Local 1199, Drug and Hospital Employees, Etc.

National Labor Relations Board - Board Decisions

Apr 26, 1962

136 N.L.R.B. 1564 (N.L.R.B. 1962)

1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objection to their employment by said employers as journemen plumbers, less their
net earnings during said period . Such backpay shall be computed on a quarterly
basis in the manner established by the Board in F. W . Woolworth Co., 90 NLRB 289.
On the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Geiger and the Association are each engaged in commerce and in operations
affecting commerce as those terms are defined in Section 2(6) and (7) of the Act,
respectively.
2. The Respondent is a labor organization as that term is defined in Section 2(5)
of the Act.
3. Geiger and the Association each is an employer as that term is defined in
Section 2 (2) of the Act.
4. By failing and refusing , on June 21, 1961 , and thereafter , to refer journeymen
plumbers Levine and Besterman to Geiger for employment by him on June 26, 1961,
the Respondent caused Geiger to discriminate against said journeymen in violation
of Section 8(a)(3) of the Act and thereby coerced and restrained them in the
exercise of the rights guaranteed them in Section 7 of the Act.
5. By failing and refusing, on or about May 22, 1961, and thereafter , to record
the names of said journeymen on its out-of-work list, the Respondent attempted to
cause the members of the Association to deny them employment in violation of
Section 8 (b) (2) and (1) (A) of the Act.
[Recommendations omitted from publication.]
Local 1199 , Drug and Hospital Employees Union , Retail , Whole-
sale and Department Store Employees Union , AFL-CIO and
Janel Sales Corporation and Food Packers, Cannery & Mis-
cellaneous Workers Union , Local 220 of the Amalgamated
Meatcutters and Butcher Workmen of North America, AFL-
CIO, Party to the Contract . Case No. 2-CP-81. April 26, 1962
DECISION AND ORDER
On November 9, 1961, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report, and the General Counsel filed a memoran-
dum in support of the Intermediate Report.
Pursuant to provisions of Section 3(b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, memorandum, and the entire record,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner only to the extent they are consistent with our
decision herein.
136 NLRB No.143.
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES, ETC. 1565
The record discloses that in April 1959, Janel Sales Corporation,
herein called Janel, opened a drugstore located at Seventh Avenue in
the city of New York, hereinafter referred to as the 7th Avenue Store,
and entered into a 2-year collective-bargaining agreement with Food
Packers, Cannery & Miscellaneous Workers Union, Local 220 of the
Amalgamated Meatcutters and Butcher Workmen of North America,
AFL-CIO, hereinafter called Local 220. Shortly thereafter, Glotzer,
director of the drug division of Local 1199, Drug and Hospital Em-
ployees Union, Retail, Wholesale and Department Store Employees
Union, AFL-CIO, hereinafter referred to as Local 1199 or the Re-
spondent Union, sought to represent Janel's employees. He was told
by President Sam Rothman that Janel's employees at the 7th Avenue
store were already represented by Local 220. Glotzer thereupon met
with P. Hovitz, president of Local 220, to protest a "Butcher" union's
representation of drugstore employees. At this meeting, it was agreed
that upon the expiration of Local 220's contract in April of 1961, both
unions would address Janel's employees, and the employees could then
decide whether they wanted to be represented by Local 220 or the
Respondent Union.
In January 1961, Glotzer attempted to contact Hovitz in order to
arrange a meeting with Janel's employees, but was informed that Max
Singer had replaced Hovitz as Local 220's president. Glotzer there-
upon met with Singer and informed him of the agreement he had
reached with Hovitz regarding the representation of Janel's employees
upon the expiration of Local 220's contract on April 1, 1961. Singer
then informed Glotzer that he was unaware of Glotzers' prior agree-
ment with Hovitz, and that he had just renegotiated all of Local 220's
contracts, including its contract with Janel, and that the re-negotiated
contract with Janel contained a December 31, 1962, expiration date.
However, Singer agreed to meet with Glotzer sometime before the
expiration of the renegotiated contract, and to arrange for the em-
ployees to Janel to determine which union they wished to represent
them. According to Glotzer, Singer also agreed that, in the future,
Local 220 would not enter into contracts with drugstores.
In April of 1961, Respondent Union learned that Jacob Rothman,
secretary-treasurer of Janel, was opening a new store on 14th Street,
hereinafter called the 14th Street store. When an official of the
Respondent Union visited this store, he was told that this store had
already signed a collective-bargaining agreement with Local 220.
Glotzer immediately met with Singer and reminded Singer of his
alleged commitment that Local 220 would no longer attempt to or-
ganize drugstore employees. According to Glotzer, Singer promised
to look into the matter and then contact Glotzer. During this same
conversation, Glotzer told Singer that "it was [his] intention to picket
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on [the following] Monday morning" at the 14th Street store, but
finally agreed to wait until Wednesday, April 12, before doing any-
thing further. Thereafter, according to Glotzer, Singer did not con-
tact him as he had allegedly promised, and Glotzer ordered a picket
line to be placed in front of the premises of the 14th Street store on
April 12.
On April 13, Singer, Jacob Rothman, Carl Rath, organizer for the
Respondent Union, and Jack Hovitz, vice president of Local 220, met
with Glotzer to discuss this picketing. At this meeting Glotzer
threat ened to picket the 7th Avenue store unless Local 220 and Janel
agreed that Respondent Union should represent the employees at the
14th Street store. This demand was rejected. Thereupon, it appears
from the record that Glotzer then threatened to picket the 7th Avenue
store unless the collective-bargaining agreement for that store was
"turned over" to the Respondent Union. In other words, the record
appears to show that Glotzer took the position that "if we didn't get
this, we want that." That latter demand of Glotzer's was also rejected.
On April 19, and for 9 days thereafter, a picket line composed of
representatives of the Respondent, none of whom were Janel's em-
ployees, appeared at the entrance of the 7th Avenue store carrying
signs which read:
This is not a Local 1199 drug store. Please do not patronize this
store. Local 1199.
This store does not meet Local 1199 standards. Please do not
patronize this store. Local 1199.
This drug store signed with the Butchers Union. It undercuts
our standards. Please do not patronize this store. Local 1199.
In addition to the foregoing chain of events, the record also estab-
lishes that from December 1960 until shortly before Respondent
picketed the 7th Avenue store in April of 1961, Glotzer and other
representatives of Respondent repeatedly importuned various em-
ployees of the 7th Avenue store not only to join the Respondent
Union, but also to assist in getting their fellow `workmen to do so.
In addition, employee Katz, upon the urging of Respondent Union's
representative, Goodman, conducted an "informal vote" among
Janel's employees to ascertain whether they desired to be represented
by the Respondent Union. After being informed by Katz that the
result of the vote was unfavorable to the Respondent Union, Good-
man stated that Janel's employees "eventually . . . would be forced
to switch unions."
Glotzer admitted at the hearing herein that he wanted the 7th
Avenue store employees to join Respondent Union, that he ordered
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES, ETC. 1567
the 7th Avenue store to be picketed, and that at the time of the
picketing, he knew that the 7th Avenue store employees were repre-
sented by Local 220.
The Trial Examiner found, on the basis of the foregoing, that the
object of the Respondent Union's conduct was to obtain immediate
recognition as representative of Janel's employees despite the fact
that Janel was then lawfully recognizing Local 220 as representative
of its employees and had, in fact, just executed a collective-bargaining
agreement with Local 220 covering the employees sought by the Re-
spondent Union. Accordingly, the Trial Examiner concluded that
the Respondent Union, by its above-described threats to picket and
by its picketing of the 7th Avenue store from April 19 through 28,
1961, violated Section 8(b) (7) (A) of the Act.'
The Respondent Union takes exception to the Trial Examiner's
conclusions, contending that its conduct was not unlawful. As sup-
port for its position, the Respondent Union poses three major argu-
ments. First, it contends that its picketing is lawful because its
picketing was purely informational in character and it was therefore
exempt from the operation of Section 8(b) (7) (A) by the so-called
informational proviso contained in Section 8(b) (7) (C). Secondly,
the Respondent contends that its object in threatening to picket and
its picketing was not to force or require Janel to recognize or bargain
with it as the representative of such employees, or to force or require
Janel's employees to accept the Respondent Union as their collective-
bargaining representative, but that its object was merely to protest
Janel's failure to meet the prevailing rates of pay and working con-
ditions. Finally, the Respondent Union argues that Local 220, the
contracting union, was not "lawfully recognized" by Janel as required
by Section 8(b) (7) (A). We find no merit in these contentions of
the Respondent Union.
With respect to the Respondent's first contention, namely, that its
threats to picket and its picketing were protected by the so-called
informational or publicity proviso contained in Section 8(b) (7) (C),
the Board has held that the informational proviso in Section
8(b) (7) (C) appertains only to situations defined in the principal
clause of Section 8 (b) (7) (C). It does not apply to the other sub-
1 Section 8 ( b) (7) (A) provides : "It shall be an unfair labor practice for a labor organiza-
tion or its agents . . . ( 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 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 organiza-
tion is currently certified as the representative of such employees : ( A) where the em-
ployer has lawfully recognized in accordance with this Act any other labor organization
and a question concerning representation may not appropriately be raised under section
9(c) of this Act ... ...
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paragraphs of Section 8 (b) (7).' Accordingly, we agree with the
Trial Examiner's finding that the second proviso of subparagraph
(C) is not available to the Respondent Union as a defense to an
alleged violation of subparagraph (A).
Like the Trial Examiner, we also reject the Respondent Union's
contention that its object was merely to protest Janel's failure to meet
the prevailing rates of pay and working conditions. Here, the evi-
dence clearly reveals that Respondent's object was recognition and
not a protest of the rates of pay and working conditions of Janel.
While it is true that two picket signs carried by Respondent's repre-
sentatives in front of the 7th Avenue store referred in part to "stand-
ards," another picket sign did not mention standards. Instead this
sign, when considered in conjunction with the Respondent's other
conduct described above, revealed the true purpose of the picketing
when it advised :
This is not a Local 1199 drug store. Please do not patronize
this store. Local 1199.
Indeed, this picket sign completely negates Respondent's contention
that its picketing was "standards" picketing. Rather, it is clear, and
we find, that Respondent's objective was recognition by Janel.3
Finally, like the Trial Examiner, we reject the Respondent's third
major contention, namely, that Janel did not "lawfully" recognize
Local 220 as collective-bargaining agent of its employees. The Re-
spondent introduced no substantial evidence in support of its conten-
tion, and we find that the record otherwise fails to establish such a
claim. While we do not agree with all views of the Trial Examiner
concerning the nonlitigability of an 8(b) (7) (A) complaint of the
lawfulness of an incumbent union's recognition, we are not required
in the instant case to decide the scope or conditions under which such
question may be litigated in 8(b) (7) (A) proceedings.
Accordingly, in view of the foregoing, and on the basis of the en-
tire record, we find, as did the Trial Examiner, that the Respondent
Union violated Section 8(b) (7) (A) of the Act by threatening to
picket and by picketing the 7th Avenue store of Janel Sales Corpora-
tion from April 19 to 28, 1961.
2International Hod Carriers' Building and Common Laborers' Union of America, Local
840, AFL-CIO (C. it. Blinne Construction Company), 135 NLRB 1153; Houston Build-
ing and Construction Trades Council (Claude Everett Construction Company), 136 NLRB
321 See Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Woodward Motors, Inc.), 135 NLRB 851, where the Board
found that the second proviso of Section 8(b) (7) (C) does not apply to Section 8(b) (7) (B).
I In view of our finding with respect to the object of the Respondent Union's picketing,
we need not and do not pass upon the Trial Examiner's conclusions that "standards"
picketing is barred by Section 8(b) (7) (A) where an employer has "lawfully recognized"
another union as collective -bargaining agent of its employees.
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES, ETC. 1569
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 1199, Drug
and Hospital Employees Union, Retail, Wholesale and Department
Store Employees Union, AFL-CIO, New York, New York, its officers,
agents, representatives, successors, and assigns, shall:
1. Cease and desist from picketing or causing Janel Sales Corpora-
tion to be picketed, or threatening to picket Janel Sales Corporation,
where an object thereof is to force or require Janel Sales Corporation
to recognize or bargain with Local 1199, Drug and Hospital Em-
ployees Union, Retail, Wholesale and Department Store Employees
Union, AFL-CIO, as the representative of employees of Janel Sales
Corporation, or to force or require employees of Janel Sales Corpora-
tion to accept or select Respondent Union, Local 1199, Drug and Hos-
pital Employees Union, Retail, Wholesale and Department Store Em-
ployees Union, AFL-CIO, as their collective-bargaining representa-
tive, while Janel Sales Corporation is lawfully recognizing in accord-
ance with the Act, Food Packers, Cannery & Miscellaneous Workers
Union, Local 220 of the Amalgamated Meatcutters and Butcher
Workmen of North America, AFL-CIO, and a question concerning
representation of employees of Janel Sales Corporation may not ap-
propriately be raised under Section 9(c) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent's business offices,
meeting halls, and places where notices to its members are customarily
posted, copies of the notice attached hereto marked "Appendix." 4
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by official representa-
tives of the Respondent, be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Return forthwith to the Regional Director for the Second
Region signed copies of the aforementioned notice for posting by
Janel Sales Corporation, the Company willing, in places where notices
to employees are customarily posted.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 1199, DRUG AND HOSPITAL EM-
PLOYEES UNION, RETAIL, WIOLESALE AND DEPARTMENT STORE
EMPLOYEES UNION, AFL-CIO, AND TO EMPLOYEES OP JANEL SALES
CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that
WE WILL NOT, under conditions prohibited by Section 8 (b)
(7) (A) of the Act, picket or cause to be picketed, or threaten
to picket, Janel Sales Corporation, New York, New York, where
an object thereof is to force or require the aforesaid Company to
recognize or bargain with us as the representative of its employees
or to force or require its employees to accept or select us as their
collective-bargaining representative while Janel Sales Corpora-
tion is lawfully recognizing in accordance with the Act Food
Packers, Cannery & Miscellaneous Workers Union, Local 220 of
the Amalgamated Meatcutters and Butcher Workmen of North
America, AFL-CIO, and a question concerning representation of
the said employees may not appropriately be raised under Sec-
tion 9 (c) of the Act.
LOCAL 1199, DRUG AND HOSPITAL EM-
PLOYEES UNION, RETAIL, WHOLESALE
AND DEPARTMENT STORE EMPLOYEES
UNION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York 22,
New York, Telephone Number Plaza 1-5500, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on April 20, 1961 , the Regional Director for the Second Region
on May 4, 1961 , issued his complaint against Local 1199, Drug and Hospital Em-
ployees Union , Retail , Wholesale and Department Store Employees Union, AFL-
CIO, Respondent herein , alleging violations of Section 8(b) (7) (A) of the National
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES , ETC. 1571
Labor Relations Act (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its
answer, Respondent , while admitting certain allegations of the complaint, denied
the commission of any unfair labor practices.'
Pursuant to notice , a hearing was held before Trial Examiner Henry S. Sahm,
at New York City on June 26 and 27 and July 31, 1961. All parties were repre-
sented at the hearing and were afforded full opportunity to be heard , to introduce
relevant evidence , and to present oral argument . A brief was filed by the Respond-
ent on September 18, 1961 , which has been fully considered.
Upon consideration of the entire record and the brief of the Respondent, and
upon observation of the demeanor of the witnesses while testifying , there are
hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Janel Sales Corporation, the employer, herein referred to interchangeably as
the Respondent, the Company, and the Employer, at or adjacent to whose business
establishment the alleged unlawful conduct occurred, is a New York corporation
with its office and place of business located at 488 Seventh Avenue in the city and
State of New York, where it is, and has been at all times material herein, engaged
in the retail sale and distribution of drugs, toiletries, sundries, cosmetics, and related
products. During 1960 it purchased and had delivered to its place of business mer-
chandise valued in excess of $350,000 which was delivered to its place of business
in interstate commerce directly from States of the United States other than the State
in which it is located. During 1960 the Company derived gross revenues in excess
of $500,000 from the sale of said merchandise. Upon the foregoing facts, admitted
in the pleadings, and established by credible testimony, it is found that Janel Sales
Corporation is engaged in commerce within the meaning of the Act.
II. THE STATUS OF RESPONDENT
Respondent admits that it is a labor organization within the meaning of Section
2(5) of the Act. It is found accordingly that it is a labor organization within the
meaning of Section 8(b) (7) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events2
In March 1959 , Janel Sales Corporation opened a store at 488 Seventh Avenue in
New York City. At approximately the same time Janel entered into a collective-
bargaining agreement with Local 220 of the Amalgamated Meatcutters and Butcher
Workmen of North America , AFL-CIO.
George Glotzer, director of the drug division of Local 1199 , Drug and Hospital
Employees Union, Retail, Wholesale and Department Store Employees Union,
AFL-CIO, contacted Sam Rothman , president of Janel in April 1959 with a view
to exploring the possibility of Janel recognizing Local 1199 as the collective-
bargaining representative of Janel 's approximately nine employees . Glotzer was
advised by Rothman that its employees were already represented by Local 220.
Shortly thereafter, Glotzer met with Pop Hovitz, president of Local 220 , at which
time Glotzer expressed his concern to Hovitz that Local 220, "a butchers local," would
enter into a contract to represent Janel's drugstore employees . Pop Hovitz agreed
that when Local 220's contract with Janel expired on April 1, 1961 , a meeting would
1 The Respondent's answer was a general denial although Section 102 20 of the Board's
Rules and Regulations provide that Respondent "shall specifically admit, deny, or explain
each of the facts alleged in the complaint, unless the Respondent is without knowl-
edge . . All allegations In the complaint, if no answer is filed, or any allegation in
the complaint not specifically denied or explained in an answer filed . . . shall be deemed
to be admitted to be true and shall be so found by the Board, unless good cause to the
contrary is shown " In view of the fact that the General Counsel has failed to object to
the insufficiency of the answer, the answer, for purposes of this decision, shall be con-
sidered to comply with the above-cited provision
2 The testimony concerning some of the incidents involved in this proceeding is In-
complete as to specific details and the timing of some of the events is ambiguous and
contradictory as to dates so that findings of fact made herein result from the Trial
Examiner's attempt to reconcile the various witnesses' testimony in order to determine
not only the chronological sequence but also the circumstances under which these events
occurred.
641795-63-vol. 136-100
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be called of Janel's employees , and both unions would address the employees and
the ultimate choice as to which of the two unions they preferred would be left to
the employees.
Glotzer, director of Local 1199's drug division, telephoned Pop Hovitz in January
1961, in order to arrange for the meeting which had previously been agreed to, but
learned that Pop Hovitz had been supplanted as president of Local 220 by Max
Singer. Glotzer arranged to meet with Singer, the new president of Local 220,
sometime around January 1961 at which time Glotzer informed Singer of what
had transpired between him and Pop Hovitz and their agreement to permit Janel's
employees to decide whether they wished Local 220 or Local 1199 to represent them
when Local 220's contract with Janel expired on April 1, 1961.
Glotzer testified, "Singer agreed that it was a mistake for his Local to have a con-
tract in a drug store, but he said . . . he came in late in 1960 as the president and
Mr. Pop Hovitz had been removed as president, and that the first thing he did was
renegotiate all contracts so that the contract which [Glotzer] had been told was
supposed to expire in April of 1961 . . had actually been renewed in December
[1960] or January of 1961." Singer testified he told Glotzer at this meeting that
he had just "signed a new contract [with] Janel , not knowing that anyone was claim-
ing jurisdiction . . ." but he agreed with Glotzer that when the renegotiated Janel
contract expired on December 31, 1962, "We would get together and iron out our
own family problems to see who belongs to whom."
Singer agreed , however, according to Glotzer, to meet with Glotzer before the
current contract expired on December 31, 1962, and arrange for the employees of
Janel to determine which union they wished to represent them. It was also agreed
by Singer, testified Glotzer, that in the future Local 220 would not enter into contracts
with drugstores.
Sometime in April 1961, Local 1199 learned that a store affiliated with Janel was
to be opened on 14th Street in New York City. When an official of Local 1199 visited
this store, he was told that this store (which had not yet opened for business) had
already signed a collective-bargaining agreement with Local 220.
Glotzer testified that he immediately telephoned Singer, the president of Local
220, and arranged to meet with him at Singer's office. Glotzer told Singer about
the information he had received with respect to this new store on 14th Street, affi-
liated with Janel, and reminded Singer of his commitment that Local 220 would not
attempt to organize employees of drugstores. Singer, according to Glotzer's testi-
mony, denied that Local 220 had a contract with this new store but that he would
look into the matter and then get in touch with Glotzer. During this same conversa-
tion which was on a Thursday or Friday, Glotzer told Singer that "it was [his]
intention to picket on [the following] Monday morning." Glotzer agreed, however,
at Singer's request, to wait until Wednesday, April 12, before doing anything further.
Singer, according to Glotzer, did not get in touch with him as he had promised,
whereupon Glotzer ordered a picket line to be placed in front of the premises of this
new store located on 14th Street. This was done on April 12.
Because of this picket line at the premises of the Janel-affiliated store on 14th
Street, a meeting was arranged by Singer at Glotzer's office on April 13, 1961, which
was attended by Glotzer, Singer, Jack Hovitz, vice president of Local 220 (son of
the former president of Local 220), Carl Rath, organizer for Local 1199, and Jacob
Rothman, secretary-treasurer of Janel. During the course of this meeting, Singer,
Hovitz, and Rothman testified that Glotzer threatened to picket Janel's store at 788
Seventh Avenue unless Singer, president of Local 220, and Rothman, an officer of
Janel, agreed that Local 1199 should represent the employees at the new 14th Street
store. Glotzer denies this. The meeting foundered when Rothman told Glotzer
that he questioned the legality of his demand and Singer advised Glotzer that Local
220 would continue to represent the employees of the Janel-affiliated store on 14th
Street.
Six days later on April 19, 1961, a picket line was established at the entrance of
Janel's store at 788 Seventh Avenue. Representatives of Respondent Union Local
1199 (none of whom were employees of Janel) who appeared at the premises of
Janel carried picket signs which read:
This is not a Local 1199 drug store. Please do not patronize this store. Local
1199.
This store does not meet Local 1199 standards. Please do not patronize this
store. Local 1199.
This drug store signed with the Butchers Union. It undercuts our standards.
Please do not patronize this store. Local 1199.
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES, ETC. 1573
The pickets continued to walk in front of Janel's premises until April 28, 1961, in-
clusive, at which time they were withdrawn.
Jerome Kaufman, a sales clerk for Janel and a member of Local 220, testified that
about January of 1959, an unidentified man, who represented himself as being a
representative of Local 1199, stated that Local 1199 was interested in organizing the
employees of Janel. Kaufman also testified that about December 1960 he received
a telephone call from a George Goodman, a representative of Local 1199, who
stated that his union was interested in representing the employees of Janel.
Gerson Freed, sales clerk for Janel and a member of Local 220, testified that in
January 1961, Glotzer telephoned him at the store and asked him to come to Local
1199's office which Freed did. Glotzer asked Freed if he would assist in organizing
Janel's employees. About April 1961, Goodman, an organizer for 1199, requested
Freed's help in organizing Janel's employees.
Allan R. Katz, a sales clerk for Janel, and a member of Local 220, testified that
around January 1961 he received a telephone call from Goodman, 1199s organizer,
who said, "If I were a butcher, I would belong to the butcher' s union ." Goodman
then asked Katz "to speak to the employees of Janel and have them sign cards for
1199." About a week later, Goodman telephoned Katz and asked him what he
had done about getting Janel's employees to join Local 1199. Katz replied that some
of the employees refused, whereupon Goodman told him that he felt "We were
making a mistake and eventually we would be forced to switch unions."
Contentions
The General Counsel contends that the sole object of Local 1199's picketing was
to force and require Janel Sales Corporation to recognize and bargain with Respond-
ent (which is not certified to represent Janel's employees ) even though to do so
would have forced Janel to abrogate its contractual obligations with Local 220 and
thus compel Janel's employees to accept Local 1199 as their collective-bargaining
representative.
The Respondent Union 1199 not only denies that it ever demanded Janel recognize
it as the collective -bargaining representative of Janel 's employees but also disclaims
a recognition or organizational purpose in its picketing , claiming that its picketing
was informational and thus permissible under the second proviso to subsection (C)
of Section 8(b) (7). Respondent also contends that an object of its picketing was to
protest Janel's failure to meet prevailing rates of pay for drugstore employees in the
New York City area. Moreover, asserts Respondent , Local 220 had not been "law-
fully recognized" within the meaning of Section 8(b) (7) (A).
Discussion
Section 8(b) (7), a provision added to the Act by the 1959 amendments, bans
picketing for recognition or organizational purposes:
(A) where the employer has lawfully recognized in accordance with this Act
any other labor organization and a question concerning representation may not
appropriately be raised under section 9(c) of the Act,
(B) where within the preceding twelve months a valid election under section
9 (c) of this Act has been conducted, or
(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... .
Subparagraph (C), is subject to two provisos. The first reads:
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... .
The second proviso reads:
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 picket-
ing is to induce any individual employed by any other person in the course of
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his employment, not to pick up, deliver or transport any goods or not to per-
form any services?
Section 8 (b),(7)(A), supra, prohibits picketing by a union which is not the repre-
sentative of the employees where "an object" is recognition or organization , if another
union has been lawfully recognized and its bargaining status is not open to challenge.
The Supreme Court has stated that Congress in enacting Section 8(b)(7) has legis-
lated "a comprehensive code governing organizational strikes and picketing [which]
draws no distinction between ` organizational ' and `recognitional ' picketing." 4
Section 8(b)0) is a component provision of the comprehensive plan established
by the Congress and incorporated in the Labor-Management Reporting and Dis-
closure Act of 1959 as a new union unfair labor practice,5 added to the National
Labor Relations Act of 1935, § 8, 49 Stat. 449, as amended by the Labor-Manage-
ment Relations Act of 1947, 61 Stat. 141. Prior to the enactment of the 1959 Act
unions were not expressly prevented from picketing premises to force an employer
to recognize it as the bargaining representative of his employees or to compel the
employees to select it as such bargaining agent, with some exceptions not pertinent
here. This permitted unions which did not represent a majority of the employees to
picket for recognition , that is, picketing to obtain status as collective-bargaining agent
even though the union may not have represented a majority of the workers, or
organizational picketing which is intended to induce employees of the place picketed
to become union members.
Section 8(b) (7) was one of the amendments Congress adopted in 1959 to plug
what it deemed to be "loopholes" in the Act, namely, the prevalence of certain types
of recognition and organizational picketing . When the three subparagraphs of Sec-
tion 8 (b) (7), supra, are considered in their entirety, it becomes evident that this
section is designed to obviate disputes (with its concomitant picketing ), arising over
employee representation matters by prescribing that such questions should be adjudi-
cated through orderly procedures of the National Labor Relations Board. Its general
thrust is to halt picketing or threats of picketing by unions which do not represent a
majority of the employees . Accordingly, Section 8(b).(7)(A) forbids recognition
or organizational picketing of an employer where he has lawfully recognized a union
which represents a majority of his employees and a question of representation cannot
be raised .6
This provision, however, does not apply if the employer's recognition of one of
two union was unlawful or even if a question of recognition was unlawful. Former
Senator Kennedy, in explaining the purport of subsection (A), stated:
Subdivision (A) covers the situation where a contract with another union is a
bar to an election . If the contract is not a bar, either because the incumbent
union was recognized improperly or lacked adequate majority support, or be-
cause the contract has run for a reasonable period, a question concerning
3 The Board , in its Rules and Regulations , has established a procedure for implement-
ing Section 8(b) (7). In brief , the rules provide that, upon the filing of a charge alleging
that a labor organization is picketing for objectives prohibited by Section 8(b)(7), the
case is promptly investigated If it appears from such investigation that the picketing is
barred under subparagraphs (A), (B), or ( C), the Regional Director issues an unfair
labor practice complaint and makes application in the appropriate Federal district court
for an injunction against the picketing under Section 10(1) of the Act However, where
the investigation shows that the issuance of a complaint under (C) might be warranted
but for the fact that a timely representation petition has been filed , the Regional Director
"dismisses" the charge and proceeds with the petition . If he finds that there are no issues
which require a prior hearing , he is empowered to direct an immediate election in an
appropriate unit, and to certify the results Should the picketing union win the election
and be certified as the bargaining representative , it is free to continue its picketing On
the other hand , should it lose the election and continue picketing, the Regional Director
may, upon the filing of another charge, issue an unfair labor practices complaint under
Section 8 (b) (7) (B), which bans recognition or organizational picketing within 12 months
of a valid election , and the Regional Director may also make application in the appropriate
district court for an injunction against the picketing under Section 10(1) of the Act,
the Board will subsequently hold a hearing on the complaint and its ultimate decision
will be subject to review in a court of appeals under Section 10 ( e) or (f ) of the Act.
Section 102 73-102 82, Board ' s Rules and Regulations
4 N.L R B v. Drivers, Chauffeurs and Helpers Local Union No. 639, etc (Curtis
Brothers ), 362 U.S. 274, 291.
5 Section 704(c ) of the Act, 73 Stat. 544 , 29 U.S . C. § 158 ( b) (7).
6 See Section 9(c) (3) of the Act.
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES, ETC. 1575
representation could appropriately be raised and subdivision (A) would not
bar the picketing .7
Under the contract-bar concept, the existence of a properly executed collective-
bargaining agreement is ground for refusing a rival union an opportunity to test its
strength in a certification election .8 There are certain factual situations, however,
where an existing contract can be challenged and may not act as a bar to an elec-
tion. The following are some such grounds: if the contract is neither in writing 9
nor signed; 10 or where required, it has not been ratified by the union member-
ship; 11 or does not contain substantial terms and conditions of employment deemed
sufficient to stabilize the bargaining relationship; 12 or is terminable at will; 13 or
contains a "hot cargo" provision; 14 or an illegal union-security clause; 15 or in-
appropriate bargaining unit; 16 or the contract was prematurely extended; 17 or the
union to the contract is no longer in existence; 18 or where there is a schism in the
contracting union; 19 or the employer's operations are different than when the con-
tract was executed.20
It would appear, therefore, reasonable to anticipate that subparagraph (A) of
Section 8(b)(7) may give rise to litigation involving the question of whether, in a
particular situation, "the employer has lawfully recognized" the union with which
he has entered into a collective-bargaining agreement and what circumstances must
prevail in order for a Respondent to raise the Board's contract bar concept now
that it has been incorporated by reference into subparagraph (A). [Emphasis
supplied. ]
Prof. Archibald Cox, now Solicitor General of the United States, who as adviser
to former Senator Kennedy played an important role during the congressional con-
sideration of the Labor-Management Reporting and Disclosure Act of 1951,21 has
the following to say: 22
The impact of the Wagner Act upon the use of strikes and picketing as organiz-
ing methods was first manifested in section 8(b) (4) (C) of the Taft-Hartley
Act, which provides that it shall be an unfair labor practice for a labor organiza-
tion to induce employees to strike or to refuse to perform their normal services,
with an object of requiring any employer to recognize or bargain with a par-
ticular labor organization, if another representative has been certified.
During the period for which a certification bars a new election, this prohibi-
tion is necessary to give effect to the will of the majority and to protect the
employer against economic pressure intended to compel him to violate the law
or to punish him for compliance. The cases holding that minority strikes and
picketing are prevented by a prior certification for an indefinite period carry
the rule beyond its justification. Once the employer is relieved of the legal
duty to bargain with the certified union, the only question is what techniques
should be open to a union which may now lawfully seek to become the
majority's choice.
In one respect section 8(b) (4) (C) was obviously incomplete. A collective
bargaining agreement with a representative freely designated by a majority of
the employees in an appropriate bargaining unit bars an election for a reason-
able period, usually two years. Minority picketing for union recognition or
7 105 Congressional Record 16415; Legislative History of the Labor-Management Report-
ing and Disclosure Act of 1959, vol IT, p. 1433(2).
8 Local 1545, United Brotherhood of Carpenters etc. (Pilgrim Furniture) v Vincent,
286 F. 2d 127 (C A. 2)
9 J Sullivan & Sons Manufacturing Corporation, 105 NLRB 549.
10 Mt Clemens Metal Products Co, 110 NLRB 931
u Westinghouse Electric Corporation, Small Motor Division, 111 NLRB 497, Roddis
Plywood & Door Company, Inc, 84 NLRB 309.
39 Appalachian Shale Products Cc , 121 NLRB 1160, 1163.
13 Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990.
14 Local 1545, United Brotherhood of Carpenters, supra, footnote 8
is National Brassiere Products Corp, 122 NLRB 965.
16 Appalachian Shale Products Co , supra, p 1164.
17 Deluxe Metal Furniture Company, 121 NLRB 995
18 Hershey Chocolate Corporation, 121 NLRB 901.
19 Id
20 Arvey Corporation (Transo Envelope Company Division), 122 NLRB 1640.
21 Vol. IT, Legislative History of Labor-Management Reporting and Disclosure Act of
1959, p. 1263(1).
Y2 Vol. 44, Minnesota Law Review, p 257 at 263-265 (December 1959)
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational purposes during this period, like picketing during the first year
of a certification, seeks to override the will of the majority and to compel the
employer to violate his legal obligations. The Landrum-Griffin amendments
fill the gap by making it an unfair labor practice to picket for such purposes
where the employer has lawfully recognized in accordance with this Act
any other labor organization and a question concerning representation may
not appropriately be raised under section 9(c) of this Act.
A certification carries a high degree of assurance that the incumbent union
was the free majority choice. However, there is no such guaranty in a collec-
tive agreement. If the NLRB is content to be guided by the formal acts, sec-
tion 8(b) (7) (A) may become a refuge for unscrupulous employers and racketeer
unions. The words of the amendment, read with appreciation of its rationale,
invite a more penetrating inquiry. They prohibit the picketing only if the
employer recognized the union "lawfully" and "in accordance with this Act."
It is unlawful and contrary to the Act for an employer to recognize a union
which has not been designated by a majority of the employees in an appropriate
unit or which is the beneficiary of an unfair labor practice. A contract does
not prevent raising a question of representation, unless the union had an un-
coerced majority at the time the contract was signed and there was no conflict-
ing claim to recognition. Section 8(b)(7)(A) can be made an effective instru-
ment for carrying out the basic policies of the Act without damaging the
legitimate interests of any bona fide union, if these questions are carefully
investigated by the General Counsel and thoroughly litigated in the district
court and the NLRB before an injunction or cease and desist order is issued.
Read literally, section 8(b)(7)(A) would prohibit a union from picketing
an employer in an effort to organize a unit of production workers, if the em-
ployer had a contract with another union covering a unit of maintenance
workers. It also speaks too closely of inability to raise a question of repre-
sentation under section 9(c), which might literally cover any case in which
the union could not prove that thirty per cent of the members desired it to
represent them. The rationale should make it clear that only the contract bar
is material and that the prohibition does not go beyond picketing to organize,
or to secure recognition in, a bargaining unit in which an election is barred
by the outstanding agreement.
Conclusions
The Respondent's first of three defenses is that its picketing of Janel was justified
under the second proviso to subparagraph (C) which provides, "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 organiza-
tion .. . " Respondent claims that its picketing is lawful as it is exempt from
the operation of Section 8(b)(7)(A) by the so-called informational proviso to
subparagraph (C) because its picketing had as its object informing the public that
the standards which had been established in the retail drug industry in New York
City were being undermined and undercut by Janel having executed a contract with
Local 220, a "butchers' union," and "that the wages, hours and other working condi-
tions maintained by the Company at its establishment were inferior to those prev-
alent in drug stores under contract with the respondent-union." The General Coun-
sel disputes the validity of this defense, arguing that the informational proviso cited
above is limited to subparagraph (C) and does not apply to subparagraph (A).
This question of whether the informational proviso in subparagraph (C) is ap-
plicable to subparagraph (A), which Respondent is alleged to have violated, is
answered by Congressman Griffin, one of the sponsors of the 1959 Act, sometimes
referred to as the Landrum-Griffin Act, when he stated: 23
The [informational] proviso pertains to subsection (C) only and therefore
consumer appeals for organizational or recognition purposes are banned after
an election.
Congressman Griffin's reference to "after an election" had application to subpara-
graph (B) which forbids recognition or organizational picketing by a union within
12 months after it loses an election . By parity of reasoning, the informational
proviso of subparagraph (C) also would not encompass subparagraph (A) where
23105 Congressional Record 18153 (September 10, 1959) ; II Legislative History 1812(1).
LOCAL 1199, DRUG AND HOSPITAL EMPLOYEES, ETC. 1577
the employer has "lawfully recognized" a union. Moreover, a reading of this
second proviso shows by its express terms that it is limited exclusively to subpara-
graph (C). Furthermore, the employer in this proceeding did have a contract with
a labor organization and did employ members of a union. It is found, therefore,
that the second proviso to subparagraph (C), which permits informational picketing,
is no defense to an alleged violation of subparagraph (A) of Section 8(b)(7).
Respondent next argues that its picketing Janel because its working standards did
not meet Respondent Local 1199's area standards for drugstore employees is a valid
defense to the charge that it attempted to have Janel recognize it and/or induce
its employees to become members of the picketing union.24
In District Lodge No. 24, International Association of Machinists, AFL-CIO
(Industrial Chrome Plating Co.),25 involving Section 8(b)(4)(C),26 which is some-
what analogous to Section 8(b)(7)(A) in that it makes it an unfair labor practice,
inter alia, to induce employees to engage in a strike where an object is to force an
employer to recognize or bargain with a union if another union has been certified
as the representative of such employees, the Board found area standards picketing
to be proscribed. The Board held that respondent union's picketing to induce an
employer to meet the area's wage scale was tantamount to a claim for recognition
which was made despite the certification of the other union and therefore violated
Section 8(b) (4) (C).
The Board in the Calumet Contractors Association case 27 found a violation where
the complaint alleged a breach of Section 8(b) (4) (C) by a union's picketing in
order to force the employer to recognize the respondent union as representative of
their employees at a time when another labor organization had been certified as such
representative. The respondent union disclaimed it was picketing with an object
of forcing recognition or organization of employees, arguing that it merely was
protesting the employer's failure to meet prevailing rates of pay and working con-
ditions. The Board in rejecting this contention said, "It is well established that a
union's picketing for prevailing rates of pay and conditions of employment consti-
tutes an attempt to obtain conditions and concessions normally resulting from col-
lective bargaining, and constitutes an attempt by the union to force itself on em-
ployees as their bargaining agent." The union's claim that its object was not to
represent the employees, the Board stated, was an inadequate defense as "the
picketing necessarily had as its ultimate end the substitution of Respondent . . . for
the certified bargaining agent."
Seven months later the Board, upon reconsideration, reversed its original Calumet
decision (with two Members dissenting ) and held that picketing by a union to
obtain area rates of pay and conditions of employment, at a time when another
union is certified, is not unlawful within the meaning of Section 8(b) (4) (C), as the
union's objective can be achieved without the employer either recognizing or bar-
gaining with the union 28
It is not believed that the ratio decidendi of the Board's Calumet decision in which
it was interpreting Section 8(b) (4) (C) requires an application of its rationale to
the instant case which alleges a violation of Section 8(b)(7)(A) for the reasons
hereinafter explicated. The Board in its Calumet decision recognized that the argu-
ment may be made, "with some justification" that an outside union's picketing where
another union has been lawfully recognized "is an unwarranted harassment of the
picketed employer." However, states the Board, "this is an argument that must be
addressed to Congress."
This argument, as the legislative history of the Labor-Management Reporting
and Disclosure Act of 1959 reveals, had been addressed to the Congress during its
consideration and enactment of Section 8(b)(7). The Congress, it is clear, from
a reading of its debates, was concerned that for the 12 years since passage of the
Taft-Hartley Act, employers who had lawfully recognized labor organizations had
been "harassed" by unions (which did not represent a majority of the employees),
engaging in representational picketing in order to force workers into membership
without regard to their wishes. In order to correct these "abuses," Congress
24 "Standards picketing is aimed at employers whose wage and working condition stand-
ards are lower than the union's standards and who are competing with union em-
ployers . . The purpose of the picketing is to force nonstandards employers to adopt
union standards" S. H. Olender, "Standards Picketing Under Section 8(b) (7) (C),"
August 1961, Labor Law Journal 739. 746.
25121 NLRB 1298
2e Enacted in 1947
27 130 NLRB 78
28 Calumet Contractors Association, 133 NLRB 512
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enacted Section 8(b)(7)(A) which makes it an unfair labor practice for a union to
coerce an employer to recognize it or bargain with it as the bargaining representative
of his employees or for such employees to select or accept the picketing union as
their bargaining representative where the employer has lawfully recognized another
labor organization and a question of representation may not appropriately be raised
under the Act 29 Therefore, upon consideration of the legislative history of Section
8(b) (7), as well as the other authorities cited herein, it is believed it was the intention
of the Congress to preclude an outside union from picketing an employer where
another labor organization has been "lawfully recognized" by the employer.30 It
is found, accordingly, that Section 8(b) (7) (A) was violated when Respondent Local
1199 attempted by picketing to force Janel (who already had a contract with Local
220) to adopt and observe general terms and conditions of employment then pre-
vailing among drugstore employees in the New York City area.
Respondent's last argument alleges that Local 220, the contracting union, was
not "lawfully recognized" by Janel as required by subparagraph (A). However,
Respondent's probata does not sustain its allegata in that it failed to elicit at the
hearing or to introduce into the record tangible evidence to buttress this contention.
Even assuming, however, for purposes of argument, that Respondent did prove that
Respondent unlawfully recognized Local 220, the question of whether Local 220
lawfully represents Janel's employees is a matter collateral to the issues presented
herein, and not properly raised in an unfair labor practice proceeding alleging a
violation of Section 8(b) (7) (A)31
The proper procedure, it would appear, would require the objecting union to
initiate proceedings in order to determine whether the contracting union was lawfully
recognized by the employer. It would be necessary to dispose of this question first
by recourse to the orderly Board procedures which are envisaged by Section 8(b) (7)
and designed to obviate representation disputes with their accompanied picketing
in order to ascertain the validity of the objecting union's contention that the con-
tracting union was not lawfully recognized by the employer. As to whether the
expedited election procedure provided for in subparagraph (C) is applicable to a
subparagraph (A) situation need not be resolved in the posture in which this
proceeding arises.
However, Section 10(1) does provide that if the Board has reasonable cause to
believe that an 8(b) (7) charge is true, it shall apply for injunctive relief:
Provided further, That such officer or regional attorney shall not apply for any
restraining order under section 8 (b)(7) if a charge against the employer under
section 8 (a)(2) has been filed and after the preliminary investigation, he has
reasonable cause to believe that such charge is true and that a complaint should
issue.
Former Senator Kennedy's proposal to the Congressional Conference Committee
that any Section 8(a) violation by an employer should be a defense to a complaint
alleging a violation of Section 8(b) (7), and its rejection of that proposition, is
corroborative of the conclusion reached above that Congress determined any matters
° Vol. I, Legislative History of the Labor-Management Reporting and Disclosure Act
of 1959, pp. 781-782; vol. IT, pp 976(2) (3), 977(2), 991(1), 1026(2), 1446(1), 1462(3),
1523(2), 1540(3), 1713
SO Section 8(b) (7) provides:
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).
Senator Goldwater in an analysis of the Labor-Management Reporting and Disclosure
Act of 1959 (vol IT, Legislative History, p 1859(1)) stated:
There is a further provision in this new section 8(b) (7) which provides that nothing
therein makes lawful any conduct which would be unlawful tinder any of the other
unfair labor practice provisions of Section 8(b) (1) through (6) Thus, for example,
conduct not unlawful under the new Section 8(b) (7), by virtue of the exemption
therein, may nevertheless be an unfair labor practice if engaged in contrary to the
prohibition against coercion and restraint of employees in Section 8(b) (1) . . . ."
This is particularly pertinent in the case at bar, as Katz, an employee of Janel, testified
that Goodman, Respondent Union's representative, threatened that Janel's employees
"eventually . . would be forced to switch unions."
sz See Robert E. Greene v International Typographical Union and Local 285, Ansonia
Typographical Union et al (Charlton Press, Inc ), 182 F. Supp 788.
LOCAL 1199 , DRUG AND HOSPITAL EMPLOYEES, ETC. 1579
involving the question of whether the employer "lawfully recognized" the contracting
union to be an issue collateral to an 8 (b) (7) proceeding.32
Despite the contention of the Respondent Union , Local 1199 , that the object of
its picketing was informational and thus legally justified under the second proviso
of subparagraph (C), supra, all the circumstances detailed above support the con-
clusion that its true object was to force Janel to recognize or bargain with it as
the representative of Janel's employees and to force Janel 's employees to accept
the Union as its collective -bargaining representative . The Respondent 's objective
conduct cannot be reconciled with its subjective disclaimer in either having Janel
recognize it or its representing Janel 's employees . To accept Respondent 's assertion
would require the trier of these facts to blind his eyes to a not too subtle subterfuge
of naively accepting what was done here as merely intentioned to acquaint the public
with the justness of the Respondent Union 's cause and not with the more realistic and
continuing purpose of representing Janel 's already organized employees.
Corroborative of this conclusion is the uncontroverted testimony of Kaufman,
Freed , and Katz, employees of Janel and members of Local 220 , that they were
repeatedly importuned by officials of the Respondent Union not only to join the
Union but also to assist in obtaining their fellow workers to do so . Freed testified
that as recently as April 1961 (picketing commenced April 19 ), Goodman, an
organizer for the Respondent , requested Freed 's help in obtaining Janel's employees
to join Local 1199 which shows Respondent was still pressing its demands almost up
to the time picketing commenced.
Moreover , when Respondent Local 1199 , an admittedly uncertified union , picketed
Janel, whose employees are presently represented by Local 220, under the circum-
stances delineated above, the conclusion is inescapable that the self -serving dis-
claimer of a recognition or organizational purpose is transparently frivolous. Re-
spondent 's disclaimer , under such circumstances , is ineffective as its conduct patently
reveals that Respondent 's real object was to obtain recognition as representative
of the employees involved despite Janel having executed a collective -bargaining
contract with Local 220 .33
Accordingly , it is found that Respondent by threats to picket and by actually
picketing from April 19 through 28, 1961, for present recognition , acted without
legal justification and in violation of Section 8(b) (7) (A) of the Act.34
$3 See Charles A. Blinne d/b/a C. A. Blinne Construction Company, 130 NLRB 587 At
pages 840 and 848 of vol I and pages 1185(3), 1186, 1383-1384, and 1567(3) of vol. II
of the Legislative History of the Labor-Management Reporting and Disclosure Act of
1959, Congress indicated its awareness of the possibility of an employer recognizing a
"paper local" or signing a "sweetheart" agreement with a union which purported to repre-
sent a majority of the employees However, the legislative history of the 1959 Act makes
no reference to what would be the result where the "sweetheart" contract was entered
into more than 6 months prior to the date the charge was filed. This is particularly
pertinent in view of the Supreme Court's holding in Local Lodge No 1424, International
Association of Machinists, AFL-CIO (Bryan Manufacturing Co ) v N L R B, 362 U S 411,
that a complaint based on such a contract would be barred by Section 10(b). See Member
Fanning's dissent in C A Blinne Construction Company, supra
as Cf. Miratti's, Inc, 132 NLRB 699, and W D Evans, d/b/a The Evans Hotels, 132
NLRB 737, where unions had sought recognition in the past but later disclaimed interest
in representing the employees
31 Sitrue Incorporated, 129 NLRB 1459 William J. Cavers v. Teamsters "General"
Local No. 200, et al. (Bachman Furniture), 188 F. Supp 184 (D C. E Wis ), cited by
Respondent and which involves Section 8(b) (7) (B), rather than casting doubt upon the
conclusion reached herein, confirms it Ivan C McLeod v Chefs, Cooks, Pastry Cooks and
Assistants, Local 89, etc (Stork Restaurant), 280 F 2d 760 (CA 2), also cited by Re-
spondent, involved a violation of Section 8(b) (7) (C). In that case the court of appeals
held that picketing which is purportedly informational may not be illegal merely because
the union previously sought recognition. However, the holding of the court is inapposite
as the Second Circuit held that subparagraph (C) is limited by the second proviso or
so-called informational proviso, whereas, in the case at bar, it has been found that the
informational proviso is no defense to an alleged violation of Section 8(b) (7) (A) In
fact, John A. Penello v. Retail Store Employees Local Union No 692 etc (Irvins, Inc ),
188 F Supp. 192 (D.C Md ), also cited by Respondent holds that the informational picket-
ing proviso in subparagraph (C) deals only with cases coming within subparagraph (C)
and not with cases coming within subparagraph (B). Insofar as the district court held
picketing which is solely informational to be lawful under Section 8(b) (7) (B) (although
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union, set forth in section III, above, occurring in
connection 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 commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(b) (7),(A) of the Act by threatening to picket and by actually
picketing Janel on and after April 19 through 28, 1961, for the purpose of forcing
recognition of Respondent as the bargaining representative of all of Janel's "pro-
duction, shipping, receiving, chauffeur, helper, sales, office and maintenance employ-
ees and such other employees performing work incidental thereto," 35 notwithstanding
the fact that Local 220, Food Packers, Cannery & Miscellaneous Workers Union of
the Amalgamated Meatcutters and Butcher Workmen of North America, AFL-CIO,
is lawfully recognized by Janel Sales Corporation as such bargaining representative
in accordance with the Act and a question concerning representation of employees
of Janel Sales Corporation may not appropriately be raised under Section 9(c) of the
Act, it is recommended that the Respondent cease and desist from engaging in such
unlawful activities.
On the basis of the foregoing findings of fact and upon the entire record in this
case, there are hereby made the following:
CONCLUSIONS OF LAW
1. Janel Sales Corporation is an employer within the meaning of Section 2(2)
of the Act and a party to the collective -bargaining agreement referred to herein
( General Counsel 's Exhibit No. 2).
2. The Unions are , each of them , labor organizations within the meaning of
Section 2 (5) of the Act.
3. Food Packers, Cannery & Miscellaneous Workers Union Local No. 220 of
the Amalgamated Meatcutters and Butcher Workmen of North America , AFL-CIO,
on April 19, 1961 , and at all times material herein , was and now is lawfully recog-
nized as the exclusive representative of Janel Sales Corporation's production, ship-
ping, receiving , chauffeur , helper, sales , office, and maintenance employees and such
other employees performing work incident thereto in accordance with the Act.
4. The object of the threats to picket and the actual picketing which occurred
between April 19 and 28, 1961 , inclusive , was to force recognition of Respondent
as the bargaining representative of said employees , even though Local 220, the in-
cumbent Union , was lawfully recognized and a question concerning representation
could not appropriately be raised under Section 9(c) of the Act.
5. By the acts described above, Respondent Union, Local 1199, Drug and Hospital
Employees Union , Retail , Wholesale and Department Store Employees Union, AFL-
CIO, did engage in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (7) (A) and Section 2(6) and (7) of the Act.
6. The acts of Respondent Union , Local 1199, have a close, intimate , and sub-
stantial relation to trade, traffic , and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
[Recommendations omitted from publication.]
from a reading of the decision, this is not clear), it has been found in the case at bar
that the object of the Respondent's picketing was to obtain recognition and was not solely
informational. The following Federal district court cases held In 8(b) (7) (C) situations
that picketing Is still illegal, even though one of the objects is informational but a con-
comitant object is also recognition. Ivan C. McLeod v Local 239, International Brother-
hood of Teamsters etc (Stan-Jay Auto Parts), 179 F Supp. 481 (D C.E NY.) ; Walter
C Phillips v. International Ladies' Garment Workers Union, AFL-CIO (Saturn & Sedran,
Inc.), 45 LRRM 2363 (D C. Tenn.) ; Edwin C. Elliott v Sapulpa Typographical Union
No. 619 etc. (Sapulpa Daily Herald), 45 LRRM 2400 (D C N Okla.) Contra: John C
Getreu v. Bartenders and Hotel and Restaurant Employees Union Local 58 etc (Fowler
Hotel, Inc.), 181 F Supp 738 (D C N Ind ).
See General Counsel's Exhibit No. 2, art I, p 1