Retail Stores Employees Union, Local 400, Etc.

National Labor Relations Board - Board Decisions

Mar 20, 1962

136 N.L.R.B. 414 (N.L.R.B. 1962)

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively with Teamsters,
Chauffeurs and Helpers Local Union No. 79, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America as the exclusive representative in the above-
described appropriate unit, and embody in a signed agreement
any understanding reached.
All our employees are free to become, to remain, or to refrain from
becoming or remaining members of Teamsters, Chauffeurs and Help-
ers Local Union No. 79, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization.
GALLOWAY MANUFACTURING CORPORATION,
Employer.
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, Ross Building, 112 East Cass Street, Tampa, Florida, Tele-
phone Number 223-4623, if they have any question concerning this
notice or compliance with its provisions.
Retail Store Employees Union, Local 400, Retail Clerks Inter-
national Association , AFL-CIO; Meat Cutters Union Local 555,
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO and Jumbo Food Stores , Inc. Case No.
5-CP-2. March 20, 1962
DECISION AND ORDER
On April 20, 1960, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Unions had engaged in the unfair labor practices alleged
in the complaint and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Intermedi-
ate Report attached hereto. Thereafter, the Unions and the General
Counsel filed exceptions to the Intermediate Report and briefs.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and finds merit in the Unions' exceptions. Accordingly, the Board
136 NLRB No. 24.
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC. 415
hereby adopts the Trial Examiner's findings of fact, but not his con-
clusions or recommendations, for the reasons set forth below.
The Trial Examiner found that the Unions' picketing of Jumbo's
stores conformed with the terms of the publicity proviso to Section
8 (b) (7) (C) of the Act. He nevertheless concluded that the picketing
violated that section. We do not agree.
As we held in Leonard Smitley et al. d/b/a Crown Cafeteria, 135
NLRB 1183, which on reconsideration adopted the dissenting
opinion of the original Decision and Order, 130 NLRB 570, the
proviso carved out a significant exception to the general ban on
recognition and organizational picketing, and was intended to permit
such picketing if it truthfully advised the public (including con-
sumers) that the employer did not have a contract with the Union.
Since the picketing in this case came within the proviso and did not
cause any stoppage of deliveries or services, we shall dismiss the
complaint.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
We would adopt the Trial Examiner's conclusions that the Re-
spondents' picketing violated Section 8 (b) (7) (C) of the Act. See our
dissenting opinion in Crown Cafeteria, 135 NLRB 1183.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on December 14, 1959, and Janu-
ary 13, 1960, respectively, by Jumbo Food Stores, Inc., the Regional Director for
the Fifth Region of the National Labor Relations Board, herein referred to as the
Board, issued a complaint on January 20, 1960, against Retail Store Employees
Union, Local 400, Retail Clerks International Association , AFL-CIO, and Meat
Cutters Union Local 555, Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, herein referred to as Respondents , alleging violations of
Section 8 (b) (7) (C) of the National Labor Relations Act, as amended (73 Stat. 519),
herein called the Act . In their duly filed answer Respondents , while admitting
certain allegations of the complaint , denied the commission of any unfair labor
practice.
Subsequent to the issuance of the complaint herein the Regional Director , pursuant
to Section 10(1) of the Act, instituted in the United States District Court for the
District of Columbia injunction proceedings entitled John A. Penello, Regional Direc-
tor, etc. v. Retail Store Employees Union , Local 400, etc ., Civil No. 157-60. Hearing
thereon was held on January 25, 1960 , before Judge Joseph C . McGarraghy , United
States district judge. Findings and conclusions were made and published on Febru-
ary 5, 1960 , finding reasonable cause to believe violations of the amended Act had
been committed and an order was issued on the same date granting certain temporary
injunctive relief pending final disposition of the matter before the National Labor
Relations Board.'
Pursuant to notice a hearing was held before me on February 29, 1960, at Wash-
ington , D.C. All parties were represented at the hearing . Upon stipulation of
the parties the transcript in the above-mentioned United States district court pro-
ceeding (supra ) was incorporated into the record of this proceeding and, upon
assurance of counsel that no significant unresolved issues of credibility were con-
tained in the incorporated record , it was stipulated by the parties to be the same
145 LRRM 2726.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence as would have been taken herein. In addition the district court's findings
of fact and conclusions of law in the aforementioned proceedings, together with the
order granting the temporary injunction, were incorporated into the record herein.
All parties were likewise afforded full opportunity to be heard and to introduce
relevant evidence. Counsel for each party presented extensive oral argument and
have subsequently filed briefs with me.
Upon consideration of the entire record before me, including the incorporated
district court transcript and the finding, conclusions, and order of the court, and
upon the oral argument and briefs of counsel for the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Jumbo Food Stores, Inc., a Delaware corporation with its principal office in Wash-
ington, District of Columbia, is engaged in the retail sale and distribution of food,
meat, and related products through four retail food stores, two of which are located
in the District of Columbia and the remaining two are located respectively at Seat
Pleasant and Hyattsville, Maryland.
In the operation of its business the Employer receives food, meats, and related
products from points and places outside the District of Columbia and State of
Maryland valued in excess of $1,000,000 and its annual gross income from its opera-
tions is in excess of $3,000,000.
It is found that Jumbo Food Stores, Inc., is engaged in commerce within the
meaning of Section 2(6) of the Act.
U. THE LABOR ORGANIZATIONS INVOLVED
Retail Store Employees Union, Local 400, Retail Clerks International Association,
AFL-CIO, and Meat Cutters Union Local 555, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, are labor organizations within
the meaning of Sections 2(5) and 8(b)(7)^(C) of the Act. Neither of these labor
organizations is currently certified as the representative of any of Jumbo Food
Stores' employees, nor does either claim to represent a majority of such employees
for the purposes of collective bargaining.
III. THE ISSUES
The following issues are presented for determination upon the facts of this case
and the contentions of the parties:
1. The recognitional character of the picketing.
2. The organizational character of the picketing.
3. The informational character of the picketing.
4. The truthfulness of the picket signs and pamphlets.
5. The applicability of the second proviso to Section 8(b) (7) (C) to picketing for
several objectives, including dissemination of information.
6. The congressional intent to limit the application of the "second proviso."
7. The possibility that there can be picketing exclusively for informational purposes.
8. The application of the rule of literal construction to give a restrictive interpre-
tation to the "second proviso."
9. The rule that a proviso must be strictly construed and applied as a limitation
upon the "second proviso."
10. The party seeking to avail itself of a proviso exception has the burden of
establishing himself within the exception.
11. The proscriptions set forth in Section 8(b) (7), by analogy to the unlawful
proscriptions contained in Section 8(b)(4), are unlawful when established as the
objectives of minority or stranger picketing.
12. Minority or stranger picketing for the objectives proscribed by Section 8(b) (7)
is not protected by the constitutional guaranty of free speech nor by the terms of
Section 8(c) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. The facts
1. Background
On or about October 2, 1958, representatives of Jumbo Food Markets and the Re-
spondent Unions met at the Unions' request for the purpose of initiating collective-
bargaining discussions . Representing Jumbo were its attorney and spokesman,
Jacob Blum , and two of its officers . Among those representing the Respondents were
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC . 417
their attorneys, Kaiser and Schlossberg, McGuigan and Wilson, president and
secretary-treasurer, respectively of Local 400, and Curtis and Fallon, secretary and
business agent, respectively, of Local 555. The meeting was essentially exploratory.
Contract proposals were discussed by the parties. They also considered the economic
situation of the Employer, as well as the status of labor relations with other food-
store employees in the locality. It was suggested that the Employer would study the
contracts presently in force between the Respondents and some of the other em-
ployers in the area with a view to agreeing upon a composite of the best terms in all
contracts considered. The Unions' only condition at this time was that it would
insist upon the union shop and checkoff provisions common to all the contracts.
Following a brief and apparently uneventful meeting on November 6, 1958, a
final meeting between the parties was held in the offices of Respondents' attorneys on
January 8, 1959. At this time contract proposals were again discussed in some
detail, and particularly in the light of the previously discussed contracts in force
between the Respondents and other employers. The Employer proposed a long-
term contract but the Unions rejected such an arrangement. After some further dis-
cussion Attorney Blum suggested that the Unions appeared to be negotiating from
weakness rather than strength. Whereupon the Unions' attorney, Kaiser, brought
the meeting to a close by stating that in view of the Employer's impression that the
Unions were bargaining from weakness they would call a halt to the conferences
and demonstrate to the Employer their strength. No further meetings between the
parties have since been held and no further requests for contract negotiations or
recognition have since been addressed to the Employer by either Respondent.
In the spring and summer of 1959 the Respondents intensified their organizing
activities at the Employer's stores. During this period and into the fall of 1959 the
Respondents enlisted the support of a substantial number of Jumbo's employees,
who signed cards authorizing the Unions to represent them and, according to Local
400's president, McGuigan, these employees , or some of them, continue in Jumbo's
employ?
2. The picketing
Beginning on or about December 11, 1959, and continuing until January 25, 1960
the date upon which the temporary injunction issued in Penello v. Retail Clerks
(supra), Respondents maintained pickets at one or more of the retail stores owned
and operated by Jumbo. As an incident to this activity the pickets carried signs
bearing .the following inscription:
PLEASE DO NOT
PATRONIZE
JUMBO
Does Not Employ
Members of, or Have
a Contract With
RETAIL STORE EMPLOYEES
UNION, LOCAL 400, or
MEAT CUTTERS LOCAL 555
AFL-CIO
In addition to the picket signs, leaflets were distributed by the pickets, as follows:
PLEASE
do not patronize
JUMBO
Jumbo Food Stores undermine the living standards of Food Store employees
in this community. Their firm does not maintain the fair wages and working
conditions which prevail at a number of supermarkets in the Greater Washing-
ton Area.
2 The card signed by the employees, a copy of which appears in the record, is entitled
"Authorization for Representation." It recites the employee's desire "to enjoy the rights
and benefits of bargaining," and provides space for the identification of the employer with
whom bargaining is sought. By its terms the union is given authority to represent the
signatory employee in future matters of collective bargaining.
In his affidavit to the court and again in his testimony in court, McGuigan stated that
none of the employees of the Employer were actually members of the Union. There is no
evidence in the record apart from the authorization card that either Respondent solicited
the membership ( as distinct from bargaining authorization) of any Jumbo employee during
the course of the organizing campaign , or thereafter.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We urge you to withhold patronage from Jumbo and shop at the following
stores, paying fair wages and observing fair working conditions:
ACME MARKETS GRAND UNION
A & P TEA CO. FOOD LANE
CO-OP STORES FOOD TOWN
GIANT STORES SAFEWAY
CHEVY CHASE SUPER MARKET
Retail Store Employees Union, Local 400, AFL-CIO
Meat Cutters Union, Local 555, AFL-CIO
It has not been shown that during the course of this picketing any employee of
any employer has refused to pass through the picket line or has otherwise refused
to make deliveries, pickups, or to perform service at any foodstore owned or oper-
ated by Jumbo. Nor at any time relevant herein has either Respondent filed with
the Board a petition for an election under Section 9 (c) of the Act.
V. CONTENTIONS OF THE PARTIES
It is to be noted at the outset that the picketing herein was at all times, and in
conformity with the facts, being conducted by labor organizations which do not
represent a majority of the picketed Employer's employees. This we commonly
refer to as minority or, when no employee is represented, stranger picketing. While
I do not intend to burden this report with the refinements of minority or stranger
picketing I do note at this time, however, that such was the picketing contemplated
by the Congress in framing the statutory amendments considered herein 3 and by
the Board and the courts in their consideration of recognition and organization
picketing.4 In my further discussion herein no reference to picketing by a majority
union is intended nor do I believe that such picketing is within the purview of Section
8(b) (7) of the amended Act.
A. The General Counsel's position
It is the contention of the General Counsel, as stated by his representatives at the
district court proceeding, at the instant hearing and, in a brief submitted to me, that
the picketing which forms the basis of the alleged violation had two objectives.
First, the picketing sought Jumbo's recogmtion of Respondents as the majority
representative of its employees for the purpose of negotiating a collective agreement.
In this connection it is the General Counsel's position that inasmuch as demands for
recognition and a contract had been made throughout late 1958, and again in January
1959 when Respondents fortified their demand with a promise to demonstrate their
bargaining strength, and because there is no indication that these demands have
since been withdrawn, they may be deemed to be continuing and to constitute an
objective of the December 11 picketing.
Secondly, the picketing constituted, in General Counsel's view, an extention of
Respondent's vigorous organizing campaign which it was conducting among Jumbo's
employees during the months immediately preceding the picketing.
While it is General Counsel's position that both objectives are present in the instant
case it is urged that even were the demands for recognition and a contract be deemed
too remote in point of time to connect them with the picketing, the picketing would
nonetheless have as its alternative objective the organization of Jumbo employees.
Because, General Counsel urges, such picketing is conducted by labor organizations
who have not sought to establish their representative status by filing a petition with
the Board within a reasonable period, and because it has been conducted for one or
both of the objectives noted above, Respondents have violated Section 8(b)(7)(C)
of amended Act 5 irrespective of any inscription on the picket sign that would charac-
terize it as "informational."
3105 Congressional Record 5951-5978.
4 N.L R B v Drivers, Chauffeurs and Helpers Local Union No 639, etc (Curtis Bros
Inc ), 362 U.S 274, enfg. 119 NLRB 232; Local 208, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, and Local 123, Furniture Wood-
workers etc (Sierra Furniture Company), 125 NLRB 159; United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO (O'Sullivan Rubber Corporation), 121 NLRB
1439, enforcement denied 362 U S 329.
5Section 8(b):
It shall be an unfair labor practice for a labor organization or its agents-
: • • • t • •
(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to recognize
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC. 419
With respect to the alleged informational nature of the picketing , it is the General
Counsel 's position that nothing contained in the second proviso of Section 8 (b) (7)(C)
may be construed to make lawful what would otherwise be proscribed by Section
8 (b) (7), as being for the stated unlawful objectives.
With particular reference to the picket signs in the instant case , it is General
Counsel's position that even were I to assume that the effect of the language of
the second proviso was to nullify the proscriptions contained in the main body of
Section 8(b)1(7), the signs are not "for the purpose of truthfully advising the public
(including consumers ) that an employer does not employ members of , or have a
contract with," the Respondent . Specifically , it is urged that by inscribing "Please
Do Not Patronize " on this picket sign Respondents have exceeded the limits of
advice and information . Accordingly , as an alternative contention , General Counsel
urges that the second proviso has no application to the facts presented.
B. Respondents' contentions
In addition to their reliance upon the grants of free speech contained in the first
amendment to the United States Constitution, Section 8(c) of the Act, and the
several Supreme Court decisions to be considered hereafter, Respondents rely heavily
upon the proposition that the picketing in which they have engaged is purely infor-
mational, and as such enjoys the insulated protection of the second proviso of Sec-
tion 8(b) (7) (C) as being "for the purpose of advising the public." In thus reason-
ing, Respondents dispute the General Counsel's contention that the objective of
recognition assigned to the picketing may be presumed to have contained throughout
the 11 months from the date upon which the demand was last made, January 1959,
to the date upon which picketing began. In support of its contention Respondents
urge, in rebuttal of any presumption of continued demand, the absence of oral recog-
nition requests by the pickets, or their signs, or distributed leaflets, and the failure
on the part of the Union or any of its officials to make any demand for recognition
after January 1959.
With respect to the second alleged objective of the picketing-the organization
of Jumbo's employees-Respondents insist that there is no necessary relationship
between the picketing and the organizational drive which preceded it, and that no
presumption of such a relationship can be properly made. In this respect it is
Respondents' position that the informational nature of the picketing is so clear
that even had the organizational campaign continued during the period of picketing
"there would be no showing that the picket line was established to further an illegal
organizational objective."
VI. ANALYSIS AND CONCLUSIONS
The picketing by Respondents and the circumstances under which it was carried
out must be evaluated in the terms of the newly enacted Section 8(b) (7) (C) of the
Act, under which the allegations in the complaint in these proceedings were brought.6
More precisely, because Respondents rely so heavily upon the informational aspects
or bargain with a labor organization as the representative of his employees, or 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 cur-
rently certified as the representative of such employees.
s t s » • t
(C) where such picketing has been conducted without a petition under section
9(c) being filed within a reasonable period of time not to exceed thirty days from
the commencement of such picketing: Provided, That when such a petition has
been filed the Board shall forthwith, without regard to the provisions of section
9(c) (1) or the absence of a showing of a substantial Interest on the part of the
labor organization, direct an election in such unit as the Board finds to be
appropriate and shall certify the results thereof: Provided further, That nothing
In this subparagraph (C) shall be construed to prohibit any 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, unless an effect of such picketing is to induce any individual em-
ployed by any other person in the course of his employment, not to pick up, de-
liver or transport any goods or not to perform any services.
Nothing in this paragraph (7) shall be construed to permit any act which would
otherwise be an unfair labor practice under this section 8(b).
° See footnote 5, supra.
641795-63-vol. 136-28
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the picketing to excuse its conduct, the second proviso to Section 8(b),(7)(C) is
actually the critical element of the case for it states, in effect, that so-called informa-
tional picketing that does not affect deliveries or service (as it did not herein) is not
proscribed by the Section 8(b) (7) and its subsection (C). Because the issues pre-
sented for determination have facets that are highly interrelated, as well as novel, I
shall treat each of these facets separately insofar as they are separable.
A. Factual considerations
The facts which impinge upon the character of the picket signs have already been
set forth above . It is extremely doubtful whether ,these facts , considered alone, can
supply a statutory classification of the picketing . They can, and do , however, pro-
vide a significant frame of reference.
1. Picketing for recognition
To begin with, Respondents claim that what took place 11 months prior to the
picketing can have no causal effect upon the picketing itself. I must reject this
contention.
For a period of months in late 1958 and through January 1959, the Unions' recog-
nition by the Employer and the execution of a collective agreement were burning
issues between Respondents and Jumbo. Negotiations between them halted on a
note of doubt as to Respondents' "strength," with Respondents voicing their deter-
mination to "demonstrate" this strength. In such a context it is difficult to believe
that the next contact between the parties, albeit 11 months later, had no connection
with the last demand for a collective agreement; and it is even more difficult to
understand why the picketing, following close upon Respondents' organizing cam-
paign among Jumbo's employees, should not logically be viewed as that demonstra-
tion of strength promised by Respondents as they departed the January meeting.
Added to the foregoing, Local 400's president McGuigan, provided eloquent testa-
ment of the purposes of his union's picket line when he testified at the hearing in the
United States District Court that the picketing would end if the Employer signed a
contract? In short, Jumbo's recognition of Respondents by contracting with them
would "call off" the pickets.
Still further indication of the recognitional character of the picketing is found in
the organizing campaign among Jumbo's employees; a campaign which reached
its peak in the months immediately preceding the picketing. This campaign had as
its prime objective the procuring of cards, signed by the Jumbo employees "desiring
to enjoy the rights and benefits of collective bargaining"; cards which authorized
Respondents to represent them "for the purposes of collective bargaining" with their
7 McGuigan testified:
Q (By Mr SEROT , counsel for the General Counsel ) Well, r ask you again, if
Jumbo agreed to pay the wages and working conditions set forth in the union con-
tract , would you stop picketing?
m a x r r ,
The WITNESS: Not necessarily.
M i t • O # *
Q What would be your objective in continuing picketing at that point"
A Because I would assume we would have the right to tell the public that this
is a non-union store
Q. . . . What do you mean by a "non-union store," Mr McGuigan"
A A store that does not have a signed contract with the union
Q Then your objective in picketing is to secure a signed contract with the com-
pany ; is that right Mr McGuigan"
A No, that is not the objective of picketing.
Q Mr McGuigan, if the company signed a contract, you would stop picketing,
wouldn't you?
A If the company signed a contract agreeing to conditions, I would assume that
at that time there would be no basis to claim that they were a non-union store and
possibly no basis to continue picketing.
• s s • • e s
The COURT: . . . You don't mean to suggest to the Court that if you had a signed
contract, you might still picket?
The WITNESS: No, we do not wish to suggest that, your Honor. [General Counsel's
Exhibit No 2, court transcript 28-31.]
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC. 421
employers It is clear from this alone that the 11 months which intervened between
the demands for recognition and the picketing were not dormant ones but were a
period devoted to the accumulation of that sine quo non of recognition-the em-
ployee's grant of authority to represent and to request recognition in his behalf.
I have no alternative, therefore, upon the credited evidence in this case, but to
conclude that at least one of the objectives 9 of the picket line herein was a col-
lective agreement, or agreements, between Jumbo and the Respondents, and con-
templated the recognition of Respondents' status of representative of a majority of
Jumbo's employees-the usual prerequisite of a collective agreement.
2. Picketing for the purpose of organizing Jumbo's employees
It is not disputed that during the summer and fall immediately preceding the
picketing of Jumbo's establishments Respondents carried on an organizing cam-
paign that netted a substantial number of Jumbo employee signatures authorizing
Respondents to act in their behalf. It is Respondents' vigorous contention, how-
ever, that the picketing which followed so closely upon the heels of the organizing
drive had nothing whatever to do with it. And in so contending Respondents urge
that the inscription on the picket signs announcing the failure of employees to join
the Union was intended as nothing more than "truthfully advising the public (in-
cluding consumers)."
Although it is expected of me that in framing my findings and conclusions I
show proper respect for orderly administrative procedure, I do not feel compelled
to operate in a vacuum and divorce myself from reality and commonsense. When,
therefore, two unions vow to demonstrate their strength to an employer, engage in
an organizing campaign which, if successful, would demonstrate that strength, and
then set up picket lines in front of the working place of employees whom they had
sought to organize, I do not believe that the artfully drawn language of a picket
sign requires me to deny the obvious.
On the contrary, I have no alternative but to draw the only inference possible,
and upon the facts before me and set forth above, to conclude that the picket line
established by Respondents on December 11, 1959, had for at least one of its pur-
poses the organization of Jumbo's employees. And if indeed an alternative in-
ference could be drawn from these facts, the choice would, in any event, be mine
in the first instance, and the Board's thereafter, upon review. And where such
inconsistent inferences could be drawn the courts would unhesitatingly accept the
choice made, unless unreasonable.lo
3. The truthfulness of the picket signs and leaflets
During the course of the hearing in the injunction proceedings it was sought to
be established from the testimony of Local 400's President McGuigan that state-
ments in the leaflet were untrue. Namely, that Jumbo, by not maintaining fair
wages and working conditions, was undermining the living standards of food-
store employees in the community (supra). A review of the record discloses that
nothing was presented by way of testimony or documentary evidence to refute by
fact or ,implication the statements in the leaflet. Accordingly I will assume 11 them
to be true.
An inscription on the picket sign , however, gives me grave cause for concern.
Thus it is stated that "JUMBO Does Not Employ Members of" the Respondent labor
organizations. The undenied testimony of McGuigan and Marion Curtis, presidents,
respectively, of Local 400 and Local 555, confirms this specific statement that Jumbo
does not employ members of either organization. But the testimony of McGuigan
also establishes that "employees signed authorization cards authorizing the union to
represent them for purposes of collective bargaining," and there are still employees
at Jumbo Food from whom the Respondents have such cards.
8 The quoted phrases are excerpts from the authorization card used in the campaign and
admitted in evidence as General Counsel's Exhibit No. 3A.
9I find that recognition and a collective agreement was not only an object of the picket
line but was also a purpose of the picket line.
I deem it necessary to indulge in this brief flight of semantics only to put at rest any
claim that the words "purpose" and "object" have shades of distinction. I, like Webster
(New International Dictionary of the English Language, G. & C. Merriam Co., p. 1739),
consider them synonymous, and will so treat them hereafter.
10 Universal Camera Corporation v. N.L.R B., 340 U.S. 474, 492-493, F C O. v Allentown
Broadcasting Corp., 349 U.S. 358, 364; International Woodworkers of America, AFL-CIO v.
N.L.RB. (Campbell & McLean), 262 F. 2d 233, 234 (C.A.D.C.).
11 See footnote 13, infra.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the field of labor relations, generally, an employee's membership in a labor or-
ganization has never been as significant a factor as has been the fact that he is
being represented by a labor organization, which status, of course, does not require
actual membership. An exception to this, of course, is the application of the union-
security provisions of the statute whereby labor organizations have the prerogative,
under stated conditions, of requiring actual membership.12 But, with this exception,
there appears to be a general and unexpressed tendency upon the part of experts
and laymen alike to view the representative status bestowed upon a union by an em-
ployee to be synonymous with an acquired membership by the employee. To the
extent, therefore, that the casual observer, be he labor expert, employer, trade
unionist, or passerby, views the picket signs herein he might very well conclude not
only that no employees were members, as the sign stated, but also that no employee
had selected the Respondents as his representative for collective-bargaining pur-
poses. But this we know is not so, upon the union president's own testimony.
While there is thus strong indication that the signs have trifled with the realities
of the situation, I am not prepared to conclude that they are untruthful. On the
contrary, the second proviso of Section 8(b)(7)(C) is directed to a specific situa-
tion if its exemption is to be availed of, to wit: that employer "does not employ
members." Because this Employer does not employ members I do not believe
it is within my province to pass judgment upon such of Respondents' mental reserva-
tions as place them within the letter, if not the spirit, of the law. I find, therefore,
that the statements inscribed on the picket signs are truthful 13
4. The informational features of the picketing
Section 8(b) (7) (C) has, by its second proviso, singled out a specific type of picket-
ing for special consideration. Thus it refers to "any picketing or other publicity for
the purpose of truthfully advising the public (including consumers) that an em-
ployer does not employ members of, or have a contract with, a labor organization."
It is not my purpose at this point to analyze this proviso, but simply to determine,
upon the facts found, whether the picketing herein comes within its descriptive
language.
As previously noted, the language of the picket sign literally states the fact of
nonmembership of Jumbo employees, and also states the absence of a contract be-
tween the parties. This it does in the precise language of the proviso.14 I find,
therefore, that the sign, reflecting as it does the exact requirements of the statute,
has as an object or purpose the advising of the public. In other words, it is, in
addition to the characteristics noted above, informational.
As to the pamphlet distributed to the public by the pickets (supra) it is clear
from a reading of it that here again the public is being advised, in greater detail, to be
sure, that the Employer does not provide his employees with the usual fruits of a
collective agreement, whereas other employers do. While this pamphlet, unlike
the picket sign, does not restrict itself to the language of the statute, a comparison
of the two makes it evident that the effect is the same, and the inference is clear that
Jumbo has no contract with Respondents. I find and conclude therefore that the
pamphlet has as an object or purpose the advising of the public that there are no
contractual relations between the parties, and it, like the sign, is informational, in
addition to such other characteristics as it may possess.
In summary I have found upon credited evidence in the record, as detailed above,
that the picketing in which Respondents engaged from December 11, 1959, to Janu-
ary 25, 1960, and the picket signs and pamphlets utilized and distributed as an
11 The proviso to Section 8(a) (3).
1' By assuming the statements on the leaflets distributed on the picket line to be truthful
and by finding the language of the picket signs not to be untruthful I do not thereby
mean to imply that there was a burden on the General Counsel to prove them untrue and
that he has failed this burden.
As I shall demonstrate in greater detail hereafter (tinfra) it is a well settled rule of
statutory construction that whoever seeks to avail himself of the exceptions of a statutory
proviso must supply the proof necessary to bring him within the exception In the in-
stant case, therefore, while I am not persuaded that Respondents have satisfied their
burden of proof either as to the leaflets or the matter inscribed on the picket signs, I will
assume for the purposes of this case that the leaflets are true and the signs conform to
the literal requirements of the statute, as noted in the text.
14 The picket sign bears the opening legend "Please Do Not Patronize " Whatever other
effect this statement may have I am not persuaded that it in any way detracts from the
informational character of the signs, and I so find.
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC. 423
adjunct thereof, had for their object and purpose the recognition of Respondents by
Jumbo, the organization of Jumbo's employees, and the truthful dissemination of in-
formation to the public respecting Jumbo's failure to employ members of Respond-
ents' labor organizations or to maintain contractual relations with Respondents.
B. The scope of the second proviso to Section 8(b)(7)(C)
Respondent labor organizations never claimed to represent a majority of Jumbo's
employees nor did they ever petition the Board for an election that would establish
the extent, if any, of their representative status. This minority status now becomes
significant, for having concluded as I have on the basis of credited evidence, or reason-
able inference drawn therefrom, that the picketing was not only informational and
had no effect on deliveries and services, but had for its further objectives those of
recognition and organization, we must now consider these multiple objectives against
a backdrop of minority status. This presents the crucial issue in the case-whether
a picketing objective of advising the public, i.e., informational picketing, has the
overriding effect of neutralizing any illegality that may flow from recognition
and/or organizational picketing by a minority union, thereby nullifying the whole
of Section 8(b)(7), whenever subsection (C) is the applicable one. It is Respond-
ents' position, of course, that informational picket has just that effect and that,
therefore, under the facts as I have found them they would be deemed not to have
violated the law.
1. The "second proviso" and dual objectives
To assign to the language of the second proviso the features of immunity sought
by Respondents would require, at the outset, an interpretation of the terms "ob-
jective" and "purpose," as used in Section 8(b)(7), that squares neither with reality
nor judicial authority.
It is contended that the objective specified in the second proviso of subsection (C),
namely, "any picketing or other publicity for the purpose of truthfully advising
the public," automatically and effectively limits that language in the main body of
Section 8(b)(7) which makes unlawful minority picketing for recognition or for
,organization. An immunity, it is contended, would be created for any informational
picketing. Thus if picketing be found, under the terms of the second proviso of
subsection (C), to be informational, it matters not how much it might also be for
recognition or for organization. Because of its informational "flavor" it would no
longer be illegal.
Such a conclusion can only be reached, it seems to me, by a process of gram-
matical gymnastics, all revolving about the use and understanding of the words
"an object of" and "for the purpose of." Thus, it is suggested, there is one set of
rules, and a penalty, where picketing is for one of several stated objectives, recog-
nition or organizational; and another set of rules, and an immunity, where we add
on another specific objective, information.
Actually there is nothing in either Section 8(b)(7) itself, nor in the language
,of the second proviso, to suggest that the "singular" objective of information, as
specified in the proviso, takes precedence over the "plural" objectives of the section
itself. Such a result could only be reached by taking the wording of the second
proviso: "nothing . . . shall be construed to prohibit any picketing or other pub-
licity for the purpose of truthfully advising" and reading them to mean: "Nothing
shall be construed to prohibit picketing or other publicity for any purpose where it
truthfully advises." This would be sheer distortion and could be achieved only by
juxtaposing the word "any" so as to modify "purpose," rather than to modify "pick-
eting," as it reads in the statute.
I cannot accept this Alice in Wonderland approach to statutory interpretation.
Rather I shall rely upon the logic of a Supreme Court decision in an analogous situ-
ation to conclude that an illegal purpose need not be the sole purpose or objective
before the proscriptions of the statute apply. Thus in construing Section 8(b) (4)
of the Act and concluding that a secondary boycott with more than one purpose
was not thereby legitimatized, the Court held that: "It is not necessary to find that
the sole object of the strike was that of forcing the contractor to terminate the sub-
contractor's contract." 15 Upon the foregoing reasonable interpretation of the lan-
guage of the statute and upon the authority of the Supreme Court, therefore, I find
it unnecessary to establish that the picketing here to be unlawful, must be solely for
unlawful objectives.
15 N7 R.B. v Denver Building and Construction Trades Council et al (Gould &
Preisner), 341 U.S. 675, 689
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The legislative isolation of informational picketing
Competent legislative history lends further supportto the conclusion that picketing
for a proscribed purpose is not immunized by having as a second objective the dis-
semination of information. In this respect the reports of the Senate and House
conferees to their respective bodies best describe the extent to which the second
proviso to subsection (C) would apply. Senator Kennedy, in explaining the con-
ference bill then before the Senate for final passage, analyzed the limitations being
placed upon recognitional and organizational picketing. In this analysis he made
specific reference to an amendment which he successfully urged in conference (the
second proviso), stating (105 Congressional Record 16413, September 3, 1959):
Purely informational picketing cannot be curtailed under the conference report,
although even this privilege would have been denied by the Landrum-Griffin
measure. [Emphasis supplied.]
Representative Thompson, of New Jersey, also a member of the conference com-
mittee and a proponent of this second proviso, as added to the bill in conference,
stated in debate that (105 Congressional Record 16635, September 4, 1959) :
The right to engage in purely informational picketing without filing a petition
for an election is secured provided that the picketing does not halt [deliveries and
services]. [Emphasis supplied.]
Representative Thompson then repeated Senator Kennedy's statement concerning
"purely informational picketing." (105 Congressional Record 16636.) The con-
ference report itself, however, made no reference to the informational character of
picketing described by its proponents.16
In reliance therefore, upon the final interpretation and meaning of the proviso
given it by its author, Senator Kennedy, I conclude and find that picketing for the
purpose of advising the public, as further described in the second proviso, is permis-
sible under Section 8(b)(7) only if advising the public is its sole purpose and
objective.
3. Can there be solely informational picketing?
In contradiction to the conclusion I have reached, Respondents would invite my
attention to a recent Federal district court decision relating directly to this second
proviso of Section $(b) (7) , (C). In Getreu v. Bartenders and Hotel and Restaurant
Employees Union, Local 58, et al. (Fowler Hotel, Inc.)," Judge Swygert stated:
1e The foregoing reference to the legislative history of Section 8(b)(7)(C), and particu-
larly the second proviso, are, as indicated, explanations made by the respective conference
managers during debate upon the conference bill, and immediately prior to its passage in
the form reported
Senator Kennedy, the author of the informational picketing exemption, made an earlier
reference to the same subject Thus in debate on August 28, 1959, in support of S Res
181, the proposed instructions to the Senate conferees, the Senator stated (105 Con-
gressional Record 15900):
Under our substitute proposal organizational picketing can take place only under
limited conditions.
r s • s s s s
Second Picketing, in the absence of a contract rr 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 [Emphasis supplied 1
The analysis prepared to accompany S Res. 181 (105 Congressional Record 15907) con-
iained language identical with Senator Kennedy's remarks Both statements, it will be
noted, referred to picketing whose only effect was informational, albeit both statements also
equated and, I suggest, inaccurately, the dissemination of information with the solicitation
of union membership, a purely organizational activity.
Because of its inaccurate inclusion of membership solicitation within the scope of other-
wise purely informational picketing, and because the resolution never passed and the state-
ment thereby took on the features of unfinished or unnecessary business, I would not give
it the same weight that I would give to later remarks of the same Senator and his con-
ference associate, Representative Thompson, which I have quoted in the text I note,
however, that with the inaccuracy aside, these earlier statements do lend support to state-
ments quoted in the text which express the intention of the conferees that informational
picketing, alone, was to be exempt from the proscriptions of Section 8(b) (7).
17 181 F. Supp. 738 (D.C. N. Ind.).
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC. 425
It is difficult, if not impossible, to imagine any kind of informational picketing
pertaining to an employer's failure or refusal to employ union members or to
have a collective bargaining agreement where another object of such picketing
would not be ultimate union recognition or bargaining. In most instances
certainly the aim of such informational picketing could only be to bring eco-
nomic pressure upon the employer to recognize and bargain with the labor
organization. To adopt petitioner's interpretation of subparagraph (C) would
make the second proviso entirely meaningless.
Actually what Judge Swygert has done by this interpretation is to take issue with
Senator Kennedy and Representative Thompson who assured the Congress that the
second proviso, and the immunity bestowed upon informational picketing, applied
only to "purely informational picketing." Whether the court be right or wrong in
its view of the proviso's resulting worth, the view of the legislators is clear. More-
over, it has been held by the Board, contrary to Judge Swygert's view, that there can
be "purely informational picketing." In Radio Broadcast Technicians, Local Union
No. 1264, etc. (WKRG-TV, Inc.),18 the Board adopted the findings and conclusions
of the Trial Examiner who concluded:
It is true . . . that one of the normal, foreseeable results of the Respondent
Union's picketing and its advertising campaign, was to induce a willingness or
readiness on the part of WKRG and its employees to resume contractual recog-
nition . . . It does not necessarily follow, however, that this was the Respond-
ent's objective or motive. For the presumption that the normal, foreseeable
consequences of an act indicate the motive of the actor, is a rebuttable presump-
tion. And . . . the presumption has been clearly rebutted not only by the
Respondent's witnesses' denials, but by their explanations-consistent with and
even supported by the undisputed facts in the case-that their sole motive was
entirely different and that the possible effect . . . upon WKRG and its employ-
ees was purely incidental. [Emphasis supplied.]
Upon the foregoing I am of the opinion that picketing can, in the estimation of the
framers of the statute and in the independent judgment of the Board, which I am
bound to follow, have as its sole objective the dissemination of information and
nothing else.
4. Statutory construction and the "second proviso"
a. Literal interpretation of the statutory language
Further considerations of the second proviso's place in the scheme of the
statute and its application to the facts in this case arise out of the basic principles
of statutory construction.
It is suggested that because the objective of recognition or organization is present
to some degree in every instance of informational picketing the second proviso is
meaningless if it were to he applied only to "purely informational picketing." 19
For the purpose of discussion I will assume, contrary to my conclusions set forth
above, that such informational picketing is the rarity it is claimed to be. The
converse of the stated proposition then comes into focus. If, under my assumption,
the second proviso is to have meaning it must have the effect of legalizing recognition
or organization picketing by a minority union any time that union wishes to utilize
the picketing for the additional purpose of advising the public. Such an effect, al-
though definitely giving meaning to the second proviso, renders meaningless, at the
whim of a picketing union (or, in fact of, a sign painter), the stated objective of
Section 8(b) (7). At this point, then, it becomes significant to decide which of two
allegedly meaningless results must be accepted: (1) statutory objective rendered
sterile whenever any informational picketing is present, or (2) an interpretation of
a statutory proviso that would make it applicable only to an infrequent variety of
picketing, "purely informational."
"If the literal import of the words . . . leads to absurd results the words of the
statute will be modified by the intention of the legislature." 20 As the literal import
of the words of the second proviso could, it is suggested, apply to any picketing that
has information as one of its several objects, the resulting nullification of the whole of
Section 8(b),(7) (C) would most certainly be absurd. It seems evident to me, there-
fore, that under the rule of statutory construction quoted above "the intention of
the legislature," to wit: the outlawing of minority recognitional and organizational
Is 123 NLRB 507.
19 The gist of Judge Swygert's reasoning in Getreu v. Bartenders' Union, supra
so Sutherland , Statutory Construction, 3d ed ., sec. 4701.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing, would more properly be served by applying the second proviso to picketing
where the dissemination of information is the sole object. Accordingly, upon the
reasoning set forth above, and upon my assumption that informational picketing is
as rare as is claimed, I conclude that sound principles of statutory construction do
not justify an interpretation of the second proviso of Section 8(b)(7) that would
substantially impair the application of the very section of which it is a part.
b. The rule of strict construction as applied to the second proviso
Section 8(b) (7) of the amended Act expresses the basic congressional policy that
picketing by minority unions for purposes of recognition or organization should be
proscribed?' To that general policy Congress carved out an exception granting
immunity to picketing of an informational character. The proviso is, in short, an ex-
ception to the statute's broad proscription against minority picketing, and as such
must be narrowly construed. The cases abound which lay down the fundamental
principle that such a proviso must not only be strictly construed but also that anyone
seeking to come within the exception must comply strictly with the words as well as
the reason for the proviso 22 or, to express the same proposition of statutory con-
struction in terms of evidence, "the burden of proving justification or exemption
under a special exception to the prohibitions of a statute generally rests on one who
claims it." 23 In the instant case, upon the record before me and the facts found
above, Respondents have not, in 'my opinion, satisfied their burden of proving that
they have come within the strict limitations of the second proviso by having established
and maintained a "purely information picket," as the construction of the proviso
would require. For this further reason , therefore, I find and conclude that the second
proviso to Section 8(b) (7) (C) may not be so construed, in its application to the facts
in this case, as to grant Respondents any immunity whatever for the picketing which
they have conducted.
C. The proscribed objectives of Section 8(b) (7)
The proscriptions of Section 8(b) (7) (C) are clearly defined. Thus, unless a union
engaging in picketing for recognition or organization has sought to establish its
majority status by petitioning for a Board election within a reasonable time after the
picketing began, then the picketing is unlawful. Or, to state the objectives more
precisely, it is unlawful for a minority union to picket-
where an object thereof is forcing or requiring an employer to recognize or
bargain with a labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to accept or select such labor
organization as their collective bargaining representative . . . .
The Respondent unions did not, by their own admission, represent a majority
of Jumbo's employees at any significant date herein. Nor did they ever file with the
Board a petition for a representation election pursuant to Section 9(c) of the Act.
Unless it can be shown, therefore, that .the picketing was for objects other than
those described above, Respondents are in violation of the Act.
I have already found upon all the evidence herein that Respondents picketed the
Jumbo store for a number of objectives which specifically included the gaining of
recognition by Jumbo Respondents' majority employee representative status, and
the solicitation of Jumbo's employees (supra). It only remains , therefore, to deter-
mine whether the facts as I have found them are to be equated with the objectives
as defined in the Act.
"Forcing or requiring an employer to recognize or bargain with a labor organi-
zation" certainly does not imply might and violence on the loose, but rather it is a
statutory description of the object sought , in this case by means of picketing. Be-
cause the picket lines in front of Jumbo's stores, seeking Jumbo's recognition,
21 H. Rept. 7'41 on H.R. 8342, 86th Cong. , 1st sess., p 23; H. Rept. 1147, on S. 1555,
86th Cong, 1st sess, p 40 Statements of Senator Kennedy upon debate of the conference
bill, 105 Congressional Record 16402 See also footnotes 3 and 4 supra
22 N L.R.B. v. Don Juan, Inc., 178 F. 2d 625, 627 (C A. 2) ; N.L R.B. v. Electric Vacuum
Cleaner Co, 315 U S 685, 694; Hartford Electric Light Co v Federal Power Commission,
131 F. 2d 953, 963 (C A. 2), cert denied, 319 U.S. 741 ; Great Atlantic and Pacific Tea Co.
v Federal Trade Commission, 106 F 2d 667, 674; Rochester Telephone Corp v U S 23 F.
Supp. 634, 636 (W D N.Y.) affd 307 US 125; Spokane & Inland RR v. US, 241 US
344, 350.
23 Federal Trade Commission v Morton Salt Co , 334 U S 37, 44, 45 Compare • Bryan
Manufacturing Co., 119 NLRB 502, 510 (Member Jenkins' concurring opinion)
RETAIL STORE EMPLOYEES UNION, LOCAL 400, ETC. 427
contained "the compulsive features inherent in picketing" it follows they must, of
necessity , have for their purpose the forcing and requiring specified by the Act 24
I conclude and find , therefore , that Respondents , without representing a majority
of Jumbo's employees and not having sought to establish its majority as provided by
Section 9(c), unlawfully picketed Jumbo's establishment for the object and purpose
of requiring Jumbo to recognize and bargain with it, in violation of Section
8(b) (7) (C).25
Insofar as the picketing conducted by Respondents was for the purpose of organiz-
ing Jumbo's employees, I find that it, in effect, constituted the forcing and requiring
of Jumbo's employees to accept or select Respondents as their representative. By
analogy, "[T]he fact that picketing may not be successful in inducing a work stop-
page is not controlling on the question of whether the picketing is violative of Sec-
tion 8(b) (4) (A) of the Act." 26 1 know of no exception that would make this rule
less applicable to a violation of Section 8(b)(7). Accordingly, because "the very
purpose of the picket line is to exert influences," 27 I conclude and find that the
picketing which Respondents conducted at a time when they did not represent a
majority of Jumbo's employees and had not sought a Board election, was unlawful
for the reason that they had for one of their objects the forcing and requiring of
Jumbo's employees to accept or select them as their bargaining representative. For
this reason I find that Respondents have further violated Section 8(b)(7)(C) of
the Act.
D. Considerations of free speech
Respondents raise the guarantees of the first amendment to the Constitution and
Section 8(c) to support their contention that this admittedly peaceful picketing was
a form of protected free speech. In support of their defense they rely upon the
holding of the Supreme Court in Thornhill v. Alabama.28
The Supreme Court has held that Section 8(c) does not immunize peaceful
picketing in secondary boycott situations involving Section 8 (b)(4) of the Act29
and it has held and has relied upon the decisions of lower courts which held that
peaceful picketing is not immunized by the constitutional guarantees of free speech.30
I have been presented with no fact or circumstance that would distinguish picketing
for objects proscribed by Section 8(b) (7) from the picketing for objects proscribed
a+ Hughes v. Superior Court , 339 U S 460, 468
25 I am not persuaded by, and I reject, Respondents' argument to the effect that the
conclusion I have reached must necessarily be based on an unwarranted presumption that
despite an 11-month interval between last demand and first picketing, the picketing was
nonetheless for the illegal object of recognition I have indulged in no such presumption
On the contrary I have concluded that the picketing was for recognition upon the basis
of reasonable inferences drawn from facts relating to the goals and purposes of a vigorous
organizing campaign , and upon a passing recognition of reality ( supra ) I have con-
cluded the picketing was illegal because its illegal objective could be inferred to have
existed at the time the picketing began. In this respect Respondents' reliance upon
NLRB v. Local 50, Bakery & Confectionery Workers, etc (Arnold Bakers, Inc ), 245
F 2d 542 (CA. 2), is misplaced In that case the presumption which the court found to
be unwarranted was a presumption that recognition and not organization continued to be
the picketing objective after another union had been certified Because at that time
organization picketing by a minority union was not proscribed, and now it is proscribed
by Section 8(b) (7), the basic legal structure upon which Arnold Bakers rests has been
altered by the statutory change.
Respondents also comment in their brief as to the making of unwarranted presumptions,
that initially (in January 1959) they had Indicated a lawful desire for recognition. My
recollections of case precedent prompt me to suggest that had this minority group's desires
for recognition been satisfied Jumbo might well have been vulnerable to a charge of having
violated Section 8(a) (2) of the Act ; and had a picket line been Instituted by employees
then to obtain recognition , it could hardly have been classified as a concerted activity
protected by Section 7 of the Act.
x United Wholesale and Warehouse Employees , Local 261 , Retail, Wholesale and Depart-
ment Store Union ( Perfection Mattress & Spring Co .), 125 NLRB 520
2 Hughes v Superior Court, supra , p. 465.
29 310 U.S. 88.
19 International Brotherhood of Electrical Workers , Local 501 v N L R B ( Samuel
Langer), 341 U.S 694, 700 ; N.L R B. v. Denver Building & Construction Trades Council,
supra, footnote 15
ao International Brotherhood of Electrical Workers, Local 501 v. N.L R B , supra, p 705,
and cases cited therein at footnote 9.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by section 8(b) (4). Accordingly, I would conclude that the judicial reasoning by
which it has been established that secondary boycott picketing is not restricted by
Section 8 (c) would be equally applicable to the peaceful minority picketing for
recognition and organization proscribed by Section 8(b)(7). But insofar as I am
called upon to evaluate Section 8(b) (7) in terms of constitutional guarantees, how-
ever , I am mindful of established Board policy that preserves such questions for
the determination of the courts 31
In summary, therefore, it is concluded and found that for the several reasons
enumerated above , and for each of them , by picketing Jumbo Food Stores, Inc., for
more than a reasonable time after December 11, 1959 , with the objects described
above, and without a petition being filed pursuant to Section 9(c), Respondents have
engaged in and are engaging in unfair labor practices as defined in Section
8(b)(7)(C) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in this
case , I make the following:
CONCLUSIONS OF LAW
1. Jumbo Food Stores , Inc., is an employer within the meaning of Section 2(2)
and 8 (b) (7) of the Act.
2. Respondents are labor organizations within the meaning of Section 2(5) of
the Act.
3. By picketing Jumbo Food Stores , Inc., for more than a reasonable time after
December 11, 1959, with the objects of forcing or requiring Jumbo Food Stores, Inc.,
to recognize and bargain as the collective -bargaining representative of the employees
of Jumbo , and of forcing or requiring the employees of Jumbo to accept or select
them as their collective-bargaining representatives without a petition being filed under
Section 9 (c) of the Act, Respondents have engaged in and are engaging in unfair
labor practices proscribed by Section 8(b)(7)(C) of the Act.
4. The foregoing unfair labor practices having occurred in connection with the
operation of Jumbo Food Store's business as set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2 (6) and (7)
of the Act.
[Recommendations omitted from publication.]
81 Bluefield Produce & Provision Company, 117 NLRB 1660, 1663.
Puerto Rican American Sugar Refinery, Inc. and Wadelmiro
Arroyo. Case No. 24-CA-1384. March 921, 1962
DECISION AND ORDER
Upon charges duly filed by Wadelmiro Arroyo, an individual, here-
in called Arroyo, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Twenty-fourth Region,
issued a complaint dated March 8, 1961, against Puerto Rican Ameri-
can Sugar Refinery, Inc., herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (5) and
Section 2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice of hearing
before a Trial Examiner were duly served upon the Respondent and
the Charging Party.
With respect to the unfair labor practices, the complaint alleges,
in substance, that Wadelmiro Arroyo, an individual, was and is the
136 NLRB No. 39.