Local No. 25

National Labor Relations Board - Board Decisions

Jul 25, 1956

116 N.L.R.B. 290 (N.L.R.B. 1956)

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its showing of interest is not sufficient for any broader unit of main-
tenance employees which the Board might find appropriate . Accord-
ingly, we shall dismiss the petition.
[The Board dismissed the petition.]
CHAIRMAN LEEDOM and MEMBER D'IURDOCKK took no part in the con-
sideration of the above Decision and Order.
Local No. 25 , Bakery & Confectionery Workers International
Union of America , AFL-CIO, and Bakery and Confectionery
Workers, International Union of America, AFL-CIO and
King's Bakery, Inc. Case No. 10-CC-99. July 25, 1956
DECISION AND ORDER
On September 6, 1955, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent Unions, also referred to herein as Local 25 and
the International, had not engaged in and were not engaging in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Gen-
eral Counsel filed exceptions to the Intermediate Report and a sup-
porting brief, and the Respondent Unions filed a brief in support of
the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings of the Trial Examiner only
to the extent that they are consistent herewith.
The Trial Examiner found that the Respondent Unions had not
violated Section 8 (b) (4) (C) of the Act, a finding to which the Gen-
eral Counsel excepts. We find merit in the General Counsel's excep-
tions.
The-amended complaint alleged that Local 25 and the International
had violated Section 8 (b) (4) (C) of the Act by engaging in, and
inducing and encouraging employees of King's Bakery, Inc. (herein
called King), to engage in, a strike or concerted refusal in the course
of their employment to perform services for King, for the purpose
'The General Counsel contends , and we find, that the International assumed re-
sponsibility for the further conduct of the picketing herein or on about June 16, 1955,
when Amos M iller , an official of the International , assumed control of Local 25 ' s affairs,
replacing Local 25 Business Agent Leek Denton
116 NLRB No. 33.
I
LOCAL NO. 2 5 291
or object of forcing or requiring King to bargain with Local 25 as
the representative of King's employees at a time when another labor
organization had been certified by the Board as the representative
of King's employees under Section 9 of the Act.
With respect to the alleged violation, the record shows, and we find,
as follows :
King's Bakery, Inc., is engaged in manufacturing and wholesaling
bakery products in Chattanooga, Tennessee. Beginning in 1952,
Local 25 represented King's employees under contracts with King,
the last of which expired October 24, 1954. In March 1954, the bakery
was purchased by the current owners, Mr. and Mrs. O. D. McKee,
who continued to operate under the name "King's Bakery, Inc." In
August 1954, Leek Denton, then business agent of Local 25, wrote
to King concerning negotiations for a new contract. By December
7, 1954, the parties had bargained to an impasse. On December 10,
King wrote to Local 25, stating King had learned that there had never
been an election among its employees, and that they would not con-
tinue to recognize Local 25, absent certification by the Board, or other
proof of majority representation.
On December 17, 1954, a group of employees representing "King's
Bakery, Inc., Employees Independent Union," herein called the Inde-
pendent, presented to King a petition signed by a majority of the em-
ployees, authorizing representation by the Independent. King there-
upon bargained with the Independent, and on December 20 signed a
contract with the Independent covering the employees formerly rep-
resented by Local 25.
Apparently King had no further contact with Local 25 until January
25, 1955, when Local 25 began picketing King's plant with signs which
read:
King's Bakery Unfair to Bakers' Local, AFL
King's Bakery Employees on Strike.
At or about the same time, Local 25 set up a tent about 400 feet
from the plant with a sign reading "Strike Headquarters." Two
of King's employees, Wilson Kilgore and Local 25 Stewardess Ruth
Robinson, ceased working, and Kilgore at least participated in the
picketing throughout its duration. Neither returned to work prior
to the termination of the picketing. All of the approximately 15
carriers with which King did business immediately ceased all pickups
and deliveries at King's shipping dock. Some of the carriers shipped
goods which King delivered to their terminals, and permitted King
to pick up incoming shipments, but no pickups or deliveries were made
at King's docks during the picketing at King's.
On January 28, 1955, King filed a representation petition with the
Board in Case No. 10-RM-174 naming both Local 25 and the Inde-
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pendent as claimant unions. On January 31, Local 25 filed unfair
labor practice charges alleging violations by King of Section 8 (a)
(1), (2), and (5) of the Act. The Section 8 (a) (1) and (2) charges
were settled on February 28, 1955, by an agreement between the Board
and the parties, under the terms of which King withdrew recognition of
the Independent and ceased giving effect to its contract with the Inde-
pendent. The Section 8 (a) (5) charge was withdrawn by Local 25.
Thereafter, on May 4, 1955, the Board issued a Decision and Direction
of Election in Case No. 10-RM-174, finding appropriate a unit of all
production and maintenance employees of King, excluding truck-
drivers, office clerical employees, guards, and supervisors, and directing
an election among the employees in this unit. Local 25 did not appear
at the representation hearing. Both Local 25 and the Independent
were placed on the ballot, but Local 25 later withdrew from the ballot
prior to the election, which was held on May 19, 1955. The Inde-
pendent won the election, and was certified by the Board as the repre-
sentative of King's employees on May 27,1955.
As of the certification date, Local 25's picket signs read as follows : 2
Please Do Not Buy King's and O. D. McKee Products
King's and O. D. McKee Employees Have Refused to
Join Bakers' Local 25, AFL
Working Conditions at This Bakery are Below Standards in
AFL Union Bakeries
These signs were used until approximately 1 week after the certifica-
tion, at which time the signs were changed to read :
"King's Bakery Employees"
"Wages and Working Conditions at King's Bakery are Below
Standards of AFL Bakeries"
Join AFL Local Union No. 25 and Help Establish and
Maintain AFL Standards
Meanwhile, on June 2, King and the Independent negotiated and
signed a contract. The picketing continued until it was enjoined on
June 28, 1955, by the U. S. District Court for the Eastern District of
Tennessee, Southern Division.
On the basis of the above findings of fact, the Trial Examiner found
that Local 25 had not engaged in a strike,' or induced or encouraged
employees of King to engage in a concerted refusal to perform serv-
ices, on or after the certification date of May 27, 1955. The Trial
Examiner inferred that by May 27, King had permanently replaced
Ruth Robinson and Wilson Kilgore, who joined the picket line as
employees, at its inception on January 15, 1955, and that Robinson and
2 There is no clear Indication of the exact date on which the original signs were changed.
I
LOCAL NO. 2 5 293
Kilgore were therefore not employees as of the certification date. As
no other of King's employees had engaged in a work stoppage at any
time, the Trial Examiner found that the picketing had not in any way
affected any of King's employees after the certification date. He
reasoned that there was therefore no substantial evidence indicating
that the picketing constituted inducement or encouragement within the
meaning of Section 8 (b) (4) (C), but that on the'contrary, based on
his subsequent finding that Local 25 was picketing to organize em-
ployees, the evidence indicated that the picketing did not constitute
inducement and encouragement to cease work.
We do not agree with the Trial Examiner's conclusion that Local 25
slid not induce or encourage employees of King to strike on and after
the certification date. The Board has established the principle that the
traditional union picket line before employee entrances, apart from the
literal appeal of the signs carried by the pickets, constitutes induce-
ment and encouragement of employees who must work behind the
picket line to engage in a concerted refusal to perform services for their
employer,3 and the courts have held to the same effect.4 It is also
clearly established that the words induce and encourage as used in
Section 8 (b) (4) do not refer only to successful inducement and en-
couragement, but that inducement and encouragement of strike ac-
tion for a prohibited objective violates Section 8 (b) (4) whether or not
such inducement and encouragement was successful.' We have re-
cently reaffirmed these principles of law in Arnold Bakers, Inc., 115
NLRB 1333. Applying these principles to the instant case, we find
that Local 25 by its picketing on and after the certification date in-
duced and encouraged employees of King to strike.
Moreover, there is another factor which negates the Trial Exam-
iner's conclusion that the picketing constituted only organizational
propaganda. Thus, the erection and maintenance of the nearby "strike
headquarters" throughout the picketing was calculated to induce and
encourage strike action by conveying to King's employees that the
Union desired them to honor the picket line by striking, and we so find.
We also disagree with the Trial Examiner's finding that Kilgore
and Local 25's stewardess, Robinson, were not employees of King on
or after the certification date and the picketing therefore had no
affect on King's employees after that date. The Trial Examiner
based this finding on the premise that King had continued normal
3 Washvngton Coca Cola Bottling Works, Inc., 107 NLRB 299, affd. 220 F 2d 380
(C. A, D C) ; Union Chevrolet Company, 96 NLRB 957; Gemsco, Inc., 111 NLRB 82,
set aside on other grounds 230 F. 2d 47 (C. A., D. C.).
4International Brotherhood of Electrical Workers , Local 501 , et al. v. N. L. R. B, 341
U. S. 694; N L. R. B. v. Denver Bldg. & Construction Trades Council, et al., 341 U. S.
675: see also Printing Specialties and Paper Converters Union, Local 388 v. Le Baron,
171 F. 2d 331 (C. A. 9).
5N. L. R. B. v. Associated Musicians, Local 802 , AFL, 226 F. 2d 900 ( C. A. 2) ; aemsco,
Inc, supra; Union Chevrolet Company, supra.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operations, during the approximately 41/2 months of picketing pre-
ceding the certification date, and from this inferred that King had
replaced Robinson and Kilgore at sometime during this period in
order to maintain a full staff. There is no evidence in the record to
indicate specifically whether or not these employees were replaced.
However, the record shows that none of the approximately 15 truck-
ing companies with which King did business, furnished normal serv-
ice to King during the picketing. According to the testimony, "some"
of these carriers continued to ship goods which King delivered to
them, and permitted King to pick up incoming shipments, but the
remaining carriers ceased all service to King, and no carrier made
pickups or deliveries at King's docks during the picketing. We find
there is no evidence supporting the Trial Examiner's conclusion that
King maintained normal operations during the picketing. There is
therefore no basis for his inference that Robinson and Kilgore were
replaced, assuming, arguendo, that the existence of normal operations
is an adequate substitute for specific evidence of replacement, and
we do not adopt the Trial Examiner's finding that they were no longer
employees as of May 27, 1955. We find that Robinson and Kilgore
must be deemed, in the absence of evidence to the contrary, to have
maintained their status as employees throughout the duration of
the picketing.
Therefore, we find that Robinson and Kilgore, as employees, en-
gaged in a continued concerted refusal to perform employment serv-
ices for King during the picketing in the month following the certifi-
cation of the Independent, and that they were engaged in a strike
during this period. Their action was clearly a continuation of action
induced by Local 25 at the inception of the picket line in January.
The fact that they, as stewardess and member of Local 25, engaged
in a strike on Local 25's behalf on and after the certification date,
compels the conclusion that Local 25 was engaged in a strike during
the material period after the certification, and we so finds
We also find, contrary to the Trial Examiner, that one of the ob-
jects of Local 25's picketing on and after the certification date was to
force or require King to recognize Local 25. In so finding, we rely
on the following statements of Local 25's officers and pickets, all of
which were made after the certification date :
(1) On June 23, 1955, Local 25 Stewardess Ruth Robinson, stated
in response to questions by Mrs. McKee, coowner of King's, that both
Former Business Agent Denton and his successor, Miller, were picket-
ing because they wanted "your employees to join the AFL; you rec-
ognize the AFL." When asked how King could rid itself of the
"Watson Spersalty Store, 80 NLRB 533
LOCAL NO. 25 295
picketing, Robinson replied, "... you are going to have to recognize
the AFL, and the picket line will be removed tomorrow."
(2) Sometime between the certification date of May 27 and June 21,
1955, Business Agent Denton, after urging two nonstriking employees
to join Local 25, stated, "We intend to make King's Bakery bankrupt,
or else come to us to sign a contract."
(3) Sometime in June 1955 , a picket named Reddick, while on the
picket line , told an employee that Local 25's plan was "to hurt busi-
ness until the bakery would be glad to do business with them."
(4) On another occasion during June Stewardess Robinson told
King's president "that the only way we'd get rid of the pickets is to
sign up," and " if you'll sign up, there won 't be any picket line; it will
be over in 30 minutes."
The Trial Examiner held that the above -quoted statements would
support a finding that Local 25 had an object of forcing recognition
by King only if considered out of the context of the conversations
in which these statements were made. The context to which the Trial
Examiner refers consists of accompanying statements concerning
organization of King's employees .? On the basis of these accompany-
ing statements about organizing and other factors detailed in the In-
termediate Report, such as the withdrawal by Local 25 of the 8 (a)
(5) charges against King, Local 25's withdrawal from the election,
Local 25's supposed knowledge that it represented few if any of
King's employees , and the language of the picket signs , the Trial
Examiner concluded that the only immediate purpose of Local 25
was to organize employees , and that if Local 25's purpose was to secure
recognition , its objective was only to do so ultimately , at sometime
when it could legally be recognized by King. We disagree with the
Trial Examiner 's analysis and conclusion . Even assuming that Local
25 was interested in organizing employees of King, this is in no way
inconsistent with the existence of a concurrent purpose of securing
recognition from King "tomorrow" or "in 30 minutes"' through the
economic force of the picketing. That Local 25 had such a purpose
of forcing recognition by King after the certification date was clearly
expressed by Stewardess Robinson and Business Agent Denton in the
statements quoted above and we so find . It is sufficient that an object
of the picketing, although not necessarily the only object of the picket-
ing was to force recognition by King.'
For the foregoing reasons we find that Local 25 violated Section
8 (b) (4) (C ) of the Act on and after May 27 , 1955, by engaging in,
and inducing and encouraging employees of King to engage in , a strike
or concerted refusal in the course of their employment to perform
services for their employer, for the purpose of forcing or requiring
7 The conversations referred to are related in detail in the Intermediate Repoi t.
8 International Brotherhood of Electrical Workers, Local 501, et al. v. N. L. R. B., supra;
Denver Bldg. & Construction Trades Council, et al., supra.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
King to recognize Local 25 as the representative of its employees
at a time when the Independent was certified as the representative of
King's employees.
The General Counsel also excepts to the Trial Examiner's failure to
find that Local 25 violated Section 8 (b) (4) (C) of the Act by il-
legally inducing and encouraging employees of employers other than
King to engage in a concerted refusal to perform employment services.
We agree with the Trial Examiner that the issues for determination
herein must be limited to the allegations of the complaint. As no
such allegation was made in the original or amended complaints, and
the Respondents did not appear at the hearing to be on notice that
such an issue was being litigated, this issue is not properly before the
Board for determination. For this reason we find it unnecessary to
adopt the Trial Examiner's discussion of the evidence relating to the
employees of other employers, and his findings based thereon.
THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent Unions, set forth above, occurring
in connection with the operations of King's Bakery, Inc., described
in the Intermediate Report, 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 commerce
and the free flow of commerce.
THE REMEDY
Having found that the Respondent Unions violated Section 8
(b) (4) (C) of the Act, as set forth above, we shall order them to
cease and desist from such conduct. We shall also order that the
Respondent Unions take certain affirmative action designed to effec-
tuate the policies of the Act.
CONCLUSIONS OF LAW
1. King's Bakery, Inc., Employees Independent Union; Local No.
25, Bakery & Confectionery Workers International Union of
America, AFL-CIO; and Bakery and Confectionery Workers Inter-
national Union of America, AFL-CIO, are labor organizations within
the meaning of Section 2 (5) of the Act.
2. On and since May 27,1955, King's Bakery, Inc., Employees Inde-
pendent Union has been the exclusive bargaining representative, certi-
fied by the Board, of the employees of King's Bakery, Inc., in an ap-
propriate unit, in accordance with the provisions of Section 9 of the
Act.
3. On and since May 27,1955, the Respondent Unions have engaged
in, and have induced and encouraged employees of King's Bakery,
Inc., to engage in, a strike or other concerted refusal in the course of
their employment to perform services for their employer, an object
LOCAL NO. 2 5 297
thereof being to force or require King's Bakery, Inc., to recognize or
bargain with Local 25 as the representative of employees of King's
Bakery, Inc., notwithstanding that King's Bakery, Inc., Employees
Independent Union had been certified as the representative of such
employees under the provisions of Section 9 of the Act. By such con=
duct Respondent Unions engaged in unfair labor practices within the
meaning of Section 8 (b) (4) (C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Local 25, Bakery and Con-
fectionery Workers International Union of America, AFL-CIO, and
Bakery and Confectionery Workers International Union of America,
AFL-CIO, their officers, representatives, successors , assigns, and
agents, shall :
1. Cease and desist during the effective period of the certification
issued by the Regional Director of the National Labor Relations Board
on November 15, 1954, in Case No. 2-RC-7116, or any other certifica-
tion by the Board of a bargaining representative other than Local 25
for employees of King's Bakery, Inc., from inducing or encouraging
the employees of King's Bakery, Inc., to engage in a strike or con-
certed refusal in the course of their employment, to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any service where an object
thereof is forcing or requiring King's Bakery, Inc., to recognize or
bargain with Local 25 as the representative of any employees in the
collective-bargaining unit covered by such certification.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post in conspicuous places in their business offices in the Chat-
tanooga, Tennessee, area, where notices or communications to mem-
bers are normally posted, copies of the notice attached hereto marked
"Appendix A." s Copies of the said notice, to be furnished by the
Regional Director for the Tenth Region, shall, after being duly
signed by an official representative of Respondents, be posted by Re-
spondents immediately upon receipt thereof and maintained by them
for a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondents to insure
9 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."
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps Re-
spondents have taken to comply herewith.
MEMBER PETERSON took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL No. 25, BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL UNION OF AMERICA, AFL-CIO, AND
BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF
AMERICA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
During the effective period of the certification of representatives
of employees of King's Bakery, Inc., issued by the Regional
Director for the National Labor Relations Board on May 27,
1955, in Case No. 10-RM-174, or any other certification by the
Board of a bargaining representative other than the undersigned
labor organizations, we will not engage in, or induce or encourage
the employees of King's Bakery, Inc., to engage in, a strike or
concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities, or to perform any
services, where an object thereof is to force or require the afore-
said Company to recognize or bargain with the undersigned
Unions in the collective-bargaining unit of employees covered by
such certification.
LOCAL No. 25, BAKERY & CONFECTIONERY
WORKERS INTERNATIONAL UNION OF
AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
BAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION OF AMERICA,
AFL-CIO,
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.
LOCAL NO. 2 5 299
INTERMEDIATE REPORT'
STATEMENT OF THE CASE
Upon a charge filed June 6, 1955, and amended June 27, 1955, by H. M. Hum-
phreys as attorney for King's Bakery, Inc., herein respectively called the Charging
Party or King, the General Counsel of the National Labor Relations Board, herein
called the General Counsel' and the Board, respectively, by the Regional Director
for the Tenth Region (Atlanta, Georgia), issued an amended complaint dated June
28, 1955, against Local 25, Bakery & Confectionery Workers International Union
of America, AFL, and Bakery and Confectionery Workers International Union of
America, AFL, herein called the Respondent Unions or Local 25 and International.
The complaint alleged that the Respondent Unions had engaged in and were en-
gaging in unfair labor practices affecting commerce within the meaning of Section
8 (b) (4) (C) and Section 2 (6) and (7) of the Labor Management Relations Act,
1947. 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices, the amended complaint alleged that
on May.,27, 1955, the Board certified a labor organization of King's employees, here-
inafter referred to as the Independent, as the exclusive bargaining representative
of King's employees in the appropriate unit and that "since on or about January
15, 1955, the Respondents have engaged in and by orders, directions, instructions,
picketing and other means have induced or encouraged the employees of the Em-
ployer [King] at its Chattanooga, Tennessee, plant to engage in a strike or con-
certed refusal in the course of their employment to use, manufacture, process,
transport, and otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services for the Employer [King] at its Chattanooga,
Tennessee, plant, for the purpose or object of forcing or requiring the Employer
[King] to recognize and bargain with the Respondents as the representative of said
employees" in violation of Section 8 (b) (4) (C) of the Act.
On July 1, 1955, the Respondent Unions duly filed their answers wherein they
denied the allegations of the complaint.
Pursuant to notice, a hearing was held in the instant case at Chattanooga, Ten-
nessee, on July 12, 1955, before the duly designated Trial Examiner. Although
no one appeared at the hearing to represent the Respondent Unions, the General
Counsel and King participated in the hearing by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. At the conclusion of the hearing, the Trial
Examiner advised the parties of their right to file briefs, findings of fact, and con-
clusions of law, or both, and solicited a brief from the General Counsel. A brief
was received from the General Counsel on August 1, 1955.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE
King's Bakery, Inc., herein called King, is a Tennessee corporation having its
principal office and place of business at Chattanooga, Tennessee, where it is engaged
in the production and wholesale distribution and sale of bread, cakes, and related
bakery products. In the course and conduct of its business operations during the
calendar year of 1954, which period is a representative period, King purchased raw
materials in the total amount of $765,869 of which approximately $600,000 worth
was shipped directly to King's plant from outside the State of Tennessee. During
this same period of time, King sold finished products in the amount of $1,280,000
of which $1,005,371 worth was shipped to purchasers in some 18 States of the
United States other than the State of Tennessee.
The Trial Examiner finds that King is engaged in commerce within the meaning
of the Act.
II THE UNIONS INVOLVED
Local No. 25, Bakery & Confectionery Workers International Union of America,
AFL, and Bakery and Confectionery Workers International Union of America,
AFL, and King's Bakery, Inc., Employees' Independent Union, herein called the
Independent, are labor organizations admitting to membership employees of King.
'This term specifically includes the attorney appearing for the General Counsel at
the hearing.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
- For a number of years prior to October 24, 1954, King had recognized and ex-
ecuted labor agreements covering its production and maintenance employees at its
plant in Chattanooga with Local 25. This recognition was voluntary and was not
based upon a Board certification. The last contract between King and Local 25
expired by its own terms on October 24, 1955.
At or about October 24, 1954, King sought out one Leck Denton, then business
agent of Local 25, and had a meeting with him in November regarding contract
terms for the proposed ensuing contract. At a meeting between these parties on
December 7, 1954, the parties reached an impasse over the inclusion of a union-
security clause in this proposed contract. On December 10, 1954, King wrote Local
25 stating it had learned that the recognition of Local 25 was not based upon a
Board certification so that until such time as Respondent Unions would present
King with some evidence that Local 25 represented a majority of King's employees
by Board election and certification, King would have to withdraw recognition from
Local 25 and cease negotiations.
On December 17, 1954, a group of employees representing the Independent came
in to officials of King, presented a petition signed by a majority of the employees,
asked for and secured recognition from King which thereupon bargained with
Independent on December 17, 18, and 19, 1954, and on December 20, 1954, ex-
ecuted a contract with Independent covering the same employees as had previously
been covered in the contracts between King and Local 25.
On January 15, 1955,2 Local 25 began picketing King's plant with picket signs
which read "King's Bakery unfair to Bakers Local AFL" and "King's Bakery Em-
ployees on Strike." The record shows that two of King's then employees, Ruth Rob-
inson and Wilson Kilgore, ceased working for King at or about this time and that
Wilson Kilgore at least was active on the picket line.
Promptly after the institution of the picket line the common carriers, both rail and
trucking, which customarily delivered and picked up goods to and from King at
King's loading dock, ceased making these pickups and deliveries at King's dock.
Thereafter many of these common carriers permitted King to pick up shipments for
King at the truckers' dock and to deliver shipments from King to the truckers' docks
from which they were delivered to the consignee. No deliveries or pickups were
made at King's dock while the picket line was maintained at King's plant until the
picketing was enjoined on June 28 and the pickets thereupon removed. After the
injunction the carriers resumed their usual practice of making deliveries and pickups
at King's dock.
On January 28, King filed a representation petition with the Board in Case
No. 10-RM-174 in which both Local 25 and Independent were named as parties hav-
ing an interest. On January 31, Local 25 filed charges against King, alleging that King
was coercing its employees, that King dominated and interfered with the formation and
administration of Independent, and that King refused to bargain with Local 25. On
February 28, an informal settlement of these charges was entered into between
Local 25 and King under the terms of which King withdrew recognition of the
Independent and ceased giving effect to its contract with Independent until or unless
certified by the Board. Local 25 withdrew its refusal-to-bargain charge.
On May 4 the Board directed that an election be held between King's Bakery, Inc.,
Employee's Independent Union and Local 25 in the usual production and main-
tenance unit at King's plant. Prior to May 19, Local 25 notified the Regional office
that it withdrew from the scheduled election. On May 19, the election was held
wherein 31 votes were for the Independent, none were against, and 15 ballots were
challenged. On May 27, 1955, the Independent was certified by the Board.
The strike and attendant picketing action of the Respondent Unions continued at
King's plant from January 15 to June 28, continuously. By the time of the certifica-
tion of May 27, the picket signs read as follows: "Please Do Not Buy King's and O. D.
McKee Products.3 King's and O. D. McKee Employees have Refused to Join
Bakers' Local No. 25, A. F. of L. Working Conditions at this Bakery are Below
Standards in A. F. of L. Union Bakeries."
On June 1, King's held another negotiating meeting with the Independent and on
June 2 these parties executed another labor agreement which was the same con-
tract the parties had signed on December 20 except for a few small changes.
z All dates hereinafter are In the year 1955 unless otherwise specifically noted.
In March 1954, O. D. McKee purchased King's Bakery, Inc.
LOCAL NO. 2 5 301
On or about June 8 , the picket signs were changed to read : "King's Bakery
Employees . Wages and Working Conditions at King's Bakery are Below Standards
of A. F. of L. Union Bakeries . Join A. F. of L. Local Union No. 25 and Help
Establish and Maintain A. F. of L. Standards ." The picketing at King's plant
continued through June 28 when it was enjoined by the United States District Court
for the Eastern District of Tennessee , Southern Division.
B. Conclusions
1. The law
The Act states:
8 (b) It shall be an unfair labor practice for a labor organization or its agents-
* * *
(4) to engage in, or to induce or encourage the employees of any employer to
engage in, a strike or a concerted refusal in the course of their employment to use,
manufacture , process, transport , or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services , where an object
thereof is: . (C) forcing or requiring any employer to recognize or bargain
with a particular labor organization as the representative of his employees if
another labor organization has been certified as the representative of such em-
ployees under the provisions of section 9; .. .
The United States Court of Appeals for the Second Circuit, in the case of Douds v.
Bakery Workers Union, 36 L. R. R. M. 2308, wherein the court refused to grant a
preliminary injunction , states the prerequisites for proving a violation of the above
Section of the Act (with the names of the parties changed so as to fit the instant case)
as follows:
The Section charged to have been violated makes it an unfair labor practice for
a labor organization, which [Local 25] concededly is, to engage, after another
labor organization has been certified as a collective bargaining representative of
the employees of an employer, in conduct that satisfies two conditions. The
conduct must (1) "induce or encourage the employees of any employer to en-
gage in a strike or a concerted refusal . to use . . . transport . . . or work
on any goods" where (2) "the object" of such conduct is "forcing or requiring"
the employer to recognize or bargain with the non-certified labor organization.
To prove a violation of condition (1) [Local 251 must be shown to have en-
couraged the employees of [King] to strike or refuse to work on goods, or to have
encouraged employees of the trucking companys to engage in a concerted re-
fusal to transport [King] goods from the shipping platform to its distributors
or customers.
This appears to be as sound and as concise a statement of the law involved here as
can be made.
2. The pleadings and alleged inducement of King's employees
Due to the absence of the Respondent Unions from the hearing, the first thing which
must be noted is the pleading in the amended complaint upon which this hearing was
held.
After alleging the certification of the Independent by the Board on May 27, 1955,
the amended complaint herein charges that : "Since on or about January 15, 1955,
the Respondents have engaged in, and by orders, directions, instructions, picketing and
other means have induced or encouraged the employees of the Employer [King's
Bakery, Inc.] to engage in a strike or a concerted refusal in the course of their em-
ployment to use...." [Emphasis supplied.]
Although the Act makes it illegal for a labor organization to induce and encourage
the "employees of any employer," it is clear that the only charge the absent Re-
spondent Unions here were ever given notice of was that of illegally inducing and en-
couraging the employees of King. The amended complaint was thus much narrower
in scope than the Act would have permitted. But due process requires that the
issue here be limited to that set forth in the amended complaint , to wit , the illegal
inducement by the Respondent Unions of the employees of King.
Furthermore, the General Counsel relied exclusively on the picket line and the
picket signs as his proof of inducement and encouragement . No proof was adduced,
nor did General Counsel claim otherwise , of any inducement or encouragement "by
orders, directions , instructions . . . and other means" other than by reason of the
existence of the picket line and the picket signs.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The proof adduced at the hearing, limited strictly to the pleadings , shows only that
Respondents began picketing King's plant on January 15 and that two then employees,
Ruth Robinson, who for a long time had been the Local 25 stewardess, and Wilson
Kilgore, who frequently carried the picket sign on the picket line, joined the strike
and ceased work on or about the date the picket line was instituted. On this point the
General Counsel's brief claims only: "There is also evidence that several of King's
employees, who were members of Respondent Local, refused to cross the picket line
and, in fact, carried the picket sign on a number of occasions themselves." However,
there is in this record no evidence that any employee of King other than the afore-
said Ruth Robinson and Wilson Kilgore ever refused to cross the picket line or was
induced to do or to refuse to do anything. So far as the evidence shows the King
plant continued normal operations throughout the period of the picket line. The
evidence does show that picket Kilgore did request King's employees to join Local
25. But there is no evidence that Kilgore or any other union official made any re-
quest of any King employee that he or she engage in a strike or a refusal to perform
work. There is no showing that any employee of King other than Robinson and
Kilgore was ever affected in any way by the picket line.
As stated in the Bakery Workers Union case cited above, there can be no viola-
tion of Section 8 (b) (4) (C) unless and until a labor organization other than that
engaged in striking or picketing has been certified as the bargaining representative
by the Board. The existence of a certified union in the plant is a prerequisite to
a violation of clause (C). In the instant case this prerequisite was satisfied when
the Independent was certified on May 27, some 4 months after the commencement
of the picket line, during all of which time King had been engaged in normal
operations. So any inducement or encouragement from the picketing prior to
May 27 could not, and would not, constitute a violation of this section of the Act.
The inducement of Robinson and Kilgore, if any, occurred prior to May 27. The
question then arises as to whether they were "employees" as of May 27. As of
January 15, both Kilgore and Robinson were at best economic strikers whose em-
ployment was subject to termination upon replacement. As King maintained normal
operations at all times after January 15, it is a fair inference, in the absence of
proof to the contrary, that they both had been replaced on or before May 27 and
were, therefore, no longer "employees" as of May 27 so that a finding would be
justified that no employee of King was induced, encouraged, or affected by whatever
inducement the picketing may have had.
Although not contending that any encouragement or inducement existed other
than the picketing, the General Counsel in his brief argues:
It is the contention of the General Counsel that a long established line of
Board authority compels the findings that on the facts in this case the Re-
spondent did violate Section 8 (b) (4) (C) of the Act. Gemsco, Inc., 111
NLRB 82, is perhaps the most recent case in this line of Board decisions
which hold that the Respondent Union there involved violated this section of
the act by picketing an employer after an individual had been certified to rep-
resent its employees, with picket signs which carried only an appeal to these
employees to join that union.
Established Board authority further requires the conclusion that the picketing
in itself constitutes an inducement and encouragement of employees to engage
in a strike or other concerted refusal to perform services for their employer.
See International Brotherhood of Teamsters (Union Chevrolet Co.), 96 NLRB
957; and Brewery and Beverage Workers (Washington Coca Cola Bottling
Works, Inc.), 107 NLRB 299. In Coca Cola case the Board stated the principle
involved in the following language:
This broad argument, that picketing-wherever it occurred-is aimed only
at publicizing a labor dispute and not at inducing work stoppages by employ-
ees who are required in their regular employment to cross the picket line has
been too often rejected to require further elaboration here.
Thus, it is clear under Board decisions that even though there is no inde-
pendent evidence that employees were ever specifically requested to engage
in a strike or concerted refusal to work, the Board considers picketing in and
of itself to be the requisite inducement and encouragement.
It has also been held by the Board that the language of the picket signs used
by the Union do not necessarily determine the purpose of the picketing. Thus,
in Gemsco case, supra, the language used by the picket signs stated specifically
that*
This is organizational picketing. We appeal to te workers of Gemsco to join
our union and enjoy our benefits. [Emphasis supplied.]
LOCAL NO. 2 5 303
The General Counsel's able brief correctly states the law as it has been phrased in
a number of recent Board decisions.
However, since the decisions cited above, the Bakery Workers Union case, supra,
and N. L. R. B. v . General Drivers, Warehousemen and Helpers Local 968, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America,4 have been decided by United States Court of Appeals for the Second and
the Fifth Circuits , respectively . Each of these cases, dealing with inferences drawn
by the Board, holds that such inferences can be drawn only from substantial evi-
dence or as Judge Rives states the proposition : "While the drawing of appropriate
inferences as to the unlawfulness of the objective and motive in a labor dispute is
primarily the province of the Board, there still must be some substantial basis for
inferring a wrongful rather than a legitimate motive, which we think does not exist
here. N. L. R. B. v. Houston Chronicle Pub. Co., 5th Cir., 211 F. 2d 848, 854."
Hence it is now necessary for the General Counsel to produce competent evidence
from which the illegal inducement of employees as well as an illegal objective of the
strike and picketing may be inferred rather than to draw per se such inferences of
illegality from the existence of the picket line alone.
In the instant case, so far as it concerns the employees of King, there is no evidence
that the picket line at the plant had any effect at all on the employees , with the
possible exception of Robinson and Kilgore who were not proved to have been em-
ployees as of the critical date of May 27. In addition , as noted heretofore, there
is, in this record , no evidence of any inducement by orders , directions , instructions,
or other means to King's employees , other than the mere existence of the Respondent's
picket line, to strike or to engage in any concerted refusal . Thus, in regard to King's
employees , the situation here is exactly the same as in the Bakery Workers Union
case where the Second Circuit held:
The Appellant [ NLRB ] argues that picketing "inherently encourages " workers
not to work behind the picket line , and that it must be "presumed " that the Ap-
pellee [Union ] intended such consequences because ( 1) "it is held to intend
the foreseeable consequences of its conduct ," citing Radio Officers Union V.
N. L. R. B., 347 U. S. 17, 14, 33 LRRM 2417. This argument might be
persuasive if the picketing had had any consequences . It did not. No em-
ployee of Arnold's refused to cross the picket line or to cease work. If the
Appellee is to be "presumed " to intend the consequences which follow from
its conduct , the inference to be drawn is that Local 50 did not intend to influence
the employees of Arnold to cease work . Similarly as to the drivers of the
contract truck companies. No driver refused to cross the picket line or to
transport Arnold's goods. The trucks were operated by members of AFL
unions affiliated with the appellee . Had appellee intended to induce the drivers
to engage in a concerted refusal to transport Arnold's bread, an effective means
to accomplish it was available through action by these affiliated unions. But
the testimony does not even suggest that any effort was made to induce them to
act. Nor was any threat made or inducement offered to any employee of Arnold
or of any other employer. In this respect the case at bar differs from the au-
thorities relied upon by the appellant.
We are not prepared to hold that all post-certification picketing is forbidden.
Hence as there is in this record no competent or substantial evidence from which
to draw an inference that the Respondent Unions encouraged or induced employees
of King, and as it is clear that General Counsel is relying exclusively upon the draw-
ing of such an inference of inducement and encouragement from the mere existence
of Respondent 's picket line per se but that there is no legitimate basis for the draw-
ing of such an inference as regards King's employees from the facts proved here,
the Trial Examiner must find that the Respondent Unions have not induced and
encouraged the employees of King in violation of Section 8 (b) (4) (C).
In fact, as will be developed hereinafter , the preponderance of the evidence con-
sidered as a whole proves lust to the contrary of the inference , if it were drawn,
namely, that the Respondent Unions were only soliciting employees to join Local
25. Hence the inference , if drawn , would be opposed to the substantial weight of
the evidence . In this state of the record the words of Judge Rives quoted above are
particularly apropos here Certainly an inference may not be drawn when it would
be contrary to the weight of the evidence.
4 225 F. 2d 205 (C A. 5).
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The object of the strike and picket line
Just as the Bakery Workers Union decision holds that there must be substantial
evidence adduced from which an illegal inducement of employees may be inferred,
so the Circuit Court of Appeals for the Fifth Circuit holds in the General Drivers,
Local 968 case that the illegal motive or objective of a strike or picket line may
only be inferred from substantial evidence and, further, that "there still must be
some substantial basis for inferring a wrongful rather than a legitimate motive. .
In other words, the illegal object of a strike or picket line must be proved just like
any other fact at issue.
As found heretofore, the Respondent Unions' strike and picket line was instituted
on January 15, some 4 months prior to the certification of the Independent by the
Board. Under the facts existing as of the time the picket line was instituted, it is
a fair inference that the Respondent Unions had three objectives in mind: (1) To
organize King employees; (2) to protest what the Respondent Unions then con-
sidered to be unfair labor practices of King in dominating, assisting, and negotiat-
ing with Independent; and (3) to force King to bargain with the Respondents.
That this last could have been an objective even on January 15 is at best question-
able for it must have been known at that time that King had already executed a
labor agreement with the Independent on December 20 and further Respondent
must have known that it represented few, if any, of King's employees. No doubt
the Respondent would have been willing to bluff King into signing a contract with
it if that could have been accomplished. But when only then employees Robinson
and Kilgore joined the Respondent's picket line, even that bluff was ended for at
that time everyone concerned knew what no doubt the Respondent itself had known
for some time, namely, that Respondent no longer represented a majority of King's
employees and hence could not secure recognition as the bargaining agent. So,
while no doubt the prayer existed at the commencement of the picket line that there-
by the Respondent could force recognition from King, that hope was soon ex-
tinguished.
On January 31, the Respondent filed unfair labor practices against King which
included the charge that King had refused to bargain with the Respondent which
tends to corroborate the existence of this third objective as of this time. But on
February 28, as part of the general settlement of those charges, the Respondent
Unions withdrew their refusal-to-bargain charge against King, thereby admitting
the fact that it no longer represented a majority of King's employees. If any fur-
ther admission of this was necessary, it came when, prior to the Board-ordered
election of May 19, the Respondent Unions withdrew from the election. Hence
at least weeks before the certification the last object of the strike mentioned here-
tofore had been completely eliminated.
The settlement of the unfair labor charges on February 28 also eliminated the ob-
jective of protesting against the claimed unfair labor practices of King. At the
time of this settlement and by this procedure the alleged unfair labor practices were
supposedly remedied. Hence, long before the certification of May 27, all objec-
tives of the strike, assuming that they had existed originally, had been eliminated
except that of attempting to organize the employees of King.
Even if the objective of forcing recognition from King had existed prior to May
27, the Respondent Unions committed no violation of Section 8 (b) (4) (C) for
the reason that the prerequisite of a certified union in the plant had not been satis-
fied to that date. Obviously the Respondent Unions' continuation of the picket
line as each of the other objectives were eliminated must strengthen the inference
that the picket line at King was in fact maintained in an effort to try to organize
King employees. The picket signs, if they can be believed, corroborate the above.
In order to establish the illegal object of the picket line essential to his case,
General Counsel relies on two matters as proof: (1) Certain selected statements
by Wilson Kilgore, the picket, Ruth Robinson, the old time Respondent's stewardess
at King, and by Business Agents Leck Denton and Amos Miller, who succeeded
Denton as business agent during the strike, which General Counsel contends shows
the illegal motive of the picket line; and (2) another inference to be drawn from
the existence of the picket line per se that even organizational picketing is tantamount
to a present demand for recognition.
General Counsel cites certain sentences from the following conversations as his
proof of the illegal objective of the picket line. These will be noted here in the
order in which the General Counsel cited them.
(1) On June 23, at the suggestion of Mrs. McKee, a conversation took place
between the Respondent's stewardess, Ruth Robinson, and Mrs. McKee during
which Mrs. McKee asked why Business Agent Denton had been picketing so long,
LOCAL NO. 25 305
to which Robinson answered , "You know what he wants; he wants you folks to
join the A. F. of L., recognize A. F. of L." When Mrs. McKee asked what Miller,
who had succeeded Denton as business agent, was picketing for, Robinson replied,
"Mr. Miller wants all your employees to join the A. F. of L., you recognize A. F. of
L." After Mrs. McKee had informed Robinson that the Independent had been
certified, she asked what King could do "to get this picket line removed ." Robin-
son answered this inquiry by saying, "Well, you are going to have to get all your
employees to join the A. F. of L.; you are going to have to recognize the A. F. of L.
and the picket line will be removed tomorrow."
(2) Sometime after May 27, employees Fowler and Cooper met the then Business
Agent Denton on the picket line who inquired if the employees had seen his new
handbill and then launched into a description of the benefits which the Respondent
had secured for employees of other bakeries, ending up with the inquiry, "Aren't
you ready to join?" After some more talk, Denton inquired , "Don't you want to
join up with us?" Before the conversation was over employee Fowler inquired,
"Well, what's your purpose in picketing ?" Denton answered , "We intend to make
King's Bakery bankrupt or else come to us to sign a contract."
(3) Much the same conversation occurred during the month of June between
employee Sorrell and picket Reddick during which Reddick said, "I don't see why you
boys don't come along with us and let's get this thing over." Apparently in answer
to a question Reddick stated that Respondent's plan was "to hurt business until the
Bakery would be glad to do business with them."
Slightly before the above conversation employee Sorrell also had a conversation
with picket Kilgore during which Kilgore explained that the Respondent's plan
was-to have an election the following year and, if Respondent won, that they were
going to "kick" the Independent out. General Counsel failed to cite this con-
versation.
(4) About the first of June, employee Barnwell had a conversation with picket
Kilgore in which Kilgore, in Barnwell 's own words , stated "that our union [Inde-
pendent] was not up to standards of what a union should be, that it was not giving our
workers the benefit that it should, and that . . . we could not put union labels on our
cakes because the King's Independent Union was not an international labor organiza-
tion, that Mr. McKee was the back of our union , that without his consent nothing
could be passed within our union , and that they [Respondents ] would still be walking
that time next year or until we [obviously the employees , as it was an employee
speaking ] gave in to let him come back in as bargaining agent."
(5) O. D. McKee, president of King, described a conversation he had with
Stewardess Robinson at some indeterminate date as follows:
. she said , "Why don't we get that thing over with out there?" I said , "Well,
I though it was over with." And she said, "In other words ," then she made some
remark I don 't recall . Anyhow, she said that the only way that we'd get rid
of our pickets is to sign up and she said she wished I would get with Amos Miller,
Leck Denton and she said , her first statement was that she said, "It will be over
with tomorrow if you just get with them and sign a statement ." We talked I
guess for several minutes , and then again she same back with it, and she said she
was . . she said , "I want to go back to work." I said , "Well, will you come in
across the picket line?" ' And she said, "Well, if you'll sign up, there won't be any
picket line ." Then she said, "It will be over with in 30 minutes"; that's when-in
other words, she made both remarks, but at the same conversation she said first
that "it will be over with tomorrow ." But then in talking again , she said, "It will
be over with in 30 minutes" if I signed the thing.
(6) On June 21 , Amos Miller met with O . D. McKee at McKee's request.
McKee noted the fact that Millier had taken over Local 25 from Denton and asked,
"Why are you maintaining your picket line?" To which Miller answered, "I'm
honor bound to carry on, and I think that I can whip you; I think that we can
whip you . . . by taking your customers away from you." This statement was fol-
lowed by considerable discussion as to whether the King employees would be more
receptive to join Local 25 since Miller had replaced Denton , as to the reaction of
King to the new Respondent Unions' officers, and as to how the King employees could
get back into the Respondent Unions. The conversation appears to have ended with
Miller stating, "I'm sure if the majority of your employees voted to affiliate them-
selves with A. F. of L., they could do it."
By quoting only portions of the above conversations the General Counsel contends
that he has proved that the purpose of the strike was to force the King management
to recognize and bargain with the Respondent Unions. Perhaps it is true that such a
405448-57-vol 116-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding could be made from this evidence . However, it is equally clear that such a
finding would be based on statements taken out of context because the whole of each of
these conversations demonstrates that the aim of the Respondent Unions was to
organize King employees and, ultimately , at some time when King could legally
recognize the Respondents , after the affiliation of the Independent with the Respondent
Unions or after an NLRB election a year following the May 17 election , secure such
recognition and bargain on behalf of the employees with King. The primary purpose
of the picket line was organizational while the ultimate purpose was ephemeral
depending as it did upon the success of the primary purpose. In the event that
the picket line did not succeed in organizing the employees or that the Independent
refused to affiliate with the Respondent Unions, then it is clear from these conversa-
tions that the-Respondent Unions recognized the fact that it could not expect to
secure recognition and bargaining rights from King. Therefore , unless and until
the Respondent Unions succeeded in organizing the employees of King, Respondents
could have only had a desire or a dim hope in the distant future of securing recogni-
tion and bargaining . It is obvious from these conversations that those speaking for
the Respondent Unions recognized that the organization of the employees by the
Respondent Unions had to be accomplished before recognition and bargaining could
even be considered . Hence it was that Kilgore spoke of next year 's election and
Miller of possible affiliation of the Independent with the Respondent Unions. To
hold as requested by the General Counsel would be to eliminate the prime organi-
zational purpose and to substitute therefrom the ultimate contingent purpose de-
pendent upon the successful accomplishment of the original objective or condition
precedent.
Making the holding requested by General Counsel would also do violence to the
other admitted and established facts. The Respondent Unions had not sought to
bargain with King since December 7. It had not demanded recognition from King
since before the establishment of the picket line on January 15 or indeed , after the
execution of the contract with the Independent on December 20. In fact , the Re-
spondent Unions had never requested a meeting with King for any purpose. It is
obvious from the conversations of the employees with the pickets that the Respondent
Unions were actively seeking to organize the employees through the picket line.
The picket signs, if they can be believed , indicate the same organizational purpose.
Finally the statements relied upon by General Counsel must be taken out of context
in order to show any purpose of the picket line other than to organize the employees.
Here the evidence shows five statements taken out of their conversational context
which perhaps, despite their enigmatic quality, might prove, if taken alone, an
illegal object on the part of the Respondent Unions to secure recognition and bargain-
ing from King. On the other hand the failure of the Respondent Unions to even
request recognition , the wording of the picket signs , the active solicitation of mem-
berships upon the picket line, the complete conversations from which the five instances
noted above have been extracted , as well as the other facts and circumstances surround-
ing the picket line indicate that the Respondent Unions' purpose in establishing
and maintaining the picket line was to organize King employees in preparation for a
future Board election or future affiliation of the Independent with the Respondent
Unions. The weight of the evidence considered as a whole preponderates in favor
of the finding that the object of the picket line was to organize King employees. The
Trial Examiner so finds
It is true that, no doubt , the Respondent Unions' ultimate , though contingent, end
objective was to return as business agent for the King employees . After all recogni-
tion is the raison d'etre for any labor organization. As recognition is the ultimate ob-
jective of all labor organizations , then, if Section 8 (b) (4) (C) is to be interpreted
to include any and all contingent or possible objectives , then all post -certification or-
ganizational picketing is to be banned forever-there can be no legal post-certification
picketing . If Congress had intended so to ban all post-certification picketing , it could,
and would, have so stated without equivocation . From the qualifications Congress
itself set forth in (4) (C ), it is clear that Congress recognized that some legal post-
certification was possible . In the Bakery Workers Union case the court recognized
this when it said: "We are not prepared to hold that all post-certification picketing is
forbidden."
The court went on to say:
His [the District Court Judge's] opinion stated that "[T]he ultimate ob-
jective of the picketing is to bring about a situation where Local 50 will be
recognized as the bargaining representative of the employees " of Arnold. How-
ever, we do not understand this to be a finding that "an object" of the picketing
was "forcing or requiring" the employer to recognize Local 50 as the bargaining
LOCAL NO. 25 3U7
representative of the employees, which is the object forbidden by clause (C).
In so far as the picketing was intended to influence Arnold's employees it was
mere propaganda for the AFL union, which might result in diminishing member-
ship in the certified union so that Local 50 would get a majority when
another election should be held. We do not understand this to be a prohibited
objective.
With respect to the employer, the only effect of the picketing was, as Judge
Dawson said, to cause "some justifiable irritation" and "such conduct, even
though irritating, is not illegal." During the picketing, Local 50 made no de-
mand to be recognized as the bargaining representative of Arnold's employees.
At the time of the November election it admitted that none of the employees was
its member and it did not ask to have its name on the ballot. At the injunction
hearing Mr. McIntyre, a business agent of Local 50, testified that he could
think of nothing Arnold could do that would cause removal of the pickets, since
their purpose merely was to inform the public.
As the evidence produced in the instant case fails to prove the illegal object of
the strike, the General Counsel is again forced to fall back upon the drawing of
an inference of such illegal object from the existence of a picket line per se. The
phraseology of a number of recent Board decisions cited by the General Counsel
indicates that the Board has drawn such inferences per se from picketing. In
Francis Plating Co., 109 NLRB 35, the Board said that "the picketing is tanta-
mount to a present demand for recognition" but a reading of the case shows that
there was evidence in that case of an actual demand for recognition.
If the General Counsel is correct that such inferences are to be drawn from
the existence of the picket line per se, then all he has to do to prove a violation
of Section 8 (b) (4) (C) is to prove the certification of one union at the plant
and the existence of a picket line of another union existing simultaneously. From
this, according to statements found in recent Board decisions, per se it is to be
inferred: (1) that the picketing union is illegally inducing and encouraging em-
ployees to cease work, and (2) that the illegal object of the picketing union is to
force the employer to recognize and bargain with the picketing union.
In the instant case these inferences would have to be drawn regardless of the
preponderance of the substantial evidence to the contrary in both instances. On
this point the Circuit Court of Appeals for the Fifth Circuit in the General Drivers,
Local 968 case has the following to say: "While the drawing of appropriate in-
ferences as to the unlawfulness of the objective and motive in a labor dispute is
primarily the province of the Board, there still must be some substantial basis for
inferring a wrongful rather than a legitimate motive, which we think does not
exist . N. L. R. B. v. Houston Chronicle Pub. Co., 5th Cir., 211 F. 2d 848, 854."
Accordingly the Trial Examiner must refuse to draw the inference requested as
to do so would be to infer a fact contrary to the weight of the evidence considered
as a whole. And in accordance with such weight of the evidence considered as
a whole, the Trial Examiner must find that an object of the Respondent Unions'
picket line was not to force King to recognize and bargain with the Respondent
Unions but was, in fact, to attempt to organize King employees.
There being no proof that there was an illegal objective in instituting or main-
taining the Respondent Unions' picket line as regards King employees, the Trial
Examiner must hold that the Respondent Unions thereby committed no violation
of Section 8 (b) (4) (C) of the Act.
4. The alleged inducement of "employees of any employer"
However, in addition to the evidence relating to the employees of King noted
above, the General Counsel adduced further evidence for which he correctly claims
in his brief:
The evidence indicates further, that prior to the establishment of a picket line
at King's plant, all of its outgoing and incoming shipments of goods were
picked up and delivered by the many trucking companies in the Chattanooga
area. However, subsequent to the strike and continuing to the date of the
injunction, the trucking companies refused to perform such pickups and deliv-
ery services and King's found it necessary to perform these services with its
own equipment and employees. Also, in one particular instance, a truck
driver told an employee of King's that he would not make any deliveries to
the plant as long as the picket line continues. [Emphasis supplied.]
As the Trial Examiner erroneously in view of the pleadings permitted this evi-
dence to be adduced at the hearing, he will now consider whether this evidence
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
created a violation of the Act just as if the complaint had been amended to include
the inducement of "employees of any other employer."
It is clear from the General Counsel 's brief, as well as from the evidence adduced
at the hearing, that the General Counsel expects the Trial Examiner to draw the
inference of illegal inducement of the employees of employers other than King
and of the illegal motivation of the strike from the mere existence of the picket line
before the King plant . The General Counsel states at page 10 of his brief:
Applying this theory of the Arnold case to the present situation , it is apparent
that the Respondents have violated the Act. Here, all of the trucking firms and
their employees have ceased performing pick up and delivery services for King.
This, under the holding of the Arnold case, was the intended result of the
picketing and as such , constituted the necessary inducement for encourage-
ment . [ Emphasis supplied.]
It should be noted that here, contrary to his earlier statement of this same find-
ing, quoted supra, the General Counsel now adds the words "and their employees."
General Counsel 's original statement of this finding is correct for there is no evidence
in this record that any employee of any employer ever refused to pick up or deliver
at King's plant by reason of any inducement from the picket line.
The evidence here shows that the pickup and delivery services ceased upon the
institution of the picket line and because King was strike bound and picketed.
But the evidence does not show that even one employee of one trucking concern
was induced to refuse to cross the picket line or to refuse to pick up and deliver
King's goods . The evidence here shows that the refusal to pick up and deliver was
that of the employer trucking concerns.
With two exceptions which will be noted , the evidence on this point was con-
tained in the testimony of King officials who testified as to conversations or com-
munications between themselves and officials of various employer trucking concerns
in which the trucking employers refused to supply King with pickup and delivery
service for fear that they themselves might be picketed or because of solicitation
of such employers by the Respondent Unions. Even if we should assume, contrary
to the facts here, that these trucking employers reported in these communications
to King officials that the delivery and pickup service had to be discontinued because
the trucking employees refused to cross the picket line at King's plant because of
the encouragement and inducement of the Respondent Unions, this testimony re-
garding such inducement and refusals of employees would not be competent here
because it is hearsay for the reason that the General Counsel produced not one
witness who had heard any such solicitation or refusal of such employee and, there-
fore, could not be cross -examined as to its truth or falsity.
At the hearing the General Counsel conceded that such testimony was hearsay
in that regard and expressly limited this evidence to prove that King lost business
because of the picket line. It is true that King lost business because of this picket
line both because customers refused to buy and trucking employers refused to pro-
vide pickup and delivery service to King. The loss did not occur because of any
inducement or encouragement of employees-but exclusively because of the fear
of, or because of the encouragement and inducement of, employers who thereupon
refused to purchase from or to service King. Perhaps this might prove a violation
of Section 8 (b) (4) (A ) which is not charged here-but, unless the loss resulted
from the concerted refusal of employees encouraged by the Respondent Unions,
still the Respondent Unions have not violated Section 8 (b) (4) (C).5
The first of the two exceptions noted above (and specifically referred to by the
General Counsel in his findings of fact ) occurred on June 3 , 1955 , when an un-
known C & D truckdriver reported to Sharon Sue McKee, receptionist for King,
that he had parked his C & D delivery truck with a shipment for King across the
street from King 's plant . When Mrs. McKee inquired if he were ready to unload
it, this C & D driver stated : "Our lady in the office called up this morning and
you told them that the strike was over and we loaded the shipment on the truck
and brought it out here and they're still picketers in front. " Mrs. McKee then
undertook to argue that the Independent had won the election and that as far as
King's was concerned the strike was over but the C & D driver said : "I can't
deliver it." The receptionist thereupon called the general sales manager who again
attempted to convince the driver but, according to the testimony of Mrs. McKee,
the driver "said he still couldn 't deliver it, then walked out." The General Counsel
cites this episode as proof of the refusal of an employee to deliver . In view of
the care with which the management of C & D checked to determine if the picket
5 N. L. R. B. v. Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc., 191 F. 2d
65, 68 (C. A. 2). Arkansas Express, 92 NLRB 255.
LOCAL NO. 2 5 309
line was still in front of King's plant even before permitting the shipment to be
loaded on the truck for delivery , it seems a much more reasonable inference that
this unknown driver was merely obeying the orders of his employer to make delivery
in the absence of a picket line or to return the merchandise if the picket line was
still present than that this refusal was that of the driver individually . It was in-
cumbent upon the General Counsel to establish that this refusal was that of the
employee rather than that of his employer. This burden has not been sustained.
The other exception came in the testimony of one Ellsworth A. McKee, then
apparently a shipping clerk but at the time of the hearing a foreman for King's,
who on June 21 drove a King truck to Wilson Freight Lines for the purpose of
picking up a large shipment for King. Upon arrival at the Wilson dock McKee re-
quested some unknown workman there to assist him in loading this shipment onto
King's truck. As described by McKee, this unknown "just shook his head and looked
at the dock foreman." McKee then spoke to Jenkins, the dock foreman, who, after
telling McKee that the Union informed him that the strike was still on at King's,
said: "If I forced my men to go ahead and help you load that shipment . . . there's
men here that would just run straight down to Union Hall and then they'd send a
picket out in front of my place." While it is clear that it was fear of bringing a
picket line around the truckers ' plant which caused the refusal here , it is also equally
clear that the decision to refuse was that of the trucking concern official-not that
of the employee . Again if it is the employer who is induced "to refuse , there is no
violation of Section 8 (b) (4) (C) of the Act. 1
In addition to the refusals of the trucking concerns to provide pickup and
delivery service, the General Counsel also adduced evidence from King officials that
certain customers canceled orders or ceased purchasing King's goods because of the
existence of the picket line at King's plant or because of fear of 'a picket line
at their own plant. As related to the refusal of customers and trucking concerns,
the court notes in footnote 4 of the Bakery Workers Union decision: "If otherwise
lawful the picketing was not unlawful because it solicited the general public not to
buy Arnold's products, `since the prohibition of Section 8 (b) (4) does not extend
to such solicitation of customers,' N. L. R. B. v. Service Trade Chauffeurs, 2 Cir., 191
F. 2d 65, 68, 28 LRRM 4450." There is no evidence here that the buying for these
customers was being done by employees of such customers 6 so that, in the absence
of such evidence , the inducement of the customers was inducement and encourage-
ment of employers and hence not illegal as Section 8 (b) (4) (C) only prohibits such
encouragement of employees. Hence the evidence regarding customers may be elim-
inated from consideration here.
While, if one will, one can imagine that the Respondent Unions induced and
encouraged employees of these customers and trucking concerns to refuse to cross the
picket line which, in turn, induced and encouraged the officials of the customers and
the trucking concerns to refuse to purchase or to deliver, yet this record is devoid of
any such proof. Furthermore this record is devoid of any proof that any employee of
King's or of any other employer was induced to do or to refuse to do anything.
Under these circumstances these words of the court in the Bakery Workers Union
case are especially applicable here:
Similarly as to the drivers of the contract truck companies. No driver refused to
cross the picket line or to transport Arnold's goods. The trucks were operated
by members of AFL unions affiliated with the Appellee. Had Appellee intended
to induce the drivers to engage in a concerted refusal to transport Arnold's
bread, an effective means to accomplish it was available through action by these
affiliated unions. But the testimony does not even suggest that any effort was
made to induce them to act. Nor was any threat made or inducement offered to
any employee of Arnold or of any other employer. In this respect, the case at
bar differs from the authorities relied upon by the Appellant.
We are not prepared to hold that all post-certification picketing is forbidden.
The present seems to be one of the cases to which the court was referring.
Accordingly, for the reasons given heretofore, the Trial Examiner finds that the
Respondents have not, since on or about January 15, 1955, or May 27, 1955, en-
gaged in, and by orders, directions, instructions, picketing, or other means, induced
or encouraged the employees of the Employer (King's Bakery, Inc.) at its Chat-
tanooga, Tennessee, plant to engage in a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or to perform any services
for the Employer (King's Bakery, Inc.) at its Chattanooga, Tennessee, plant, for the
0 See Amalgamated Meat Cutters and Butchers Union (Swift c& Company ), 113 NLRB
275.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose or object of forcing or requiring the Employer (King's Bakery, Inc.) to
recognize and bargain with the Respondents as the representative of said employees.
Although the above finding ends this case as framed by the pleadings of the com-
plaint and the amended complaint , as noted heretofore , the Trial Examiner also
finds that there was no refusal by any employees of any employer to perform services
for King 's and that the only refusals shown by the evidence adduced in this case were
refusals by employers , customers , or common carriers . Respondents ' encouragement
or inducement of such employers by means of the existence of a picket line or other
methods do not , and cannot , prove a violation of Section 8 (b) (4) (C).
Therefore , because of these failures of proof, the Trial Examiner will recommend
that this amended complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local No. 25, Bakery & Confectionery Workers International Union of America,
AFL, and Bakery and Confectionery Workers International Union of America, AFL,
are labor organizations within the meaning of Section 2 (5) of the Act.
2. King's Bakery, Inc., is engaged in commerce within the meaning of Section
2 (6) and (7) of the Act.
3. The aforesaid labor organizations have not engaged in unfair labor practices
within the meaning of the Act.
Columbian Bank Note Company and Chicago Printing Press-
men's Union No. 3, and Franklin Union No . 4, Petitioner. Case
No. 13-IBC-4934. July 25, .1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Albert Kleen, hear-
ing officer . The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
The Employer is engaged in the production of bonds, stock certifi-
cates, and checks. Its plant at Chicago, Illinois, is administratively
divided into six departments : steel plate printing, offset printing,
letterpress printing, bindery, composition, and final inspection. Each
department is under the direction of a departmental foreman.
The Petitioner seeks a unit of all the employees in the steel plate
printing department. The Employer objects to a single depart-
mental unit contending that as its offset pressmen 1 and letterpress-
men 2 are represented on a craft basis, such should be the representa-
i Represented by the Amalgamated Lithographers of America.
2 Represented by the Petitioner herein.
116 NLRB No. 41.