created, the Company adopted the pro-
cedure in many instances of sending its own trucks to the places of business of its
suppliers to pick up needed merchandise, which, but for the picketing, would have
been delivered by the suppliers to its premises. In other instances, the Company
made arrangements with shippers to have their drivers deliver consignments for
the Company at designated drop-off points where the Company would pick up the
consignments for transport to its premises in its own trucks.
The General Counsel adduced evidence of specific refusals by individuals in the
employ of persons other than the Company to cross the picket line to pick up or de-
liver merchandise. Thus, Michael Ciriego, the owner of a delivery service, and
Irving Cohen, the owner of one of the Company's regular suppliers, each testified
that shortly after the picketing began on September 21, 1959, their drivers reported
to them that they would not make deliveries across the picket line established
at the Company's premises. Two of the Company's employees-Theodore O'Neil
and Joseph Morrison-testified to a specific incident occurring on November 20,
1959, involving a shipment of mufflers and tailpipes from a Chicago manufacturer.
The driver of the trucking carrier who was to make the delivery telephoned the
Company's store from an outside point. He advised O'Neil that he would not
make delivery across the picket line, and that the Company would have to pick up
the merchandise from him at an outside point if it wanted delivery. Arrangements
were thereupon made with the driver to have the shipment transferred to one of
the Company's trucks at the place of business of a company customer. The remain-
ing incidents involving specific refusals by employees of other employers to make
required deliveries or pickups at the Company's premises all occurred in December
and January-after the date of the issuance of the complaint in Case No. 2-CP-7.
The record details some six separate incidents of that character during the 2 months
mentioned. Their occurrence is substantiated not only by the testimony of em-
ployees of the Company, but also, in the case of three such incidents, by the testi-
mony of the drivers involved, one of whom is a member of the Respondent and
the other two of sister Teamster locals.10
s The charge in that case was filed with the Board's Regional Office on November 23,
1959; it was mailed to the Respondent on November 25, 1959; and was received by the
Respondent on November 26 The complaint was served on December 1.
D Krieger admitted having conversations with the employees shortly before Christmas,
but denied that he spoke to them about joining the Union. According to Krieger, he
simply told them that if any circulars were distributed, it would be solely for the purpose
of informing the public that the Company was nonunion On the basis of my appraisal
of the credibility of the witnesses, I accept the testimony of Morrison and O'Neil, and
reject the denial of Krieger.
10 Two of the drivers testified that they refused to cross the picket line as a matter of
personal principle. The third, John Mitchell, who is a member of the Respondent, testified
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 969
D. Analysis and concluding findings
1. The issue of fact ; the picketing objectives
The threshold question is one of fact. The General Counsel contends that the
Respondent's primary picketing objective, both before and after November 13, 1959,
was recognition by the Company , with employee selection of the Respondent as a
dividend . The Respondent , on the other hand , insists that its picketing at no time
was designed to force the Company to recognize it. Until November 13, 1959,
it says, its picketing was solely for employee organizational purposes . On Novem-
ber 13, 1959, it claims the picketing ceased to have even that objective. Thereafter,
according to the Respondent, the picketing was conducted solely for the purpose of
informing the public that the Company was operating a nonunion establishment.
In Case No. 2-CB-2692 , it is essential to a finding of the Section 8 (b)(1)(A)
violation there alleged that a recognitional , as distinguished from an organizational,
objective be established. But it is enough to spell out that violation if it is shown
that the picketing was conducted with that objective at any time after September 21,
1959. In Case No 2-CP-7, it is not required for a finding of the Section 8(b) (7)
violation there alleged that a recognitional objective be proved; an organizational
objective alone would suffice to bring the picketing within the condemnation of that
section if other elements of the alleged violation are shown . But, because 8(b)(7)
did not become effective until November 13, 1959, the unlawful objective, whether
recognitional or organizational, or both, as well as all other elements necessary
to prove an unfair labor practice under that section , must be found to have been
present after the effective date.ii
There can be little doubt from the facts found above that the Respondent's picket-
ing of the Company prior to November 13, 1959, although conducted with organi-
zational signs , was primarily aimed at compelling immediate recognition and a
bargaining contract. An appropriate criterion for judging a union's picketing objec-
tive is to look to the action expected of the picketed employer as a condition for the
cessation of the picketing . ia For clear proof that recognition and a contract was
the quid pro quo expected of the Company in this case , it is necessary to refer only
to the demands made by Business Agent Krieger upon Jay at their meeting on
September 14; to the express threat voiced by Krieger at that time to picket the
Company if it did not "join up"; to the timing of the picketing in relationship to the
Company's rejection of the Respondent 's demands ; and to the "deal" Krieger offered
Marcote on the first day of the picketing-all as found above. The fact that the
Respondent also had an organizational purpose does not detract from the finding that
its primary objective was recognitional. Both objectives were enmeshed. The
evidence reflects that the Respondent intended by means of its picketing pressures,
not only to force the Company itself to accept the Respondent, but also to compel
the Company in turn to impose such pressures upon its employees as might be
required to assure their acceptance of the Respondent as well.
I think it is no less clear from the facts found that the Respondent 's picketing
objectives-both recognitional and organizational-continued beyond the effective
date of the 1959 amendments. Although the picketing proceeded without interrup-
tion past November 13, 1959, the Respondent never notified the Company, either
that it had withdrawn its previous demand for recognition, or that it was no longer
interested in having the Company's employees select the Respondent as their bar-
gaining representative. Nor is it necessary in this case to rely entirely upon a pre-
sumption of continuity to support a finding that the Respondent's original picketing
objectives spilled over into the postamendment period. There is also substantial
independent supporting evidence. Thus, on November 20, 1959-a full week after
8(b)(7) became effective-Business Agent Krieger proposed a "deal" under which
the Respondent would withdraw its picket line in consideration of the Company
recognizing the Respondent and entering into a union -shop agreement with it on a
modified basis. Moreover, the Respondent continued until at least November 24,
1959, to picket with organizational signs, thereby unmistakably revealing that the
that when he came to the picket line, he saw Krieger who told him that it was up to him
whether he went in or not. Mitchell further testified that he did not make the delivery
because his boss had told him not to do so if picketing was still going on
n Section 707. Labor-Management Reporting and Disclosure Act of 1959.
'a See General Ore, Inc, 120 NLRB 172, and the reference therein to section 777 of the
Restatement of Law of Torts which defines an "object " of concerted action by employees
as "an act required in good faith by them of the employer as the condition of their volun-
tarily ceasing their concerted action against him "
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's organizational objectives , at the very least, survived the amendment
date.
It is true that shortly after November 24, 1959, the Respondent substituted new
signs , public informational in form But the change of signs , while a factor to be
considered , does not alone prove a change of purpose . 13 It is still necessary to
examine all other surrounding circumstances to determine whether the Respondent's
original picketing objectives in truth still remained the same or were abandoned.
Here , the evidence shows, notwithstanding Krieger's self-serving declaration to the
contrary that the Respondent did not in fact abandon its organizational efforts.
Nor did it give notice to the Company of withdrawal of its earlier demand for
recognition imposed as a condition for the cessation of picketing Moreover, the
revised sign , though in form addressed to the public rather than to the employees as
before, left little doubt that there was no actual change in the Respondent 's picketing
objectives . The legend on the revised sign advertised a grievance against the Com-
pany because it did not employ members of or have a contract with the Respondent.
The Respondent 's own stated explanation for the picketing thus clearly implied a
continued organizational and recognitional objective . (See Getreu v. Bartenders,
etc., Local 58 , etc. (Fowler Hotel, Inc.),181 F. Supp . 738; McLeod v. Chefs, etc.,
Local 89, et al. (Stork Restaurant, Inc ), 181 F. Supp . 742).14 The Respondent at
the hearing was unable plausibly to account for the picketing on any other basis.15
Krieger was asked at the hearing whether the Respondent would have removed the
picket line if the Company had agreed to recognize the Respondent and to see to it
that its employees became members of the Respondent . Krieger replied equivocally
that the Respondent "would have crossed that bridge when [ it] came to it." But
I am nevertheless persuaded from all the circumstances here present that that was
the only thing the Company could have done to eliminate the picketing , and the only
thing the Respondent expected of it. Applying the criterion for the determination
of picketing objectives earlier stated , I am satisfied that the picketing , after the change
of signs as well as before , was conducted with recognitional and organizational
objectives . I so find.
2. Concluding findings in Case No. 2-CB-2692
The resolution of the issue of fact made above determines decision in Case No.
2-CB-2692. It is conceded that the Respondent at no time represented any em-
ployees of the Respondent . Having found that the Respondent nevertheless picketed
the Company with an object of forcing and requiring the Company to recognize and
bargain with the Respondent as the collective-bargaining agent of its employees,
it follows that a Section 8 ( b) (1) (A) violation has been established under the Board's
Curtis Brothers doctrine . 16 The Respondent concedes that , with a recognition
objective found , this case is not distinguishable in principle from Curtis . Although
the Respondent attacks the validity of the Curtis Brothers doctrine as a proper ex-
pression of the law , it acknowledges that as a mater of administrative stare decisis,
Curtis is binding on me unless and until it is overruled by the United States Supreme
Court where that case is now lodged awaiting decision . As an additional defense,
the Respondent contends that the Curtis Brothers doctrine may no longer be re-
" Valley Knitting Mills, [tie, 126 NLRB 441.
?4I am snare that the legend of the sign was drafted in the language of the second
proviso to Section 8(b) (7) (C) Whether informational picketing that also has an organi-
zational or recognitional objective may claim the sanctuary of that proviso if the pro-
viso ' s conditions are otherwise met, presents an entirely separate question that I do not
consider now but reserve for discussion in a later subsection of this analysis
15 When questioned on this point, Krieger stated at first that the only purpose of the
picketing after the change of signs was to "educate the public" that the Company was
nonunion ; at a later point lie testified that the picketing was designed to divert business
from the Company to organized shops In the circumstances of this case, however, I do
not believe that the Respondent considered public education as an end in itself , or diver-
sion of the Company's business as other than a means to some other end As found above,
even after the change in signs Krieger declared that if the employees came over to the
Union , the Respondent would withdraw its picket line and give an unorganized com-
petitor of the Respondent, who had not been picketed , "a taste of the same medicine."
Significantly , too, Krieger denied that the Respondent wanted to put the Company out of
business so as to eliminate it as a source of "unfair competition " in the trade
16 Curtis Brothers , Inc, 119 NLRB 232, set aside , sub nom. Drivers , etc, Local
Union No 639 etc ( Cur its Brothers , Inc ) v N L . R B , 274 F 2d 551 (C A , D C ), cert.
granted 359 US 965 See, also, Alloy Manufacturing Company, etc, 119 NLRB 307,
enfd. in part , 263 F 2d 796 (CA 9).
LOCAL 239, INT"L BROTHERHOOD OF TEAMSTERS, ETC. 971
garded as applicable law, having been superseded by Section 8(b)(7) which the
Respondent submits was intended by Congress to lay down the exclusive standards
for regulating organizational and recognitional picketing. But a like contention has
already been considered and rejected by the Board in the Sierra Furniture Company
case, 125 NLRB 159. Accordingly, I conclude and find, on the authority and
rationale of the Curtis Brothers doctrine, that, by picketing the Company's premises
on and after September 21, 1959, the Respondent restrained and coerced the Com-
pany's employees in the exercise of the rights guaranteed in Section 7, thereby engag-
ing in conduct violative of Section 8(b)(1)(A) of the Act.
3. Analysis of the Respondent's contentions and concluding findings in Case
No. 2-CP-7
Case No. 2-CP-7 alleges a Section 8(b)(7)(C) violation.17 The Respondent's
primary contention is that its picketing did not have an organizational or recogni-
tional objective after November 13, 1959, the date 8(b)(7) became effective. The
factual issue which the Respondent raises has already been resolved adversely to it.
In addition to that contention, the Respondent makes a number of others which to
some extent at least involve questions of statutory interpretation. In broad outline
they are-(a) that peaceful picketing of the kind the Respondent engaged in here
does not come within the ban of Section 8(b) (7) even if designed to induce employer
recognition or employee organization; (b) that the reasonable period of time during
which Section 8(b)(7) allows recognitional or organizational picketing to be con-
ducted without the filing of a 9(c) petition may be measured in this case only from
November 13, 1959, the effective date of 8(b)(7), to November 30, 1959, the date
the complaint was issued, and not beyond it at either pole, and that, based on that
measurement, the complaint must be dismissed for want of proof that at the time of
its issuance the picketing had extended beyond the reasonable period the statute
allows; and (c) that the picketing conducted by the Respondent, even if aimed at
achieving recognition and employee organization, was nevertheless sheltered from
the reach of Section 8(b) (7) (C) by virtue of the second proviso to that section.
The issues raised by the aforesaid contentions will be considered below in the order
indicated
a. "Forcing or requiring"
I consider first the Respondent's contention that Section 8(b) (7) is not to be con-
strued as reaching peaceful picketing advertising that an employer is nonunion. To
support its contention, the Respondent points to the language of Section 8(b)(7)
that restricts its application to picketing which has an object of "forcing or requiring"
recognition by an employer or acceptance or selection by employees. Placing stress
on the italicized phrase, the Respondent argues that since "forcing or requiring" are
words of compulsion, Congress could not have intended a blanket prohibition of
Section 8(b) (7) (C) reads as follows .
(b) It shall be an unfair labor practice for a labor organization or its agents-
( x * * * *
(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 em-
ployer to recognize or bargain with a labor organization as the representative of
his employees, or forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining representative,
unless such labor organization is currently certified as the representative of such
employees
s * * * * *
(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 clays from the commencement of such picketing Provided, That when
inch a petition has been filed the Board shall forthwith, without regard to
the prosisions of section 9(c)(1) or the absence of a showing of a sub-
stantial interest on the part of the labor organization, direct an election
in such unit as the Board finds to be appropriate and shall certify the re-
sults thereof Provided farther, That nothing in this subparagraph (C)
shall be construed to prohibit any picketing or other publicity for the pur-
pose of truthfully advising the public (including consumers) that an em-
ployer 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.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all types of picketing , but only of picketing that employs coercive methods, for
example, the use of physical force or threats of force, violence , the blocking of
ingress to plant premises , or the like.
It is quite obvious , however, that the Respondent 's argument proceeds from a
mistaken and distorted reading of 8(b) (7). The section does not say that the picket-
ing to which it refers must itself directly force or require , only that an "object
thereof" be the "forcing or requiring" of employer recognition or employee accept-
ance. The "object" of an action does not have reference to the quality of the means
employed , but to "the concluding state of things that the actor seeks to bring
about. " 18 It is well recognized that picketing , although conducted in a noncoercive
manner, exerts influences and induces consequences which in turn may be coercive.is
There may perhaps be cases of recognitional or organizational picketing where the
picketing is conducted under conditions not likely to produce consequences having
a coercive impact upon the picketed employer and where a finding therefore may
not be justified that an object thereof was "forcing or requiring." But this is not such
a case. It is clear that the picketing here was deliberately designed to induce cus-
tomers not to buy and employees of suppliers not to deliver across the picket line,
and by means of such picketing effects, to impose coercive pressure directly upon
the Company sand indirectly upon its employees to cause them to capitulate to the
Respondent 's demands . In these circumstances , it cannot successfully be maintained
that the picketing did not come within the "forcing and requiring" condemnation of
Section 8 (b)(7), or that it was protected as an exercise of free speech.20
b. "Reasonable period of time"
Section 8 ( b)(7) allows an uncertified union , except under circumstances spe-
cifically defined in its Subsections (A) and (B), to engage in recognitional or
organizational picketing without filing a representation petition for a "reasonable
period of time not to exceed 30 days from the commencement of the picketing."
The General Counsel and the Respondent are agreed that the Congressional intent
was to provide a union a reasonable opportunity through picketing appeals to obtain
sufficient adherents to warrant recognition or, if it represents a majority of the
employees , to secure recognition . The section does not spell out specific standards
for the measurement of a "reasonable period." For purposes of decision here it is
assumed that the maximum period will normally also be regarded as the minimum,
absent unusual circumstances or other compelling reasons justifying reduction.
The picketing here was conducted for about 45 days before November 13, 1959,
when Section 8 ( b) (7) became effective, and continued without interruption into the
postamendment period for 17 days until the issuance of the complaint on November
30, 1959, and thereafter for an additional 46 days, all without the filing of a 9(c)
petition . The Respondent contends that , in computing the allowable reasonable
period, only the 17 days that elapsed between the effective day of 8(b) (7) and the
date of the issuance of the complaint may properly be counted . Its picketing prior
to November 13, 1959, the Respondent asserts, may not be considered because there
was then no statutory restriction on its right to picket for an unlimited time. Pointing
to Section 707 of the 1959 amendments ,21 the Respondent argues that it would
violate the spirit, at least , of that saving provision if any weight is given to the
picketing before November 13, 1959. Nor, says the Respondent , may its picketing
in the postcomplaint period be considered. The Respondent contends that if a
complaint is to be sustained it must allege an already matured unfair labor practice,
not one that is only potential at the time of its issuance, and the General Counsel
may not therefore in law or in good conscience rely on events thereafter occurring
to make out a violation where there was none before.22
18Douds v. International Longshoremen's Association, Independent, et at. (New York
Shipping Association), 224 F 2d 445, 4.i9 (CA 2). See also, LB E 1V , Local 501,
et at v . N L.R B , 341 U S 694
19 Bakery and Pastry Drivers, Local 802, ct at. v Wohl, 315 U S. 769; Hughes et at. v.
Superior Court of California for Contra Costa County, 339 U S. 460, 465, 468; Inter-
national Brotherhood of Teamsters, etc, Local 695 v. Voght, 354 US 284 See, also,
Curtis Brothers, Inc, 119 NLRB 232
2'See, International Brotherhood of Teamsters, etc, Local 695 v Voght, supra,
Building Service Employees International Union Local 262, et at v. Cazzam, 339 U S. 532
21 " . . no provision of this title shall be deemed to make an unfair labor practice, any
act which is performed prior to such effective date which did not constitute an unfair
labor practice prior thereto."
22 The Respondent's contention that postcomplaint occurrences are outside the purview
of this proceeding is not confined to the particular issue here under consideration, but
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 973
As applied to the particular situation here, I find no merit to the Respondent's
contentions on either count. Under 8(b)(7)(C), it is the picketing, not the failure
to file the 9(c) petition, that is made the unfair labor practice. Section 707 is not
involved, for a finding in this case that the Respondent's picketing after November
13, 1959, was violative of 8(b)(7)(C) does not rest upon a subsidiary finding that
any action or inaction on its part prior to that date was unlawful. Even if the
computation period here were limited to the 17 days asserted by the Respondent, a
finding that this constituted a reasonable period of time within the intent of Section
8(b)(7)(C) would be justified. In determining reasonableness, the earlier 45 days
of picketing the Respondent enjoyed is at least a relevant special circumstance.
Bearing in mind the statutory purpose to which the allowable reasonable period is
tied, there can be little doubt that the 17 days of added picketing on top of the 45
previously enjoyed more than satisfied the prima facie standard of reasonableness
contemplated by Congress.
In any event, I am unable to agree with the Respondent that occurrences after
the issuance of the complaint must be excluded from consideration. Though the
Respondent argues to the contrary, I find nothing in the statute or in the Board's
rules and Regulations that requires the Board to confine its consideration of a
complaint to facts already in existence at the time of its issuance. Indeed, Section
10(b) of the Act which allows a complaint to be amended "at any time prior to the
issuance of an order based thereon" clearly suggests that Congress meant to leave
the Board free to deal appropriately with continuing unfair labor practices while a
proceeding was still pending before it. No amendment was necessary in this case,
for the postcomplaint events dealt directly and specifically with the same unfair labor
practice that was alleged and as to which the Respondent was already on notice.
The postcomplaint matter here in question did not enlarge upon the complaint, but
simply evidenced a prolongation of the specific course of conduct attacked in the
complaint as a continuing unfair labor practice. What the Supreme Court stated in
N.L.R.B. v. Fant Milling Company, 360 U.S. 301, with regard to postcharge occur-
rences has equal applicability, I believe, to postcomplaint occurrences that are tied to
alleged unfair labor practices. A complaint, no more than a charge,
is not to be measured by the standards applicable to a pleading in a private
lawsuit. . . . To confine the Board in its inquiry . would reduce the
statutory machinery to a vehicle for the vindication of private rights. This
would be alien to the basic purpose of the Act. The Board was created not to
adjudicate private controversies but to advance the public interest in eliminating
obstructions to interstate commerce. . . . Once its jurisdiction is invoked, the
Board must be left free to make full inquiry . . . in order properly to discharge
the duty of protecting public rights which Congress has imposed in it.
Of course, this does not mean that the requirements of due process may be avoided.
But due process is not involved here, for the Respondent had already been put on
notice by the complaint of the specific charges against it, and, as earlier noted, the
evidence as to subsequent events did not enlarge upon but simply went to the proof
of the issues already joined. Nor would it matter, even if true, that without evidence
of events occurring after the complaint's issuance, the unfair labor practice allega-
tions of the complaint might not have been adequately supported. The Board should
of course be alert to guard against a wilful abuse of its process. But this can scarcely
be classified as a case of abuse. Whether or not an unfair labor practice had already
fully matured at the time of the issuance of the complaint, there is no reason to
doubt that the General Counsel had at least a rational basis for believing that it had,
and that the complaint was issued in good faith on the basis of that belief.
For the reasons stated, I overrule the Respondent's contention that occurrences
after November 30, 1959, are outside the purview of this complaint. With the
Respondent 's picketing after that date taken into account, there can be no possible
doubt that the picketing was conducted for more than a reasonable time.
c. The second proviso
The Respondent contends that its picketing, at least after it changed its signs,
was informational in character, and therefore immunized from the reach of Section
8(b) (7) (C) by virtue of the second proviso thereof. With that contention, the
General Counsel takes issue. He argues that once it has been proved-as it has
been here-that the picketing has as "an object thereof" recognition or employee
extends to all issues of the case. As noted in the statement of the case, above, it was
made the basis of a motion to strike all evidence relating to acts or activities occurring
after November 30, 1959.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selection, a violation has been made out, and it is immaterial that the picketing may
also have had an informational purpose Moreover, he submits, even if the second
proviso were otherwise applicable, its conditions have not met, since the picketing
had the effects of inducing individuals employed by others to refuse making deliveries
or pickups across the picket line. In reply to the last point, the Respondent asserts
that the specific refusals that were proved occurred after the issuance of the com-
plaint and therefore may not properly be considered; moreover, that it cannot be held
responsible for such effects, absent specific evidence that it instigated them.
I am far from persuaded that the General Counsel is correct in his construction
of the second proviso as applicable only to such informational picketing as does
not also have an organizational or recognitional objective Adoption of that con-
struction would have the practical effect of making the second proviso "entirely
meaningless." 23 It is a basic principle of statutory construction 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 Con-
struction, 3d ed. §§ 4705). Section 8(b) (7) (C), fairly read, permits a logical concord
between the proviso and the balance of the section. The term "puipose" as used in
the proviso appears to carry a meaning different from "object" as elsewhere used in
8(b) (7) "Object" has reference to the ultimate result, the final goal, the end sought
to be achieved by the picketing-1 e., recognition, employee acceptance. "Purpose,"
in the context of the proviso, suggests an intermediate aim, having as its target the
direct effects sought to be induced by the picketing. Thus, the reference in the
proviso is to picketing directed at (having the purpose of) enlisting public and con-
sumer support, as distinguished, for example, from picketing directed at, or having
the effect of, inducing disruptions of business operations by stopping the flow of
deliveries and the like It would appear from a reading of the entire section 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 fiom 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 organizational picketing that simply
advertises a union's grievance and appeals for public and consumer support, but
outlawing, subject to the "reasonable period" provisions, other forms of organiza-
tional picketing appeals that are calculated to achieve consequences of a more com-
pulsive or disruptive character. That this was the intent of Congress is confirmed
by Congress' unwillingness to extend the proviso exception to organizational or
recognitional picketing in the contract bar and 12-month election contexts that are
covered by subsections (A) and (B) of 8(b) (7)-contexts in which Congress pre-
sumably believed a noncertified union had no justifiable interest to engage in picket-
ing of any type for the stated objectives. Legislative history supports the view that
Congress, while recognizing that picketing for the "purpose" referred to in the
proviso has an organizational objective, nevertheless intended through the proviso
to remove such picketing from the reach of 8(b)(7)(C) so long as there was no
stopping of deliveries or related services 24
av Getreu v. Bartenders, etc , Local 58, etc. (Fowler Hotel, Inc ), 181 F Supp 738
(D C , No Ind ) For, as Judge Swygert explained .
It is difficult if not impossible to imagine any kind of informational picketing per-
taining to an employer's failure or refusal to employ union members or to have a
collective bargaining contract where another object of such picketing would not be
ultimate union recognition.
Accord McLeod v Chefs etc. Local 89, et at. (Stork Restaurant, Inc ), 181 F. Stipp.
742 (D C., So NY.).
24 Subsection (C) of 8(b) (7) was added in conference. The Senate conferences ex-
plained the scope of the second proviso as follows (105 Daily Congressional Record
15907, August 28, 1959)
. . . the picketing would be permitted to continue without a petition if it appealed
only to the employees to join the union or the public not to patronize without cans-
Tng truckers or the employees of other employers not to cross the picket line.
i M * 4 k y E
2 Nothing should be done to stop picketing in the absence of a contract or an
election, which has only the effect of notifying the public of nonunion conditions and
asking the employees to join the union.
See, also, remarks of Senator Kennedy, 105 Daily Congressional Record 16413 (Septeni-
her 3, 1959) ; statement of Representative Griffin, Daily Congressional Record A7915
(September 10, 1959).
LOCAL 239, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 975
Decision in this case, however, does not turn on the meaning of the proviso.
Whether or not the General Counsel is correct in his interpretation, the proviso
cannot aid the Respondent on the facts of this case. As found above, the
Respondent, before the picketing began, warned the Company that if its de-
mands were not accepted, it would set up a picket line to stop deliveries to
the Company's premises. Moreover, at the outset of the picketing, the Respondent
notified the Company's suppliers and others who normally made deliveries to the
Company's precises that the Company was being picketed, and the Respondent
never thereafter rescinded that notice. The picketing in fact resulted in a virtually
complete cessation of deliveries across the picket line throughout the entire period
of the picketing It is generally known, and of this there is also specific evidence
in this record, that truckdnvers who are members of the Teamsters are reluctant
to cross a picket line, particularly one established, as in this case, by a Teamsters
local From these facts alone an inference is warranted that the picketing here was
not only for the purpose of advising the public and the consumer that the Company
was nonunion, but was also for the purpose, not privileged by the proviso, of dis-
rupting the Company's business operations by shutting off the delivery of supplies.
Even apart from that consideration, however, it is clear that the Respondent cannot
find sanctuary in the second proviso because the proof shows that the picketing had
the actual effect of inducing individuals employed by others not to pick up or deliver
goods across the picket line. I reject, for reasons earlier stated, the Respondent's
contention that the evidence of actual refusals to cross the picket line occurring
after the date of the issuance of the complaint may not be considered,25 and I find
on all the evidence, oppositely to the Respondent's assertion that the picketing not
only had an effect, but a substantial effect, of inducing sympathetic action by em-
ployees of other employers. Finally, I overrule the Respondent's contention that
it may not be found responsible for refusals of employees not under its control to
cross the picket line, absent direct evidence that it instigated such action. On
all record, I am satisfied that the Respondent intended, or at least could reasonably
have anticipated, that its picketing would evoke precisely such employee responses,
particularly from truckdrivers who were members of sister locals. The Respondent
must be held accountable for the reasonably foreseeable consequences of its own
conduct.
d. Concluding finding
I conclude and find that the General Counsel has fully sustained the allegations
of his complaint in Case No. 2-CP-7.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Company as set forth 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,
I shall recommend that it cease and desist therefrom and take certain affirmative
action that I find necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Stan-Jay Auto Parts and Accessories Corporation, Long Beach, New York,
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 239, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the meaning of Section
2(5) of the Act.
3. By picketing the aforesaid Company from September 21, 1959, to January 15,
1960, with an object of forcing and requiring the Company to recognize and bargain
collectively with the Respondent, notwithstanding that the Respondent did not repre-
sent a majority of employees in a unit appropriate for such purposes, the Respondent
restrained and coerced the Company's employees in the exercise of their rights
it is noted, however, that proof was made of one such specific incident during the
period between November 13, 1959, and the date of the complaint's issuance
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices
within the meaning of Section 8(b) (1) (A) of the Act.
4. By picketing the Company from November 13, 1959, to January 15, 1960,
with an object of forcing and requiring the Company to recognize and bargain with
the Respondent as the collective-bargaining representative of the Company's em-
ployees and forcing and requiring employees of the Company to accept and select the
Respondent as their bargaining representative, although more than a reasonable
period elapsed after November 13, 1959, without a petition under Section 9(c) of
the Act being filed, the Respondent engaged in unfair labor practices within the
meaning of Section 8 (b) (7) (C) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Loew's Inc., Petitioner and Office Employees International
Union, Local No. 174, AFL-CIO. Case No. 21-RM-593. June 2,
1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Norman A. Greer, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer-Petitioner is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the meaning of the
Act.
3. Since 1946 the Employer has voluntarily recognized the Union
as the collective-bargaining representative for all of its office em-
ployees within the confines of its studios at Culver City, California,
and has had continuing contractual relationships with the Union
covering "office, clerical, and accounting employees, office and tabulat-
ing machine operators. . . ." These office employees were scattered
throughout all factory and office departments, including the account-
ing and tabulating departments and other finance departments. The
only office employees who were excluded were a secretary, managerial
and professional employees, and supervisors. Beginning with 1957,
the Employer gradually replaced some of the manual tabulating op-
erations performed by office and tabulating machine operators within
the bargaining unit by a Remington Rand computer and then later
by an IBM 650 computer. It also delegated and split up duties which
had in the past been performed by managerial employees in the finance
127 NLRB No. 134.