Local Joint Executive Board Hotel Employees, Etc.

National Labor Relations Board - Board Decisions

Feb 20, 1962

135 N.L.R.B. 1183 (N.L.R.B. 1962)

LOCAL JOINT EXECUTIVE BOARD HOTEL EMPLOYEES, ETC. 1183
We question, moreover, the applicability of this further exception
to the facts in this case. The effective date of the repeal of Section
9(f), (g), and (h) was September 14, 1959. Consequently, at any
time on or after September 14, Respondents could have filed a timely
charge with respect to any alleged unfair labor practice occurring
not more than 6 months before the filing of such charge; thus it was
possible for them to have filed a timely charge with respect to events
occurring on and after March 14, 1959. It is true that the Company
initially refused to bargain and discharged its union-member em-
ployees before that date., Respondents, however, continued to picket
on and after that date, at least in part for the 'purpose of obtaining
recognition, and Respondents would appear to have represented a
majority of the Companys' employees at least until that time in April
when the discharged employees were offered and declined reinstate-
ment. There was, therefore, a predicate at least -until sometime in
October 1959 for the filing of an 8(a) (5) charge with respect to the
Company's failure to bargain for the period starting March 14, and
continuing until the reinstatement offer was rejected in April; be-
cause Respondents failed to file such a charge, the Board was pre-
cluded from determining its merit in an appropriate proceeding.
There is accordingly no valid basis for our colleagues' acceptance of
Respondents' further argument that the filing of an 8(a) (5) charge
was barred by Section 10(b) °
4 With respect to the necessary element of an 8(a ) ( 5) violation , the picketing on and
after March 14 appears as a continuing demand for recognition ; further a timely 8(a) (3)
charge had been filed alleging that the discharge of the Company 's union-member em-
ployees violated the Act, thus preserving the issue of Respondents ' majority status.
Accordingly , as a finding of violation could thus have rested on facts occurring within
6 months of September 14, 1959 , Local Lodge No. 142 4, International Association of
Machinists, AFL-CIO, et at v. N L.R .B. (Bryan Manufacturing Co.), 362 U.S. 411, would
not in our opinion have precluded Respondents from filing a timely 8 ( a) (5) charge.
Because of these considerations , this case is unlike the Pennwoven and Childs cases
cited by our colleagues . For in each of those cases , all the events which in the courts'
.views could have supported a finding of violation occurred outside the 10(b) period;
and in the refusal -to-bargain situation postulated by the court in Pennwoven, unlike
the situation here, there was no evidence of any new demand or refusal during the 10(b)
period , or even that the hypothetical union had a majority during that period.
Local Joint Executive Board of Hotel and Restaurant Employees
and Bartenders International Union of Long Beach and
Orange County; Culinary Alliance Local No. 681 [Leonard
Smitley and Joseph W . Drown d/b/a Crown Cafeteria, a C-'
partnership ] and Peter W. Irwin . Case No. d1-CP-4. Febru-
ary 20, 1962
SUPPLEMENTAL DECISION AND ORDER
On February 20, 1961, the Board ( Members Jenkins and Fanning
dissenting ) issued a Decision and Order in this case finding that Re-
135 NLRR No. 124.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Unions had engaged in violations of Section 8 (b) (7) (C) of
the Act.' Thereafter, on or about April 10, 1961, Respondent Unions
filed a motion for reconsideration and General Counsel filed a motion
for clarification. The Charging Parties filed an opposition to motion
for reconsideration.
The Board has considered the motion for reconsideration, the oppo-
sition thereto, the General Counsel's motion for clarification, and the
'entire record in the case,' and hereby grants the motions for recon-
sideration and clarification.
1. For reasons indicated in our Supplemental Decision and Order
in International Hod Carriers, etc. (Charles A. Blinne,'d/b/a C. A.
Blinne Construction Company), 135 NLRB 1153, issued this day,
'we believe reconsideration is appropriate here. This is particularly
true in the instant case where General Counsel, the-prevailing party
in the case, deems a motion for clarification appropriate. As'General
Counsel stated in his motion for clarification :
The Decision and Order contains the Board's first direct inter-
pretation concerning the scope and applicability of the second
proviso to Section 8(b) (7) (C) of the Act. In view of its broad
significance in the administration of the Act, it is important and
desirable that the Board's position be explicit and readily ascer-
tainable by the many parties and persons affected by the Board's
interpretation.
2. Because the facts and the issues in this case are clearly delineated
in the majority and minority opinions heretofore rendered, we be-
lieve it would be profitless to restate them here. After careful study
of the two opinions, and in the light of our further reappraisal of
the statutory scheme, set forth in greater detail in our Supplemental
Decision and Order in Blinne, supra, we now conclude that the dis-
senting opinion more accurately reflects the congressional intent.
Accordingly, we adopt the dissenting opinion in the first decision.
3. We note, however, that in the new dissenting -opinion attached
hereto, our colleagues espouse what appears to be a different position
from that which they expounded in their original decision herein.
On that occasion they concluded that the "publicity" proviso im-
munized picketing only "where the sole object is dissemination'of in-
formation divorced from a present object of recognition" (130 NLRB
at 573).
1 130 NLRB 570
2 Chairman McCulloch and Member Brown have read and considered the transcript of
oral argument which preceded the issuance of the February 20 Decision and Order.
LOCAL JOINT EXECUTIVE BOARD HOTEL EMPLOYEES, ETC. 1185
This narrow interpretation made the proviso a contradiction in
terms, -for the express words of the proviso' make it clear that the
proviso applies where organization, recognition, or bargaining is an
object. Thus, "does not employ members of" clearly imports a pres-
ent object of organization, and "[does not] have a contract with"
just as clearly implies a recognition and bargaining object.
Departing from the illogic of their first construction, therefore,
our colleagues now argue that the proviso saves picketing only if
"there is no independent evidence of either a recognition or organiza-
tional object" (and there is, of course, an absence of stoppages). But
this new construction likewise imports into the statutory language
a criterion with no foundation in the text, no basis in the legislative
history, and no correlation with the legislative remedies devised to
meet the actual problems presented. Thus, in effect, our colleagues
would read Congress as having said to the unions, "Only if you are
not trying to organize, to secure recognition, or to get a contract, can
you picket for the purpose of telling the public that the employer
won't grant these objectives." 4 Or, they would read Congress as say-
ing, "You can picket only where the picketing does not coincide with
any other union activity for recognition, bargaining, or organization."
Surely, we cannot assume that Congress, out of its hard-wrought
legislative compromise, emerged with nothing more than such a sterile,
untimely, and unrealistic license to carry on a traditional means of
enlisting public sympathy.
The new basis for a narrow construction of the proviso is as uncon-
vincing to us as the old.'
8 The proviso under consideration reads as follows:
Provided further, That nothing in this subparagraph ( C) shall be construed to pro-
hibit any picketing or other publicity for the purpose of truthfully advising the
public ( including consumers ) that an employer does not employ members of , or have
a contract with, a labor organization , unless an effect of such picketing is to induce
any individual - employed by any other person in the course of his employment, not
to pick up , deliver or transport any goods or not to perform any services.
'The dissenting opinion of our colleagues appears to suggest that picketing cannot be
for "the purpose of truthfully advising the public" if subsumed in that activity is "an
object" of recognition , bargaining, or organization . We perceive no Inconsistency and
the text of Section 8(b) (7) (C ) makes it obvious in our view that Congress perceived
none. We might note in passing , however, that while proviso picketing precludes the
holding of an expedited election, nevertheless , if the proviso picketing is for recognition
or bargaining, as distinguished from organization , a routine 9 ( c) representation petition
would , if other necessary preconditions were satisfied , be entertained.
O Footnote 8 to the dissenting opinion herein states, -
Our colleagues ' apparent belief that so-called informational picketing is not at all
within the scope of Section 8(b)(7) implies that Congress used the device of a
proviso to exempt from a general prohibition conduct which was not in any event
subject to the general prohibition.
We do not understand the import of this footnote . As already noted , we had read our
colleagues ' earlier construction of the "publicity " proviso as creating a wholly new un-
634449-62-v ol . 135-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, on the grounds set forth in the original dissenting
opinion and for the additional reasons set forth herein,' we direct
dismissal of the complaint.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting:
We adhere to the views expressed in the original majority opinion
in this case and, for the reasons set forth in our dissenting opinion
to the Supplemental Opinion in the Blinne case, we would not have
granted the motions for reconsideration and clarification. However,
as our colleagues, by adopting the original dissenting opinion, are,
we believe, converting what Congress intended as a narrow exception
into a broad license, we deem it necessary to reiterate our views'' as
to the place and function of the so-called publicity proviso. in. the,
statutory scheme.
The facts here are not disputed. Union representatives in April
'and May 1959 sought recognition from Crown, asking it to operate
its cafeteria by hiring its employees through the union hiring hall
and signing the standard union contract. Crown refused to do so.
Beginning on May 5, 1959, the Respondents picketed the public en-
trance of Crown's cafeteria, with signs addressed to "members . of
organized -labor and their friends," -stating that! the: cafeteria was
"nonunion," and asking them not to patronize the cafeteria. This
picketing continued without the filing of a petition for more than a
reasonable period of time after November 13, 1959, the effective date
of Section 8(b) (7) (C). As found by the Trial Examiner, recogni-
tion continued to be Respondents' object throughout the picketing.
The issue is the effect to be given to the "publicity proviso" where,
as here, the evidence (wholly apart from the language of the picket
signs which comports to the proviso) establishes that an object of the
picketing was immediate recognition or organization; and where, as
here, the picketing has not had the proscribed effect of interfering
with deliveries or services.
In resolving that issue, we note that Congress did not say that
picketing which conforms to the language of the proviso is not picket-
ing for an object of recognition or organization. Instead, by means
of a proviso it exempted such so-called informational picketing from
fair labor practice, i .e , that picketing "divorced from a present object of recognition" also
fell under the 8 ( b) (7) (C) ban if it was attended by a disruption of deliveries or services
Our own view was and is, simply, that informational picketing , divorced from any object
of recognition , bargaining , or organization , falls outside the literal scope of Section
8(b) (7) altogether.
6 See also the able analysis of this issue by District Judge Wright , in John , F. LeBus,
Reg. Dir V Building & Construction Trades Council of New Orleans & Vicinity, AFL-
CIO, et at. ( Houston Contracting Co.), 199 F. Supp. 628 (D . CE.La.).
7 Contrary to our colleagues' impression, we are here merely expanding the views we
expressed in our prior opinion in this case.
LOCAL JOINT EXECUTIVE BOARD HOTEL EMPLOYEES, ETC. 1187
a general prohibition applicable to all recognition or organization
picketing. This very structure of the statutory language makes clear
that Congress recognized that when a union pickets to advise the
public that an employer does not employ members of, or have a con-
tract with, a -labor organization, recognition or organization; is neces-
sarily an object of that so-called informational picketing. This view
is further reinforced, as we stated originally, by the fact that Con-
gress withdrew the exemption applicable to publicity picketing within
the purview of the proviso when such picketing had the proscribed
effect on deliveries or services."
As to the extent of the publicity exception to the general band, it is
most significant in our opinion that in order to bring picketing within
the purview of Section 8(b) (7), recognition or organization need
only be an object, whereas to bring picketing within the exception
created by'the' proviso; it must be for the purpose of advising the,'
public concerning certain specific matters. Thus, in view of the
limited scope of the publicity proviso to Section 8(b) (7), we believe
Congress intended that so-called informational picketing may be con-
ducted only when there is no independent evidence of an unlawful
object and where such picketing does not have the effect of inducing
a work stoppage. Therefore, in a case where there is no independent
evidence of either a recognition or organizational object, and the
language of the picket signs comports with the terms' of the proviso,
such picketing is privileged in the absence of stoppages. But if an
effect of such picketing is to induce a work stoppage, or if there is
•other evidence that the union is seeking to organize the employees or
achieve recognition, then the picketing is broader than the limited
.purpose permitted by the proviso, and the protection afforded by the
proviso is lost.
This interpretation, in our opinion, gives full effect to all relevant
provisions of the statute and the intent of Congress. It permits
picketing for the limited purpose of advising the public, but bars
picketing for a broader purpose. The majority, on the other hand,
places exclusive reliance on the union's utilization of second proviso
signs-ignoring other probative and rebutting evidence-thereby, pro-
tecting picketing where such other evidence clearly establishes that
"the purpose" of the picketing is not really to advise the public. Our
colleagues thereby exalt form over substance and afford picketing
unions a ready device for avoiding the Act. Congress did not intend
that its carefully drawn limitation on recognition and organizational
picketing be so easily circumvented.
8 Our colleagues' apparent belief that so-called informational picketing is not at all
within the scope of Section 8(b)(7) implies that Congress used the device of a proviso
to exempt from a general prohibition conduct which was not in any event subject to the
general prohibition.
11 SS DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying this rationale to the undisputed facts of this case, we are
still convinced that the General Counsel has proved that Respondents
violated Section 8(b) (7) (C) of the Act. For here it is clear that
Respondents repeatedly requested recognition of Crown. Having
made such demands, their belated attempt to appeal to "organized
labor" in their picket signs cannot be allowed to obscure the obvious
purpose of their picketing-recognition or organization. There is
here, therefore, independent evidence of an unlawful object within the
meaning of Section 8 (b) (7) (C), and, for this reason, we see no reason
to strain to exonerate Respondents' acts.
Texas Bolt Company and Lodge 916, International Association
of Machinists , AFL-CIO and Independent Steel Workers
Union, Party in Interest
Texas Bolt Company and United Steelworkers of America, AFL-
CIO and Independent Steel Workers Union , Party in Interest
Texas Bolt Company and District 37, United Steelworkers of
America, AFL-CIO. Cases Nos. 23-CA-1227, 23-CA-1228, and
23-CA-19244-3. February 21, 19692
DECISION AND ORDER
On November 15, 1961, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
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 McCulloch and Mem-
bers Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the Trial Examiner's findings,' conclusions,
and recommendations 2
'Member Rodgers would disavow the Trial Examiner ' s statement that because the
Respondent had but 100 to 150 production and maintenance employees in its plant,
Respondent must have known Pavlicek was a union member.
2 In the recommended remedy the Trial Examiner provided backpay for Charlie E.
Pavlicek until September 1, 1961 As it appears that there is no basis in the record for
135 NLRB No. 116.