Meat Cutters, District Local 340 (PFA-Farmers Market Assn.)

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 111 (N.L.R.B. 1977)

MEAT CUTTERS, DISTRICT LOCAL 340
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, District Local 340 and
PFA-Farmers Market Association. Case 17-CP-
181
September 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 16, 1977, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record in the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, District Local 340, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
I Respondent has objected to the briefs filed by the General Counsel and
the Charging Party on the ground that they include a copy of the Eighth
Circuit Court of Appeals' decision in the 10(l) injunction case (Hendrix v.
Amalgamated Meat Cutters and Butcher Workmen of North America. AFL-
CIO. District Local 304, 555 F.2d 175 (C.A. 8. 1977)). Since we have limited
our consideration of such case to the time limit of the temporary injunction
and do not interpret the decision of the Administrative Law Judge to
indicate he relied on such case in any other manner, we hereby overrule
such objection and hereby deny Respondent's motion for a new hearing and
admonishment of counsel.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on April 5, 1977, at Springfield,
Missouri. The charge was filed on February 16, 1977, by
I Respondent's counsel filed objections to bnefs filed by General
Counsel and Charging Party because each had attached copies of the Eighth
Circuit's decision. Inasmuch as the decision herein is based solely on the
record of the hearing held before me on Apnl 5, 1977, Respondent's
application for a new heanng is denied. Inasmuch as the stated purpose of
232 NLRB No. 35
PFA-Farmers Market Association, herein called PFA, and
complaint issued on February 28, 1977. The complaint
alleges that Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, District Local
340, herein called Respondent, violated Section 8(b)(7)(B)
of the Act by engaging in recognitional picketing of four
PFA stores in the Springfield, Missouri, metropolitan area,
within 12 months after the employees of PFA had rejected
representation by Respondent in a valid Board election.
Respondent admits engaging in the picketing so alleged,
but denies that it was recognitional in nature or that it was
in violation of the Act.
Upon the entire record in this case and from my
observation of the witnesses and after due consideration of
the briefs filed by General Counsel, Charging Party, and
Respondent, I hereby make the following:
FINDINGS OF FACT
. JIURISDICTION
PFA, a Missouri cooperative, with its main office and
retail outlets in the metropolitan area of Springfield,
Missouri, is engaged in the retail sale of groceries and
related products, general merchandise, and pharmaceuti-
cals. In the course and conduct of its operations in the
Springfield area, PFA's gross volume of business annually
exceeds $500,000 and its direct purchases and receipt of
goods and materials from sources located outside the State
of Missouri annually exceed $50,000. Respondent admits,
and I conclude, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a labor organization representing approxi-
mately 4,000 meatcutters, butcher workmen, and related
tradesmen employed throughout Northern Oklahoma.
certain portions of Kansas, and Southwest Missouri. In the
Springfield area, Respondent has for several years repre-
sented all of the meatcutters employed in supermarkets and
major stores with meat departments except the PFA stores.
Small independent stores have not been the object of
organizational activity.
On December 11, 1975, Bob Mann, Respondent's
president, filed a petition to represent certain of PFA's
employees in the Springfield area. This petition was
subsequently withdrawn but a second petition 2 filed jointly
with certain other labor organizations was file,_J on March
3, 1976. Pursuant to the second petition, an election was
conducted by the Board on Spetember 16, 1976, in the
following unit:
the attachment was solely to advise me of the limited nature of the
injunction granted and the concomitant need for exiedition. I see no basis
for admonishing counsel as requested.
2 Representation heanngs were conducted involving the emplosees of
PFA's six stores in the Springfield area.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time meat department
employees including meat cutters, apprentice meat
cutters, meat wrappers and meat stockers employed by
PFA-Farmers Market Association at its stores located
in the metropolitan area of Sringfield, Missouri.
When Respondent lost the election, Mann visited the office
of PFA's president, Carl Bledsoe. He told Bledsoe and
PFA's attorney, Paul King, who was present at the time,
that he was surprised that he had not won the election, that
he was unhappy about some of PFA's campaign tactics,
and that he intended to file objections to the election.
According to Bledsoe, Mann admitted that the basis for his
objections was weak, but stated that he felt that he
nevertheless had to file them. He requested that PFA not
fight the objections thus enabling Respondent to get a
second election, and promised Bledsoe that if a second
election were held and Respondent lost again, he would
leave PFA alone. Bledsoe replied that the election had
been properly run, from the Company's side, that the
employees had made their decision, and that he did not feel
that he should agree to a second election.
Subsequently Mann filed objections though, even at the
time, he felt that they were weak. He testified that he filed
the objections partly in support of objections filed by the
Retail Store Employees Association 3 and, in truth, did not
feel that he could win a second election. Mann stated that,
in effect, he had quit trying to organize the PFA at the time
the ballots were counted. But the objections were filed and
a hearing was held on the objections which resulted in the
issuance of a hearing officer's report recommending that all
objections be overruled. In January, Mann filed exceptions
to the Hearing Officer's report despite the fact, according
to his testimony, that he seriously doubted that they would
result in getting the Hearing Officer's recommendations
reversed. Respondent, I find, filed the exceptions for the
purpose of obtaining a second election through which it
hoped to become the recognized representative of PFA's
employees. On February 18, following the withdrawal of
Respondent's exceptions, results of the election were
certified by the Board.
Meanwhile, about the time of the election, PFA under-
took an advertising campaign, the terms of which were to
the effect that it would meet all of its competitors'
newspaper coupons such as those of Consumer's, Safeway
and Milgram, and other organized supermarket chains.
According to the testimony of Mann, the direct result of
this advertising campaign was a reduction in the hours
worked by union members employed at the union
supermarkets due to the loss of customers seeking to take
advantage of the PFA offers by shopping at PFA. The full
effect of the success of the PFA advertising campaign was
not felt for 3 or 4 weeks after it was first initiated, at which
time Respondent's members started to suffer reductions in
hours in the union supermarkets, and concluded that
action would have to be taken to keep their jobs in tact.
The membership, according to Mann, made these feelings
known to the union leadership, and demanded to know
what was going to be done to protect their jobs. Nothing
:' I find, however. that the pnmary reason that Mann filed the objections
was to obtain a second election through which he hoped to gain
was done at the time for a number of reasons; namely, that
the union leadership was busy preparing for areawide
negotiating in Springfield; there were management labor
problems with other companies in other geographical areas
such as Wichita which required attention; there were still
objections to the election at PFA still outstanding and
Respondent was still engaged in determining why it had
lost the PFA election; and finally, union leadership still
had to confer with counsel before undertaking action
against PFA. Nevertheless, union officials began, at this
time, to make plans for their own advertising campaign
against PFA, both in the newspapers and by means of
picketing.
In November, Respondent undertook negotiations
toward a new contract with the organized supermarkets in
the Springfield area. Negotiations continued through mid-
January and were concluded on January 22 or 23, January
23 being the expiration date of the previous contract. On
January 23 a memorandum of agreement was signed which
encompassed the terms of the contract which had been
agreed upon. The terms of the agreement, according to the
memorandum, were to go into effect immediately, with the
signatures to be affixed to the final contract 3 or 4 weeks
hence, after printing. On January 23, 1977, when actual
agreement was reached, there were only two major
supermarket chains actively involved, though 26 employers
were actually concerned with the negotiations. This
reflected the procedure of previous years when one or two
of the larger chains would actually do the negotiating, with
the smaller chains and independents awaiting the outcome
in order to negotiate minor language changes and to sign
later. It took several more days past the date of agreement,
January 23, to schedule meetings with the various employ-
ers, who were expected to sign the agreement, and weeks
thereafter to actually meet with and execute the contracts
individually agreed upon by the remaining employers.
Some had not been executed, even at the time of the
hearing in the instant case, because the Union had to go,
seriatim, from one employer to another to obtain each
agent's signature to the contract basically agreed upon on
January 23 as reflected in the memorandum of agreement
which had, in the meantime, been distributed to all
potential signers of the contract. As each party to the
contract received its copy of the memorandum of agree-
ment, it was signed and its provisions implemented, signing
of the actual contract to await subsequent printing of same.
According to Mann's testimony, signing of the memoran-
dum of agreement was the equivalent of the signing of the
contracts, for the latter merely was to place in printed form
the changes reflected in the former.
All of the major markets had agreed to or were expected
to agree to the provisions of the new contract, as reflected
in the memorandum of agreement, except, of course, PFA.
The significance of this fact, according to Mann, was that it
gave PFA an enormous competitive advantage over the
employers who were parties to the agreement since even at
the time that Respondent was initially trying to organize
PFA, its employees were receiving $1 per hour less than the
journeymen meatcutters in the union supermarkets. With
representational status for the employees of PFA, Mann's testimony to the
contrary notwithstanding.
112
MEAT CUTTERS, DISTRICT LOCAL 340
the new contract, the difference would amount to approxi-
mately $1.65 per hour, assuming that PFA had not raised
its wage rate, an assumption which Mann freely admitted
might not be firmly based in fact since he did not
thoroughly investigate the matter. When the memorandum
of agreement was brought up for ratification by the union
membership, the proposed wage increases in the new
contract and the resultant differences between the wage
rates of PFA employees vis-a-vis union meatcutters were
seriously considered by the members. The effect of the
PFA advertising which by January had resulted in the loss
of hours and income for the membership, according to
Mann, when considered in light of the differential in wage
rates which would probably result from the ratification of
the newly proposed contract, instilled in the membership a
fear that further losses of hours and pay would be
forthcoming. As a result of the expressed concern of the
membership with regard to these matters, according to
Mann, union advertising through the use of newspaper
advertisements and picketing were considered as possible
countermeasures.
On February 4, Respondent placed in the "Union Labor
Record," a newspaper distributed in the Springfield area,
the following advertisement which appeared weekly up
until the time of the hearing:
WE NEED YOUR HELP
-- PLEASE DON'T SHOP
PFA-FMA SUPERMARKETS
THE PFA COMPANY IS ANTI-UNION
PFA does not have a union contract with Retail Store
Employees Union Local 322 and the Amalgamated
Meatcutter and Butcher Workers Local 340, AFL-
CIO.
PFA-FMA actively opposed its employees efforts to
join the Amalgamated Meatcutter and Butcher Work-
ers Local 340 and the Retail Store Employees Union
Local 322, AFL-CIO.
Thank you for your and your family's support.
RETAIL STORE
EMPLOYEES LOCAL 322,
AFL-CIO
AMALGAMATED
MEATCUTTER AND
BUTCHER WORKERS
LOCAL 340, AFL-CIO
According to Mann, the city of Springfield was accus-
tomed to all of the markets being union, until PFA moved
in. Respondent therefore felt that an extensive advertising
campaign was necessary to let the people of Springfield
with union sympathies know which of the markets were
union, and which were not, so that if they preferred to shop
4 This same advertisement was placed in the "Union Labor Record" on
February 25.
at a union store, they would, once properly advised, be able
to do so. Therefore, in conjunction with Retail Store
Employees Union, Respondent placed the above-described
ad in the newspaper.
By February 9, rumors had circulated concerning
Respondent's planned picketing of the PFA stores and on
that day Bledsoe called Mann and told him that he had
heard that Respondent planned to picket PFA within the
next few days and asked if the rumor was true. Mann
replied that it was, and that he planned to picket PFA the
following Saturday. Bledsoe advised Mann that he was tied
up, that he was making plans to leave town over the
weekend and implied that picketing over the weekend
would cause a great deal of inconvenience. Mann replied
that if it would help, he would put off the picketing until
the following Monday.
Bledsoe then asked Mann why Respondent was going to
picket the PFA stores and advised him that if the picketing
resulted in a decline in PFA's volume of business, it could
cause a financial crisis for the Company. He offered to
prove his statement by showing Respondent the Compa-
ny's financial records. Mann declined the offer, however,
inasmuch as he was aware of PFA's financial condition
through other sources. At this point, according to Bledsoe,
Bledsoe asked Mann if there was some way that PFA could
avoid being picketed. Mann replied that Bledsoe should
speak with the Company's attorney, that he, Mann. could
not discuss the matter with Bledsoe. Bledsoe then asked
Mann whether he meant that if PFA had a contract with
Respondent, there would be no picketing. Mann replied,
"Obviously if I had a contract I wouldn't be picketing you.
However, I'm not picketing you for that reason." Mann
testified, in confirming the conversation, "I think it's only
obvious [that] if we'd won the election, had a contract.
there wouldn't be any reason for picketing. It would be a
union market like all the rest of them." Bledsoe asked
Mann if he was picketing PFA to get a contract and
whether Respondent would stop picketing if Bledsoe were
to sign a contract. Mann refused to respond directly to this
question. He told Bledsoe that he could not answer that
question, and advised him to discuss the matter with the
Company's attorney. Mann further commented that since
they had just had an election it would be illegal for
Respondent to sign a contract with PFA for another year.
He added that the sole purpose of the picketing was to
inform the public that the PFA was not union. Mann
testified at the hearing, consistent with his description of
his February 9 conversation with Bledsoe, that the
picketing was not for the purpose of obtaining a contract
with PFA since it was Mann's understanding of the law
that, after losing an election, it would have been illegal for
Respondent to enter into a contract with PFA for another
year.
About the same time, Mann concluded that the adver-
tisement placed in the union newspaper on February 4 was
not getting sufficient circulation so on February 12 or 13 he
placed a second advertisements this time in the "Spring-
field News and Leader." The object of this advertisement,
like the earlier one, was, according to Mann, to advise the
113
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
people that PFA did not have a union contract and to urge
the consumer to patronize union supermarkets rather than
PFA. The advertisement reads as follows:
NOTICE TO CONSUMERS:
Sometime back a National Labor Relations Board
election was held for the employees in the Meat Depts.
of the P.F.A. Stores in Springfield.
Amalgamated Meat Cutters District Local 340
respects the freedom of choice of secret ballot election
and the union respects these employees' right not to
choose to be represented by Meat Cutters District
Local 340. The union also acknowledges that it cannot
represent the employees of P.F.A. until and unless there
is another NLRB election and the vote is favorable to
Local 340. A new election cannot be held until the
expiration of one year from the last election.
The union has an obligation to its members working
in CONSUMERS, SAFEWAY, VENTURE, RA-
MEYS' and other meat markets in Retail Stores in the
Springfield area.
The wages, hours, and working conditions in Union
Meat Markets exceed the wages, hours, and working
conditions prevailing in P.F.A. Meat Markets.
THE UNION FEELS IT NECESSARY to publicize
to the patrons and prospective patrons of P.F.A.'s Meat
Markets the fact that they are NON-UNION.
This publication is not done with an objective to
eventually represent the employees in P.F.A.'s Meat
Markets.
The sole objective is to make known to the general
public the fact that P.F.A. Meat Markets are NON-
UNION. Consumers, please trade at union markets.
BOB C. MANN, PRES.
PIILI.IP IMMESOTE, SEC.-
TREAS. AMALGAMATED
MEAT CUTTERS LOCAL 340
In accordance with authorization from Respondent's
executive board granted in October or November 1976,
Mann, on February 16, stationed pickets at four of PFA's
six stores. All picketing was peaceful and in accordance
with management's requests that it be performed where it
would not interfere with the proper conduct of business.
The number of pickets at the four stores numbered
between 12 and 14 and none were employees or former
employees of PFA. They were, rather, picked up by Mann
from Manpower, Inc., or elsewhere, friends of friends, for
example, to perform the picket duty required. These "pick-
up" pickets were not knowledgeable insofar as the
prevailing wage rates in the area were concerned, nor were
they schooled with regard to the contents of the relevant
collective-bargaining agreements, past or present, to which
the litigants, herein, were parties. Neither Mann himself
nor anyone else representing Respondent discussed such
matters with the pickets before posting them at their
various stations, for, as Mann testified, it was not necessary
for the pickets to perform their appointed tasks to have this
I No evidence was offered to support or negate this contention.
I Though counsel for Respondent sought through cross-examination to
information. Their duties, on the contrary, were, according
to Mann, "to walk picket," keep their mouths shut, walk in
the area which they were instructed to walk, and to be
courteous to the customers with whom Respondent was
trying to communicate. Each picket received written
instructions concerning these duties, Mann testified,
though no exhibits were offered to prove this point. The
instructions, according to Mann, contained directions not
to block driveways, to be courteous, not to engage in
conversation, not to threaten anybody in any respect, and
to call union headquarters if there were questions concern-
ing where the pickets should walk or what they should be
doing.
The decision to picket was based, at least in part, on the
heavy cost of advertising in commercial newspapers5
which had not proven as effective as had been hoped, and
was undertaken for the same purposes as was the
newspaper advertising. Picket signs carried by the pickets
read as follows:
Notice to Public-Meat Cutters Union, District Local
340 does not have a contract with PFA-Farmer's
Market Association retail meat markets. Union stores
in this area are: Consumers, Safeway, Venture, Ra-
mey's and others. Please patronize those meat markets
and not PFA. We are not on strike. We are not asking
anyone to quit their employment or cease doing
business with anyone else.
One of the four stores picketed was managed by Terry L.
Maples. Two pickets, personal friends of Mann's son who
were not members of Respondent, were hired by Respon-
dent to "walk picket" at $4 per hour. The first day of the
strike Maples engaged one of the pickets in conversation.
During this conversation, the picket to whom Maples was
talking told him to go back into the store, get him a cup of
coffee, then join him. The picket told Maples that he, too,
could get $6.80 per hour. Maples did not reply. The
conversation continued for a while, then the picket
reiterated that he could get Maples $6.80 per hour and
could get others in the store $6.80 per hour just as
Consumer Market employees were receiving. The picket
also pointed out that Maples had no security and that he
could be demoted the following day to a stocker.6
According to Mann, at the time of this conversation
between Maples and the picket, there was no scale under
the meatcutters contract equal to $6.80 per hour. Mann
also denied that the pickets had been given any authority
to engage Maples in conversation.
Mann testified that the immediate purpose of the
picketing was, through advertising, to advise the public
that PFA was not union and that there was no contract
between PFA and Respondent, and to convince prospec-
tive consumers to do their shopping at union markets
rather than at PFA. The ultimate object behind trying to
convince consumers to shop at union markets rather than
at PFA was to protect the members' jobs at the union
markets. Mann freely admits that had he been successful in
organizing PFA, there would have been no purpose in
discredit Maples, I find, with respect to this conversation. that he was a
credible witness and testified in a straightforward and truthful manner.
114
MEAT CUTTERS, DISTRICT LOCAL 340
picketing since PFA would be under contract, and its
employees would be holding down union jobs. Since he
failed to organize PFA, Mann felt the necessity to protect
those jobs which remained within Respondent's jurisdic-
tion at the unionized markets.
Closely linked to the ultimate object of protecting the
union members' jobs was the maintenance of area
standards. Though Mann denied that maintenance of area
standards was the primary object of the picketing, implicit
in his testimony is the fact that Respondent considered the
matter of particular consequence, not only to Respondent
itself, as an entity, but also to the individual members and
to the unionized markets, for although the picket signs did
not mention area standards, wages, hours, or working
conditions, Respondent's newspaper advertisement of
February 12 or 13 did. Concerning the subject of area
standards, Mann testified that Respondent is obligated to
strive for comparative parity in the industry in a given area,
and attempts to obtain in its labor agreements with each
union employer comparative parity, so as not to give one
union employer unfair advantage over another. Similarly,
when a nonunionized market in the area, such as PFA,
enjoys a competitive advantage over the union markets
because of a wage differential and can cut into the business
of union markets through price-cutting advertising, this not
only adversely affects the business of the union markets,
but also the hours of work available to Respondent's
members who are employed at the union markets. At one
point, Mann admitted that the PFA advertising and the
wage differential were factors considered in Respondent's
decision to picket PFA. Later, however, Mann denied that
wage differential was a consideration in Respondent's
decision to picket or, at least, that it weighed heavily in that
decision. In later testifying to the effect that he did not
think that wage differential had weighed heavily in
Respondent's decision to picket, Mann explained that
Respondent was not fully aware at the time of the picketing
what PFA was paying its meatcutters, for PFA may well
have raised the wages of its employees between the time of
the election and the date picketing was undertaken. He
stated, however, that if Respondent knew for certain that
PFA's wages were lower than those paid at the union
markets, then this information would have been included
on the picket signs. I credit Mann's testimony with regard
to this matter to the extent that the picketing could not
have been pure area standards picketing inasmuch as
Respondent did not know PFA's wage scale. However,
Mann also admitted that the contract negotiations which
took place earlier in the year did enter into the decision to
picket PFA to the extent that Respondent felt obligated to
do everything possible to strengthen the business of the
supermarkets from whom it received the new contract, and
to protect the jobs of members working under the new
contract. Hopefully, according to Mann, the picketing
would result in customers of PFA taking their business to
union markets, which in turn would help maintain union
jobs. Mann adamantly denied, however, that any agree-
ment had been reached during negotiations, whereby the
I It is not clear whether the pickets had actually been posted at the time
of this conversation. Mann testified that Bledsoe requested that he not post
pickets at PFA. thus indicating only that picketing was being contemplated.
employers would agree to the proposed contract in return
for Respondent's agreement to picket PFA. Thus, it
appears certain, as admitted by Mann, that if Respondent
had sufficient information to conclude that PFA's wages
were substandard, it would have picketed for that reason as
well. Since he did not have any accurate figures on the
subject, and had made no effort to obtain that information,
I conclude that the picketing was not intended to be area
standards in nature. Moreover, since Mann freely conced-
ed that the primary purpose of the picketing was to draw
customers from nonunion PFA to the union markets, and
he would picket PFA even if it did meet all area standards,
there was really no reason why Mann should expend time
and energy in obtaining this information except as it might
perhaps have made the advertising somewhat more
convincing and therefore possibly more successful.
In summary, Respondent maintains that its picketing of
PFA on February 16 and thereafter did not have
recognition as its object but was conducted solely for the
purpose of convincing PFA customers to do their shopping
at union markets, in order to increase the business of union
supermarkets and thereby protect the jobs of union
employees. General Counsel contends that the purpose of
the picketing was recognitional.
On February 16, the first day of the picketing, Bledsoe
contacted Mann who then visited Bledsoe at his motel
room. During the conversation which ensued, Bledsoe once
again advised Mann that PFA was in financial difficulty
and offered to show the Company's books to Respondent
or its accountants in order to show how a decline in the
volume of sales at PFA would put it out of business. Mann
told Bledsoe that he believed him and did not need proof.
Inasmuch as both Bledsoe and Mann were going to be in
Kansas City that evening, Bledsoe invited Mann to join
him for dinner during which they could discuss the
situation further. Bledsoe requested that Mann, in the
meantime, consider pulling the pickets.7 Mann told
Bledsoe that he would consider Bledsoe's request and
furnished Bledsoe with the address of the place he would
be staying in Kansas City. There was no mention during
this conversation of a contract either by Bledsoe or Mann.
Later, when Bledsoe contacted Mann, the latter in-
formed him that he was too busy to accept his invitation to
dinner. During the conversation which followed, Bledsoe
asked if the fact that Mann was negotiating a new contract
that week with PFA's competitors had anything to do with
the initiation of picketing at PFA, particularly since several
months had passed since the election, without any
picketing during the intervening period. Mann refused to
discuss the matter with Bledsoe, stating that his attorney
had advised him to stop talking to Bledsoe and other PFA
personnel about the picketing. Bledsoe then asked Mann
what the status was of the contracts between Respondent
and PFA's competitors. According to Bledsoe, Mann
replied that all of them had been signed except for one,8
and that one would be signed in the next day or so.
8 Probably Mann was refemng to the memorandum of agreement rather
than to copies of the actual final agreement since Mann testified that as of
the day of the heanng, months later, only one contract had been signed.
115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 19, the day after the certification of the
results was issued by the Board, the picket signs were
changed to read as follows:
NOTICE TO PUBLIC
MEAT CUTTERS UNION DISTRICT LOCAL 340, THESE ARE
NON-UNION
9
PFA - FARMERS MKT. ASSOC. RETAIL MEAT
MKTS. UNION STORES IN THE AREA ARE: CONSUMERS,
SAFEWAY, VENTURE, RAMEY'S AND OTHERS. PLEASE
PATRONIZE THESE MEAT MARKETS AND NOT PFA. WE ARE
NOT ON STRIKE. WE ARE NOT ASKING ANYONE TO QUIT
THEIR EMPLOYMENT OR CEASE DOING BUSINESS WITH
ANYONE ELSE.
Picketing with the new signs continued through February
24 at which time it was enjoined by the District Court.
On March 12 picketing resumed and continued through
March 26 at PFA's five remaining stores, one having gone
out of business. The language on the picket sign remained
as it was as of February 19.
Positions of the Parties
General Counsel contends that the picketing undertaken
by Respondent beginning on February 16 had as its object,
since February 18, the date of certification, forcing or
requiring PFA to recognize or bargain with Respondent as
the collective-bargaining representative of PFA's employ-
ees, or to force or require said employees to accept or select
Respondent as their collective-bargaining representative.
Further, inasmuch as there had been a valid representation
election held by the Board under Section 9(c) of the Act
within the preceding 12-month period, said picketing was
in violation of Section 8(b)(7)(B) of the Act.
Respondent contends that the picketing had no recogni-
tional objective but was purely informational in nature and
was instituted for the purpose of advising the public that
PFA was a nonunion market which did not have a contract
with Respondent and to persuade potential customers to
trade not with PFA but with the various union supermar-
kets doing business in the Springfield area.
Analysis and Conclusion
The above-described events reflect that Respondent first
overtly undertook the organization of PFA's employees in
late 1975, filed a petition in December of that year, and
continued its organizational efforts through the election of
September 16, 1976. Following Respondent's defeat at the
polls, evidence of the overt Persistence of its organizational
and recognitional intent was clearly indicated by Mann's
request of Bledsoe, shortly after the election, that PFA
refrain from fighting the objections which he intended to
file, by the objections themselves, and by the filing in
January 1977 of exceptions to the adverse ruling contained
in the Hearing Officer's Report on Objections. Respon-
dent's overt attempts at organizing through Board pro-
cesses ceased on February 18 when the Regional Director
for Region 17 approved Respondent's request for the
I The substitution of the words "These are non-union" for the words
"Does not have a contract with" in no way indicates a genuine change in
withdrawal of its appeal which had been filed a few days
before, and issued the certification of the results of the
election.
Meanwhile, however, on February 4, while Respondent
was still actively pursuing its recognitional objectives
through Board processes, it simultaneously initiated a
publicity campaign which it had been considering for
several months, by placing the advertisement in the "Union
Labor Record" which ran throughout the entire period up
to the date of the hearing and which advised its readers
that PFA did not have a union contract, and had opposed
its employees' efforts to join Respondent. It urged
prospective consumers not to shop at PFA. On February 9,
during the conversation between Bledsoe and Mann
concerning rumors of impending picketing, Mann stated,
"Obviously, if I had a contract, I wouldn't be picketing
you." On February 12 or 13, Mann, observing that the
February 4 advertisement was not getting sufficient
circulation, placed a second advertisement in the "Spring-
field News and Leader," and on February 25 placed the
same advertisement in the "Union Labor Record" to
advise the people that PFA did not have a contract with
Respondent and to urge consumers to patronize union
supermarkets rather than PFA.
Then, on February 16, 2 days before the Regional
Director issued his certification of the results of the
election, at a time when Respondent's organizational and
recognitional efforts were still technically being pursued
through the Board, Respondent stationed pickets at four of
PFA's six stores. The pickets were admittedly set up to
accomplish the same results as Respondent had hoped
would be achieved by the newspaper advertisements, but
with less cost to Respondent. The picket signs were similar
to the newspaper advertisements of February 4 and 12 or
13 and advised the public that PFA did not have a contract
with Respondent. These signs urged the public to patronize
union markets, some of which were listed, rather than PFA.
Analysis of the wording of the various advertisements
and that which was contained on the picket signs, when
considered in light of Mann's statement to Bledsoe on
February 9, indicates that the purpose behind Respon-
dent's entire campaign, which was pursued while Board
proceedings of an admittedly organizational and recogni-
tional nature were being conducted, was to advise the
public that PFA had no contract with Respondent, that
PFA's employees were nonunion, and that potential
shoppers should refrain from patronizing nonunion PFA in
favor of the union supermarkets in the area. On the basis of
the timing of the publicity campaign, which occurred while
representational proceedings were still being pursued
through the Board, and on the basis of the considerations
discussed below, I find that the organizational campaign,
representational procedures, advertising campaign, and
picketing were inextricably interwoven and that the object
of the picketing, herein alleged as violative, was recogni-
tional and organizational in nature and in objective.
Thus, granting that one of the objectives of the so-called
publicity campaign conducted through newspaper adver-
tisements on February 4 and 12 or 13 and thereafter and
purpose since clearly, if PFA is identified as nonunion, it is, by virtue of that
definition, without a contract.
116
MEAT CUTTERS, DISTRICT LOCAL 340
through picketing on February 16 and thereafter was to
persuade the public to withdraw its patronage from PFA,
such an objective is not inconsistent with a finding that the
advertising campaign and picketing were also for recogni-
tional and organizational objectives.' 0 The presence of
additional recognitional and organizational objectives is
indicated by the fact that even while the advertising
campaign and picketing were being conducted, Respon-
dent was still engaged in pursuing its organizational and
recognitional objectives through the utilization of the
representational processes of the Board. Respondent can
hardly be heard to say that during its advertising campaign
and its picketing of PFA it was not interested in
recognition when simultaneously it was still involved in
representational procedures for the purpose of obtaining
recognitional status. Moreover, the language contained in
the advertisements and on the picket signs in the instant
case indicates, in and of itself, a recognitional or organiza-
tional objective. For the Board considered similar language
in Colony Liquor Distributors and concluded that the
wording of the picket signs utilized by respondent in that
case, namely, that the employer did not have a contract
with the union or did not employ union employees,
indicated that respondent's specific reason for appealing to
the public to withhold patronage from the employer
involved therein was that it did not employ union members
and did not have a contract with it, and from this it was
apparent that respondent itself considered that its quarrel
with the employer was one that would cease when that
reason for picketing was no longer valid-in short, when
the employer permitted its employees to be represented by
respondent or when respondent entered into a contract
with it." The historical interpretation of such language by
the Board is fully supported in the instant case by Mann's
admission during the discussion of February 9 that,
"Obviously, if I had a contract, I wouldn't be picketing
you."l2 Although at first blush, the tactics of Respondent
may initially seem inconsistent when, on the one hand, it
seeks recognition from PFA and organization of its
employees and, on the other hand, simultaneously attempts
to undermine PFA's business and the income of its
employees, the ultimate strategy is quite sound if not quite
legal. For, if through advertising Respondent convinces
customers to withdraw patronage from PFA because it
does not have a union contract, and granting, arguendo,
Respondent succeeds in its objective, with a consequent
loss in working hours and income to the PFA employees
who had within the previous few months rejected Respon-
dent, the effect on these employees could very well be to
convince them to rethink their decision. Thus, while
Respondent was busily utilizing the appeal processes of the
Board to obtain recognitional status, following its loss at
the polls, it was also simultaneously flexing its muscles by
means of its dual-purpose advertising and picketing
campaign. The dual purpose of the advertising and
picketing campaign was lawfully to draw patronage to its
own unionized supermarkets while unlawfully attacking
the economic well-being of PFA and its employees for the
io Local 445, International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America (Colonr' Liquor Distributors Inc., Colonial
Carriers. Inc.), 145 NLRB 263 (1963).
stated reason that the latter were not yet organized. This is
not, of course, to say that Respondent was not completely
within its rights in advertising as it did, through newspa-
pers, the fact that PFA was nonunion. Rather, the
significance of the February 4 and 12 advertising lies in the
way it serves to bridge, through time, the objectives
indicated in the newspaper articles and the organizational
and recognitional objectives pursued simultaneously at the
Board, with the subsequent events, in particular, the
picketing, which Respondent denies is organizational or
recognitional in purpose. The Board in Colony Liquor. in
finding a recognitional object, relied in part on a statement
by a union official, following the union's loss in the
election, to the effect that Colony may have won the
election but the respondent would beat it yet, if necessary,
by putting it out of business. The Board stated:
We think this further discloses that a target of the
picketing was to impose economic pressure on Colony
in order to "beat" Colony into a choice of either again
recognizing the Union or facing the destruction of its
business.
In the instant case, it appears certain that the advertising
campaign and the picketing that followed were similarly
designed to impose economic pressure on PFA and its
employees in order to force a choice between recognizing
the Union or forcing a severe undermining of PFA's
business and of its employees' economic situation. The
picketing, as herein described, I find to be for recognitional
and organizational purposes and therefore violative of the
Act.
General Counsel relied, in part, on an incident which
occurred on February 16, the first day of the picketing at
the store operated by Terry L. Maples, to support his case.
The incident, more fully described above, indicates a
discussion between a single picket and Maples during
which the picket invited Maples to join the Union, thus
evidencing an organizational intent. Though I have
credited Maples with regard to the content of this
conversation, and find that it occurred just as he described
in his testimony, I give it no probative weight in reaching
my conclusion. There were, at the time of this incident and
thereafter, between 12 and 14 pickets picketing at four
locations. This picketing continued from February 16
through February 24. Following the hiatus which resulted
from the issuance of the injunction, picketing was resumed
at five locations on or about March 19. Though the record
does not definitely indicate, it may safely be presumed that
approximately the same number of pickets were utilized.
This picketing continued through March 26. Considering
the relatively large number of pickets, the number of sites,
and the number of days the picketing was conducted, I find
the single incident at Maples' store, wherein the inexperi-
enced picket, a nonmember of the Union, friend of the
business agent's son, with some misplaced enthusiasm, told
Maples that he could make $6.80 per hour if he joined the
Union, an isolated incident, not indicative of the type of
campaign which Respondent intended to wage. It does not,
II Id. Board language quoted in part., paraphrased in part.
12 Mann's self-serving verbal addendum, "However, I'm not picketing
you for that reason," is not given any weight.
117
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in my opinion, reflect an overt, willful attempt on the part
of Respondent to organize the PFA employees. I do not
rely on this incident in reaching my decision.
As noted above, I have found that Respondent at no
time abandoned its recognitional and organizational
objectives, starting with its very first attempts at organizing
in late 1975, through its continuous utilization of the
Board's representational and appeal processes in 1976 and
early 1977, through its newspaper advertising campaign
undertaken even while those Board processes were still
being utilized, and even through the picketing which
overlapped the period of newspaper advertising and which
reflected through the language contained on the picket
signs the same objectives indicated by the use of similar
language utilized in the newspaper advertisements. I find
that the activity of Respondent throughout the period from
its initial attempts at organizing in late 1975 through the
period of picketing in February and March 1977 was one
single organizational campaign, and since the picketing in
February and March 1977 was conducted within 12
months of the Regional Director's certification of results of
the valid election conducted on September 16, 1976, under
Section 9(c) of the Act, said picketing is violative of Section
8(b)(7)(B.) 13
THE REMEDY
Having found, as set forth above, that Respondent has
engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, set forth below, designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
i. PFA is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By picketing PFA since February 16, with an object
of forcing or requiring PFA to recognize and bargain with
Respondent as the collective-bargaining representative of
PFA's employees, and/or of forcing or requiring PFA
employees to accept and select Respondent as their
collective-bargaining representative, although Respondent
was not currently certified as such representative, and a
valid election under Section 9(c) of the Act had been held
within the preceding 12 months, Respondent engaged in
unfair labor practices within the meaning of Section
8(b)(7)(B) 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.
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 14
Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, District Local 340, Respon-
dent, its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Picketing, causing to be picketed, or threatening to
picket PFA-Farmers Market Association, Springfield,
Missouri, and vicinity, for a period of 1 year from March
26, 1977, where an object thereof is to force or require
PFA-Farmers Market Association to recognize or bargain
collectively with Respondent or to force or require the
employees of PFA-Farmers Market Association to accept
or select Respondent as their collective-bargaining repre-
sentative.
(b) Picketing, causing to be picketed, or threatening to
picket PFA-Farmers Market Association for any of the
above-mentioned objects, where within the preceding 12
months a valid election under Section 9(c) of the Act has
been conducted which Respondent did not win.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at Respondent's business offices and meeting
halls copies of the attached notice marked "Appendix."' 5
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 17 signed
copies of the aforementioned notice for posting by PFA-
Farmers Market Association, if it is willing, in places where
notices to employees are customarily posted. Copies of said
notice, to be furnished by the aforesaid Regional Director,
shall, after being signed by Respondent as indicated, be
returned forthwith to the Regional Director for disposition
by him.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
13 Respondent's brief cites numerous court cases which hold that the first
and second provisos of Sec. 8(bX7Xc) are equally applicable to 8(bX7)(B)
situations. The Board, however, holds in Colony Liquor to the contrary. I am
bound by Board authority.
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ts In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
WE WILL NOT picket, cause to be picketed, or
threaten to picket, for a period of I year from March
118
MEAT CUTTERS, DISTRICT LOCAL 340
26, 1977, PFA-Farmer's Market Association, where an
object thereof is forcing or requiring this employer to
recognize or bargain collectively with this Union, or to
force or require the employees of this employer to
accept or select this Union as their collective-bargain-
ing representative.
WE WILL NOT picket, cause to be picketed, or
threaten to picket PFA-Farmer's Market Association,
for any of the above-mentioned objects, where within
the preceding 12 months a valid election under Section
9(c) of the National Labor Relations Act has been
conducted which this Union did not win.
AMALGAMATED MEAT
CuTrrERS AND BUTCHER
WORKMEN OF NORTH
AMERICA, AFL-CIO
DISTnuCT LOCAL 340
119