Paint, Varnish & Lacquer Makers Union

National Labor Relations Board - Board Decisions

Jun 13, 1958

120 N.L.R.B. 1425 (N.L.R.B. 1958)

PAINT, VARNISH & LACQUER MAKERS UNION 1425
cease from its unlawful practices found herein, I believe that it should be required
to mail a communication to that effect directly to each of its present employees
on his job.33
The violations of the Act committed by Respondent are persuasively related to
other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is to be anticipated from the Respondent's conduct in the
past. The preventive purposes of the Act will be thwarted unless the order is co-
extensive with the threat. In order, therefore, to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor practices,
and thereby minimize industrial strife which burdens and obstructs commerce, and
burdens and obstructs trade, traffic, and commerce upon the Continental Shelf,
and thus effectuate the policies of the Act and the Outer Continental Shelf Lands
Act, I shall recommend that Respondent be ordered to cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. General Marine Corporation is engaged in commerce within the meaning of
the Act, and within the meaning of the Act as extended to the Outer Continental
Shelf in the Outer Continental Shelf Lands Act.
2. Seafarers' International Union of North America, Atlantic & Gulf District,
AFL-CIO, is a labor organization within the meaning of the Act.
3. By preparing revocations, distributing them to employees, permitting the use
of its office for signing the forms, participating in their execution by witnessing
them, and inviting employees to forward signed revocations to its office, and by
threatening employees with loss of employment by threatening to close down its
business if the Union organized its employees, Respondent in Louisiana, and on the
Continental Shelf nearest to Louisiana and Texas, has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act, and has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
81 Cf. Alexander-Stafford Corporation, 11.8 NLRB 79, and the cases cited therein in
footnote 8.
Paint, Varnish & Lacquer Makers Union , Local 1232, AFL-CIO,
and Steel, Paperhouse , Chemical Drivers & Helpers Local 578,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America 1 and Andrew Brown Com-
pany. Case No. 21-CB-830. June 13, 1958
DECISION AND ORDER
On April 22, 1957, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
I The Board having been notified by the AFL-CIO that it deemed the Teamsters' certifi-
cate of affiliation revolted by convention action, the identification of the Respondent
Teamsters is hereby amended.
120 NLRB No. 89.
483142-59-vol. 120-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
joint exceptions to the Intermediate Report and a supporting brief.
The General Counsel filed a brief in support' of the Intermediate
Report.2
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, conclusions, and recommendations
of the Trial Examiner, with the modifications indicated below.
We agree with the Trial Examiner that the Respondents, by picket-
ing the Company's premises for recognition as the exclusive bargain-
ing representatives of the Company's employees in separate units at a
time when they did not represent a majority of the employees in their
respective units, restrained and coerced employees in violation of Sec-
tion 8 (b) (1) (A) of the Act.
The Respondents deny that they picketed for majority recognition;
assert that the picketing was for organizational purposes; and in any
event argue that picketing by a minority union for recognition does
not violate Section 8 (b) (1) (A) of the Act. In addition, the Re-
spondents contend that Section 10 (b) barred the issuance of the com-
plaint herein. We find no merit in these contentions.
The record establishes that the Respondents on or about July 28,
1955, requested the Company to recognize each of them as the majority
representative of its employees in separate units and to enter into im-
mediate contractual relations. The Company declined to do so.
Thereupon, the Respondents began picketing the Company's premises.
The pickets carried placards addressed "TO THE PUBLIC," stating
that the Company's products were "NONUNION" and that such prod-
ucts were on the "WE DO NOT PATRONIZE" list of certain named
employee labor councils. The signs also carried the names of the
Respondents as the picketing organizations.
On November 16, 1955, the Company filed a.representation petition
with the Board, alleging that the Respondents were claiming to repre-
sent its employees. On the same day the Respondents, by letters,
disclaimed any interest in the Company's- employees. However, de-
spite these letters, they continued their picketing unchanged. Later,
at the hearing on the Company's petition, the Respondents repeated
their. disclaimers of interest. On March 21, 1956,3 the Board issued
its Decision and Direction of Elections I in which it found that the
"picketing . . . [was] not solely the purpose of organizing the em-
2 As the record , exceptions , and briefs adequately present the issues and the positions
of the parties , the Respondents ' request for oral argument is denied.
s At ogle point in his Intermediate Report the Trial Examiner inadvertently gives
April 10, 1956, as the date of the Board 's Decision and Direction of Elections.
A Andrew Brown Company, 115 NLRB 886. The Trial Examiner properly took official
notice of the Board's decision and the facts therein found.
PAINT, VARNISH & LACQUER MAKERS UNION 1427
ployees, but . . . [was] tantamount to a present demand for recogni-
tion of both Unions by the Employer, without regard to their majority
status." The Board also found that the Respondents' disclaimers of
interest were ineffectual to remove the question concerning representa-
tion because they were inconsistent with the Respondents' subsequent
conduct. On April 10, 1956, pursuant to the Board's Decision and
Direction of Elections, separate elections were conducted among the
employees in the units found appropriate by the Board, which the
Respondents lost.
Although the elections definitely established the fact that the Re-
spondents did not represent a majority of the Company's employees
in their respective units, the Respondents, nevertheless, continued to
picket the Company's premises in essentially the same manner and
with the same picket signs. At the time of the hearing, the picketing
was still in progress. As stipulated by the parties, the picketing was
conducted by a nonemployee picket who appeared at the plant premises
each day and parked his automobile near the shipping department.
He then proceeded to post two identical signs, one on a light pole near
the shipping entrance and the other on the light pole near the receiving
entrance of the Company's premises. The picket usually remained
in his car, to which a third sign was fastened. When a truck ap-
proached the shipping or receiving entrance, the picket alighted from
the car, took the third sign and paraded back and forth in front of
the entrances. On occasion, the picket engaged the truckdrivers in
conversation. It was also stipulated that the picketing, initiated on or
about July 29, 1955, continued unchanged to the date of the hearing
herein.
In these circumstances, we find, as did the Trial Examiner, that the
Respondents have continued to picket the Company's premises with
the same object they sought to achieve when they first began picket-
ing, namely, majority recognition, although they only represented a
minority of the employees. Other than the two letters of disclaimers,
which the Board previously found in the representation case to be
insufficient proof of a change in objective'in view of the Respondents'
inconsistent subsequent conduct, the Respondents have offered no evi-
dence establishing that they sought only to organize the Company's
employees, as they contend. Indeed, there is nothing in the record
to indicate that the Respondents made any effort to reach the employees
through traditional methods utilized by unions to organize workers.
Thus, no circulars were distributed to the employees; no personal
solicitations were attempted; the picket signs were not addressed to
the employees of the Company nor were any measures taken to per-
suade them to join the Respondent Unions. In fact, the only overt ef-
fort made by the Respondents' pickets to call attention to their al-
leged cause was made only when truckdrivers approached the shipping
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or receiving entrances to the Company's premises. Accordingly, we
find, contrary to the Respondents' contention, that the Respondents
never abandoned their original object which was to compel the Com-
pany to recognize them as the exclusive representatives of its
employees.
As indicated above, the Respondents also contend that the complaint
should be dismissed as Section 10 (b) of the Act bars the use of the
evidence that they requested recognition, because such evidence relates
to events occurring outside the 6-month period prescribed by that
provision of the Act. However, it is established law that Section 1€'
(b) is a statute of limitations, not a rule of evidence. As such, it is
equally well-settled that there is nothing in this section precluding
the use of this evidence as background in evaluating conduct engaged
in within the 6-month period. This is the use we have made of the
evidence in question in finding, on the basis of the entire record, that
the picketing, which has remained unchanged since its inception, was
designed to attain majority recognition.
In view of the foregoing, we find, for the reasons set forth in Curtis,'
that the Respondents, by picketing for majority recognition, although
only representing a minority of the employees, violated Section 8
(b) (1) (A) of the Act.e
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Paint, Varnish
& Lacquer Makers Union, Local 1232, AFL-CIO, and the Respond-
ent Steel, Paperhouse, Chemical Drivers & Helpers Local 578, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, their officers, representatives, agents, successors,
and assigns, shall :
1. Cease and desist from restraining or coercing the employees of
'Andrew Brown Company in the exercise of the rights guaranteed by
Section 7 of the Act, by picketing the Company, or engaging in any
other conduct, for the purpose of forcing the said Company to recog-
nize the Respondents as the exclusive bargaining representatives of
r Drivers, Chauffeurs, and Helpers, Local 639, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Curtis Brothers, Inc.), 119 NLRB
232. In the opinion of Members Rodgers and Bean, the considerations presented by
Member Fanning in his dissent have on the whole already been answered in the majority
opinion in Curtis Brothers. It seems appropriate; however, to point out that Sec-
tion 8 (b) (4) (C) is not "reduced to a useless gesture" by the result reached here and in
Curtis Brothers. Section 8 (b) (4) (C) applies to picketing against a certification
-whether by a minority or a majority union, whereas the Curtis Brothers doctrine is limited
to minority union picketing, and the fact _of another union having been certified is, of no
consequence.
We note in the closing paragraph of section III 'of the Intermediate Report; and correct
as above-indicated, the Trial Examiner's inadvertent finding that the Respondent Unions
by their conduct violated Section 8 (a) (1) of the Act.
PAINT, VARNISH & LACQUER MAKERS UNION 1429
its employees when the Respondents do not represent a majority of
such employees in an appropriate unit. -
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at their respective offices and meeting halls in Los Angeles,
California, copies of the notice attached hereto marked "Appendix." 7
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by an author-
ized representative of each Respondent herein, be posted by the
Respondents immediately upon receipt thereof and be maintained by
them for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondents to insure that
the said notices are not altered, defaced, or covered by any other
material.
(b) Mail to ' the Regional Director for the Twenty-first Region
signed copies of the notice attached hereto marked "Appendix" for
posting at the premises of Andrew Brown Company, Los Angeles,
California, in places where notices to the Company's employees are
customarily posted, if Andrew Brown Company is willing to do so.
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region shall, after being duly signed by an author-
ized representative of each Respondent, be forthwith returned to
the Regional Director for such posting.
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondents have taken to comply herewith.
MEMBER JENKINS , concurring :
While agreeing with the majority, I feel that the dissent shows a
need to restate the rationale of the Curtis decision.' In determining
whether acts of the Respondents restrain or coerce employees, the
Board has the right to take into account all the facts and circum-
stances and to draw reasonable inferences therefrom s The test is
whether the acts complained of were "reasonably likely to have re-
strained the employees." 1p In Curtis, we noted that Section 8 (b)
(1) (A) does not distinguish between a direct and indirect restraint
or coercion. The determination of coercion in that case was based
on the fact that the objective of the picketing was to coerce the
employer to coerce his employees to accept a union they had rejected.
i 7In the event that this Order is enforced by a decree of a United States Court ofAppeals, there shall be substituted for the woi (Is "Pursuant to a Decision and Order," thewords "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."8 Drivers, Chauffeurs, and Helpers, Local 639, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America ( Curtis Brothers, Inc ), supra.
ON. L. R. B. v. Link-Belt Company, 311 U. S. 584, 588; The Radio Officers' Union , etc. v.
N. L. R. B , 347 U. S. 17, 51.
10 N. L R. B. v. Link-Belt Company, 311 U. S. 599.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The objective of the picketing was illegal. Relating to this type of
situation the Supreme Court specifically said :
Congress has taken in hand this particular type of controversy
where it affects interstate commerce . . . it has forbidden labor
unions to exert certain types of coercion, of employees through
the medium of the employer. [Emphasis supplied.]
The dissent ignores this cogent language which appeared in Garner v.
Teamsters, Chauffeurs and Helpers, Local No. 776 (AFL), 346 U. S.
486, at 488-489, from which language the result in the Curtis decision
flows. I do not see that there can be a conflict among "legitimate
rights" when the object of the union is to force the employer'to com-
mit an act prohibited by the statute itself. I believe that the specific
prohibition in Section 8 (b) (4) (C) of picketing to compel recog-
nition, even by an uncertified majority respresentative, in the face of
an outstanding Board certificate certifying another union indicates
congressional approval of the policy behind the Board's decision in
the Curtis case. I would heed Mr. Justice Frankfurter and follow the
advice of Mr. Justice Holmes :
A statute may indicate or require as its justification a change in
the policy of the law, although it expressed the change only in the
specific cases most likely to occur to the mind. The Legislature
has the power to decide what the policy of the law shall be, and
if it has intimated its will, however indirectly, that will should be
recognized and obeyed. The major premise of the conclusion
expressed in the statute, the change of policy that induces the
enactment, may not be set out in terms, but it is not an adequate
discharge of duty . . . to say : "We see what you are driving at,
but you have not said it, ..." 11
MEMBER FANNING, dissenting :
The decision of the majority in this case, that picketing by a minor-
ity union for recognition violates Section 8 (b) (1) (A) of the Act,
rests squarely upon the recent decision of the Board in Curtis Brothers,
Inc., 119 NLRB 232. I did not participate in that decision. I have
therefore considered de novo my position with regard to this issue.
Section 8 (b) (1) (A) makes it an unfair labor practice for a labor
organization "to restrain or coerce employees in the exercise of the
rights guaranteed in Section 7": The rationale of the majority in
Curtis appears to be that picketing, even though peaceful, causes eco-
nomic loss to the picketed employer and, indirectly, economic loss to
his employees who are thereby "restrained and coerced." As noted
by the majority, this section of the Act contains no qualifying lan-
guage or words of limitation. All restraint and coercion is forbidden
11 United States v. Hutcheson , at ai., 312 U. S. 219, 235.
PAINT, VARNISH & LACQUER' MAKERS UNION 1431
I
where a right protected under Section 7 is involved. Such a right,
the majority holds, is the right of employees to accept or reject any
labor organization. Having rejected a labor organization in a Board-
conducted election, the employees cannot be coerced, the majority
holds, into accepting it through the medium of picketing.
So posed, the issue is a formidable one. On the one hand, it was
unquestionably the purpose of Congress in Section 9 of the Act to
encourage labor organizations, employers, and employees -to settle
questions concerning representation peacefully in Board-conducted
elections. By this means Congress attempted, to avoid crippling
strikes and jungle warfare in the field of labor relations to the detri-
ment of the public. Where a labor organization has failed to per-
suade a majority of employees to vote for it by secret ballot, the argu-
ment that it should not be permitted, at least for a reasonable period
of time, to picket the employer's premises is most appealing. With
adequate and proper safeguards I am in complete sympathy with this
objective.1 However, analysis of the statute, which is the sole basis
for the Board's authority, and the practical effects of such a conclu-
sion in the context of. existing law, present new problems and conflict-
ing equities.
As the Act is written, an employer legally can replace all economic
strikers with permanent replacements. In a subsequent Board elec-
tion, which the employer can initiate, the strikers would be ineligible
to vote. The outcome of such an election in all probability would be
adverse to the striking employees and their labor organization. Thus,
a majority union, engaged in a lawful economic strike, may become by
operation of this statute a minority union. By application of the
Curtis doctrine it could then be enjoined from continued picketing.
This would mean that the decision of a bona fide labor organization
to engage in an economic strike must be made at the peril of having
its membership replaced, losing an election, and being deprived of the
right to picket, an incident of the right to strike guaranteed in Section
13 of the Act. L
This is not speculative theory. Apparently, this is what happened
in the Curtis case. The original employees were permanently replaced
with the result indicated. Such a result is so extreme that it should
not be accomplished, in my opinion, absent a clear statutory mandate.
Picketing historically has been the most potent weapon used by
labor organizations in their disputes with employers. It goes to the
very core of Section 7 rights. I cannot conceive of a picket line that
would not, at least in part, involve the right of employees either to
"assist" the picketing union or refrain from assisting it. If the major-
ity is right in holding that picketing is coercion because of the em-
ployees' indirect economic loss, then I do not know where the line can
be drawn between lawful and unlawful picketing under Section 8
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) (1) (A). The majority says that picketing by a minority union
for recognition, at least, is unlawful. But this section of the Act does
not make a distinction between minority and majority labor organi-
zations. It does not speak of objectives, good or bad. It forbids
flatly all restraint and coercion affecting Section 7 rights. I am not
persuaded that Section 7 of the Act protects only a majority of the
employees. I think it protects equally the employees who are in the
minority. They cannot be coerced into assisting a union, even though
the union is the majority representative and, under the law, their
bargaining agent. If Congress intended to forbid some, but not all,
types of picketing under Section 8 (b) (1) (A), I think Congress
would have used words of limitation rather than the broadest possible
proscription. This is what Congress did in another section of the
Act. Section 8 (b) (4) (C) forbids picketing by a labor organization
to force an employer "to recognize or bargain with a labor organiza-
tion . . . if another labor organization has been certified as the rep-
resentative of such employees under the provisions of Section 9."
Under the Curtis doctrine Section 8 (b) (1) (A) forbids picketing by
a labor organization to force an employer to recognize or bargain with
it if such labor organization had been rejected by a majority of the
employees in a Board-conducted election. As a practical matter, I
think the Curtis doctrine amounts to an amendment of Section 8 (b)
(4) (C). Indeed, that section of the Act has no place in this statute
if Section 8 (b) (1) (A) can be interpreted broadly to forbid picket-
ing by a minority labor organization for recognition. For the type
of picketing prohibited by Congress in Section 8 (b) (4) (C) neces-
sarily is in the category now forbidden under Section 8 (b) (1) (A).
Thus, through administrative interpretation of one provision, the
specific language of another statutory provision in this Act has been
reduced to a useless gesture. I cannot agree with the concurring
opinion that the decision of the Supreme Court in United States v.
Hutcheson, et al., supra, is authority for such an interpretation. It
seems unreasonable to me to conclude, as the concurring opinion does,
that Congress must have intended a broad prohibition under Section 8
(b) (4) (C) because it specifically provided for something less. As-
suming, however, the validity of such logic, it seems equally unreason-
able to me to conclude further, as the concurring opinion does, that
Congress intended that this policy be enforced by the Board not under
Section 8 (b) (4) (C), but under Section 8 (b) (1) (A), a provision
entirely unrelated to the issue of picketing for a prohibited objective.
Two members of the majority take the position in footnote 5 that their
interpretation of 8 (b) (1) (A) does not make 8 (b) (4) (C) entirely
useless because the latter section may be utilized to prevent majority
unions from picketing for recognition in the face of Board certifica-
tion. This suggested residue of utility left to 8 (b) (4) (C) is, in
PAINT, VARNISH & LACQUER MAKERS UNION 1433
my opinion, of little significance. The reach of the statute is to protect
and encourage collective bargaining by majority unions, preferably
through Board certification. Certification carries with it a presump-
tion of majority, at least for a reasonable time. Carrying the major-
ity's logic to the ultimate, they would forbid under 8 (b) (4) (C)
majo'r'ity "union picketing for recognition where a minority union is
certified or, in reverse orbit, forbid a certified minority union to picket
for recognition under 8 (b) (1) (A).
The concurring opinion asserts that the result in the Curtis decision
flows from language of the Supreme Court in Garner v. Teamsters,
Chauffeurs, and Helpers, Local No. 776 (AFL), supra. That case,
as I read it, is inapposite to the issue under consideration here. There
a Pennsylvania court had enjoined picketing by a union on the ground
that the picketing was an attempt to cause an employer to violate
Section 6 (c) of the Pennsylvania Labor Relations Act, which for-
bids an employer to discriminate against employees to encourage or
discourage union membership. As the Supreme Court pointed out,
this particular type of controversy is covered by the National Act in
almost identical language. Section 8 (b) (2) of the Labor Manage-
ment Relations Act forbids a union to cause or attempt to cause an
employer to discriminate against employees in violation of Section
8 (a) (3). Accordingly, the Court held that the controversy must
be tried exclusively under the National Act and primarily before the
National Labor Relations Board. The Court did not decide or even
purport to decide the question whether the union's conduct would
be violative of Section 8 (b) (2) of the National Act, pointing out:
"It is not necessary or appropriate for us to surmise how the Na-
tional Labor Relations Board might have decided this controversy
had petitioners presented it to that body." The Court went on to say
that the "detailed prescription of a procedure for restraint of speci-
fied types of picketing would seem to imply that other picketing is to
be free from other methods and sources of restraint. For the policy
of the- National Labor Management Relations Act is not to condemn
all picketing but only that ascertained by its prescribed processes to
fall within its prohibitions." There is no language in the Garner
-decision which reasonably can be interpreted as a suggestion that
recognition picketing by a minority union is an unfair labor practice
,or, indeed, that it is even a controversy justiciable under Section 8
(b) (1) (A).
For these reasons, I have reached the conclusion that Section 8 (b)
(1) (A) was not intended by Congress as a partial prohibition of
peaceful picketing. Nor do I believe that it was intended to forbid
all picketing. Accordingly, I dissent.
CHAIRMAN LEEnoM took no part in the consideration of the above
Decision and Order.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF PAINT, VARNISH & LACQUER MAKERS
UNION, LOCAL 1232, AFL-CIO, AND STEEL, PAPERHOUSE, CHEMICAL
DRIVERS & HELPERS LOCAL 578, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS OF AMERICA
AND TO ALL EMPLOYEES OF ANDREW BROWN COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT restrain or coerce the employees of Andrew Brown
Company in the exercise of the rights guaranteed by ; Section 7
of the Act, by picketing Andrew Brown Company, or engaging
in any other conduct, for the purpose of forcing Andrew Brown
Company to recognize us as the exclusive bargaining representa-
tive of its employees when we do not represent a majority of
such employees in an appropriate unit.
PAINT, VARNISH & LACQUER MAKERS UNION,
LOCAL 1232, AFL-CIO,
Labor Union.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
STEEL , PAPERHOUSE , CHEMICAL DRIVERS
& HELPERS LOCAL 578, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF
AMERICA,
Labor Union.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat . 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against Paint , Varnish & Lacquer Makers Union,
Local 1232 , AFL-CIO, and against Steel , Paperhouse , Chemical Drivers & Helpers
Local 578 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America, AFL-CIO, herein called Respondent Paintmakers and Respond-
ent Teamsters , respectively . The complaint , dated February 11, 1957 , alleged that
Respondents had engaged in unfair labor practices within the meaning of Section
8 (b) (1) (A) of the Act . Copies of the complaint , the charges upon which it
was based , and notice of hearing thereon were duly served upon Respondents.
The complaint alleged that : ( 1) pursuant to a Decision and Direction of Elec-
tion by the Board, an election was conducted in Andrew Brown Company and Steel,
PAINT, VARNISH & LACQUER MAKERS UNION 1435
Paperhouse, Chemical Drivers & Helpers Local 578, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO_ and
Paint, Varnish & Lacquer Makers Union, Local No. 1232, AFL-CIO, 115 NLRB
886; (2) in said Decision the Board established two separate appropriate units, A
and B, in which neither Paintmakers nor Teamsters, respectively, received a ma-
jority of the votes cast in the election held on April 10, 1956; (3) on April 18,
1956, the Regional Director issued a certificate of results of election certifying
that neither, labor organization had received a majority; (4) since April 18, 1956,
neither Respondent has been. the exclusive representative of the indicated employees
within the meaning of Section 9 (a) of the Act; and (5) since July 29, 1955, through
the date of the complaint, Respondents had picketed the premises of the Company,
Andrew Brown Company, for the purpose of causing, forcing, or requiring the Com-
pany to recognize Respondents as. exclusive bargaining representatives for the respec-
tive units and enter into contracts covering the above-described employees despite
lack of majority status, thereby restaining and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Teamsters' duly filed answer claimed that the above-described election had been
held without any statutory authority therefor because Teamsters had not made any
bargaining demands on the Company; that the complaint was barred by the 6-month
limitation contained in Section 10 (b) of the Act; and that the complaint stated
no ascertainable cause of action. Paintmakers' answer raised the same defenses and
further claimed that the Board's Decision and Direction of Election was arbitrary
and capricious in that no question concerning representation then existed and there-
fore the election held on April 10, 1956, was null and void.
Pursuant to notice, a hearing was held at Los Angeles, California, on March 6,
1957, before the duly designated Trial Examiner. The parties were represented by
counsel who were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce relevant evidence. At the close of the hearing,
the parties were given an opportunity to argue orally and to file briefs. Teamsters
presented oral argument and briefs have been received from the other parties.
Upon the entire record in the case,' make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Andrew Brown Company is a California corporation which operates a plant at
Los Angeles, California, where it is engaged in the manufacture, sale, and distribu-
tion of paint and allied products. During the 12-month period preceding the issuance
of the instant complaint, the Company shipped paint and other products valued in
excess of $50,000 directly to points located outside the State of California. I find
that the operations of the Company affect commerce and that it would effectuate the
purposes of the Act to assert jurisdiction herein.
U. THE LABOR ORGANIZATIONS INVOLVED
Paint, Varnish & Lacquer Makers Union, Local 1232, AFL-CIO, and Steel,
Paperhouse, Chemical Drivers & Helpers Local 578, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, are
labor organizations admitting to membership employees of the Company.
HI. THE 'UNFAIR LABOR PRACTICES
A. The issues; introduction
Presented for decision herein are two issues: (1) Does the evidence preponderate
in favor of a finding that Respondents, neither of which represented a majority of
the employees of the Company in an appropriate unit and which had recently dem-
onstrated this lack of a majority in a Board-conducted election, picket the premises
of the Company for the purpose of seeking recognition as the exclusive representa-
tives of the employees of the Company; and (2) in the event of such a finding,
was this peaceful picketing violative of Section 8 (b) (1) (A) of the Act. There is
little doubt, in my opinion, that from a standpoint of logic, applicable law, the intent
of Congress in enacting the legislation, and on a preponderance of the evidence,
both questions must be answered in the affirmative for the reasons that appear below.
1 There were no witnesses ' and all evidence herein was • documentary or In the form of
stipulations.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The RM proceeding; the picketing
There is no evidence of the prior bargaining history, if any, of the employees
of the Company. Both Respondent Teamsters and Respondent Paintmakers con-
cede that they picket the premises of the Company, that the picketing was conducted
by a non-employee, and that neither labor organization represented a majority of
the employees in an appropriate unit. As for the allegedly unlawful object of the
picketing, viz, recognition as majority bargaining representative, the General Counsel
relies on findings made by the Board in Andrew Brown Company, et at., supra, that
such was the object . His motion that official notice be taken of the Board decision
in that proceeding was granted and he contends that the Board's findings constitute
prima facie evidence of the facts contained therein, conceding however, that such
facts are subject to rebuttal. As will appear, the basic position of Respondents who
did not seek to rebut these findings is that the findings are not competent evidence
in an unfair labor practice proceeding under the Administrative Procedure Act.
• Pursuant to a petition filed by the Company in Andrew Brown Company, et al.,
115 NLRB 886, 887 (Case 21-RM-379), the Board issued its Decision and Direc-
tion of Elections, dated March 21, 1956. Therein they found as follows:
3. Paintmakers and Teamsters contend that the petition should be dismissed
on the ground that neither Union claims to represent a majority of the employees
of the Employer. The Employer asserts that the current picketing of its plant
is inconsistent with such disclaimer, while the Unions claim that the picketing is
merely for the purpose of organizing the Employer's employees.
The record shows that for the past few years Paintmakers has attempted to
induce the Employer to enter into immediate contractual relations with it.
Upon the failure of one of these overtures on July 28, 1955, members of the
Paintmakers began picketing the Employer's plant the next day, and continued
to do so up to the time of the hearing on January 6, 1956. The pickets carry
placards addressed to the public stating that the Employer's products are non-
union and are on the "We do not patronize" list of the two Unions. The signs
bear the names of both Unions. The picketing is on a 24-hour a day basis and
the picket signs and oral appeals of the pickets are directed to the public and to
employees of suppliers or customers of the Employer rather than to the Em-
ployer's employees.
Although the evidence was conflicting as to whether Teamsters has ever
actually requested the Employer to enter into contractual relations with it, it
appears from the record, and we find, that on at least two occasions, on July 29,
and August 1, 1955, a representative of the Teamsters accompanied a repre-
sentative of the Paintmakers to conferences with the Employer, at which con-
ferences the Paintmakers' representative requested a contract from the Em-
ployer. Moreover, a representative of the Teamsters testified at the hearing
that he was aware that the picket signs bore the Teamsters' name and that the
Teamsters has not disavowed the picket signs. In addition, on September 30,
1955, letters signed by both Unions were sent to a number of paint companies,
informing them that the Employer had been picketed for several weeks by both
Unions and was on their "unfair" lists, and requesting them to patronize other
firms.3
In view of the foregoing, and upon the record as a whole, we find that the
current picketing is not solely for the purpose of organizing the employees, but is
tantamount to a present demand for recognition of both Unions by the Em-
ployer, without regard to their majority status 4
3 The Teamsters' representative admitted that he had negotiated contracts for units
of truckdrivers with about 20 employers in the area with whom Paintmakers also
had contracts for other employees
* Curtis Brothers, Inc., 114 NLRB 116. On November 16, 1955, both Unions sent
letters to the Employer in which the Teamsters disclaimed any "right to represent"
the Employer's employees and the Paintmakers disclaimed "any interest, or that they
represent" such employees. Even if we view both these letters as a disclaimer of any
interest in representing the Employer's employees, as they are inconsistent with the
Unions' subsequent conduct described above, we find that such disclaimers are in-
effectual to remove the question concerning representation herein.
An election was accordingly directed in unit A, consisting basically of production
and maintenance employees with certain exclusions , and in unit B, consisting basically
of truckdrivers and warehouse employees with certain exclusions; Paintmakers and
Teamsters appeared on the ballot for the respective units. The election was held on
PAINT, VARNISH & LACQUER MAKERS UNION 1437
April 10, 1956, and neither labor organization received a majority of the ballots in
its unit . On April 18 , 1956, the Regional Director issued a document which stated
in part as follows:
CERTIFICATE OF RESULTS OF ELECTION
Pursuant to authority vested in the undersigned by the National Labor Rela-
tions Board,
IT IS HEREBY CERTIFIED that a majority of the valid ballots has not been
cast for any labor organization appearing on the ballots and that no such or-
ganization is the exclusive representative of all the employees , in the units here-
in involved, within the meaning of Section 9 (a) of the National Labor Relations
Act.
As the Board found in its Decision and Direction of Elections, picketing for recogni-
tion commenced on or about July 29, 1955, and continued up to the date of the
hearing in the RM proceeding on January 6, 1956. The instant complaint alleges
that this picketing has continued through the date of that complaint. Indeed, it is
conceded that this picketing was still being carried on at the time of the instant
hearing, some 19 months after its inception. It may be noted that the original charge
against Paintmakers in this proceeding was served on September 3, 1956, and that the
first service of a charge against Teamsters was made on October 11, 1956.
This picketing has been peaceful, has not changed in character during the entire
period and is described in the Board's Decision and Direction of Elections. The
record in the instant proceeding discloses the following supplementary facts. A non-
employee picket appears at the plant premises each day and parks his automobile
near the shipping department. He then proceeds to post two identical signs, one on
a light pole near the shipping entrance and the other on a light pole near the receiving
entrance. The picket usually remains in his car where a third sign has been fastened
to the rear exterior. When a truck approaches the shipping or receiving entrances,
the picket alights from the car, takes the third sign, and parades back and forth in
front of those entrances. On occasion, and as the Board noted in its Decision and
Direction of Elections, the picket will engage the truckdriver in conversation. This
has continued for the past 19 months as of the date of the instant hearing. The sign
states, as the Board noted:
TO THE PUBLIC
The Products Manufactured by This Firm
ANDREW BROWN CO.
"BROLITE"
are
NON-UNION
This Product is on the
"WE DO NOT PATRONIZE LIST" of
TEAMSTERS JOINT COUNCIL NO. 42
LOS ANGELES DISTRICT COUNCIL OF PAINTERS
LOS ANGELES BUILDING TRADES COUNCIL
LOS ANGELES CENTRAL LABOR COUNCIL
I
SEAL OF TEAMSTERS LOCAL 578
TEAMSTERS PAINT MAKERS LOCAL 1232
At this point a contention of Respondents that the complaint is barred by the
6-month proviso of Section 10 (b) of the Act may be disposed of. This would
bear , primarily , on evidence relating to Teamsters as the cutoff date in their case
would be April 11, 1956, and the General Counsel is relying herein on the facts
found by the Board in its Decision and Direction of Elections which issued on
April 10, 1956. The simple answer to this, of course , is that it is by now well
established that this proviso forbids only the finding of an unfair labor practice
based upon conduct occurring prior to the cutoff date. The courts have regularly
noted that the Board may rely on facts occurring prior to the cut-off date as com-
petent evidence to shed light on events subsequently occurring within the 6-month
period. N. L. R. B. v. Lucerne Hide & Tallow , 188 F . 2d 439 (C. A. 3), cert.
denied 342 U. S. 868; N. L. R. B. v. National Shoes, Inc., 208 F. 2d 688 (C. A. 2);
N. L. R. B . v. International Brotherhood of Teamsters , etc., Local 41 (Pacific
Intermountain Express Co.), 225 F. 2d 343 ( C. A. 8); and N. L. R. B . v. White Con-
struction and Engineering Co., 204 F. 2d 950 (C. A. 5).
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such is the case here. The Board did not make a finding, obviously, of an unfair
labor practice taking place prior to the cutoff date. Nor is the Trial Examiner
doing so. All that is now considered is the finding of the Board that the picketing
was being carried on for a stated objective, namely recognition. That the picketing
continued on unchanged into the 6-month period prior to the filing and service of
the charges is not disputed. All that Respondents dispute is the validity herein of
the Board's finding. Accordingly, Respondents' contention, based upon the Section
10 (b) proviso, is rejected, and I find that the picketing was carried on within the
6-month period prior to the service of the charges for the same object as found
by the Board, namely recognition.
Respondents' more strongly pressed contention herein, dealing with the reliance
to be placed herein on the Board findings in the RM proceeding, is treated below.
C. Restraint and coercion
1. The object of the picketing
A majority union when it engages in a strike for recognition is attempting to fulfill
and protect the rights of employees under Section 7 of the Act. On the other hand,
when an employer recognizes a minority union as the exclusive bargaining repre-
sentative of its employees, he has engaged in conduct violative of the Act within
the meaning of Section 8 (a) (1) and (2) thereof. The theory is that not only has
he conferred unlawful assistance upon the minority labor organization, but that he
has interfered with, restrained, and coerced employees. This is so because the
employer has thereby violated the rights of the employees under Section 7 of the
Act to refrain from engaging in the activities enumerated therein.
The issue thus posed is whether a labor organization, by picketing to compel' an
employer to commit an unfair labor practice within the meaning of Section 8 (a) (1)
and (2) of the Act by foisting a minority representative on its employees is therefore
engaging in conduct violative of Section 8 (b) (1) (A) of the Act. It may be
noted that there is no issue of the union shop in this case. The gravamen of the
complaint is that the picketing was carried on for the purpose of causing, forcing,
or requiring the Company to recognize Respondents as exclusive bargaining repre-
sentatives and to enter into contracts despite the fact that Respondents have never
been majority representatives.
Turn ng first to the object of the picketing, it is the contention of Respondents
that the instant record is devoid of evidence that the picketing had recognition as
its object or purpose. The General Counsel relies herein solely on the facts found
by the Board in the RM decision concerning the nature and object of the picketing.
There is no question that, and I find, the picketing was and is currently carried on
for the same purpose during its entire duration.
Respondents have offered no independent evidence herein as to the nature of
the picketing save for two separate letters from Respondents dated November 16,
1955, each disclaiming any right or interest in representing the employees of
Respondent. These, it may be noted, are obviously the same two letters referred
to by the Board in its Decision and Direction of Elections where the Board stated:
On November 16, 1955, both Unions sent letters to the Employer in which
Teamsters disclaimed any "right to represent" the Employer's employees and
Paintmakers disclaimed "any interest, or that they represent" such employees.
Even if we view both these letters as a disclaimer of any interest in representing
the Employer's employees, as they are inconsistent with the Unions' subsequent
conduct described above, we find that such disclaimers are ineffectual to
remove the question concerning representation herein.
This then presents the first issue, viz, is there competent evidence before me as
to the object of the picketing. I find that the Board's decision is prima facie
evidence of the facts found therein, as contended by the General Counsel, that I
may properly take official notice of such facts, and that the decision constitutes
substantial evidence in this proceeding of the facts therein found. See Local 10
International Longshoremen's and Warehousemen's Union, 102 NLRB 907, enfd.
214 F. 2d 778 (C. A. 9). It therefore becomes unnecessary to determine further
whether the Board's findings are binding upon the Trial Examiner and not subject
to rebuttal because they are res adjudicata, having involved the same parties
and issues.
Respondents' claim that by taking official notice of the Board findings and relying
on them, as I am , they are being deprived of due process and a fair trial because
those findings represent evidence not adduced before a Trial Examiner in an unfair
PAINT, VARNISH & LACQUER MAKERS UNION 1439
labor practice hearing consistent with the mandate of the Administrative Procedure
Act. Of course, the Administrative Procedure Act specifically excludes represen-
tation hearings from its formal hearing requirements. Lake field Manufacturing
Co., 105 NLRB 952; N. L. R. B. v. Kearney & Trecker Corp., 209 F. 2d 782
(C. A. 7), company motion to expand record denied, 210 F. 2d 852, setting aside
101 NLRB 1577, cert. denied 348 U. S. 824.
Respondents claim, nevertheless, that a representation proceeding is an investi-
gation , that the hearing officer does not make a decision, and that the Board makes
its decision on a cold record and resolves credibility of witnesses whom it has not
seen . Respondents press the point, as the Board's Decision and Direction of Elec-
tions notes, that there was a conflict of testimony in the representation hearing,
particularly with respect to Teamsters.
Initially, of course, there is ample precedent for the Board resolving the credibility
of witnesses whom it has not seen, and I am not aware that this has been held to
be an abuse of due process or of a fair hearing. I refer to cases where a Trial
Examiner's credibility findings have been reversed and also cases where, due to
the unavailability of the Trial Examiner after the hearing, the Board has resolved
issues of credibility.
More particularly, Respondents are specifically protected under Section 9 (d)
of the Act which provides that wherever any Board finding of unfair labor practices
and ensuing order "is based in whole or in part upon facts certified following an
investigation pursuant to subsection (c) of this section and there is a petition for
the enforcement or review of such order, such certification and the record of such
investigation shall be included in the transcript of the entire record required to be
filed under section 10 (e) or 10 (f), and thereupon the decree of the court enforc-
ing, modifying, or setting aside in whole or in part the order of the Board shall
be made and entered upon the pleadings, testimony, and proceedings set forth in
such transcript." [Emphasis supplied.]
It is by now well established that a party may not relitigate in an unfair labor
practice proceeding an issue covered and litigated in a representation proceeding.
The courts have held that a single trial of such an issue is sufficient and that the
Board properly refuses to reconsider or relitigate an issue under such circum-
stances, save under contingencies not germane herein. N. L. R. B. v. Worcester
Woolen Mills Corporation, 170 F. 2d 13 (C. A. 1) cert. denied 336 U. S. 903.
Indeed, the Supreme Court has expressly approved the Board policy of not re-
litigating in a refusal-to-bargain case issues previously determined in a representation
proceeding. 'Pittsburgh Plate Glass Company v. N. L. R. B., 313 U. S. 146.
Thus, where the Board in a representation hearing resolved conflicting views
concerning the appropriateness of a unit, the exclusion of additional evidence in
the ensuing unfair labor practice case was upheld. N. L. R. B. v. Lettie Lee, Inc.,
140 F. 2d 243 (C. A. 9); Foreman & Clark, Inc. v. N. L. R. B., 215 F. 2d 396
(C. A. 9); N. L. R. B. v. Pacific American Shipbuilders, etc., 218 F. 2d 913 (C. A.
9); N. L. R. B. v. Shannon & Simpson Casket Company, 229 F. 2d 652 (C. A. 9);
N. L. R. B. v. American Steel Buck Corp., 227 F. 2d 927 (C. A. 2); and Esquire,
Inc., 109 NLRB 530, enforced 222 F. 2d 253 (C. A. 7).
Similarly an employer may not in a refusal-to-bargain proceeding relitigate as
of right the circumstances of the election. N. L. R. B. v. Saxe-Glassman Shoe
Corporation, 201 F. 2d 238 (C. A. 1), and Kearney & Trecker, supra. The Board
has held that a Trial Examiner properly excluded evidence bearing on the super-
visory status of an employee where that issue had previously been litigated in the
representation proceeding. Continental Oil Co., 95 NLRB 359. And in Morganton
Full Fashioned Hosiery Company, 115 NLRB 1267, enfd. 241 F. 2d 913 (C. A. 4),
the Board approved language pointing out that it would be incongruous to permit
a Trial Examiner whose findings are reviewable by the Board to himself recanvass
Board determinations. Indeed, in N. L. R. B. v. M. L. Townsend, 185 F. 2d 378
(C. A. 9), cert. denied 341 U. S. 909, the court specifically approved the action of
the Board in an unfair labor practice proceeding involving a violation of Section
8 (a) (5) of the Act, in taking official notice of its own previous findings on
commerce in a representation proceeding not involving the same parties.
In Clark Shoe Company, 88 NLRB 989, enforcement denied on other grounds,
189 F. 2d 731 (C. A. 1), a refusal to bargain proceeding where the respondent
sought to relitigate matters previously decided in the representation proceeding,
the Board noted in footnote 1 as follows:
The Respondent takes the position that the Trial Examiner cannot hold himself
bound by the Board's findings in the prior representation case; that it is entitled
to an "independent determination" by the Trial Examiner of the issues decided
in the R case; and that under Section 7 (b) (8) of the Administrative Procedure
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, the Trial Examiner should make such a determination because he is
authorized to "make decisions or recommend decisions." We agree with the
Trial Examiner that unless there is evidence which was newly discovered or
unavailable to the Respondent at the time of the representation hearing, it cannot
be permitted to relitigate in the instant proceeding the question of majority
or the appropriate unit. (See cases cited on page 996 of the Intermediate
Report.) Nor do we find anything in the Administrative Procedure Act which
supports the Respondent's position.
It cannot be gainsaid that all of the foregoing cases involved refusal to bargain
cases against employers and dealt with the issue of a violation of Section 8 (a) (5)
of the Act. Presumably the same criteria would apply in Section 8 (b) (3) cases
against labor organizations. But the statutory language of Section 9 (d) of the Act
is quite broad. Nowhere does it provide that its use is restricted to refusal to bar-
gain cases. Its obvious thrust is to protect a party respondent in an unfair labor
practice proceeding of any nature against findings which are predicated upon a non-
adversary investigation. This protection consists of the requirement that "such
certification and the record of such investigation shall be included in the transcript
of the entire record required to be filed" with the court.
And this is precisely the situation in the instant proceeding. There was an investi-
gation conducted pursuant to Section 9 (c) of the Act and as a result thereof the
Board certified certain facts, viz, that both Respondents lost the election after having
previously sought recognition. It is important to note that the Board under Section
9 (c) is directed to hold a representation hearing on an employer petition "alleging
that one or more individuals or labor organizations have presented to him a claim
to be recognized as the representative defined in Section 9 (a)." That section further
points out that "If the Board finds upon the record of such hearing that such a ques-
tion of representation exists, it shall direct an election by secret ballot and shall
certify the results thereof."
Stated otherwise, the Board in the RM proceeding was carrying out its statutory
mandate and its jurisdiction was predicated solely upon Respondents' requests for
recognition in the absence of which the RM petition would not have been entertained.
Inasmuch as the Board's certification and the record of investigation must be in-
cluded in the transcript of the entire record required to be filed with the enforcing
court, I do not see how Respondents have been deprived of due process and a fair
hearing. Their position is no different than that of an employer who is not permitted
to relitigate unit and majority findings previously raised and resolved in a repre-
sentation hearing. The language of the statute is broad enough to encompass both
situations and a contrary view would I believe result in the application of a dual
standard for employer and union unfair labor practices. Accordingly, Respondents'
contention herein is rejected. See E. H. Blum, 111 NLRB 110, Elm City Broadcast.
ing, 111 NLRB 980, Wilkening Manufacturing Company, 100 NLRB 1201, Under-
wood Machinery Company, 79 NLRB 1287, and American Finishing Company,
90 NLRB 1786.2
2. The merits
(1) It has been found that Respondents, although representing only an admitted
minority of the Company's employees, have picketed the premises of the latter with
at least one of their objectives being recognition as bargaining representatives. And,
as noted, had the Company yielded and extended this recognition, it would have
engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (2)
of the Act. It follows then that this picketing was for an object obviously contrary
to the public policy expressed in the Act. I fail to see how picketing or strike activity
to compel the violation of at least two sections of the Act can be viewed otherwise.
State tribunals have had no difficulty, in analogous circumstances, in concluding
that picketing or strike activity for an object contrary to State public policy is unlaw-
2 The chief attack on the resolution of credibility by the Board comes from Respondent
Teamsters and the Board, as set forth in the text of the RM decision noted the conflict
concerning the Teamster request for recognition. Presumably the position of Respondent
Teamsters is that this conflict should be reposed by the same witnesses, pro and con,
before the Trial Examiner and then resolved by him.
It is of interest, however, to note that the picketing was a joint venture ; that both
labor organizations were identified on the signs posted and carried by the picket ; and
that both labor organizations, as the Board found, jointly visited the Company. The fact
that the picket represented both labor organizations and that there is no serious challenge,
on grounds of credibility resolution, concerning the Paintmakers' object in picketing, serves
in view of the Trial Examiner to support the Board findings concerning the object of
Teamsters in the picketing.
PAINT, VARNISH & LACQUER MAKERS UNION 1441
ful and is subject to restraint. They have consistently enjoined picketing where an
object was to exert economic pressure upon the employer so that he would coerce,
his employees into joining a particular labor organization. See, for example, Good-
win's, Inc. v. Hagedorn, 303 N. Y. 300, a much cited decision on this issue.
In Independent Dairy Workers Union, etc. v. Milk Drivers and Dairy Employees
Local No. 680, 39 LRRM 2208, December 17, 1956, the New Jersey Supreme Court
enjoined peaceful picketing for recognition, where, during such picketing, recognition
had been extended to another labor organization which had newly established its
majority. The Court stated, "We hold that when a group of persons in private em-
ployment have freely exercised their right to choose a bargaining representative, the
will of the majority may not be undermined by picketing where the sole object is
economic duress upon the employer and the employees. The determining point in
the episode of events is the balloting itself [a poll of employees by the Honest Ballot
Association whereby the employees designated the subsequently recognized labor
organization], the uncoerced expression of the majority will. The protection is guar-
anteed against arbitrary interference by employer or competing labor organizations."
[Cases cited.] The same result was leached in closely parallel situations in Audubon
Homes v. Spokane Building Council, 298 P. 2d 1112 (Wash.); Blue Boar Cafeteria v.
Hotel and Restaurant Employees, 254 S. W. 2d 335 (Ky.); and Vogt v. Teamsters
Local 695, 270 Wis. 315.
(2) While it is true that the United States Supreme Court for some time equated
peaceful picketing with free speech and held it as a result to be protected, such has
not been the case since Giboney v. Empire Storage and Ice Co., 336 U. S. 490.
There the Court recognized that picketing was something more than free speech and,
upheld a State injunction of peaceful picketing for unlawful objectives in contraven-
tion of State policy. The Court has since adhered to this view and it is interesting
to note that the State public policy recognized and projected in this line of cases was
in most instances expressed in vaguer terms than is Section 8 (b) (1) (A) and
Section 7.
It is difficult to visualize a case more on all fours with the instant case than that
of Building Service Employees International Union Local 262 v. Gazzam, et al., 339
U. S. 532. Peaceful stranger picketing to compel an employer to sign a contract
with a minority union was held to be unlawful as an attempt to induce a transgres-
sion of State policy against such coercion. The Court noted at page 540:
Here, as in Giboney, the union was using its economic power with that of its.
allies to compel respondent to abide by union policy rather than by the declared
policy of the State. That State policy guarantees workers free choice of repre-
sentatives for bargaining purposes. If respondent had complied with petitioners'
demands and had signed one of the tendered contracts and lived up to its terms,
he would have thereby coerced his employees. The employees would have had
no free choice as to whether they wish to organize or what union would be their
representative. [Emphasis supplied.] 3
(3) At this point it is in order to consider early Board decisions involving an
application of Section 8 (b) (1) (A) of the Act. It has generally been considered'
that they stand for the proposition that a Section 8 (b) (1) (A) finding will ensue
only where there is mass picketing, threats, or violence, that is, so-called means
picketing. A close consideration of those cases will I believe demonstrate the con-
trary, and the legislative history supports the latter view.
Thus in National Maritime Union of America, 78 NLRB 971, the Board stated
that the criterion for a strike violation of Section 8 (b) (1) (A) was "normally the
means by which it is accomplished." Significantly, the Board also went on to state
that such a strike was "not directed primarily at compelling other employees to forego
the rights which Section 7 protects." The Board distinguished the strike in that
proceeding as being one whose object was not the coercing of nonmembers to join
the union. Of course in the instant proceeding the Board has already found the-
contrary. And it is significant that in the NMU case the Board did not find that the
means was a sine qua non therein; it found only that such was "normally" the case.
Indeed, the Board in finding discharges violative of Section 8 (b) (2) of the Act
under union-security agreements has proceeded to make further findings of violation-
of Section 8 (b) (1) (A). Obviously in those cases it is not the means of discharge
3I deem it unnecessary herein to dwell upon the distinction, if any, between organiza-
tional and recognition picketing The evidence here discloses that it was in part at least
recognition picketing Hence those cases which distinguish organizational picketing as
being for a lesser objective than recognition picketing need not be considered herein.
483142-59-vol 120-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but the object which renders them unlawful, viz, unlawful utilization of a union-
security clause or imposition of unlawful union-security conditions.
In Perry Norvell Company, 80 NLRB 225, a much-cited decision, the Board re-
jected the concept that a wildcat strike to cause an employer to abrogate a contract
with one union and to bargain with the striking union was per se violative of Section
8 (b) (1) (A). The Board referred to the legislative history as showing an intent
to proscribe coercive conduct but not the strike itself. But it appears from a con-
sideration of the decision that the Board was considering it on the basis of majority
activity as was the case in the NMU decision, obviously a far different situation than
is present here.
That the Board in effect has recognized the broadness of its earlier views on Sec-
tion 8 (b) (1) (A) is demonstrated by two decisions where the object of the picketing
was found to be violative of Section 8 (b) (1) (A). In Clara-Val Packing Company,
87 NLRB 703, set aside on other grounds, 191 F. 2d 556 (C. A. 9), and in Pinker-
ton's National Detective Agency, Inc., 90 NLRB 205, enfd. 202 F. 2d 230 (C. A. 9),
threats of picketing and picketing to force the discharge of employees were held to
be violative not only of Section 8 (b) (2) but also of Section 8 (b) (1) (A) of the
Act. See R. B. Wyatt Manufacturing Co., Inc., 117 NLRB 700. While the Board
properly deemed this conduct to be aimed at forcing employees to forego the rights
protected by Section 7 of the Act, it obviously was not the means but the object which
was condemned. In Julius Resnick, Inc., 86 NLRB 38, the Board found that the
mere execution of an unlawful union-security contract constituted restraint of em-
ployees in the exercise of the rights guaranteed by Section 7. This was in accord
with the decision in the NMU case which distinguished it from activity not directed
primarily at compelling other employees to forego the rights protected by Section 7.
I am unable to discern how the Resnick decision can constitute means activity and
this only establishes that this is no longer a limiting factor in an 8 (b) (1) (A)
determination.
In sum, neither the NMU nor the Perry Norvell cases are germane to the instant
case because the thrust of the arguments there was directed to majority strikes for
unlawful purposes. It is to be noted that in the Perry Norvell decision the minority
or majority aspect of the strike was immaterial to the theory therein litigated which
was solely whether a wildcat strike by a dissident group during the term of a
contract was per se 8 (b) (1) (A). Not only is the instant case concerned with a
minority strike, a far different issue, but subsequent Board decisions in the 8 (b)
(1) (A) field, if not incompatible with the earlier decisions have at the very least
significantly restricted the broad policies laid down. See District 50, Local No.
13366, etc. (Stubnitz Greene Corporation), 117 NLRB 648 and Local 294 Inter-
national Brotherhood of Teamsters (Valetta Trucking Company), 116 NLRB 842.
(4) The legislative history has been much cited, considered, and dissected in
many cases. It must be borne in mind that the language of Section 8 (b) (1) (A)
is quite broad and it would appear that some justification must be established to
support a narrower restrictive interpretation. Most impressive herein is the language
of Senator Taft which tends to support the broader language of the statute itself
and indeed the interpretation sought herein by the General Counsel. He stated:
Let me point out again that the men who are coerced may not have anything
to do with the union at all. They may have nothing to do with leaders of
the union who attempt to coerce them. The leaders who attempt to coerce
them may not have anything to do with the plant in which the employees in
question work. Sometimes the union has not even gotten into the plant when
they begin to coerce employees at the plant.
We had a case where the union went to a plant in California and said,
"We want to organize your employees. Call the men and tell them to join
our union." The employer said, "We have not any control over our employees.
We cannot tell them under the National Labor Relations Act." They said,
"If you don't we will picket your plant," and they did picket it, and closed it
down for a couple of months.
Coercion is not only against union members; it may be against all
.employees. .
There is no law of any State providing that a man cannot threaten another
man that if he does not join a union he may lose his job, or that something
may happen to him other than actual physical violence. There are plenty of
methods of coercion short of actual violence. [93 Cong. Rec. 4024, 4144.]
In view of the foregoing, I do not believe that the restrictive reading of Section
8 (b) (1) (A) sought herein by Respondents which would fly in the face of the
Act itself is warranted.
PAINT, VARNISH & LACQUER MAKERS UNION 1443
What is further compelling is the fact that in the instant case the picketing com-
plained of took place following a Board-conducted election in which the employees
involved clearly repudiated the picketing unions. Section 9 (c) of the Act was
adopted in order to assure employees their freedom of choice of representatives as
well as to implement industrial peace by stabilizing labor relations. Those policies
are aborted and a mockery made of the Board's election machinery if, following a
Board-conducted election in which a union has been repudiated, recognitional
picketing by a minority labor union is sanctioned. This is highlighted by the fact
that under Section 9 (c) (3) the Board is forbidden to conduct another election
fora 12-month period.
(5) It is suggested that the picketing was not directed at the employees but
elsewhere and that as a result, presumably, there cannot be restraint and coercion
of employees. But there is evidence that Respondents sought recognition oy con-
tacting the employer directly. If a labor organization is interested in forcing em-
ployees into union representation, how much more effective it is to proceed directly
through the employer of the employees, thereby making him their agent, and pressing
him to accomplish the desired objective. Obviously, and I doubt that this may be
seriously questioned, the issuance of an ultimatum by an employer who holds
economic power and control over his employees carries a force which cannot be
questioned except to the detriment of the pocketbook, a fact of life long recognized
in 8 (a) (1) cases against employers.
There is no language in the statute that employees can be effectively restrained
and coerced only in a very direct sense. The only criterion, as long recognized and
applied in Section 8 (a) (1) cases against employers, is whether the conduct
reasonably tends to restrain and coerce employees. N. L. R. B. v. Collins Baking
Company, 193 F. 2d 483 (C. A. 5); N. L. R. B. v. George N. Reed, 206 F. 2d 184
(C. A. 9); and Audubon Cabinet Company, Inc., 117 NLRB 861. And, as the
Court of Appeals for the Ninth Circuit recently stated, "Whether the company
would be disposed to make such use of the cards [union designation cards demanded
by a foreman from the employee who had signed cards in his possession, who did
not surrender them, and returned them to the signers] is beside the point. As long
as the opportunity is present, employees may have a real fear that this would be
done. Such fear could well influence their inclination to execute such cards."
N. L. R. B. v. Essex Wire Corporation, 245 F. 2d 589. While the conduct com-
plained of may be levied directly at employees, surely, conduct levied at the man
who can effectively make up their minds for them with the object of making him
take such steps is at the very least likely to accomplish the same objective and
probably more so.
An analogy may be drawn to those cases where the Board, with the approval
of the courts, has found the discharge of a foreman to be violative of Section 8
(a) (1) of the Act because it reasonably tends to restrain and coerce employees
who are subject to the Act, despite the obvious fact that there has been no direct
contact with or expression to the latter. N. L. R. B. v. Talladega Cotton Factory,
Inc., 213 F. 2d 209 (C. A. 5); N. L. R. B. v. Vail Manufacturing Company, 158 F.
2d 664 (C. A. 7) cert. denied 331 U. S. 835; Modern Linen £ Laundry Service,
116 NLRB 1974; and Better Monkey Grip Company, 115 NLRB 1170.
In reality, the claim of the General Counsel herein is no different than the theory
recognized and applied by the Supreme Court in the Gazzam case, where it stated
"if Respondent had complied with petitioners' demands and had signed one of the
tendered contracts and lived up to its terms, he would have thereby coerced his
employees. The employees would have had no free choice as to whether they
wished to organize or what union would be their representative." [Emphasis sup-
plied.] I fail to see how in logic a different criterion can be applied here and how
a contrary conclusion is warranted. I find therefore, as contended by the General
Counsel, that Respondents have picketed and are picketing the company premises
for the purpose of forcing the Company to recognize Respondents as bargaining
representatives of these employees, despite their proven lack of majority and that
Respondents have restrained and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act, thereby violating Section 8 (a) (1) thereof.4
• Respondents adduced evidence that two other unfair labor practice charges were filed
by the Company, one against Paintmakers, and one against both Respondents. The former
resulted in a settlement and the latter was withdrawn. As they involved alleged violations
of other sections of the Act, I attach no relevance to those matters herein.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connec-
tion with the operations of the Company set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several'
States and tend to lead to labor disputes burdening and obstructing commerce ands
the free flow of commerce.
V. THE REMEDY
Having found that Respondents have violated Section 8 (b) (1) (A) of the Act,-
I shall recommend that they cease and desist therefrom and take certain affirmative:
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in,
the case, I make the following:
CONCLUSIONS OF LAW
1. Paint, Varnish & Lacquer Makers Union , Local 1232 , AFL-CIO, and Steel,
Paperhouse , Chemical Drivers & Helpers Local 578, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, are labor
'organizations within the meaning of Section 2 (5) of the Act.
2 Andrew Brown Company is engaged in commerce within the meaning of-
Section 2 ( 6) and (7) of the Act
3. By picketing the premises of the Company for the purpose of obtaining recog-
nition and thereby restraining and coercing its employees , Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (b).
(1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Ra-Rich Manufacturing Corp . and Local 142 , Aluminum Metal
Alloys, Aircraft Components and Allied Trades, CIU, AFL-
CIO, Petitioner . Case No. 2-RC-8618. June 13, 1958
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the:
Board on March 18, 1957,' an election by secret ballot was conducted
on April 2, 1957, under the direction and supervision of the Regional
Director for the Second Region, among the employees in the unit
found appropriate by the Board. Upon conclusion of the election,
the parties were furnished with a tally of ballots. The tally showed
that, out of approximately 18 eligible voters, 18 ballots were cast, of
which 8 were for the Petitioner, 6 were against the Petitioner, and 4
were challenged.
On April 9, 1957, the Employer filed objections to conduct affecting
the results of the election. As the challenged ballots were sufficient in
number to affect the results of the election, the Regional Director in-
vestigated the challenges as well as the Employer's objections and, on
May 23, 1957, issued and duly served on the parties his report on chal-
lenges and objections. In his report he recommended that the Em-
Not published
120 NLRB No. 187.