Retail Clerks Int'l Association, AFL-CIO, Local 219

National Labor Relations Board - Board Decisions

Dec 29, 1961

134 N.L.R.B. 1680 (N.L.R.B. 1961)

1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before such.time arrives, the Employer will continue to be engaged in
a relatively stable phase of its operations and for a substantial period
of'time. It was the latter consideration which led the Board in an
earlier case involving this Employer," and these operations, to enter-
tain a petition for a unit of all hourly paid employees employed at
the Employer's Pea Ridge, Missouri, shaft-sinking operation, and
find that, in view of the stability of the Employer's present operations,
it would be unjust to deprive the hourly rated employees of an im-
mediate election. We think such considerations are also applicable
in the present instance. The clerical and technical employees are also
primarily engaged in the same phase of operations, and it is apparent
that these operations will continue -for a relatively substantial period
of time. While there may be an immediate increase in the number of
clerical and technical employees, the increase will not be of such pro-
portions as to make the present complement of these employees an
insubstantial number, or materially alter the representative character
of the employees now employed.
As to the storehouse clerks, the aforesaid considerations do not even
apply, since, as plant clericals, they may properly be included in the
existing unit of shaft-sinking employees, and it is apparent that the
addition of the storehouse clerks to this unit will not appreciably
affect the substantial and representative character thereof. We find,
therefore, that, apart from other considerations, the present comple-
ments of office clerical and technical employees constitute substantial
and representative segments of the contemplated complements for
its shaft-sinking operations, that the addition of the storehouse clerks
to the existing unit of hourly paid employees will not substantially
affect that unit, and that elections may properly be held at this time.
[Text of Direction of Elections omitted from publication.]
11 St. Joseph Lead Co., and its affiliate Meramec Minang Company , supr a , at footnote 3
Retail Clerks International Association , AFL-CIO, Local 219 and
National Food Stores, Inc. and Local 534, Amalgamated Meat
Cutters and Butcher Workmen of America, AFL-CIO. Case
No. 11-CP-14. December 29, 1961
DECISION AND ORDER
On May 18,1961, Trial Examiner John H. Dorsey issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety as set forth in the Intermediate Report attached hereto.
134 NLRB No. 166.
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, LOCAL 219 1681
Thereafter, the Employer, and the General Counsel filed exceptions
to the Intermediate Report and supporting briefs and the Respondent
filed a brief in support of the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
this case, and, finding merit in the exceptions, rejects the Trial Ex-
aminer's recommendation and adopts only such of his findings and
conclusions as are consistent with this Decision and Order.
The Trial Examiner found that the General Counsel has failed to
establish that Respondent's picketing of the Employer's premises had
the unlawful object of forcing or requiring the Employer to recognize
or bargain with it; or of forcing or requiring the employees to accept
or select it as their bargaining representative. We do not agree.
On or about June 17,1960, approximately 4 days before the opening
of the Employer's retail store involved in this proceeding, Respond-
ent's representatives, Falk and Martino, visited the store to sign up
employees in Respondent and they asked permission to speak to the
employees. After granting Respondent's representatives permission
to speak to the employees, the Employer's personnel manager in-
formed them that the Employer had been advised by counsel that the
store in question was covered by a collective-bargaining agreement
embracing all of the Employer's facilities in that particular vicinity
and that its employees had "registered with the Meat Cutters' Union
in the back of the store." Availing themselves of the personnel man-
ager's offer to furnish names and addresses of store employees, Re-
spondent's representatives commenced writing down names and
addresses given them by the personnel manager's assistant. After ob-
taining about a dozen names and addresses, Falk stated there was no
point in recording the names, since the Employer already had a union
contract, and the employees had registered with the Meat Cutters'
Union. Respondent's representatives left the store but later in the
same day met with and inquired of the personnel manager the expira-
tion date of the Meat Cutters' contract and were told that it expired
January 1, 1961.
Respondent commenced picketing the store when it opened to the
public on June 21, 1960, and continued to picket until enjoined by the
United States District Court on March 14, 1961. The picket line was
under the general supervision of Martino, Respondent's business
agent. While the picketing was in progress, the Board, upon petition
'Pursuant to the provisions of section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [Members Leedom, Fanning,
and Brown),
630849-62-vol 134-107
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Employer, conducted two elections 2 in which the Respondent
did not participate and which resulted in certification of the Meat
Cutters. Respondent also filed unfair labor practice charges against
the Employer and the Meat Cutters during this period. The charges
were disposed of by a settlement agreement executed by the Employer,
the Meat Cutters, and the General Counsel.
The General Counsel excepts to the Trial Examiner's conclusion
that Respondent did not engage in recognitional or organizational
picketing following the Meat Cutters' certification, and he specifically
excepts in this connection to the Trial Examiner's failure to credit one
employee witness (Oliver), and to his refusal to base any findings
upon the testimony of a second employee witness (Wells). We find
merit in the General Counsel's exceptions. Head Checker Virginia
Oliver, a former member of the Respondent Union, approached Re-
spondent's business agent, Martino, in July 1960, while Martino was
on the picket line, inquired about a withdrawal,card she had previ-
ously requested, and was refused a withdrawal card by Martino. This
conversation was admitted by Martino. Oliver further testified that
during a second picket-line conversation with Martino, in August
1960, Martino asked her to " re-sign" with the Union and told her he
"needed from six to eight people to make a showing"; that "if he got
that many to sign cards ... that would give him a start that he could
be represented"; that Martino gave her six or eight union-application
.cards; and that he asked her to talk to the employees. Martino flatly
denied each of the above statements attributed to him by Oliver. The
Trial Examiner credited Martino.
Contrary to the Trial Examiner, we do not deem Oliver's testimony
to be so confused as to warrant our finding her an unreliable witness.
The only reason given by the Trial Examiner for discrediting Oliver
was her admission that her memory was hazy as to a conversation with
Martino because she testified at one point, "I was in such a dither, it
was on my lunch hour." The incomplete answer quoted in the Inter-
mediate Report referred to the timing of a particular remark related
by the witness rather than to the entirety of the conversation concern-
ing which she testified. The mentioned answer was in response to a
question as to whether Martino had asked the witness to talk to the
employees before or after he gave her union-application cards.
Oliver's confusion related; therefore, to the chronology of specific
events of no intrinsic importance and not to the substance of the entire
conversation. With reference to other and more significant matters
2A consent election of August 26, 1960, was set aside and a certification issued'to the
Meat Cutters on September 6, 1960 (during the posting period provided in the settlement
agreement disposing of charges filed by Respondent) was revoked by the Board on October
28, 1960 At the expiration of a second notice posting period, the Meat Cutters won a
second election on January 21, 1961, and was certified on January 30, 1961.
RETAIL CLERKS INT'L ASSOCIATION , AFL-CIO, LOCAL 219 1683
related by the witness , her testimony was definite , detailed , and with-
out indication of indecision.
In contrast, Martino, whose contrary testimony was credited by the
Trial Examiner , firmly denied at the hearing in this matter that he
had asked Oliver whether Respondent had a chance in a forthcoming
Board election or that he had given Oliver an application card. How-
ever, at a previous United States district court proceeding , Martino
had testified with respect to the identical matters that he did not re-
call whether he had done either . Furthermore, Oliver's account of her
conversations with Martino contained words of art and references to
union practices and Board procedures which would be familiar to a
professional union representative but which would not ordinarily be
found in the vocabulary of a rank-and -file employee not profession-
ally interested in labor law ; this suggests that the matters related by
the witness were formed, not in the mind of Oliver , but in the mouth
of Martino . We deem it most unlikely that Oliver, who, so far as the
record indicates , had no involvement in labor-management matters
beyond mere union membership , could have fabricated the testimony
which the Trial Examiner rejected in favor of the self-serving de-
nials of an interested witness . We accordingly credit Oliver's testi-
mony and reject the contradictory testimony of Martino .3
Thomas Wells , another witness called by the General Counsel , testi-
fied that Martino asked him in October 1960 , "What is the feeling in
the store now?" and whether it would do any good if Martino or Wells
talked to the employees of the store . Although Wells ' testimony was
not contradicted or explained by Respondent 's witnesses , the Trial
Examiner failed to give any weight to it, presumably because Wells
testified"in response to a question on cross-examination that Martino
did not aslz him to have other employees sign cards for the Respond-
ent. Unlikethe Trial Examiner, we view Wells' testimony as signifi-
cant in indic' .ting the continuing interest of the Respondent in
organizing the,store 's employees.
Upon the basis of the foregoing, including both Respondent's con-
duct before the picketing began and Martino 's picket-line conversa-
tions with Oliver and Wells , we find that Respondent 's picketing was
initiated for an organizational purpose within the meaning of Section
8(b) (7) of the Act, and continued for such purpose until • enjoined
on March 14, 1961 . Since the picketing subsequent to January 30,
1961 , occurred within 12 months of a valid election, we accordingly
conclude that Respondent has thereby violated Section 8(b) (7) (B)
of the Act.
B Inasmuch as the Trial Examiner did not base his credibility determination upon
demeanor but, rather, upon testimony which appears in the record, we are not departing
from the Board ' s usual policy with respect to the finality of credibility resolutions of a
Trial Examiner . See Standard Dry Wall Products , Inc, 91 NLRB 544, enfd . 188 F. 2d
362 (C.A. 3).
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Effects of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth above, occurring in con-
nection with the operations of National Food Stores, Inc., as set forth
in section I of the Intermediate Report, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order that it cease and desist therefrom and
take certain affirmative action that we find necessary to effectuate the
policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, we make the following :
CONCLusIONS OF LAW
1. The Employer is an employer within the meaning of Section
2 (2) of the Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Meat Cutters and Retail Clerks are labor organizations within
the meaning of Section 2 (5) of the Act.
3. By picketing National Food Stores, Inc., from January 30, 1961,
to March 14, 1961, with an object of forcing and requiring said Em-
ployer's employees to accept and select the Respondent as their bar-
gaining representative, although Respondent was not currently certi-
fied as such representative and a valid election had been held within
12 months under Section 9(c) of the Act, the Respondent engaged in
unfair labor practices within the meaning of Section 8(b) (7) (B)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
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, Retail Clerks
International Association, AFL-CIO, Local 219, its officers, repre-
sentatives, and agents, shall:
1. Cease and desist from :
(a) Picketing or causing to be picketed, or threatening to picket,
National Food Stores, Inc., Cahokia, Illinois, under conditions pro-
hibited by Section 8(b) (7) of the Act, where an object thereof is
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, LOCAL 219 1685
forcing or requiring the aforesaid Employer to recognize or bargain
with the Respondent as the representative of its employees or forcing
or requiring the employees of the said Employer to accept or select
the Respondent as their collective-bargaining representative, for a
period of 1 year from March 14, 19611
(b) Picketing or causing to be picketed, or threatening to picket,
National Food Stores, Inc., Cahokia, Illinois, for any of the afore-
mentioned objects, where within the preceding 12 months a valid elec-
tion under Section 9(c) of the Act has been conducted which the
Respondent did not win.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent's business offices,
meeting halls, and all places where notices to its members are cus-
tomarily posted, copies of the notice attached hereto marked "Appen-
dix." I Copies of said notice, to be furnished by the Regional Director
for the Fourteenth Region, shall, after being duly signed by official
representatives of the Respondent, be posted by the Respondent im-
mediately upon receipt thereof and be maintained by it for 60 con-
secutive days thereafter. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Fourteenth Region
signed copies of the aforementioned notice for posting by National
Food Stores, Inc., the Employer willing, in places where notices to
employees are customarily posted. Copies of said notice to be fur-
nished by the Regional Director for the Fourteenth Region, shall,
after being signed by the Respondent, as indicated, be forthwith re-
turned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps have been taken to comply herewith.
4 In conformity with our decision in Retail Store Employees ' Union Local No. 692, Retail
Cle,ks International Associattion, AFL-CIO (Irvins, Inc.), 134 NLRB 686, the 12-month
period is computed from the date the Respondent terminated its picketing activities.
5 In the event that this Order is enforced by a decree of a United States Court of Appeals,
the notice shall be amended by substituting for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing
an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF RETAIL CLERKS INTERNATIONAL ASSOCIA-
TION , AFL-CIO, LOCAL 219, AND TO ALL EMPLOYEES OF NATIONAL
FOOD STORES, INC., CAHOKIA , ILLINOIS
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 notify you that:
1686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, National Food Stores, Inc., Cahokia, Illinois, where an
object thereof is to force or require the aforesaid Employer to
recognize or bargain collectively with us, or its employees to ac-
cept or select us as their collective-bargaining representative, for
a period of 1 year from March 14, 1961.
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, National Food Stores, Inc., Cahokia, Illinois, where an ob-
ject thereof is to force or require the aforesaid Employer to recog-
nize or bargain collectively with us, or its employees to accept or
select us as their collective-bargaining representative, where a
valid election which we did not win has been conducted by
the National Labor Relations Board among the employees of
National Food Stores, Inc., Cahokia, Illinois, within the
preceding 12 months.
RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO, LocAL 219,
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.
Employees may communicate directly with the Board's Regional
Office, 4459 Federal Building, 1520 Market Street, St. Louis, Missouri
(Telephone: Main 1-8100, Ext. 2142), if they have any question con-
cerning this notice or if they have information that its provisions are
being violated.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by National Food Stores , Inc., herein called Employer, the
General Counsel of the National Labor Relations Board caused a complaint to be
issued on February 24, 1961 , which , as amended at the hearing , alleges that Retail
Clerks International Association , AFL-CIO, Local 219 , herein called Retail Clerks,
had engaged in picketing Employer in violation of Section 8(b)(7) 1 (13) of the
National Labor Relations Act, as amended (61 Stat. 136).
Retail Clerks filed an answer admitting the picketing but denying it was conducted
with an objective proscribed by Section 8(b)(7) (B ) of the Act.
A hearing was held before the duly designated Trial Examiner at St . Louis, Mis-
souri, on March 22 , 1961 . Each of the parties named in the caption and the General
Counsel were represented by counsel . The parties were afforded full opportunity
to be heard , to introduce relevant evidence , to present oral argument , and to file
briefs.
Upon consideration of the entire record and the briefs submitted , and upon obser-
vation of the witnesses , I make the following findings and conclusions:
FINDINGS OF FACT
I. THE BUSINESS OF EMPLOYER
The Employer is, and at all times material has been , a corporation organized and
existing by virtue of the laws of the State of Michigan. It is engaged in the business
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, LOCAL 219 1687
of selling groceries and meats at retail through a number of stores. This case is
concerned only with its store located at 1100 Camp Jackson Road, Cahokia, Illinois,
herein referred to as the Store.
During the year 1960, Employer, in the course and conduct of its business opera-
tions, sold and distributed groceries and meats, the gross value of which exceeded
$5,000,000. During the same period Employer received goods valued in excess
of $50,000 at the Store, transported in interstate commerce directly from points
outside the State of Illinois.
I find that Employer is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 534, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called Meat Cutters; and Retail Clerks are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ISSUE
The parties stipulated that:
(a) The Store was opened for business on June 21, 1960;
(b) On July 20, 1960, Employer filed .a petition for a representation election
(Case No. 14-RM-248) ;
(c) On January 16, 1961, a consent agreement for an election was entered
into by Meat Cutters and Employer and an election was held on January 21,
1961;
(d) On January 30, 1961, the Board certified Meat Cutters as the exclusive
bargaining representative of the employees at the Store; and
(e) Retail Clerks picketed the Store from June 21, 1960, until it was en-
joined by a Federal District Court on or about March 14, 1961.1 The picketing
was in front of two public entrances to the store which were also used by the
employees. Two truck delivery entrances were not picketed.
The issue: Whether, Retail Clerks continued to picket the Store after certification
of Meat Cutters "with an object thereof being to force or require employees of
the employer . . . to accept or select [Retail Clerks] as their collective bargaining
representative."
IV. THE PERTINENT STATUTORY PROVISION
Jurisdiction of the issue, set forth above, is predicated upon the following excerpted
provision of the Act:
SEC. 8. (b) It shall be an unfair labor practice for a labor organization or its
agents-
(7) to picket or cause to be picketed . . any employer where an object thereof
is . . . forcing or requiring the employees of an employer to accept or select
such labor organization as their collective bargaining representative, unless
such labor organization is currently certified as the representative of such
employees:
* * * * * * *
(B) where within the preceding twelve months a valid election under section
9(c) of the Act has been conducted. .. .
V. RESOLUTION OF THE ISSUE
Inasmuch as Retail Clerks admit: (a) the picketing; (b) Retail Clerks at the time
of the picketing was not certified as representative of Employer's employees; and
(c) a valid election under 9(c) of the Act had been conducted on January 21, 1961,2
and Meat Cutters were certified on January 30, 1961, the ultimate finding to be made
is whether the evidence, as a whole, proves that Retail Clerks picketed Employer's
Store from February 1, 1961, until enjoined by a Federal court (about March 14,
1961), with the objective of forcing or requiring the employees to accept or select
Retail Clerks as their collective-bargaining representative.
' In the District Court of the United States for the Eastern District of Illinois, Civil
No 4748
1 Retail Clerks did not participate in the election.
1688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The evidence
Employer opened the Store to the public on June 21, 1960 . It employed approx-
imately 50 employees.
1. Retail Clerks ' version of reasons for picketing
On June 17, 1960, when Employer was preparing the Store for the opening, Jack
Falk, secretary and treasurer of District Council No . 1,3 in company with Dominic
A. Martino, ' secretary and business agent for Retail Clerks , visited the Store at
approximately 11 a.m . They asked Mr . Hersch , a supervisor of National Tea
Company (stipulated to be the owner of Employer ), for permission to talk to the
employees in the Store. Ifersch told them that he did not have authority to grant
the permission but would telephone Mr. Aurand , personnel manager, who was in
St. Louis. While in the act of making this telephone call Mr. Aurand walked into
the Store . Falk and Martino asked Aurand for permission to talk to the employees.
Aurand told them he had been advised by legal counsel that Employer had a contract
with Meat Cutters covering its stores in East St . Louis and vicinity which would
include the Store ? Further, Aurand told Falk and Martino , "I have a group of
employees I wish to interview . After my interview, you can talk." Then Falk and
Martino left the Store.
About an hour or so later Falk and Martino returned to the Store and talked to
Aurand . Aurand said , "Well, you can have the names and addresses of the people
or you can talk to any of the employees in the Store. Some of them have left . .
I want to inform you this, I think it is fair, the employees entered-registered with
the Meat Cutters Union in the back of the store ." Aurand then referred Falk and
Martino to his assistant, Jack Ghio , who began giving them the names and addresses
of the employees . After obtaining about a dozen names and addresses Falk said to
Ghio , "There is no point in us taking these names down since you have a union
contract already and people have registered with the Meat Cutters Union." Falk
and Martino left the Store.
A little later on the same day Falk met Aurand at a coffee bar at which time he
asked Aurand when the contract with Meat Cutters expired . Aurand replied,
"January 1, 1961."
The foregoing were the only meetings and conversations between Employer and
Retail Clerks . There is nothing in the record to indicate that Retail Clerks made
any further attempts to meet with Employer.
Retail Clerks began picketing the Store when it opened to the public on June 21,
1960 . The picket line was under the general supervision of Martino.
Falk testified that the picket line was placed in front of the Store on June 21, 1960,
"because of the unfairness of the Company to deal with the Retail Clerks in giving
us a fair opportunity in trying to represent the employees in that store, and for that
reason the picket was placed in front of that store. And it continued picketing until
it was withdrawn March - 14, 1961 ." During the picketing the pickets carried signs 5
and leaflets 6 were distributed in the surrounding area the purpose of which , accord-
Retail Clerks is affiliated with the Council
* This contract was not offered in evidence
It was stipulated that the signs read • "'Unfair, Retail Clerks , Local 219 , AFL-CIO,
Belleville , Illinois ,' that sometime later the picket sign was changed by deleting the words
'Belleville , Illinois ,' and these same pickets , one or the other of them , same picket signs
were carried during the course of the picketing "
The leaflets read :
TO THE PUBLIC!
The Clerks in the NATIONAL FOOD STORE , Cahokia Shopping Center, have been
forced by their employer to become members of the Meat Cutters Union. Before the
store was opened for business the Employer unlawfully agreed to a contract with the
Meat Cutters Union . The Employees have had no choice in this matter.
The conduct of NATIONAL FOOD STORE and the Meat Cutters Union violates the
National Labor Relations Act, and the Labor Board is presently investigating this
matter.
Please Do Not patronize an
UNFAIR EMPLOYER
Help us restore the rights of the Employees
THANKS ! Retail Clerks Local 219
BELLEVILLE , ILLINOIS
RETAIL CLERKS INT'L ASSOCIATION, AFL-CIO, LOCAL 219 1689
ing to Falk, was to inform the public "that the Company and the Meat Cutters were
unfair" in not giving Retail Clerks an opportunity to organize Employer's employees
at the Store? This is the only direct evidence adduced at the hearing as to "an
object" sought to be gained from the picketing .8
2. Evidence adduced by General Counsel from which he argues
the illegal objective should be inferred
The evidence from which the General Counsel argues that the illegal objective
of picketing to force or require Employer's employees to accept or select Retail
Clerks as their collective-bargaining agent consist of: (a) three conversations be-
tween Martino, Retail Clerks' secretary and business agent, and employee Virginia
Oliver; (b) two conversations between Martino and employee Thomas E. Wells; and
(c) the signs carried by the pickets. All the conversations took place prior to the
valid election under Section 9(c) of the Act which resulted in Meat Cutters being
certified as.collective-bargaining representative. No evidence was adduced of ex-
trinsic acts by Retail Clerks after the election other than the continuance of the
picketing until enjoined.
Virginia Oliver has been employed in the Store as a head checker since June 21,
,1960. Prior to this employment she was a member of Retail Clerks. Shortly after
her employment at the Store she requested a withdrawal card from Retail Clerks.
Oliver testified that in July 1960 she talked to Martino, Retail Clerks' secretary
and business agent, who was on the picket line, and asked about her request for a
withdrawal card; and, Martino replied he was not issuing such cards to employees
of the Store. Further, Martino asked her why she was not paying her dues. Martino
admitted this conversation.
In August 1960 Oliver had another conversation with Martino. She testified, "He
asked me if I wouldn't resign [sic] up with the union . he needed from six to
eight people to make a showing. If he got that many to sign cards . . . that would
give him a start that he could be represented." Also, at that time, he gave her six or
eight union-application cards but gave her no instructions as to what to do with the
cards. He asked her to talk to the employees. Her memory, Oliver said, was hazy
as to the conversation because, "I was in such a dither, it was on my lunch
hour. ." Martino denied that he ever (a) gave cards to Oliver; (b) asked her
to help him in the Store; (c) asked her to "resign" [sic] with Retail Clerks; or (d)
told her if he could get six to eight to sign with Retail Clerks he could be represented.
I credit the testimony of Martino.
The third and last conversation between Oliver and Martino took place in Decem-
ber 1960. Martino was on the picket line. Oliver was on her way home to dinner.
Concerning this conversation Oliver testified, "He [Martino] asked me if he was
on the ballot of 534. I remember that on the election ballot .9 He asked me if he
had a chance which I told him, no. And he asked me if I could help him anyway,
could I get out and talk to the imployees. He said so much to me I just don't
remember what he said. Offhand that is all I can remember right now, sir." Since
Oliver indicated that her memory of what was said in this conversation was uncer-
tain, I attach no probative value to her testimony concerning it.
Thomas E. Wells worked at the Store from May 30, 1960, with the exception of
a 3-week period in December 1960, during which he worked at Employer's Granite
City store.
Two weeks after the Store was opened to the public, Wells walked up to Martino,
who was on the picket line, and asked, "What the devil are we doing with pickets
' The proviso in Section 8(b) (7) (C) concerning informational picketing is restricted to
that section alone and does not apply to Section 8(b) (7) (B). In the latter section the
Congress has defined specific objectives of picketing which it has declared to be unlawful
" On June 24, 1960, Retail Clerks filed charges of unfair labor practices by Employer and
Meat Cutters Cases Nos. 14-CA-2333 and 14-CB-858 These were disposed of in a
settlement agreement between the Regional Director, Employer, and Meat Cutters, executed
on July 22, 1960 Retail Clerks appealed to the General Counsel who, on August 26, 1960,
affirmed the settlement agreement On October 13, 1960, the settlement agreement was
set aside by stipulation of the parties thereto and new settlement agreements were entered
into without notice to Retail Clerks The Regional Director, being satisfied that Employer
and Meat Cutters had complied with the settlement agreements, dismissed the charges filed
by Retail Clerks. Retail Clerks, on November 21, 1960, appealed to the General Counsel
The appeal was denied on December 6, 1960
9 An election had been held as a result of which Meat Cutters were certified as collective-
bargaining agent. Case No. 14-RM-208. The Board issued an order, on October 28, 1960,
revoking the certification
1690, . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
here at the store when we are all union members in the store ." To that query
Martino replied , "It is the fact there is nothing abainst any fellows in the store, but
we feel like the company never gave us the chance for recognition here at the
store." 10 Wells also testified that , in October 1960 , Martino approached him and
they had the following conversation : "Mr. Martino . . . asked me . . . `What is the
feeling in the store now?' And I said 'There is going to have to be something done,
it is hurting everyone ,' He said, 'There will be something done.' He asked me at
that time, 'Will it do any good if I [Martino ] talk to the people?' . . . I said I
didn't know, it was up to him . Then he asked me, he [Martino] said , 'Well, would it
help if you talked to them?' I said, 'No, sir,' I said 'that is not my place but some-
thing is going to have to be done here .' And he said, 'It will,be.' And I left."
Under cross-examination Wells testified that Martino never asked him to join
Retail Clerks or to ask or urge other employees to join.
B. Interpretation and application of Section 8(b),(7)(B)
There is no question that the picketing herein involved was peaceful . But the
setting of the language of Section 8(b)(7)(B ) makes it clear that "forcing or re-
quiring" refers to the intended effect of the picketing , not the manner in which the
picketing is carried on, to the "object ," not the method . Cf. N.L.R.B. v. Local 239,
International Brotherhood of Teamsters , etc. (Stan Jay Auto Parts & Accessories
Corp.), 289 F. 2d 41 (C.A. 2).11 It is the "true purpose" or "real motive" for
the picketing that constitutes the test ; and, this most often must be determined from
circumstantial evidence . Some conduct may by its very nature contain the implica-
tions of the unlawful "object." Also, the natural foreseeable consequences of cer-
tain action may warrant the inference of the illegal "object" by the Board for "it
is permissible to draw on experience in factual inquiries ." The Radio Officers' Union,
etc. (A. H. Bull Steamship Company ) v. N.L.R.B., 347 U.S. 17, 49. Cf. Local 357,
International Brotherhood of Teamsters (Los Angeles-Seattle Motor Express) v.
N.L.R.B., 365 U.S. 667. But, the inference must find support in the evidence other
than the bare fact of picketing . 12 Skepticism and speculation have no probative
value in adjudicating . N.L.R.B. v. Local 50, Bakery & Confectionery Workers, etc.
(Arnold Bakers, Inc.), 245 F. 2d 542 (C.A. 2).
Section 8 (b)'(7) (B) of the Act was not intended to deter or terminate all picketing
"where within the preceding twelve months a valid election under section 9^ (c) of this
Act has been conducted ." It is confined by the Congress , insofar as here pertinent,
to that picketing with "an object" of "forcing or requiring " the employees of an
employer "to accept or select" the picketing labor organization "as their collective
bargaining representative." 13
The paucity of credited evidence introduced by General Counsel to prove the
illegal "object" consists of five innocuous conversations between a Retail Clerks'
business agent and two of Employer's employees which occurred months before the
valid election under Section 9 (c) of the Act plus the wording of the picket signs.
No one has been heard to say that the conversations were illegal at the time of their
occurrence . They do not support a presumption of the indispensable illegal "object"
after the election . Even if the testimony of General Counsel 's witnesses was fully
credited, it would tend to prove , at best, that Retail Clerks sought to organize
Employer's employees at the t ime when such action was unquestionably legal. Yet,
even as to such actions there is no evidence of a continued course of such conduct
after the election.
The context in which the picketing occurred , fails to persuade that "an object"
to force or require membership in or recognition of Retail Clerks can be held to be
11 This statement by Martino , in effect, corroborates the testimony of Falk as to the
Retail Clerks ' reason for picketing Employer.
33 In the famous Thornhill case, 308 U S. 547 ( 1940), picketing was identified with the
exercise of the right of free speech Two years later, Mr Justice Douglas in a concurring
opinion in the Wohl case , 315 U.S 769 ( 1942 ), said that picketing is, by its very nature,
more than mere speech, "since the very presence of a picket line may induce action of one
kind or another , quite irrespective of the nature of the ideas which are being disseminated."
12 There are those who state as a conclusion that force is inherent in picketing. Case
law does not support such a presumption in law
1' General Counsel contends , in his brief , that Congress intended that Section 8(b) (7) (B)
would make illegal all picketing for a period of 12 months after a valid election. Had the
Congress so intended it could easily have done so. Instead the section is drafted with
specificity. In statutory interpretation when a provision of an Act is specific it cannot be
enlarged upon by case law without encroachment of the legislative prerogative
FILTRON COMPANY, INC . 1691
a natural and probable consequence of the picketing . Nothing said by the pickets,
union agents, or by the signs and handbills , either before or after the election, urged
Employer's employees to join Retail Clerks.14 Neither the employees' nor Employ-
er's rights were interfered with . Retail Clerks never claimed to represent Employer's
employees. It never demanded recognition as collective^bargaining representative.
It did not claim that any of Employer's employees were members of Retail Clerks.
In the circumstances of this case , it cannot be inferred or presumed, juridically,
that Retail Clerks continued picketing after the election with "an object" of "forcing
or requiring" the employees of Employer "to accept or select" Retail Clerks "as their
collective bargaining representative ." The direct evidence adduced by Retail Clerks
as to the sole "object" of the picketing cannot be discredited in the absence of con-
vincing evidence to the contrary . Therefore , I find that General Counsel failed to
prove the alleged unlawful conduct by a preponderance of the testimony.15
CONCLUSIONS OF LAW
1. Employer is an employer within the meaning of Section 2(2) of the Act; and,
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Meat Cutters and Retail Clerks are labor organizations within the meaning of
Section 2(5) of the Act.
3. Retail Clerks have not picketed in violation of Section 8(b) (7) (B ) of the Act
as alleged in the complaint.
[Recommendations omitted from publication.]
14 Oliver testified that she was asked to "resign " [ sic]. She however admitted she was a
member of Retail Clerks whose request for withdrawal from that organization had been
denied.
15 This legal conclusion notwithstanding that it is difficult to conceive that Retail Clerks
were motivated by a purely altruistic objective . But, predilection and speculation have no
evidentiary value . From another viewpoint it is difficult to visualize reason for continuing
picketing in the face of protections afforded a certified collective -bargaining agent by the
Act, the Board 's Rules and Regulations , and case law ( especially the contract -bar rule).
Any possibility that Retail Clerks can legally become bargaining agent in the near future
appears remote.
Filtron Company, Inc. and International Union of Electrical,
Radio and Machine Workers of America , AFL-CIO and Filter
Workers Group , Party to the Contract
Filter Workers Group and International Union of Electrical,
Radio and Machine Workers of America, AFL-CIO and Filtron
Company, Inc., Party to the Contract . Cases Nos. 20-CA-7793
and 2-CB-3118. December 29, 1961
DECISION AND ORDER
On September 5, 1961, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in 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 Intermediate
Report attached hereto. Thereafter, both the Respondent Employer
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs. Exceptions were also filed by the Charging
Party. No exceptions were filed by the Respondent Union.
134 NLRB No. 158.