Retail Clerks International Association, AFL-CIO

National Labor Relations Board - Board Decisions

Feb 4, 1959

122 N.L.R.B. 1264 (N.L.R.B. 1959)

1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services for their respective employers where an object thereof
is (1) to force or require any employer or person to cease doing
business with District Distributors, Incorporated, or (2) to force
District Distributors, Incorporated, to recognize the under-
signed union as the representative of its employees, unless and
until certified by the National Labor Relations Board.
DRIVERS, CHAUFFEURS AND HELPERS LocAL 639,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Retail Clerks International Association , AFL-CIO and Mont-
gomery Ward & Co., Incorporated . Cases Nos. 39-CC-44 and
39-CB-237. February 4, 1959
DECISION AND ORDER
On July 22, 1958, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondent had not engaged in any unfair labor practices and
recommending that the consolidated complaints be dismissed in their
entirety, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief, and the Respondent Union
filed a brief in support of Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
1 The Board does not, however , adopt the portion of the Intermediate Report in which
the Trial Examiner found that a union's filing of a petition for representation with the
Board is "not tantamount to a demand for recognition ." We adopt the Trial Examiner's
finding that the picketing at the Houston store did not violate Section 8 ( b) (1) (A) be-
cause its purpose was to enlist customer support for the Union 's economic strike against
the Employer at the other stores where the Union was the majority bargaining repre-
sentative . Accordingly , we find it unnecessary to pass upon his alternate finding that
the picketing was for organizational purposes and was therefore outside the proscriptive
ambit of that section.
122 NLRB No. 151.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO 1265
[The Board dismissed the complaints.]
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Charges having been duly filed, complaints having been served by the General
Counsel along with an order consolidating the cases and notice of hearing thereon,
and an answer having been filed by Retail Clerks International Association, AFL-
CIO, herein called the Respondent, a hearing involving allegations of unfair labor
practices in violation of the National Labor Relations Act, 61 Stat. 136, herein
called the Act, was held upon due notice at Houston, Texas, on May 13 and 14,
1958, before the duly designated Trial Examiner. The allegations of the com-
plaints, denied by the answer, in substance are that since February 25, 1958, the
Respondent has (a) violated Section 8(b)(4)(C) of the Act by picketing Montgomery
Ward & Co., Incorporated, herein called the Company, at its Houston, Texas,
retail store, thereby inducing and encouraging employees of the Company and of
other employers to engage in strikes and concerted refusals in the course of their
employment to handle goods with an object of forcing or requiring the Company
to recognize or bargain with the Respondent as the representative of certain of the
Company's employees notwithstanding that on February 25, 1958, another labor
organization, General Drivers, Warehousemen and Helpers Local Union No. 968,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Teamsters, had been certified as the representative
of such employees under the provisions of Section 9 of the Act; and (b) violated
Section 8(b)(1)(A) of the Act by picketing the Company's Houston store notwith-
standing the certification of the Teamsters. All parties were represented by counsel,
were afforded full opportunity to be heard, to examine and cross-examine witnesses,
to introduce evidence pertinent to the issues, to argue orally upon the record and
to file briefs and proposed findings and conclusions. Briefs were received from
the Respondent and the General Counsel. The Respondent's motion to dismiss
is disposed of in accordance with the determinations below.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Montgomery Ward & Co., Incorporated, has its principal office in Chicago,
Illinois, and is engaged in the sale and distribution of merchandise throughout the
United States through the medium of mail order houses and retail stores, including
a retail store in Houston, Texas. During 1957 goods and merchandise valued in
excess of $1,000,000 were shipped to the Houston store directly from points outside,
the State of Texas. There is no dispute, and I find, that the Company is engaged
in commerce within the meaning of the Act.
II. THE RESPONDENT
The Respondent is a labor organization admitting to membership employees of
the Company.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary statement
The complaint alleges that on February 25, 1958, and thereafter the Respondent
engaged in unfair labor practices by picketing the Company's retail store in
Houston, Texas. The date is that upon which the Teamsters was certified as the
representative of certain employees at that store and elsewhere in Houston. A
resolution of the issues requires a discussion of events preceding that date and
occurring in Houston and elsewhere.
505395-59-vol. 122-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Events which occurred entirely before the Respondent learned of the
Teamsters ' petition and partly before the petition was filed
During July 1957 the Respondent and its agents or components began negotia-
tions with the Company for new contracts covering approximately 61 units of
employees at various localities in the Nation. The employees at the Houston
store were not then represented by a labor organization . Those negotiations
continued beyond the end of the year and at the time of the hearing had been
unfruitful . During December 1957 the Respondent embarked upon the solicitation
of support to enforce its contract demands. This solicitation included picketing
and the distribution of handbills at numerous stores of the Company throughout
the Nation.
On December 26 certain officials of the Respondent met in Cincinnati , Ohio, in
connection with the negotiations with the Company . Among those present was
Peter L. Hall, an International representative whose activities cover 13 States in
the South and Southwest . Hall was instructed to devise a program covering the
13 States whereby public support would be solicited in the Respondent 's dispute
with the Company.
On January 6, 1958, the Respondent 's program was instituted in a number of
localities . On January 10 it began in Houston and in other cities within the
13-State area in which Hall represents the Respondent . At approximately a score
of the Company 's stores in States including Florida, Louisiana , Oklahoma and
Texas and , in particular , in Houston , pickets wore signs reading:
MONTGOMERY WARD UNFAIR! REFUSES TO BARGAIN
IN GOOD FAITH. RETAIL CLERKS INTERNATIONAL ASSO-
CIATION, AFL-CIO, NATIONAL CHAIN STORE COMMITTEE,
SOUTHERN DIVISION
The Respondent had no members then among the Company 's employees in
Houston. It was the representative of the Company 's employees at only 1 store
in the 13 States . According to the Respondent , the picket line at each store
"was an informational line for the consuming public." Insofar as appears, no em-
ployee of the Company in the 13 States was solicited orally to cease work or did
cease it. The pickets , numbering two at a time in Houston , patrolled along the
sidewalks in an orderly manner during the hours that the store was open and their
routes took them along two intersecting streets and past all entrances to the store
which are used by customers exclusively and past one entrance which is used by
both customers and employees.'
In conjunction with its picketing , the Respondent printed for distribution to
passersby thousands of handbills which set forth its side of the dispute with the
Company and which implored the public not to shop at the Company 's stores.
The handbills charged that the Company was "Unfair ," that it had refused to
bargain and to arbitrate , and that the Respondent needed "the help of the buying
public." On the first day of picketing at the Houston store, but not thereafter, a
number of the handbills were handed to passersby , one or more of whom were
employees of the Company . The General Counsel asserts correctly that the hand-
bills did not recite that the Houston store was not one of the 61 units involved
in the dispute.
As related , the pickets walked along the sidewalks outside the store. They did
not picket in front of , or across the entrance to, the Company 's dock area in the
rear of the store where employees of other employers came to make deliveries.
There were no instances when deliveries were not made . There were , however, a
few instances on the first day of picketing when truckdrivers for other employers,
upon observing pickets on the sidewalk nearby, delayed briefly in making deliveries.
Thus, a member of the Teamsters and another driver whose union affiliation, if
any, is not disclosed in the record , used the Company 's telephone to make calls
before delivering merchandise . On subsequent days, no delays occurred.2 Upon
I The entrance which is now used jointly by employees and customers was once re-
stricted to employees only . Several years ago, however , a sign so restricting it was
removed and the entrance became available to the public.
2In his brief, the General Counsel asserts that only 4 days before the hearing, "a
driver for American Railway Express, who had not made deliveries to [the Company]
for several months, inquired all about the strike [sic] before he would leave his load."
This contention is not supported by the testimony . The single witness concerning the
incident, the Company 's receiving clerk , testified that the driver asked "what the picket
was," saying that he , the driver , had not been going there to make deliveries , and asking
too, "Are you on strike ?" The clerk testified further that he answered , "No, we are not
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO 1267
undisclosed dates during January, Hall attended meetings of the Houston Trades
and Labor Council and the Industrial Area Council, respectively the parent bodies
of all local A.F. of L. and all local C.I.O. unions, and explained that the Re-
spondent wished the public to refrain from making purchases at the Company's
stores but that the Respondent did not ask that employees of the Company cease
work or that employees of other employers cease transacting their employers'
business with the Company.
C. The Teamsters' petition; the Respondent's organizational activity;
the election
On January 16 the Respondent became aware of a petition for certification which
the Teamsters had filed with the Board's Houston office on December 13, 1957,
and in which the Teamsters claimed to represent certain employees of the Company
in Houston. The petition recited that no other labor organization was interested in
the employees, and the Respondent learned of the petition by chance. On Jan-
uary 16 an employee of the Company and an employee of an unidentified union
telephoned the Respondent's office in Houston and said that the Teamsters was
organizing the employees.3 Later that day, as Hall was awaiting a plane for
Tampa, the information was confirmed, and he telephoned the Board's local office
and talked with the Officer-In-Charge. On January 17, Hall sent a telegram from
Tampa to the Board's office, claiming an interest in the representation case. At
that time the Respondent had no member among the Company's employees in
Houston, nor had any of those employees even applied for membership. Within
the next few days, however, the Respondent obtained four or five applications for
membership from employees of the store. On January 21 Hall wrote to the
Officer-In-Charge, requesting that the Respondent be permitted to intervene in the
representation case and to appear on the ballot in the election. On January 22
the request was granted.
On January 23, two representatives of the Respondent distributed among em-
ployees handbills addressed to them. After the store had closed and picketing had
ceased for the day, the representatives stood at the door which is used jointly by
employees and customers. They distributed the handbills as the employees
emerged. The handbills exaggeratedly claimed that "many" of the employees had
asked the Respondent to organize them, said that the Respondent would have a
place on the ballot in the election, asked the employees to attend a meeting at a
local hotel the following night, and said with respect to the picket line:
We know Ward employees are interested in the "whys" and "wherefores" of
our boycott picket line appearing in front of many, many Ward stores
throughout the country. This line has been established after long and careful
consideration and will be kept on until such time as Ward management gives
the employees proper consideration regarding their wages, hours and conditions
of employment.
on strike here in Houston," that the conversation ended, that there were "No other
questions . He [the driver] left his merchandise. He didn't drive in. He brought it in."
The clerk testified also that the driver did not make a telephone call before making the
delivery.
9 The General Counsel attempted unsuccessfully to prove that the Respondent was aware
of the Teamsters' petition as early as about January 7. On January 3 an official of the
Respondent in New Orleans telegraphed the Board's Houston office, saying inter alia
that he had learned that the Company had filed charges in 13 Regional Offices alleging
that the Respondent had refused to bargain collectively, and asking that the Respondent's
office in Washington, D.C., be informed of any pending charges. On January 6 the
Officer-In-Charge wrote to the Respondent's Washington office, saying that there were no
pending charges in Houston Involving the Company and the Respondent. For an un-
explained reason, the letter was captioned "Re: Montgomery Ward & Co., Inc., Case No.
39-RC-1228," the case number being that which had been given to the Teamsters' petition,
but the letter contained no details whatsoever concerning the representation case. As
previously recited, the petition did not list the Respondent as having any interest in the
employees. In his brief, the General Counsel says that "Knowledge of the petition in
39-RC-1228 came [to the Respondent] after the establishment of the Houston picket
lines ," and the General Counsel thereby tacitly and correctly concedes that his effort to
prove that the Respondent had earlier knowledge of the petition rests upon wholly in-
adequate evidence. Parenthetically, it may be noted that during the hearing counsel for
the Company commented that the charges filed by the Company, as mentioned in this
footnote, along with charges filed by the Respondent against the Company, had been
dismissed.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 24 Hall appeared at the hotel in hopes of conducting a meeting of
employees. Only one or two employees came. The meeting was canceled.
During the latter part of January, the Company posted a sign in front of its
Houston store which read:
NOTICE! Our employees are not on strike.
The union picketing this store does not
represent the employees of this store.
Montgomery Ward, Houston, Texas.
On February 3 the Respondent resumed its effort to organize the employees.
After working hours, as employees were leaving the store, two representatives of
the Respondent stood at the door and distributed handbills. The handbills, largely
in question and answer form, solicited the employees' votes in the coming election
and inter alia spoke of (1) the Respondent's position concerning initiation fees
and dues; (2) of its large local membership in a field other than department
stores; and (3) its experience in representing department store employees. With
respect to the picketing, the handbills recited:
Question: Why is the Retail Clerks Union, AFL-CIO, picketing our store?
Answer: The Ward Company has refused to negotiate a union contract in
good faith with our National Chain Store Committee representing union mem-
bers working in some seventy organized Ward units.
Question: But why picket our store? We're not union yet.
Answer: The Ward Company would rather we did not picket any of their
stores. However, this is a fight by union Ward employees to retain their self-
respect and to make a decent living for their services. It is so important to
everyone concerned that we believe it's only right to carry the fight to
Montgomery Ward stores no matter where they're located or whether they're
union or non-union.
On other subjects, the following appears:
Question: What will be the first step after we win the union election?
Answer: We would ask that the Ward employees in the Houston store
participate with the Ward employees now negotiating their national contract
by:
(1) endorsing and supporting the National Chain Store Committee;
(2) electing a delegate or delegates from your store to attend the Na-
tional Chain Store Conferences and work with the National Chain Store
Committee in every way.
Question: After we vote for the Retail Clerks Union, we will be able to
secure a union contract?
Answer: Yes. The Company would be willing to sign contracts with the
Retail Clerks Union right now if the people would compromise on their rights
and their just dues; but, as we told you, the people refuse to be pushed around.
On February 4, a hearing was held in the representation case. Hall entered
an appearance on behalf of the Respondent. His participation was limited, how-
ever, because the several applications for membership that he possessed numbered
substantially less than the 10 percent of employees which, under the Board's
rules, is essential in order to prevent a consent election by raising issues such as
the alleged inappropriateness of the unit desired by other parties. The rules,
however, do permit a labor organization with such a scant demonstration of in-
terest to have a place on the ballot in a consent election, and the parties to the
representation proceeding executed a stipulation which provided, in the Board's
formal, printed terminology, that the Respondent and the Teamsters claimed to
represent the employees and that the parties desired that the conflicting claims be
resolved in a consent election. The stipulation provided further that the election
be held on February 17 and that the unit be:
All employees of the employer's Houston, Texas retail department store at
901 Capitol, employees at the pool and warehouse at 2720 Clinton Drive,
and employees at the tire service station at 710 Louisiana [with certain super-
visory and other exceptions].
It should be observed that employees in the unit work at three different locations
but that the picketing by the Respondent occurred only at the retail store. It
should be said too that the Respondent never asked the Company for recognition
or bargaining in any unit of employees in Houston.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO 1269
On February 17 the election was held. Of approximately 159 eligible voters,
75 voted for the Teamsters, 8 for the Respondent, and 55 against both labor or-
ganizations. There is no evidence that, after the election, the Respondent solicited
members among the Company's employees in Houston unless one may infer such
solicitation from the fact that the Respondent's picketing continued. As the Gen-
eral Counsel says in his brief, "Respondent filed no objections [to the conduct of
the election] and in every respect appeared to have accepted the results except for
its continued picketing after February 25, which is the subject of the charges
herein."
D. Events following certification of the Teamsters
On February 25 the Officer-In-Charge certified the Teamsters as the employees'
representative and, according to the General Counsel, on that day the picketing
by the Respondent in Houston became invalid under Section 8(b)(1)(A) and 8(b)
(4)(C) of the Act. The General Counsel does not contend that the picketing in
any other city was invalid at any time.
The wording of the Respondent's picket signs is set forth supra. For about a
month after the Teamsters' certification the Respondent's picketing continued with
those signs. On or about March 26, a copy of the Company's initial charge was
served upon the Respondent. "With perhaps an over abundance of caution," the
Respondent says, and "in order to state clearly the localities where employees of
Ward were on strike," on March 29 it substituted in Houston, but not in any
other city were picketing was in progress, a new picket sign reading:
MONTGOMERY WARD EMPLOYEES ON STRIKE IN WHITTIER, CAL-
IFORNIA; FULTON, NEW YORK; KANSAS CITY, KANSAS; LUD-
INGTON, MICHIGAN; BREMERTON, WASHINGTON, EDWARDS-
VILLE, ILLINOIS. THESE UNIONS, PART OF THE NATIONAL
BARGAINING GROUP, REQUEST YOUR SUPPORT. THIS COMPANY
REFUSES TO ARBITRATE. NATIONAL CHAIN STORE COMMITTEE,
RCIA, AFL-CIO.
The wording of the sign which the Company displayed in front of the Houston
store is set forth above. At an undisclosed time after the election, the Company
substituted a sign reading:
Our employees are represented by a union,
I.B.T. LOCAL 968 WE ARE NOT ON STRIKE
These pickets do not represent the employees of
MONTGOMERY WARD Houston, Texas
Picketing continued in Houston with the Respondent's new signs until it was
enjoined by an appropriate court shortly after the hearing in this proceeding. We
turn now to the legal problems.
E. The issues
The separate complaints in this consolidated proceeding allege that the Respond-
ent violated Section 8(b)(4)(C) and Section 8(b)(1)(A) of the Act by picketing
the Houston store after the certifications of the Teamsters .4 We shall consider
these allegations in order.
F. Section 8(b) (4) (C)-Case No. 39-CC-44
In order for a violation to be found , there must be proof of a combination of
two elements , i.e., that by picketing in Houston after the certification of the
Teamsters , the Respondent ( 1) induced or encouraged employees to strike or to
withhold their services 5 with (2) an object of forcing or requiring the Company
to recognize or bargain with the Respondent , not as the representative of em-
ployees in the 61 units where the Respondent and the Company had disagreed upon
"While the issues herein depend solely upon the validity of the Respondent's peaceful
picketing, the complaints contain the usual allegation that the Respondent utilized means
in addition to picketing "including orders, directions, instructions, requests, appeals. ... .
There is no evidence to support the quoted allegation.
S Section 8(b) provides that it shall be an unfair labor practice for a labor organization
or its agents-
(4) . . , to induce or encourage the employees of any employer to engage in . . . a
strike or a concerted refusal in the course of their employment to ... handle or
work on any goods . . . where an object thereof is :
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terms of new contracts, which disagreement had precipitated the picketing in the
first place, but as the representative of employees in a 62d unit for whom the
Teamsters was the certified representatives With respect to the second element,
the General Counsel need not show that the Respondent's sole or principal objec-
tive was to obtain recognition or bargaining in the 62d unit in contravention of
the certification; he need show only that such was an objective of the picketing.
Dallas General Drivers, etc. (Associated Wholesale Grocery of Dallas, Inc.), 118
NLRB 1251.
Before considering the proof, it is appropriate to recite what is not involved.
We have seen that the Respondent picketed at numerous stores of the Company
throughout the Nation. The initial picket sign used at the Houston store was
identical with those used at a score of stores in 13 Southern and Southwestern
States. The handbills which the pickets distributed to passersby in Houston were
identical with handbills distributed by pickets elsewhere. The General Counsel
does not contend that the Respondent's picketing outside of Houston was invalid
at any time or that the picketing in Houston was invalid before the certification
of the Teamsters. Moreover, we are not concerned with those provisions of Sec-
tion 8(b)(4) which are commonly called secondary boycott provisions. This is
so because there is no employer involved other than the Company, a primary
employer, and the secondary boycott provisions do not isolate one store in the
Company's chain from other stores therein, nor do those provisions provide that
economic pressure may be applied upon a primary employer only at that segment
of his operations at which the immediate dispute exists. Teamsters, Chauffeurs,
Warehousemen, etc. (California Association of Employers), 120 NLRB 1161.
1. The first element. Did the fact that the Respondent continued to picket after the
certification of the Teamsters induce or encourage employees to strike or to with-
hold their services?
The question is not whether the Respondent's picketing of the Houston store
before the Teamsters' certification induced or encouraged employees of any em-
ployer to do anything. Indeed, the Respondent lawfully could have engaged in
certain conduct in which it did not engage, namely, it could have picketed the dock
area of the Houston store and it could have made explicit oral and written appeals
to employees of the Company to go on strike and like appeals to employees of
other employers not to cross the picket line at the store with the sole object of
terminating the store's operations in order to force the Company to come to agree-
ment on contractual terms in the 61 units of employees elsewhere. And this
right of the Respondent would not have been diminished by the certification of the
Teamsters. That the Respondent did not exercise this right at any time is a factor,
it says, in determining to whom it directed the appeal of its picket signs.
We have seen that the picketing in Houston began on January 10 and that the
certification of the Teamsters occurred on February 25. The question is whether
the picketing at that store after the certification induced or encouraged any em-
ployees to strike or to withhold their services.? The General Counsel asserts:
first, that a picket line necessarily induces or encourages employees to withhold
their services because its function is not merely to disseminate information but also
to prompt employees not to work; second, illustrative of the first point is the
fact that on the initial day of picketing a few truckdrivers delayed in making deliv-
eries to the Company; third, the picket signs did not recite that they were intended
solely as an appeal to prospective customers not to shop at the store; and fourth,
the handbills which were distributed to the public on the initial day of picketing
6 (C) forcing or requiring any employer to recognize or bargain with a particular
labor organization as the representative of his employees if another labor organiza-
tion has been certified as the representative of such employees under the provisions
of section 9. . . .
7 It long has been my impression that the Congress did not use the words "induce" and
"encourage" as synonymous and that the former word was intended to mean "successful
encouragement." If that impression be correct, it follows that in this case we do not
have inducement of employees because no employees withheld their services, even briefly,
after the certification of the Teamsters. It follows too that encouragement of employees,
whether successful or unsuccessful, is prohibited by the Act where other necessary factors
are present. It is my additional impression, however, that in Associated Wholesale
Grocery, supra, the Board impliedly disagrees with my understanding of the meanings of
those words. In any event, the accuracy or inaccuracy of my impressions does not affect
my conclusions below.
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO 1271
and the Respondent's original picket signs gave the impression that employees in
the Houston store were the subject of a collective -bargaining dispute. On the other
hand, the Respondent advances detailed contentions in defense . First and foremost,
the Respondent asserts that its picketing and related activity was intended solely
as an appeal to prospective customers , which is not prohibited by Section 8(b)(4).
In support of this argument , it says that the activity in Houston was no different
than that in various cities and that the record establishes that the picketing in any
city in the South or Southwest was a part of a nationwide appeal to prospective
customers , not employees . It is said also that the facts that ( 1) the Respondent
did not picket the Company 's dock area , which it could have done lawfully at
least until certification of the Teamsters ; and (2 ) it picketed only during hours
when the store was open, demonstrate that the picketing was not intended as an
appeal to employees . It is said too that, although there were a few brief delays
by employees of other employers in making deliveries on the first day of picketing
(upon which the General Counsel relies ), it is not alleged that those incidents were
unfair labor practices and, moreover , during January, Hall addressed the Houston
Trades and Labor Council and the Industrial Area Council , making it clear that
the picketing was not intended as an appeal to employees of any employer.8 Sec-
ond, the Respondent asserts that the handbills which it distributed to passersby on
the first day of picketing , and the handbills which it distributed to employees during
its organizational efforts, made it clear that a customer boycott, not an appeal to
employees to withhold their services , was in progress on a national scale. The
Respondent asserts too that the picket signs were an accurate representation of its
side of the controversy with the Company and, in any event, that it is immaterial
under Section 8(b)(4) whether the signs misled the public. Finally , the Respond-
ent points out that no employee of the Company in Houston ever withheld his
services and that no representative of the Respondent "ever implied that there was
anything wrong about their continuing to work . . . though the picket line was up."
At this point we look again at the words of the Respondent 's first picket sign:
MONTGOMERY WARD UNFAIR ! REFUSES TO BARGAIN IN GOOD
FAITH . RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-
CIO, NATIONAL CHAIN STORE COMMITTEE , SOUTHERN DIVISION
The Board has held in a number of cases that similar or substantially the same
words on picket signs constitute an appeal to employees . Of course , the sign con-
stituted an appeal to prospective customers not to buy, but that fact does not
exonerate the Respondent if its sign is to be construed also as an appeal to em-
ployees not to work. Our problem is whether the picket signs contained an inher-
ent appeal to employees to withhold their services under all the circumstances,
including ( 1) the time and place of picketing ; ( 2) the explanations in the hand-
bills to employees concerning the picketing ; and (3 ) Hall's addresses to the labor
councils. A factor in resolving our problem and, if I correctly understand Board
law, one factor more decisive than the language of a picket sign , is the time and
place of picketing . I am not certain that the Board has held that picketing of an
employer's place of business creates a presumption of an appeal to employees so
conclusive that it may not be rebutted by any evidence whatsoever which tends to
show that the pickets sought to reach only prospective customers. I recognize that
the dissent in Associated Wholesale Grocery , supra, asserts that the majority so
decided, but there were crucial factors in that case which are not present here.
Thus, there the picketing occurred at stores of secondary employers , at entrances
used jointly by customers of such employers , employees of such employers, and
employees of other employers doing business with the secondary employers. Here
there was no picketing of the Company 's dock area where employees of other
employers came to transact their employers ' business , nor were the Company's
.employees asked orally or by handbills to quit work , although, as pointed out
above, such picketing and requests could have been engaged in lawfully. More-
over, while the pickets patrolled all customer entrances to the store and the single
entrance which is used jointly by customers and employees , the pickets did so
s The Respondent asserts that substantial proof that its picketing was not an appeal
to employees is the fact that . at one of the Company's stores in Oklahoma , where the
Respondent is the representative of the employees and where the picket sign was identical
with that used originally in Houston , no employee withheld his services . Hall testified
concerning this subject. I regard his testimony as having probative value that he gave
instructions that employees in Oklahoma were not to be asked to withhold their services,
but his testimony that they did not withhold services is hearsay . There was no other
witness on this subject.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only during hours when the store was open for business. Since picketing was
restricted to those hours, it necessarily began after employees entered the store
and ceased each day before they emerged. Of course, the picketing occurred at
the joint entrance during lunchtime when employees who did not eat in the store
came out to go to restaurants or elsewhere for lunch. The little evidence in the
record on this subject indicates that at such times the employees were dressed in
street clothes instead of in garments which reflected their employment, and, under
all the circumstances I do not regard the picketing of the joint entrance at lunch-
time as controlling.
The recitation above reflects my opinion that the instant case is to be distin-
guished factually from Associated Wholesale Grocery and that the particular issue
is complex. I find it unnecessary to definitively resolve the issue, however, because
the General Counsel has failed to prove the second element in a violation of
Section 8(b)(4)(C), as discussed below.
2. The second element. In picketing after the certification of the Teamsters, was
an object of the Respondent to force the Company to recognize it as the repre-
sentative of employees in Houston?
There is not one iota of evidence that the Respondent ever asked the Company
to recognize it as the representative of employees in Houston. It is true, of course,
that the Respondent signed a consent election stipulation which contained the
Board's formal, printed language that the Respondent and the Teamsters claimed
to represent the employees. It is true, too, that the Respondent participated in the
election and was soundly defeated. But participation by a union in an election is
not tantamount to a demand for recognition even when the Union filed the peti-
tion, and here the Respondent did not initiate the representation case. Insofar as
I am aware, the Board never has held, in a case alleging that an employer refused
to bargain collectively, that the bare filing of a petition or participation in a repre-
sentation case, without more, constituted the demand for recognition which is
essential in a refusal to bargain case. Cf. The Solomon Company, 84 NLRB 226.
If the words of Section 8(b)(4)(C), "to recognize or bargain with a particular labor
organization," mean exactly what they say and no more, the issue must be resolved
in the Respondent's favor at this point and we need go no further. But the Gen-
eral Counsel would interpret the quoted words differently, and additional questions
must be considered.
According to the General Counsel, when the Respondent sought to organize the
Houston employees, its picketing, which had been for the object of supporting the
Respondent in its dispute with the Company concerning terms of contracts cover-
ing 61 units of employees elsewhere, took on an additional object, that of organ-
izing the employees. According to the General Counsel, although there was no
request by the Respondent for recognition in the 62d unit, "Since the activity before
the certification of February 25 continued thereafter, the character of the former
is the reputation of the latter." He continues: "The previous organizational efforts
of the Houston employees remained the essential nature of the picketing after the
certification," and
One of the objectives of the picketing was for organizational purposes and,
thus, fell squarely within the interdiction of Section 8(b)(4)(C) as being an
inducement or encouragement of the employees of Ward to engage in a
strike. . . . where the objective was [to obtain recognition as representative
of employees in Houston]. [Emphasis supplied.]
On the other hand, the Respondent argues:
Picketing that was clearly, in its inception, for a purpose other than organi-
zational may not be presumed to change its character merely because the
union elects to go on a ballot to find out if it represents a majority and can
thus attain certification. The union does not thus stake its right to continue
protest picketing or customer boycott picketing upon the oucome of an elec-
tion which it did not invite but dares not ignore.
Thus, when the union has lost all reasonable hope of gaining recognition
in the only way it ever sought it-by showing majority status-its continua-
tion of its protest or consumer boycott picketing cannot be inferred to be for
recognition or bargaining objectives.
It is apparent from the General Counsel's position, as quoted, that he concedes
that the picketing in Houston was not in support of a demand for recognition. He
does not refer to the picketing as "recognitional." He refers to it as in part
"organizational" between the time that the Respondent began its organizational
RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO 1273
efforts and the time of the Teamsters' certification, and, he says, therefore it was
in part "organizational" thereafter. The question whether "organizational picketing"
may be equated with "recognitional picketing" under Section 8(b)(10(A) is dis-
cussed below under section G. Assuming arguendo the correctness of the equation
under Section 8(b) (4) (C), with which we are dealing at the moment, I find, never-
theless, that the Respondent's picketing in Houston after the Teamsters' certification
was for the original object only, namely, to put pressure on the Company in the
dispute of those parties over contractual terms in 61 units elsewhere. In the first
place, one would have to infer that the picketing and the solicitation of employees
were so interwoven that the picketing, which was in progress before the Respondent
ever heard of the Teamsters' petition, took on another aspect, organizational activ-
ity. We must bear in mind that picketing as an organizational technique is quite
distinct from the technique of appealing to employees' reason through detailed
arguments in printed handbills. Here the picketing began, not as an organizational
technique, but as an admittedly coercive technique to force the Company to agree
to the Respondent's contractual demands covering 61 units of employees. Later,
when organizational activity began, the words of the picket signs were not changed
to urge employees to join the Respondent. Indeed, upon no occasion did a person
picketing speak to an employee, or even approach an employee except to offer
handbills to passersby on the first day of picketing. Later, when the solicitation
of employees was by handbills addressed to them, picketing for the day had ceased
and, it appears, the persons who picketed on that day did not distribute the hand-
bills.9 In the second place, assuming that the picketing had a twofold object dur-
ing the period of the Respondent's organizational activity (i.e., pressure on the
Company to resolve in the Respondent's favor the dispute over terms of contracts
covering 61 units of employees in other localities, and organization of the employees
at the Houston store), I find that after the election the picketing reverted to its
original object. A number of reasons impel this conclusion. First, it is undis-
puted that the picketing began in order to enforce the Respondent's contractual
demands in 61 units of employees where the Respondent is the recognized bargain-
ing agent, and the General Counsel does not contend that this objective was ever
discarded. Second, the Respondent appears to have been uninterested in two of
the three locations at which employees in the 62d unit work. Insofar as the record
discloses, there was no solicitation of employees and picketing at the store only.
In its solicitation of employees there, the Respondent spoke of representing them
only after proving majority status in the election. Following the election, the Re-
spondent did not solicit employees at the store orally or by handbills. It accepted
the outcome of the election. Third, unlike the situation in some cases cited herein,
it was not necessary for the Company to violate the Act in order to be relieved
of the picketing. Here, one thing, and one thing only, would have stopped the
picketing in Houston if it had not been enjoined and will stop it elsewhere if the
contractual dispute involving 61 units of employees continues today; that is, agree-
ment between the Company and the Respondent on contracts covering those units.
Fourth, although the picket signs used originally in Houston did not recite that
recognition as the representative of Houston employees was not being demanded,
and although those signs may be construed to imply that such recognition was
being demanded, the weight to be given to these factors is wholly inadequate to
overcome the substantial evidence that in Houston, as in all other cities where the
Respondent picketed, its objective was lawful. The Board has given little weight
to the words of a picket sign. Drivers, Chauffeurs, and Helpers Local 639, etc.
(Curtis Brothers, Inc.), 119 NLRB 232; Retail Store Employees Union (J. C. Penney
9 The handbills to employees were handed out by Hall, the International representative,
who was assisted by one or the other of two business agents, one Brantley or one
Anderson. Hall and Anderson had worn picket signs for a few minutes on the first day
of picketing in order to have their pictures taken. Brantley picketed for an undisclosed
amount of time. The General Counsel, pointing to this testimony and to the fact that
Hall and Brantley or Hall and Anderson, as the case may have been, did not wear picket
signs when distributing the handbills to employees and had not been picketing on either of
the days that the handbills were distributed, says that "the distinction seems illusory in
view of the fact that with or without picket signs they were acting as agents of the
Respondent, and Respondent's responsibility is not divisive." But the point is not that
both the pickets and the solicitors of memberships were agents of the Respondent. The
point is whether the activity of the pickets, which began before that of the solicitors, had
a different origin, extended beyond it, and was more regular and at different hours,
became so identified with the activity of ,the solicitors as to have become organizational
picketing in part.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company), 120 NLRB 1535; California Association of Employers, supra. Fifth,
in contrast to the little weight given by the Board to the words of picket signs,
in various cases including J. C. Penney and California Association the Board has
given great weight to the original objective of the picketing. Here the signs were
in lawful use before the Respondent ever heard of the Teamsters' petition. In
California Association the Board applied the rule that "a state of affairs once
shown to exist is presumed to continue to exist until the contrary is shown," and
in the J. C. Penney case the Board said: "There may be circumstances under which
a union may show that its motives and objectives are not those originally an-
nounced [in picketing for recognition without majority status], but in our opinion
it will require strong and conclusive evidence to show affirmatively that it is not
continuing to picket for recognition." Here, however, it is not the Respondent
which seeks to show that its objective changed. It is, instead, the General Counsel
who asserts that (1) the Respondent's original, valid objective in picketing in
numerous cities to enforce its contractual demands in 61 units of employees was
supplemented in one city by an invalid objective concerning a 62d unit; and (2)
the invalid objective was unseparated from the valid objective after the Respondent
had lost the election and had ceased its organizational efforts. Undoubtedly, the
organizational efforts were terminated, as the Board said in the Penney case, be-
cause of the "probably futility of [a union's] continuing to solicit membership .. .
of employees who have" nearly unanimously rejected it in an election. It is wholly
unreasonable to infer on the record in this case that the Respondent, having lost
to the Teamsters in a contest which was exemplified by appeals to the reason of
employees, nevertheless sought to continue the contest by picketing. For the fore-
going reasons, I conclude that the Respondent has not violated Section 8(b) (4) (C).
G. Section 8(b)(1)(A)-Case No. 39-CB-227
As we have seen , the Respondent asserts that its picketing was intended solely
as an appeal to prospective customers not to shop at the Company's store. Even
so, if an objective of the Respondent in picketing had been to obtain recognition
as the representative of employees who had chosen the Teamsters as their bargain-
ing agent, the picketing would have been violative of Section 8 (b) (1) (A). Inter-
national Association of Machinists (Alloy Manufacturing Company), 119 NLRB
307. But we have seen that the Respondent did not picket the Houston store with
that objective. Moreover, the complaint in this case does not allege specifically
that the Respondent picketed in Houston to force or require the Company to recog-
nize it as the representative of employees there. It alleges that the Respondent, by
picketing after the certification of the Teamsters, restrained and coerced employees
of the Company, and in his brief the General Counsel says that the "organiza-
tional purposes of the picketing . . . violated Section 8(b)(1)(A) of the Act under
the principle announced by the Board in Curtis Bros., Inc.... and cases following
that decision." (Emphasis supplied.) If we assume, contrary to my findings above
but in accord with the General Counsel's contention, that the Respondent's picket-
ing of the Houston store after the certification of the Teamsters was, in part, for
organizational purposes (although not for recognitional purposes), we nevertheless
must reach the conclusion that the picketing did not violate Section 8(b)(i)(A).
Picketing after the loss of an election is not always an unfair labor practice, and
the Board several times has discussed organizational picketing as not to be equated
with recognitional picketing. Thus, in Curtis Brothers, supra, the Board said:
"Equally inapposite to the case at bar is minority picketing for organizational pur-
poses . . . [which] is not tainted, on its face, with the unlawful direct purpose of
forcing the commission of an unfair labor practice by the employer and the sum-
mary imposition of an unwanted union upon its employees.... Such a case, there-
fore, may well require a balancing of the right to organize against the right to be
free of restraint in the selection of a bargaining representative." In later cases,
Paint, Varnish & Lacquer Makers Union (Andrew Brown Company), 120 NLRB
1425; California Association, supra; and J. C. Penney, supra, the Board discussed
in some detail the factual situations before concluding that the picketing by the
respondent minority unions in those cases was not merely for organizational pur-
poses but to achieve recognition. If, under Section 8(b)(1)(A), organizational
picketing by a minority union is an unfair labor practice, as recognitional picketing
has been held to be, the Board's detailed differentiation in those cases was point-
less. One must conclude, of course, that the differentiation was highly pertinent,
not pointless. Accordingly, even assuming that the Respondent's purpose in picket-
ing after the certification of the Teamsters was, in part, organizational, I find that
there was no violation of Section 8(b)(1)(A).
f
AMARILLO GENERAL DRIVERS , WAREHOUSEMEN & HELPERS 1275
H. Addendum
The determinations above make it unnecessary to consider two additional ques-
tions : (1) whether the signs posted by the Company need be considered in resolving
the issues and. (2) assuming that the Repondent 's picketing in Houston between
February 25 and March 29 with its original picket signs was invalid , whether the
picketing after the latter date with new signs was valid. I shall recommend that
both complaints be dismissed.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Company constitute trade, traffic, and commerce among
the several States within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. The allegations of the complaints that the Respondent engaged in unfair labor
practices have not been sustained.
[Recommendations omitted from publication.]
Amarillo General Drivers , Warehousemen and Helpers Local
Union No. 577, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
and Crowe-Gulde Cement Company. Case No. 16-CC-87. Feb-
ruary 4, 1959
DECISION AND ORDER
On December 23, 1958, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Charging Party, the General Counsel, and the Respondent filed ex-
ceptions to portions of the Intermediate Report. The General Coun-
sel and the Charging Party filed briefs in support of their exceptions
as well as in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
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
Intermediate Report, the exceptions and briefs, and the entire record
in the case 1 and hereby adopts the findings, conclusions, and recom-
1By stipulation of the parties, the record made at the 10(1) Injunction proceeding.
instituted prior to the instant complaint case, constitutes the record before the Board.
122 NLRB No. 153.