Retail Clerks Union Local 324, Etc.

National Labor Relations Board - Board Decisions

Sep 7, 1962

138 N.L.R.B. 478 (N.L.R.B. 1962)

478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that the Respondents failed within 30 days to file a petition under
'Section 9 ( c) of the Act, and it is unrefuted , and I find, that the picketing did, in fact,
result in inducing employees of suppliers not to deliver goods to the Employer over
a period of time during which the picketing took place.
I conclude and I find, therefore , that the Respondents , by picketing for recogni-
tion at Joe Hunt 's Restaurant in La Jolla, California , for more than 30 days, without
a petition under Section 9(c) of the Act having been filed, violated Section
8(b)(7)(C) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III , above, occurring in con-
nection with the operations of the Employer described in section I, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondents , San Diego County Waiters and Bartenders Union Local 500
and Hotel Service Employees Union Local 402, are labor organizations within 'the
meaning of Section 2(5) of the Act.
2. The Respondents have not either jointly or severally been certified as the col-
lective-bargaining representative of the Employer's employees.
3. On and after June 9, 1961, the Respondents engaged in picketing the premises
of the Employer, Norhunt, Inc., d /b/a Joe Hunt's Restaurant , with the effect of
inducing employees of other employers in the course of their employment not
to pick up or deliver or transport goods or not to perform services.
4. The picketing mentioned in paragraph 3, above, was conducted without a peti-
tion having been filed under Section 9(c) of the Act within 30 days after the
commencement of said picketing.
5. An object of such picketing was to induce Norhunt, Inc., to recognize the
Respondents as the collective -bargaining representative of its employees and to
induce Norhunt, Inc , d /b/a Joe Hunt's Restaurant , to enter into a collective-
bargaining contract with them.
6 By such picketing , the Respondents have, and each of them has, engaged in
and is engaging in unfair labor practices within the meaning of Section 8(b)(7)(C)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Retail Clerks Union Local 324 and Retail Clerks Union Local 770,
both affiliated with Retail Clerks International Association,
AFL-CIO and Barker Bros. Corp . and Gold 's, Inc. Case No.
21-CP-44. September 7, 1962
'DECISION AND ORDER
On a joint charge duly filed on March 17, 1961, by Barker Bros.
Corp. and Gold's, Inc., the General Counsel for the National Labor
Relations Board by the Regional Director for the Twenty-first Region
issued a complaint and notice of hearing on April 25, 1961, against
Retail Clerks Union Local 324 and Retail Clerks Union Local 770,
both affiliated with Retail Clerks International Association, AFL-
CIO, hereinafter referred to as Respondents, alleging that Respond-
ents had engaged in and were engaging in unfair labor practices af-
138 NLRB No. 54.
RETAIL CLERKS UNION LOCAL 324, ETC. 479
fecting commerce within the meaning of Section 8(b) (7) (C) of the
National Labor Relations Act, as amended. Copies of the complaint
and notice of hearing were thereafter duly served upon the Respond-
ents and Barker Bros. Corp. and Gold's, Inc., Charging Parties. The
Respondents filed their separate answers on May 2 and 3, 1961.
On June 9, 1961, the parties entered into a stipulation by which they
waived a hearing before a Trial Examiner, and the issuance of an
Intermediate Report and Recommended Order by a Trial Examiner,
and agreed to submit the stipulated record directly to the Broad for
findings of fact, conclusions of law, and an order.
The parties provided in their stipulation that the record in this case
should consist of the charge, the complaint, the affidavits of service of
the aforementioned documents, the answers, the Respondent's request
for postponement, the Regional Director's order rescheduling the hear-
ing for June 12, 1961, and affidavit of service thereof, and the record,
including exhibits, of the injunction proceeding in the United States
District Court for the Southern District of California held on April
27 and 28 and May 2, 3, 4, 5, and 8, 1961, in Los Angeles, California,
and titled Ralph E. Kennedy, etc. v. Retail Clerks Union Local 324
and Retail Clerks Union Local 770, etc., Civil No. 471-61-Y.'
By an order dated July 11, 1961, the Board ordered the proceeding
transferred to and continued before the Board for the purpose of mak-
ing findings of fact and conclusions of law and for the issuance of a
Decision and Order. The Board further directed that briefs and re-
quests for oral argument be submitted not later than August 3, 1961.
This time limit was later extended to August 25,1961. The Repsond-
ents, Charging Parties, and the General Counsel filed briefs. Re-
spondents also requested oral argument z
The Board hereby approves the stipulation of the parties and on
the basis of the aforesaid stipulation and the entire record in this
case, makes the following :
FINDINGS OF FACTS
1. THE BUSINESS OF THE COMPANIES INVOLVED
In October 1961, Gold's Furniture and Appliances Corporation, a
California corporation operating 4 retail furniture and appliance
stores, acquired the trade name and the assets of Barker Bros. Corp., a
California corporation operating 16 retail furniture and appliance
stores. Gold's Furniture and Appliances then changed its corporate
name to Barker Bros. Corp. and the merged enterprises thus were op-
erating 20 stores in Los Angeles, California, and surrounding com-
1 194 F. Supp . 131 (48 LRRM 2158).
2 The Respondents ' request for oral argument is hereby denied since the court record
and briefs adequately present the issues and the positions of the parties.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
munities. The four aforementioned Gold's Furniture and Appilances
stores, nevertheless, continued to trade under the name "Gold's Furni-
ture and Appliances."
During the past year, Barker had a gross volume of business in
excess of $500,000 and during the same period purchased and received
goods, materials, and supplies originating outside the State of Cali-
fornia in excess of $50,000. -
Gold's, Inc., a California corporation, is engaged in Los Angeles,
California, and Whittier, California, in the operation of two retail
clothing establishments known as Gold's Clothing Co. stores. Richard
Gold, president of Barker Bros. Corp., and Charles Gold, vice presi-
dent and secretary of Barker Bros. Corp., also serve Gold's, Inc.,
in the capacity of vice president and secretary, respectively. In addi-
tion, members of the Gold family own 80 percent of the stock of both
Barker Bros. Corp. and Gold's, Inc.
During the past year, Gold's, Inc., had a gross volume of business in
excess of $500,000 and purchased and received goods, materials, and
supplies originating outside the State of California valued in excess
of $50,000.
In view of the foregoing facts and on the record as a whole, we find
that Barker Bros. Corp. and Gold's, Inc., are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Retail Clerks Union Local 324 and Retail Clerks Union Local 770,
both affiliated with Retail Clerks International Association, AFL-
CIO, are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
Neither of the Respondent Locals is currently the certified bargain-
ing representative of employees of Gold's Furniture and Appliances,
Gold's, Inc., or Barker. Each local, however, had represented Gold's
Furniture and Appliances employees in separate geographical area
units, but on the termination of their most recent contracts in January
1960, the Unions appeared to have lost interest in obtaining contract
renewals and for the next 8 months only communicated sporadically
with the Employer.'
Neither local had at any time represented Barker Bros. or Gold's,
Inc., employees. However, De Silva, Local 770's representative, when
3 Local 324's contract was in effect from July 1959 to January 20, 1960 . Local 770
entered into collective-bargaining agreements with Gold's Furniture and Appliances stores
in 1946-47 . Beginning in 1948, however , Local 777 assumed jurisdiction over the same
employees and entered into a series of bargaining agreements , the most recent of which
terminated in January 1960. The record indicates , however, that in 1959 Local 770
once again assumed jurisdiction over these employees and administered the latter-
mentioned contract . In April 1960 , 777 was officially merged with 770.
RETAIL CLERKS UNION LOCAL 324, ETC. 481
questioned about organizing activities among Barker Bros. employees
testified that Local 777, a sister local, had purportedly organized 51
percent of Barker Bros. employees and had filed a petition with the
Board seeking representative status, but that upon the merger of
Local 777 with Local 770 in April 1960, he (De Silva) withdrew
the petition because "it was my impression that somebody just got
a bunch of cards and not really had the request of the people nor had
a job of organizing been done ... [I]f we had gone to an election at
the time and we would have lost the election, we would be barred for
a year, and I didn't want to be barred for a year, because I felt that
within six months we would maybe work on the people . . . ." The
evidence establishes that Local 770 subsequently renewed efforts, to
organize Barker Bros. employees .4
In September 1960, the Respondent Locals resumed negotiations
with representatives of Gold's Furniture and Appliances and the
parties thereafter met in a series of joint bargaining sessions. At
some point during the negotiations, Charles Gold expressed concern
about the Union's intent with respect to organizing the Barker Bros.
employees, and sought, as he testified, "an expression [from the local's
representative] of his position relative to whether or not he was going
to try to organize [Barker Bros. employees]." Gold indicated a
willingness to negotiate with respect to Gold's Furniture and Ap-
pliances stores employees if he received some assurance concerning
the Barker employees.
Although the record is not free from doubt, the understanding and
assurances sought apparently related to the Union's promising not
to attempt to organize these employees rather than to the Union's
willingness to enter into a long-term contract.5 In any event, ne-
gotiations broke down in December because the Union could give
no assurances acceptable to Gold.'
On December 20 and 21, 1960, Locals 324 and 770, respectively, sent
separate but identical letters to Charles Gold advising him that the
Unions represented a majority of the employees of "Gold's Furni-
ture and Appliances Stores" and demanding recognition and con-
tracts based upon proposals which they had previously submitted.
4 Thus, the record shows that 770's representatives passed out authorization cards to
Marlene Murphy and Eileen Mathews at a Barker 's store employee exit at closing time,
visited Barker employee Del Castillo 's home to talk about joining the Union , and placed
an authorization card in Barker employee Appelbaum' s mailbox.
s Local 324 's representative , Berland, testified , "I don't remember whether that [a pro-
posed `five -year deal' with respect to Barker Bros.] was in the form of a contract for five
years or whether that he would lay off Barker Bros. during that period of time."
De Silva's testimony, however, indicates that Gold requested a promise that Barker Bros.
employees would not be organized . Thus, he testified "[E]ven if I gave him [ Gold] that
assurance [ a 5-year 'free ride '] that I would be letting these people out of their right,
because if I didn't organize the people some other union would go in and organize them."
9 Although the answers of both Respondents asserted as an affirmative defense the
Employer's alleged refusal to bargain in good faith , this issue was not litigated in the
district court 10(1) proceeding . Accordingly , we shall not make any finding with respect
to this alleged 8(a) (5) violation.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gold replied on January 10, 1961, that, absent Board certifications
in "appropriate units," he could not extend further recognition to
the Unions since their majority status was now in doubt. On Feb-
ruary 13, 1961, the Unions wrote to Gold stating that they were with-
drawing their claims for recognition?
On the latter date, and on various dates thereafter, the Unions
began to picket Gold's Furniture and Appliances stores, Gold's, Inc.,
stores , and the stores of Barker Bros. The picketing was still in
progress on May 8, 1961, the last day of the 10(1) injunction hear-
ing. As indicated, the Respondents did not file any representation
petition in connection with their picketing activities.
The principal signs carried by the pickets read as follows :
GOLD'S
BARKER BROS.
NON-UNION
PLEASE DO NOT
PATRONIZE
RETAIL CLERKS UNION
LOCAL 770, AFL-CIO
THIS IS TO INFORM
THE PUBLIC THAT
GOLD'S
BARKER BROS.
DOES NOT HAVE A
CONTRACT WITH
RETAIL CLERKS UNION
LOCAL 324, AFL-CIO
PLEASE
DO NOT PATRONIZE
In addition, employee Gerald Dargert was discharged on March
15, 1961, and beginning in March and April the Respondent Unions,
Local 770 and 324, respectively, utilized picket signs reading: 8
ATTENTION
PUBLIC ONLY
GOLD'S-BARKER BROS.
EMPLOYEE UNFAIRLY
DISCHARGED
PLEASE DO NOT
PATRONIZE
In view of out subsequent finding (infra) that the Respondents were picketing for
recognition on and after February 13, 1961, we need not pass upon the Charging Parties'
contention that Local 770's letter of February 13, 1961 , failed to disclaim its recoguitional
object.
8 Local 770 also filed an unfair labor practice charge in connection with Dargert's dis-
charge. The aforementioned protest picketing apparently continued even though the
Regional Director refused to issue a complaint, which action was sustained by the General
Counsel on May 4, 1961
RETAIL CLERKS UNION LOCAL 324, ETC. 483
The Respondents have also distributed handbills to consumers and
other members of the public stating in summary :
PLEASE PATRONIZE
UNION STORES
PLEASE DO NOT SHOP AT
GOLD'S
BARKER BROS.
IT IS NOT A UNION STORE
Picketing was generally confined to consumer entrances (which were
also frequently used for deliveries), and was conducted only during
those hours when the stores were open to the public.
In order to insure that the purpose of their picketing was not mis-
understood and that deliveries of merchandise or the performance
of services would not be halted by reason of the picketing, the Re-
spondent Unions took the following steps : (1) They sent telegraphic
messages to the president of the Joint Council of Teamsters indi-
cating where the picket lines were being established and requesting
that the Teamster Locals be advised that the purpose was not to stop
deliveries; (2) Local 770 placed advertisements in the local news-
papers advising the public that the purpose of the picket lines was
only to advertise that Barker's and Gold's were nonunion in their
selling operation 0 and urging labor organizations not to stop deliv-
eries or services at these stores; and (3) they explicitly instructed
the pickets not to picket at delivery entrances and not to interfere
with the public or with the drivers making deliveries. Insofar as
the record discloses, the pickets complied with these instructions.
Notwithstanding the Respondent Unions' efforts to prevent non-
deliveries and work stoppages, the record discloses that three truck-
drivers employed by employers, not parties to the proceeding, each
refused to deliver one shipment of merchandise.1° Other deliveries
of merchandise were delayed on at least three occasions 11 (in part
due to the refusal of truckdrivers to cross the picket lines until their
respective union organizations and/or employers authorized them
to do so), and there was a few hours' delay in the performance of
window cleaning and window glazing services by employees of con-
cerns engaged in furnishing such services for the Barker stores.
Following the filing of unfair labor practice charges in March, the
Unions in mid-April made an offer of settlement whereby they would
O The Company employs nonselling personnel who are represented by the Teamsters and
Building Services Unions under collective -bargaining agreements.
io As we read the record , this appears to be the undisputed testimony of John Hunsaker.
Harry Caudell , and John Cornell.
"It is clear from the record that Rodolfo Hernandez returned to deliver the mer-
chandise in a truck 3 days after his initial refusal to cross the picket line. However, with
respect to William Vartan, and others , the testimony is not clear as to whether their
deliveries had merely been delayed or were in fact never made.
662353-63-vol. 138-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree to take further steps to insure that the picket lines would not
interfere with deliveries of merchandise.12
Although the Respondents disclaimed recognition on February 13,
1961, it is not disputed that thereafter they resumed their campaign
to organize the employees of Gold's Furniture and Appliances and
began a further campaign to organize Barker Bros. employees."
While much of this organizational activity took place at the same
time that picketing was going on at the Employers' stores, there is
no evidence, apart from picketing the premises and distributing hand-
bills, that the pickets themselves were in any way involved in the
organizing activities. Moreover, after the Respondents' picketing
began (on February 13, 1961), the Unions did not directly approach
the Employers with requests for the renewal of contract negotiations.
However, as the General Counsel points out, De Silva's testimony
itself constitutes a clear admission of the fact that the picketing
herein was conducted for a proscribed object. According to De Silva's
testimony, Gold called De Silva a few weeks after the picketing began
and pleaded with De Silva to "get off my back, I'll give you Gold's.
Lay off Barker Bros.," to which De Silva replied, "This is one of the
lessons you may have to learn." De Silva further testified that he then
suggested that a mutual friend, Moe Sandler, would call Gold to ar-
range a meeting and that his purpose in having such a meeting was "to
explain to Mr. Gold that . . . he would have to use his own judgment
as to whether he wanted to operate non-union and have us inform
the public or maybe operate union later on and pay union wages," but
that he did not have any intention of asking Mr. Gold for a contract
"neither then nor now."
De Silva also testified that the Unions instituted the picketing be-
cause "We had reached the point of where there was no more waiting
for stalling, and we had to take some action. There comes a time in
.every collective bargaining session that economic pressure has to be
put on the employer . . . and there comes a time when, you might call
it a threat, he realizes that the pinch of the economic power of the
Union or the Union members is going to take its toll and then he
makes up his mind as to which is the most expensive." De Silva con-
cluded this testimony by stating that the court was correct in rephras-
12Thus, the Respondents offered in essence not to picket the premises of the Employers
during hours when deliveries are customarily made and to remove their pickets on notice
if deliveries were to be made at other times . This offer of settlement was not accepted
13 De Silva, executive secretary of 770, testified that his organizers were "giving people
the [union authorization ] cards, talking to them, explaining to them the benefits of be-
longing to an organization . . . the strength there is in the worker to belong to an
organization , and the privileges that he has in associating with his fellow worker and
e.tahlishing decent working conditions." For specific illustrations of Local 770's organiza-
tional activities , see footnote 4, supra.
Arthur Berland , executive secretary of 324, testified that, "We have accepted cards
from employees and some of the employees have called our organizers and business agents
and asked to see them and our business agents and organizers complied with the request
and visited the employees at their homes."
RETAIL CLERKS JNION LOCAL 324, ETC. 485
ing this above-quoted statement to indicate he meant that an employer
"either accepts the Union demand or stands the result of economic loss
from boycott or strike or whatever the Union does."
The General Counsel contends that it is evident from the totality of
the Respondent Unions' conduct that they were picketing for a pro-
scribed object and argues that even though the picketing was con-
ducted with signs containing language of the proviso and addressed to
consumers, it must be realistically regarded as seeking recognition
or bargaining.14 The General Counsel apparently concedes that such
picketing is nevertheless privileged even though no petition is filed,
but contends that the protection of the proviso is lost if the picketing
results in actual delivery and/or work stoppages.
Respondents Locals 324 and 770 contend that Section 8(b) (7) (C)
does not apply unless an object of the picketing is recognition, that
such object must be "reasonably immediate" in point of time rather
than "ultimate," and that merely engaging in informational picketing
and independent organizational activity subsequent to their disclaim-
ers does not demonstrate that they were picketing for such a pro-
scribed object. Furthermore, Local 324 maintains that even if it be es-
tablished that the picketing was for a proscribed object, it nevertheless
does not lose its privileged character because it was not the proximate
cause of the delivery stoppages.
IV. CONCLUSIONS
a. Upon the basis of all the foregoing evidence, and most particularly
Do Silva?s above-quoted testimony, it is clear, and we find, that the Re-
spondents conducted their picketing on and after February 13, 1961,
with the proscribed object of forcing or requiring the Employers to
recognize or bargain with their respective labor organizations, and
that the picketing also had a proscribed organizational object.
While the testimony of Berland, Local 324's representative, did not
explicitly set forth the objectives of that Union's picketing, Berland
did attest to "the close liaison between the two labor leaders [De Silva
and himself]," and the record shows their concerted efforts in request-
ing recognition from Gold's Furniture and Appliances in December
1960, disclaiming on February 13, 1961, and in engaging in informa-
tional and protest picketing, handbilling, and organizational activities
at various times during the period February 13 to May 8, 1961. Ac-
cordingly, we find that the picketing of Respondent Locals 770 and
1. The Charging Parties are essentially in agreement with the General Counsel 's argu-
ments but also argue that the picketing in protest of employee Dargert's discharge was
for a proscribed object under the Lewis Food Company doctrine, 115 NLRB 890. With-
out deciding its application in this case , it is to be noted that this doctrine has been re-
considered in Local 259, International Union United Automobile, Aircraft and Agricul-
tural Implement Workers of America, UAW, AFL-CIO (Fanelli Ford Sales, Inc.), 133
NLRB 1468.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
324 had one and the same object, to wit, forcing or requiring the Em-
ployers to recognize or bargain with them in their respective geo-
graphical area units.
b. Section 8 (b) (7) (C) provides, however, "that nothing in this
subparagraph (C) shall be construed to prohibit any picketing or
other publicity for the purpose of truthfully advising the public (in-
cluding consumers) that an employer does not employ members of, or
have a contract with, a labor organization, unless an effect of such
picketing is to induce any individual employed by any other person in
the course of his employment, not to pickup, deliver or transport any
goods or not to perform any services."
In construing this proviso the Board has held that, even though
picketing is conducted for a proscribed object, a violation of Section
8(b) (7) (C) is not established if the picketing is for the purpose of
truthfully 15 advising the public, including consumers, that the em-
ployer does not employ members of, or have a contract with, a labor
organization, unless an effect of such picketing is to induce a stoppage
of deliveries and/or services."
The picketing in the instant proceeding can clearly be said to have
been conducted for informational purposes. Thus, the picketing ac-
tually took place in front of the consumer entrances to the employers'
retail stores during the normal hours when these stores were open to
the public, the signs specifically indicated that the purpose of the
picketing was to impart certain information to the public, and the
unions did not take any action inconsistent with such purpose.
c. The only remaining question therefore is whether, notwith-
standing the informational aspect of the picketing, the Respondents
violated the Act because "an effect" of such picketing was to induce
a stoppage of deliveries and/or services.
Before turning our attention to a discussion of the crucial "effect"
is The record indicates that Barker and Gold's nonselling personnel, at least in part,
were represented by labor organizations other than the Respondents . Despite this fact,
some of the picket signs indicated in general terms that Barker Bros. and Gold's were
"nonunion" without expressly limiting the application of that statement to the employees
of those employers engaged in selling operations . Nevertheless , it is clear from the
language of the picket signs themselves that they only intended to convey the information
that Barker and Gold ' s had no contract with the Retail Clerks and that those Em-
ployers were nonunion with respect to them. It is unreasonable to expect that, as
suggested by our dissenting colleagues , a union involved in a recognitional and bargain-
ing dispute with an employer and concerned with its own problems should be required
to assume the burden of informing the public that the employer may or does have a
contract or contracts with other unions. Moreover , there is absolutely no evidence to
indicate that the failure to draft the picket language in more limited terms was based
upon an intent to deceive the public . Nor is there any evidence to indicate that the public
was in fact deceived by the picket signs Accordingly , we find , contrary to our dissenting
colleagues , that the Respondents ' picketing was "for the purpose of truthfully advising
the public," within the meaning of the proviso . International Brotherhood of Teamsters,
etc, Local 537 (Lohman Sales Company ), 132 NLRB 901 . Also, in accord , see McDermott,
"Recognition and Organizational Picketing Under Amendments to the Taft-Hartley Act,"
11 Labor Law Journal 727, 735.
10 Crown Cafeteria , 135 NLRB 1183.
RETAIL CLERKS UNION LOCAL 324, ETC. 487
clause, upon which the ultimate outcome of the instant case depends,
it would be worthwhile to reflect more fully on the informational
picketing proviso to subparagraph (C). For a reasoned construc-
tion of the statute requires an appreciation of the interplay between
these two provisions and thus dictates against reading the "effect"
clause in a vacuum.
The informational picketing proviso, in a word, immunizes cer-
tain picketing from the proscription of Section 8(b) (7) (C) unless
and until the circumstances explicated in the effect clause come into
play. It is clear that Congress, in enacting this proviso, was doing
no more, or perhaps more aptly no less, than placing its stamp of
approval on what it envisaged as the constitutional right of labor
organizations to freely disseminate certain information to the pub-
lic through peaceful picketing.17 Nor can the historic significance
of this fundamental right be overemphasized. For not only has
peaceful picketing long been described as "the workingman's means
of communication, 718 but it also has traditionally been regarded by
the Supreme Court, at least in part, as an exercise of the constitu-
tional right to free discussion 19 which should therefore be "guarded
with a jealous eye." 20 That the Congress wished to accord informa-
tional picketing a similarly privileged status is attested to by the
legislative history and the very language of the proviso itself." On
the other hand, the effect clause stands as a testimonial to the fact
that freedom to communicate by peaceful picketing is not an absolute
right in the eyes of Congress. As so frequently is the case in the
highly complex area of labor-management relations, our task thus
becomes one of striking a delicate balance between two conflicting
interests-labor's desire to freely communicate its ideas to the public
through picketing and management's desire to be insulated from the
coercive effect thereof.
We believe that in exempting informational picketing from the
proscription of the Act, Congress intended to exempt picketing which
was directed at persuading the public in the immediate vicinity of
the primary employer's place of business and that Congress recog-
nized that the information conveyed by such picketing, at least where
retail stores were involved, would be received by two classes of the
public, as well as by the employees of the picketed employer, i.e., pro-
37 See comments of Senator Morse and Congressman Udall at II Legis. Mist, of the
Landrum-Griffin Act at 1427 and 1722, respectively . Note also that several Federal dis-
trict courts arrived at similar conclusions based upon their independent evaluations of
subsection ( C)'s legislative history. LeBus v. Building and Construction Trades Council
,of New Orleans & Vicinity, AFL-CIO, et al. (Houston Contracting Co.), 199 F. Supp.
628 (D C E La ) ; McLeod v Chefs, Cooks, Pastry Cooks and Assistants, Local 89, et al.
(Stork Restaurant), 280 F. 2d 760 ( C A. 2) ; and Graham v. Retail Clerks International
Association, Local No 57, AFL-CIO ( Heated Stores Co ), 188 F. Supp. 847 (D C . Mont.).
wMilk Drivers v. Meadowmoor Dairies, Inc., 312 U.S. 287, 293 ( 1941).
1 Building Service Employees Union v. Gazzam , 339 U.S. 532 ( 1950).
20 AFL v. Swing, 312 U.S. 321, 325 (1941).
See footnote 17, supra.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spective customers and suppliers about to make deliveries and/or to
perform services. The effect of the picketing upon the prospective
customer, if successful in turning him away, is a basic economic
pressure against the employer which has an impact on his operation
to the extent that he loses the business of the consumer. On the other
hand, the effect upon suppliers might be to keep them from com-
pleting deliveries or performing services for the employer. This
also results in a basic economic pressure against the employer to the
extent that it has a coercive impact on his business operation 22 Con-
struing the information proviso and the effect clause, it seems clear
that picketing which exerts the former type of economic pressure had
congressional approval, but picketing which fosters the latter was
proscribed, at least where it persists beyond a reasonable period
not to exceed 30 days .21
If, as our dissenting colleagues urge,24 we read the effect clause
literally, then the refusal of one supplier's truckdriver to cross a
picket line at a retail establishment would automatically convert a
union's informational picketing into an unfair labor practice. More-
over, the dissenters would reach this result irrespective of the degree
to which the delivery stoppage interfered with, disrupted, or cur-
tailed the picketed employer's normal business operation, irrespective
of the Union's efforts to impress upon employees of suppliers that
its appeal was directed solely at consumers and that they should
cross the line to make deliveries, and, evidently, irrespective of
whether the presence of the pickets merely resulted in a delay as eon-
22 The legislative history indicates congressional awareness of the distinction between
these two types of economic pressures as well as a congressional intent to permit picket-
ing designed to create consumer pressure while limiting picketing which results in stop-
pages of services or deliveries During the debate which preceded final passage of Sec-
tion 8 ( b) (7) (C), Senator Kennedy stated on the floor of the Senate *
. . . When the picketing results in economic pressure through the refusal of other
employees to cross the picket line , the bill would require a prompt election. 105
Cong. Rec. 16413 . [ Emphasis supplied.]
Representative Thompson of New Jersey, during the course of the debate In the House
of Representatives which preceded final passage of 8(b ) ( 7) (C), read a statement Into the
Congressional Record which included the following passage:
2. Organizational picketing : The House bill would have forbidden virtually all
organizational picketing , even though the pickets did not stop truck deliveries or
exercise other economic coercion .. . . When the picketing results in refusal of
other employees to cross the picket line , the bill would require a prompt election
Purely informational picketing cannot be curtailed under the Conference Report, a]-
though even this privilege would have been denied by the Landrum -Griffin measure.
105 Cong. Rec. 16636 . [ Emphasis supplied.]
Representative Udall ( Arizona ) also stated , "The Conference Report also protects Informa-
tional picketing that does not result in economic coercidn-a right of free speech which
would have been denied by the Landrum bill." 105 Cong . Rec. 16637 . [ Emphasis
supplied.]
dR The distinction between these two types of 8 ( b) (7) (C) picketing , based upon their
economic consequences , is also drawn in Cox, "The Landrum -Griffin Amendments to the
National Labor Relations Act." 44 Minnesota Law Review 257, 262-270 (December
1959).
24 See dissenting opinion, infra.
RETAIL CLERKS UNION LOCAL 324, ETC. 489
trasted with a stoppage in the performance of a service or the com-
pletion of a delivery.
In support of this literal construction, our colleagues place reliance
on (1) various comments in the legislative history which impart a
singular connotation to the language of the effect clause; 25 and on
(2) what they consider to be the statute's clear, unequivocal, and
unambiguous language .21
We are of the opinion, however, that neither the legislative history
nor the explicit language of the effect clause justifies such an in-
flexible reading of the statute. Thus, with respect to the legislative
history, our colleagues have compiled an imposing number of com-
ments by the legislators which "arguably could be cited to indicate
that, to lose the proviso's protection, there needs to be more than a
single stoppage or delay." 27 Although we do not attach any profound
significance to these comments, we would not, as our colleagues have
seen fit to do, dismiss them as "nothing more than loose and sweeping
generalizations," 28 while simultaneously giving undue emphasis to
other comments which admittedly point toward a literal reading of
"an effect," 29 but which do not appear any more compelling than
the comments about plural stoppages alluded to previously. Suffice
it to say, as noted earlier, after all of the aforementioned comments
are amassed and scrutinized, it is patently obvious that they do not
present any lucid expression of congressional intent with respect to
what constitutes "an effect."
While impliedly acknowledging this fact, our colleagues, never-
theless, are of the opinion that the express language of the effect
clause necessarily dictates a literal construction thereof.30 We do not
agree. Nor could an impressive array of astute students of labor
law whose below-quoted comments reflect a representative cross-
section of the view that the "effect" clause constitutes something less
than a monument to certainty and clarity.
... [T]his proviso (the effect proviso) presents uncertainties
concerning . . . how substantial the effect must be on deliveries
to remove the shield extended by the provision (protecting infor-
mational picketing) 31
In the stoppage situations, how many refusals to deliver con-
stitute an effect ... 2 32
a See footnote 50 in the dissenting opinion.
21 See dissenting opinion , infra.
81 See footnote 49 in the dissenting opinion
28 Ibid.
80 See footnote 50 in the dissenting opinion.
80 Cf. Ryan , "Recognition, Organizational and Consumer Picketing," 48 Georgetown Law
Journal, 359, 369.
81 Martin, "The Landrum-Griffin Amendments: Recognition and Organizational Picket-
ing," 45 Cornell Law Quarterly , 769, 792.
33 Olender, "Standards Picketing Under Section 8(b) (7) (C)," 12 Labor Law Journal,
739, 749.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A further proviso (to subparagraph (C)) attempts to give a
little to everyone and therefore causes a bit of trouble for every-
one .... A question which the proviso poses is the scope of the
words "an effect." Does the proviso mean any effect or a sub-
stantial effect? 33
Both Sections 8(b) (4) and 8(b) (7) (C) use the words "an
effect," and there will undoubtedly be serious initial disputes as
to the exact meaning of that phrase . . . . There is room for
statutory construction of the phrase . . . 3A
Thus, a perplexing problem of statutory construction emerges when
the language of the effect clause is read, as it must be, in conjunction
with the informational picketing proviso. Given this uncertainty,
we do not believe that it would be reasonable to adopt the rigid inter-
pretation propounded in the dissenting opinion.
To read the effect clause literally would, for all practical purposes,
render illusory the very protection which the Congress expressly
conferred upon labor's right to disseminate information to the public
by engaging in publicity picketing. It might thereby not only bring
into play a serious constitutional question," but also do a disservice
to the Congress itself.36 Suppose, for example, a strong-willed de-
liveryman with an antipathy to crossing any picket line (regardless
of the sector of the public to whom it was designed to appeal) refused
to cross, notwithstanding his own union's instructions to do so and
the affirmative request of the picket himself. (1) What result? (2)
In such circumstances and absent any other evidence concerning the
effect of the picket line, would it not be anomalous to make an unfair
labor practice finding? (3) Should the right of a labor organization
to bring its cause to the public's attention rest on so tenuous a base
as an individual truckdriver's exercise of a personal prerogative?
Anticipating that such problems were destined to arise, Archibald
Cox and Benjamin Aaron, among others,37 two noted legal scholars
in the field of labor-management relations, took the position that the
effect clause should not be invoked to prohibit informational picketing
nDunau, "A Preliminary Look at Section 8(b)(7)," 48 Georgetown Law Journal,
371, 378.
"Van Arkel, "Picketing Under the 1959 Amendments," 13 N Y.U. Annual Conference
on Labor, 201, 209.
G See, for example, the court's comments in LeBus v. Building and Construction Trades
Council of New Orleans & Vicinity, AFL-CIO, et al . ( Houston Contracting Co ), 199 F.
Supp. 628, 634 ( D C. E. La .) ; and McLeod v. Chefs, Cooks, Pastry Cooks and Assistants,
Local 89, et al. (Stork Restaurant ), 280 F. 2d 760, 765 (C.A. 2). Contrary to our dis-
senting colleagues , it is precisely because we do assume the constitutionality of the Act
that we reject any interpretation of the proviso that would prejudice this premise.
sa Chafee, "Free Speech in the United States" ( 1941 ), at •p. 6.
37 See also the articles by Dunau and Olender cited supra at footnotes 33 and 32,
respectively.
RETAIL CLERKS UNION LOCAL 324, ETC. 491
merely on the basis of a few isolated instances of drivers refusing to
cross the line."
However, a different result would be dictated were the evidence to
demonstrate that the failure of one or more supplier's truckdrivers to
make a delivery interfered with, disrupted, or curtailed the picketed
employer's operation. In our opinion, this is the type of economic
pressure, at least with respect to employers operating retail establish-
ments, from which Congress sought to immunize the employer.
Thus, it is readily apparent that a quantitative test concerning it-
self solely with the number of deliveries not made and/or services
not performed is an inadequate yardstick for determining whether to,
remove informational picketing from the proviso's protective ambit.
Rather, with respect to employers operating retail establishments, we
believe that where delivery and/or work stoppages occur, it would be
more reasonable to frame the test in terms of the actual impact on
the picketed employer's business. That is, the presence or absence of
a violation will depend upon whether the picketing has disrupted,
interfered with, or curtailed the employer's business. Naturally, this
is a question of fact which can only be resolved by the Board in light
of all the circumstances in each case. Moreover, we believe, contrary
to our dissenting colleagues, that once the Respondent, as here, demon-
strates that it is engaging in informational picketing, it then be-
comes incumbent upon the General Counsel, as part of his statutory
obligation to establish by a preponderance of the evidence the com-
mission of an unfair labor practice, to present evidence that the
picketing did in fact interfere with, disrupt, or curtail the employer's
business 3a
The evidence adduced in the instant case reveals that the picketing
was carried out over a 12-week period; that approximately 18 of the
Employer's stores were picketed; that the Union took active measures,
described more fully, spura, to ensure that there would be no interrup-
tion in the Employer's pickups and deliveries; and that during this
extensive period of time in which the picketing was conducted there
were only 3 delivery stoppages, 2 work delays, and several delivery de-
lays. In addition, the record is virtually silent as to not only the na-
ture and quantity of the products that failed to reach their destination
5 See Cox, "The Landrum-Griffin Amendments to the National Labor Relations Act,"
44 Minn. L Rev. 257, 267; Aaron, "The Labor-Management Reporting and Disclosure
Act of 1959," 73 Harv. L. Rev. 1086, 1107.
sa Our dissenting colleagues take the position that the General Counsel establishes a
prima facie showing of a violation merely by proving that delivery and /or work stoppages
or delays have occurred . In our view , no evidence of a violation is shown unless there is
evidence of an effect ; and to establish an effect, the General Counsel must do more than
simply show that one or more stoppages or delays have occurred . Moreover, our colleagues'
position would place the burden on a labor organization to acquire and produce informa-
tion (relating to the impact of delivery and work stoppages on an employer 's business),
which , by its very nature, is peculiarly within the employer 's knowledge.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but also the impact of the stoppages and/or delays on the Employer's
business.
On the basis of all the foregoing, we cannot find that the Respond-
ents' informational picketing constituted "an effect" within the mean-
ing of Section 8(b) (7) (C). We find, therefore, that in the absence
of "an effect" attributable to the informational picketing, Section
8(b) (7) (C) is not violated. Accordingly, we shall dismiss the com-
plaint herein.
Finally, it is noted that our colleagues have seen fit to utilize this
occasion to launch a broadside attack on the Board's overall treatment
of a series of Section 8(b) (7) (C) cases.4° Needless to say, the ration-
ale set forth in the majority decisions in each of these cases speaks
for itself and, in our view, correctly interprets the statutory provisions
it is our duty to apply. Moreover, it is clear, on the basis of decided
cases, that our colleagues are substantially and demonstrably in error
when they suggest that the Board made the protection afforded by the
informational proviso absolute 41 Rather, the Board's consistent and
explicit approach to Section 8(b) (7) has been and will continue to be
to give effect to each and every portion thereof and to carry out the
congressional purpose and mandate in the proviso as well as in the
main portion of Section 8(b) (7).42 The dissenters assert that the
majority decisions in Crown Cafeteria, 135 NLRB 570, and in the in-
stant case have, in effect, erased Section 8(b) (7) (C) from the Act.
But this assertion inexplicably ignores and is wholly refuted by
decided cases in which we have found violations of Section
.8 (b) (7) (C).41 But to revert to the substance of the criticized decisions,
and without wishing to relitigate Crown or any of the other Section
8(b) (7) (C) cases, we remain today totally unimpressed with our col-
leagues' proposed resolution thereof. For under their approach, a
labor organization, having once unsuccessfully requested recognition
from an employer, would then be automatically precluded from en-
gaging in peaceful picketing to inform the public of their failure to
10 See cases cited in footnote 54 of dissenting opinion.
11 See Automotive, Petroleum & Allied Industries Employees Union, Local 618, etc.
( Charles Schmitt, at al., d/b/a Charlie's Car Wash ), 136 NLRB 934 ; Philadelphia
Window Cleaners and Maintenance Workers' Union, Local 125 (Atlantic Maintenance
Co ), 136 NLRB 1104; Hotel, Motel and Club Employees' Union Local 568, AFL-CIO
(Marriot Motor Hotels , Inc.), 136 NLRB 759; Son Diego County Waiters and Bartenders
Union Local 500, etc (lorhunt, Inc., d/b/a Joe Hunt's Restaurant), :138 NLRB 470;
Local Union 429, International Brotherhood of Electrical Workers , AFL-CIO (Sam Mellon
d/b/a Sam Melson. General Contiactor), 183 NLRB 460, Local Uniin 154, International
Typographical Union, AFL-CIO (Ypsilanti Press, Inc.), 137 NLRB 1116; and Local 3,
Into national Brothel hood of Electi ical Workers, AFL-CIO (Jack Picoult), 137 NLRB
1'101.
e, See, particularly, our decision in International Hod Carriers Building and Common
Laborers Union of America, Local 840, AFL-CIO (Charles A. Blinne, d/b/a C. A. Blinne
Construction Company ), 135 NLRB 1153, and companion cases
4s See, e g., C. A. Blinne Construction Company, supra ; Stork Restaurant, Inc., 135
NLRB 1173; International Typographical Union , AFL-CIO, at al. (The Greenfield Print-
ing and Publishing Co.), 137 NLRB 363. See, in addition, the cases cited in footnote 41,
.supra.
RETAIL CLERKS UNION LOCAL 324, ETC. 493
obtain a collective-bargaining agreement. Moreover, even assuming
no prior request for recognition, a labor organization would auto-
matically forfeit its right to disseminate such information to the pub-
lic the very first time a supplier's truckdriver refused to make a de-
livery, however inconsequential, to the picketed employer's premises.
We do not believe that this was the intent of Congress. More specific-
ally, the construction urged by our colleagues would deprive of
virtually all meaning and effect the legislative compromise finally
evolved in 1959.
CONCLUSIONS OF LAW
Barker Bros. Corp. and Gold's, Inc., are employers engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondents, Retail Clerks Union Local 324 and Retail
Clerks Union Local 770, are labor organizations within the meaning
of Section 2 (5) of the Act.
3. The Respondents have not engaged in unfair labor practices
within the meaning of Section 8(b) (7) (C) of the Act.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
Our colleagues are dismissing the complaint although the evidence,
in our opinion, clearly establishes the alleged violation.
The evidence, wholly apart from the legend of the picket signs,
establishes, as our colleagues find, that an object of Respondents'
picketing was recognition or bargaining, and that organization was
a further object of the picketing. Contrary to our colleagues, we
believe this evidence is material; and as it reveals that Respondents'
true purpose was not solely informational, it is in itself sufficient to
remove the picketing from the protection of the so-called publicity
proviso 44
There are other reasons, also, why we would find that Respondents'
picketing was not protected by that proviso. The publicity proviso
protects picketing or other publicity "for the purpose of truthfully
advising the public (including consumers) that an employer does
not employ members of, or have a contract with, a labor organization
" [Emphasis supplied.] One of the signs carried by the pickets
stated that the Employer was "NON-UNION," and the handbills
distributed by Respondents stated that the Employer "IS NOT A
UNION STORE," thereby implying that the Employer had no con-
tract with any labor organization. Yet, as our colleagues themselves
point out, the Employer's nonselling employees were, as Respondents
" See our dissenting opinion in Crown Cafeteria, 135 NLRB 1183, Supplemental Deci-
sion and Order.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
knew, represented under contract by the Teamsters and Building
Service Unions. Such publicity, in our opinion, is not "truthful.) 45
Further, even if the picketing could otherwise be deemed to qualify
for the protection of the proviso to Section 8(b) (7) (C), we never-
theless could not agree with our colleagues' further conclusion that
the delivery stoppages, the work delays, and the delivery delays that
resulted from the picketing did not cause the picketing to lose that
protection. In so concluding, our colleagues, in our opinion, fail to
give effect not only to the plain language of the statute, but also the
clear legislative purpose underlying it.
As for the statutory language, the proviso to Section 8(b) (7) (C)
validates so-called informational picketing,
... unless an effect of such picketing is to induce any individual
employed by any other person in the course of his employment,
not to pick up, deliver or transport any goods or not to perform
any services. [Emphasis supplied.]
This language is clear and unequivocal. It speaks in terms of "an
effect," "any individual," "any other person," "any goods," and "any
services." There is not one word in the statutory language about
"disruption" of business, "curtailment" of business, "impact" of stop-
pages, or "actual impact on the picketed employer's business," which
is the way our colleagues are interpreting the clear and unequivocal
statutory language 46
Our colleagues say "to read the effect clause literally would .. .
do a disservice to Congress itself." 47 In effect they are thereby say-
46 See International Brotherhood of Teamsters , Chauffeurs , Wa, ehousemen and Helpers
of America, Milk Drivers and Dairy Employees Local 537 (Jack M Lohman, d/b/a Lohman
Sales Company ), 132 NLRB 901. Although the handbills in Lohman contained certain
inaccuracies , the respondent there, as the Decision points out, corrected the inaccuracies
when they were brought to its attention . Here, however, although Respondents changed
the wording of newspaper advertisements when, apparently, the represented status of
the nonselling employees was brought to their attention, there is no evidence that the
language of the picket signs and handbills was thus corrected If the statutory require-
ment that the publicity must be truthful is to have any meaning, Respondents must be
the insurer of accuracy to the extent that they know the facts.
46 In reading into the proviso a meaning which is contrary to the clear and unambiguous
language therein, our colleagues fail to give effect to two accepted rules of statutory con-
struction : ( 1) "Statutes clear and unambiguous . The most common rule of statutory
interpretation is the rule that a statute clear and unambiguous on its face need not and
cannot be interpreted by a court and only those statutes which are ambiguous and of
doubtful meaning are subject to the process of statutory interpretation." Sutherland,
Statutory Construction, 3d ed ., section 4502; Packard Motor Car Company v. NLRB,
330 U.S. 485, 493 ; and ( 2) "Provisos Strict Interpretation . As in all other cases, a pro-
viso should be interpreted consistently with the legislative intent where the proviso
itself must be considered in an attempt to determine the intent of the legislature, it
should be strictly construed ." Sutherland , id., section 4933.
47 Our colleagues also say that "to read the effect clause literally would . . bring into
play a serious constitutional question . . . ." However,
As an administrative agency of the Federal Government , it is inappropriate for
the Board to pass upon questions regarding the constitutionality of Congressional
enactments . Such questions will be left to the courts In the absence of any court
decision to the contrary, the Board assumes that the Act as amended does not-violate
RETAIL CLERKS UNION LOCAL 324, ETC. 495
ing that Congress did not intend the result which would obtain if
the plain and unambiguous language were applied as Congress wrote
it. But our colleagues cite no legislative history, or anything else
of persuasive authority,48 to buttress their belief about the so-called
congressional intent. Indeed, they cannot, for whatever legislative
history there is on the matter not only does not support the position
our colleagues are now taking 49 but instead supports a contrary
conclusion 50
any provision of the Constitution of the United States, as alleged by the petitioner.
[Rite -Form Corset Company, Inc ., 75 NLRB 174, 176.]
This has been the consistent position of the Board See, for example, Schneider Trans-
portation Company, 75 NLRB 870 , footnote 1; Mergenthaler Linotype Company, 80
NLRB 132; United Brotherhood of Carpenters and Joiners of America , et at (Wadsworth
Building Company, Inc , and Klassen & Hodgson, Inc .), 81 NLRB 802 , 806; Local 1796,
United Brotherhood of Carpenters and Joiners of America, A.F. of L. ( Montgomery Fair
Co, a Corporation ), 82 NLRB 211 , 212; Sperry Gyroscope Company, 88 NLRB 907;
Peerless X-Ray Laboratories & Manufacturing Corp, 89 NLRB 1432, footnote 1 ; Bluefield
Produce & Provision Company, 117 NLRB 1660 , 1663; Amalgamated Lithographers of
America and Local 78, at at (Employing Lithographers of Greater Miami, Florida, and
Miami Post Company ), 130 NLRB 968 , 969, footnote 3; and Amalgamated Lithographers
of America (Ind.) and Local No. 17, etc. ( The Employing Lithographers , a Division of
the Graphic Arts Employers Association , etc ), 130 NLRB 985, 991.
48 In support of the position they are taking , our colleagues rely heavily upon the writ-
ings of various "noted legal scholars " and "astute students of law" as set forth in various
periodicals . These writings are interesting . No doubt their authors are sincere in posing
issues of statutory construction and in suggesting the answers . But, in our view, writings
such as these provide neither cogent, nor legally authoritative , reason for an Interpreta-
tion which is contrary to the words of the statute themselves and which cannot be sup-
ported by the statute 's legislative history.
49 There is no legislative history whatever indicating that the Congress intended the
language in question to mean what our colleagues now say it means To be sure, various
comments were made which, arguably , could be cited to indicate that , to lose the proviso's
protection , there needs to be more than a single stoppage or delay. Thus , for example,
Senator Kennedy spoke in the plural when, prior to conference agreement, he explained
the type of picketing permitted by the proviso , "Picketing in the absence of a contract or
an election , which has only the effect of notifying the public of nonunion conditions and
asking the employees to join the union would not be banned . . . . In other words, we
say, in effect : 'You can start picketing with anything you have, with any members you
have ; but if picketing results in stopping deliveries or service employees from entering
the premises , then there must be an immediate election .' " 105 Daily Cong Rec. 15900
(August 28 , 1959), 2 Legis. Hist . 1377 ( 3). For like remarks by Senator Kennedy after
the conference agreement , see 105 Cong . Rec. 16402 ( September 3, 1959 ), 2 Legis. Hist.
1431 ( 3) ; and 105 Cong. Rec. 16415 ( September 3, 1959 ), 2 Legis. Hist 1433 ( 3). To the
same effect , see the remarks of Congressman Griffin, 105 Cong. Rec. 16540 ( September 3,
1959 ), 2 Legis. Hist . 1713 ( 3) ; Congressman Thompson , 105 Cong. Rec. 16635-16636
(September 4, 1959 ), 2 Legis. Hist. 1720 ( 3) and 1721 ( 1) ; and Congressman Udall, 105
Cong . Rec. 1637 ( September 4, 1959 ), 2 Legis Hist . 1772 ( 2). Viewed in their context,
however, these statements appear to be nothing more than loose and sweeping generaliza-
tions. They do not evidence a conscious intention to say that the singular "an" and
"any" in the statute must be given plural connotations.
5i The conference report and other statements definitely confine the language to the
singular. Thus the conference report, explaining the proviso , repeats its terms literally:
"unless an effect of such picketing is to induce any individual employed by any other
person in the course of his employment, not to pick up, deliver or transport any goods or
not to perform any services . . . Section 8 ( b) (7) overrules the Curtis and Alloy cases
to the extent that these decisions are inconsistent with Section 8(b) (7)." 2 Legis. Hist.
1400 ( September 3, 1959 ) ; 2 Legis. fist . 1714 ( September 3, 1959 ) ; and 2 Legis Hist.
934-946; H. Rept 1147 on S. 1555 . And Senator Goldwater , one of the conferees,
stated: "In conference , it was fundamentally the Landrum-Griffin proposal which was
agreed to by the conferees after some modifications making for greater clarity and pre-
ciseness , making it easier to determine the prohibition 's applicability in particular fact
situations , and granting the very limited exemption from the prohibition , described
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The difficulty our colleagues have gotten themselves into, is that
they seek to make the statute mean what it does not say, and say
what it does not mean5l Implicit in our colleagues' opinion is the
assumption that Congress authorized at least some damage, some loss
of service, some interruption of deliveries, to every business, and
indeed afforded no remedy unless such damage or interruption was,
in the wisdom of this Board, substantial. But, as already indicated,
neither the statutory language nor its legislative history provides any
authority for the majority's position that Congress left to this Board
the task of "striking a delicate balance between two conflicting in-
terests-labor's desire to freely communicate its ideas to the public
through picketing and management's desire to be insulated from the
coercive effect thereof." Whatever' balancing of interests or equities
was to be done in these circumstances, was done by Congress, after
thorough hearings, lengthy debate, and prolonged deliberation. The
decision reached by Congress in this regard is clearly and unambigu-
ously set forth in the statute. The legislative processes, having been
completed, all that remains for this Board, like it or not, is to apply
the law which Congress has given us.
Moreover, even if our colleagues' interpretation of the statute were
tenable, we still could not agree with their conclusion that in this
case the General Counsel has not sustained the statutory burden of
showing that a violation existed .12 Here, as our colleagues note,
above . . Where the union engages in picketing or other publicity for the sole purpose
of truthfully advising the public that an employer does not employ members of or have a
contract with a labor union . .. picketing may be carried on indefinitely. However, if
one of the effects of such . . . Is to induce any individual employed by any other per-
son-other than the picketed employer-in the course of his employment , not to pick up,
deliver or transport any goods or not to perform any services , and a reasonable period-
not longer than 30 days-has elapsed etc. . . (Emphasis supplied .] 105 Cong. Rec
A68524-A68525 (October 2, 1959 ) ; 2 Legis. Hist. 1858 ( 3) to 1859 ( 1). Of similar import
is the understanding of Congressman Roosevelt , who opposed the conference agreement:
"[The proviso to 8(b ) ( 7) (C) ] sounds better than the provisions of the Landrum- Griffin
Bill as passed by the House . . until you read on, because the sentence then continues
'unless an effect of such picketing is to induce any individual employed by any other per-
son not to pick up, deliver , or transport any goods or not to perform any services . . .
one does not have to be a lawyer . . . to see how empty and meaningless this so-called
compromise language is . . . . All [ a primary employer ] would have to do is to get a
fellow employer . .. to [instruct ] his secretary-say-to refuse to deliver a message to
the primary employer on the pretext that her service would violate her conviction aroused
by the picket line . The picket line would be declared unlawful . . . [Emphasis sup-
plied.] 105 Cong. Rec. 16643-16644 ( September 4, 1959), 2 Legis. Hist. 1728(3) to
1729(1).
61 "But our problem is to construe what Congress has written . After all, Congress ex-
presses its purpose by words. It is for us to ascertain-neither to add nor to subtract,
neither to delete nor to distort." 62 Cases Jam, et at . v. U.S, 340 U.S . 593, 596. To the
same effect that statutes must be construed as written : Arkansas Oak Flooring Co. v.
Louisiana & Arkansas Ry. Co .. 166 F. 2d 98, 101 (C .A. 5) ; Story v . Snyder, 184 F. 2d
454, 459 (C.A.D C.) ; Chmisterer v. Poudre Val. Coop. Assn ., 235 F. 2d 9,46 , 950 (C.A. 10)
Wentz v. U.S., 244 F. 2d 172, 175 (C.A. 9).
62 We note in this connection that not only do our colleagues write into the statute
words and meaning which are not there , but they also place upon the General Counsel a
burden of proof which the statute clearly does not place upon him-namely, the burden
of proving that stoppages and delays have a disruptive effect. As we have pointed out
above, the statute contains no such concept , and therefore the burden which our colleagues
place upon the General Counsel can find no justification in the law as It was written.
RETAIL CLERKS UNION LOCAL 324, ETC. 497
"three delivery stoppages, two work delays, and several delivery de-
lays" were shown to have occurred." Their occurrence was proved
by the General Counsel-a fact which in our opinion should be
enough to make out a prima facie showing of a violation even under
our colleagues' interpretation of the statutory language. These work
stoppages and delays having been shown to have occurred, we would
think that it was then incumbent upon Respondents to come forward
with some proof that would exculpate them-some proof to show
that, in the language of our colleagues, the stoppages and delays in
fact did not "interfere with, disrupt, or curtail the employer's busi-
ness." Patently, Respondents have not done this. For example, the
record does not reflect the number of deliveries that were in fact
made without interruption during the picketing; the nature, or the
quantity, of the products that failed to reach their destination; the
duration of the delays in making the deliveries; or the relative im-
portance to the employer's business, or to consumers, of the stopped
deliveries and the delayed services. In short, before we could sub-
scribe to our colleagues' conclusions that these work stoppages and
delivery delays were not material, and that the General Counsel has
failed in his obligation, we would require a record that presents some-
thing more than the one before us. Accordingly, we would say that
the General Counsel has indeed sustained the burden of proof that
our colleagues have imposed upon him under their reading of the
statute.
Finally, we would point out that the decision of our colleagues in
this case completes the virtual nullification of the congressional pur-
pose in enacting Section 8(b) (7) (C). In that section, Congress ex-
pressed an intent that disputes over organization or recognition, when
accompanied by picketing, should be resolved expeditiously through
an election conducted under the special procedures provided in that
section. As we pointed out in our dissenting opinion in Crown, our
colleagues, by their interpretation of the so-called "publicity proviso,"
"converted what Congress intended as a narrow exception into a
broad license," and in substance decided that virtually any organiza-
tion or recognition picketing could claim the protection of the
8(b) (7) (C) provisos' Nevertheless, the protection thus accorded
is The record is not clear as to whether the failures to deliver were actually "stoppages"
or "delays ." It is nevertheless possible to read the record as showing that there were at
least 15 delivery stoppages or delays . The district court , based on the identical record
now before the Board , concluded that "In five instances truckdrivers testified that upon
seeing the picket line they declined to deliver materials ." Kennedy v. Retail Clerks Union
Local 324 , et at., 194 F. Supp . 131 (D C S. Calif.).
64 For examples of how the proviso is being read and applied by our colleagues since
their decision in Crown, see the following cases in which we expressed our disagreement:
Houston Building and Construction Trades Council ( Claude Everett Construction Com-
pany ), 136 NLRB 321 ; Retail Store Employees Union , Local 400 , at al. (Jumbo Food
Stores, Inc ), 136 NLRB 414; Department & Specialty Store Employees ' Union, Local
1265, AFL-CIO ( Oakldnd G . R. Kinney Company, Inc ), 136 NLRB 335; International
Ladies' Garment Workers' Union, AFL-CIO ( Saturn & Sedran, Inc), 136 NLRB 524;
Local 107, International Hod Carriers , Building and Common Laborers ' Union of America,
AFL-C10; at at (Texarkana Construction Company ), 138 NLRB 102.
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this kind of picketing still remained subject to possible defeasance,
in the absence of a timely petition, because of the clear statutory lan-
guage itself. But now, after this decision, it would appear that the
latter possibility has been almost entirely eliminated, and the pro-
viso's protection has been made practically absolute. In short, if
we now add our colleagues' decision in this case to their previous
decision in Crown, it would appear that to all intents and purposes
Section 8(b) (7) (C) has been removed from the Act.
For all of the foregoing reasons, and as Respondents concededly
picketed for more than 30 days without a petition having been filed,
we would find that Respondents violated Section 8(b) (7) (C), and
would enter an appropriate Order.
Retail Clerks International Association , Local 57, AFL-CIO and
Nested Stores Company . Case No. 19-CP-11. September 7,
1962
DECISION AND ORDER
On December 28, 1960, Trial Examiner Herman Marx issued his
Intermediate Report herein, fording that the Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion as set forth in the attached Intermediate Report. Thereafter, Re-
spondent filed exceptions to the Intermediate Report and General
Counsel also filed exceptions with a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
-rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and finds merit in the exceptions of the Respondent. Accord-
ingly, the Board adopts the findings of the Trial Examiner to the ex-
tent they are consistent with this Decision and Order.
The complaint alleges and the Trial Examiner found that the Re-
spondent violated Section 8(b) (7) (B) of the Act by picketing the
Great Falls, Montana, retail store of the Charging Party (hereinafter
referred to as the Company) within a year of the valid election of
March 18, 1960, with an object of forcing or requiring the Company
to recognize and bargain with the Respondent as the representative
,of the Company's employees or with an object of forcing or requiring
the Company's employees to accept the Respondent as their collective-
bargaining representative. Because of our disagreement with the
Trial Examiner's reasoning and conclusions, we briefly summarize
the facts.
138 NLRB No. 56.