Local 344, Retail Clerks Int'l Assn., AFL-CIO, Etc.

National Labor Relations Board - Board Decisions

Apr 24, 1962

136 N.L.R.B. 1270 (N.L.R.B. 1962)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Franklin Sams Kenneth Turner Rose Savka
John D. Allen Melvin Waters Ted Prybysez
William Alford Estal Wilson David Pendergrast
Francis P. Sauerborn William lsebell Charles Fisher
Richard J. Reynolds James Cash Barry Fiene
Bob Anders Joe Rzonca James Stanley
John Merchant Richard Chavez Garland Conn
Robert Bartley James Forgus Gaylan Davis
James Patterson Harold Doughty Herschell Huffine
Merritt Tounzen Franklin Byers Henry McAbee
R. C. Williams Willie Buckner Arlene Spaw
Lloyd Dugger Wilton Carr Oliver Ward
James Poore Charles McGee Gertrude Kainrath
Robert Cleek Jessie Lewis James Johnson
Emil Holzman Elmer Kern John Clark
Fred Smith Willie Hicks Paul Douzier
Walter Townsell Alex Anderson
APPENDIX B
1960
John Merchant_____________ June 15
Robert Bartley_____________ May 16
James Patterson ____________ May 13
Merritt Tounzen----------- May 16
R. C Williams------------- May 13
Lloyd Dugger -------------- May 17
James Poore_______________ May 23
Estal Wilson___ ____________ May 17
William Isebell_____________ May 16
James Cash_______________ May 19
Joe Rzonca________________ May 18
Richard Chavez____________ May 18
James Forgus-------------- May 19
Harold Doughty____________ May 19
Willie Buckner_____________ May 16
Wilton Carr_______________ May 19
Charles McGee____________ May 13
Jessie Lewis--------------- May 12
Elmer Kern---------------- May 21
1960
Willie Hicks_______________ May 16
Alex Anderson_____________ May 16
Rose Savka________________ May 16
Ted Prybysez -------------- May 18
David Pendergrast__________ May 13
Charles Fisher_____________ May 18
Barry Fiene --------------- May 19
James Stanley_____________ May 21
Garland Conn_____________ May 12
Gaylan Davis-------------- May 16
Herschell Huffine__________ June 6
Henry McAbee____________ June 6
Arlene Spaw --------------- May 18
Oliver Ward_______________ May 19
Gertrude Kainrath__________ May 16
James Johnson_____________ May 16
John Clark________________ May 16
Paul Douzier -------------- May 18
APPENDIX C
Franklin Sams Richard J . Reynolds Walter Townsell
John D . Allen Bob Anders Kenneth Turner
William Alford Robert Cleek Melvin Waters
Francis P. Sauerborn Emil Holzman Franklin Byers
Fred Smith
Local 344, Retail Clerks International Association , AFL-CIO;
Retail Clerks International Association , AFL-CIO and Alton
Myers Brothers, Inc. Case No. 14-CP-1. April 2.44, 1962
DECISION AND ORDER
On January 29, 1960, Trial Examiner Thomas A. Ricci issued his
Intermediate Report, finding that the Respondents had not violated
Section 8(b) (7) (B) as alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the
136 NLRB No. 1-18.
LOCAL 344, RETAIL CLERKS INoT'L ASSN., AFL-CIO, ETC. 1271
Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions and the General Counsel
filed a brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. These
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions, the brief, and the entire record in the case,'
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations as herein modified.
The complaint alleged that the Respondents violated Section
8(b) (7) (B) of the Act by picketing the Company's premises on and
after November 13, 1959, within a year of a valid election, with an
object of forcing or requiring the Company to recognize and bargain
with the Respondent Local as the representative of the Company's
employees, and with a further object of forcing or requiring the em-
ployees to accept the Local as their collective-bargaining representa-
tive. The Trial Examiner recommended dismissal of the complaint
based on his conclusion that the General Counsel had not established
proof of either proscribed object. We agree.
The basic facts are undisputed. On July 10, 1958, the Respondent
Local, with the authorization of the Respondent International, began
picketing the Company's main or customer entrance during business
hours. On or about August 4, 1958, Paul H. Jones, the secretary-
treasurer of the Local, addressed a gathering of most of the Company's
employees at a union hall, attempted to persuade them to join the
Local, and advised them that the Local would continue its picketing
until a majority became members. On December 2, 1958, the Board
issued a Decision and Direction of Election,2 finding that the Local by
its picketing and other activities was presenting a claim for recogni-
tion within the meaning of Section 9 (c) of the Act and directing an
election. The Local lost the election, held on December 12, 1958, by
a vote of 17 to 2. The Local then filed objections. It also filed a mo-
tion for reconsideration, which was denied on December 19, 1958.
In a Supplemental Decision and Certification of Results of Election
issued on April 24, 1959,' the Board overruled the objections, and cer-
tified the results of the election.
The picketing continued after the election, and was the subject
matter of a Section 8 (b) (1) (A) charge by the Company.' During the
investigation of that charge the Respondent Local in a letter dated
February 6, 1959, advised the Regional Director that it was maintain-
' Respondents ' request for oral argument is denied , because in our opinion the record,
exceptions , and brief adequately set forth the positions of the parties
2 Not published in NLRB volumes.
°Alton Myers Brothers , Inc, 123 NLRB 875
4 The complaint in that case was eventually dismissed by the Board . Local 314, Retail
Clerks International Association , AFL-CIO, et al (Alton Myers Brothers , Inc.), 127
NLRB 1027, 1028.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
ing its picket line in an effort to organize the Company's employees.
By June 1959, however, according to the testimony of Jones, which
the Trial Examiner credited, the Local abandoned its efforts to organ-
ize the Company's employees, and by its continued picketing after that
date sought merely to enlist public support against the Company's
nonunion standards. Consistent with this testimony, the record is
devoid of any evidence that the pickets or any of Respondents' other
representatives thereafter made any effort to organize the Company's
employees. Likewise there is ao evidence that the Respondents made
any attempt to obtain recognition, nor in fact did they contact the
Company in any manner thereafter. The only legend appearing on
any picketing device carried after June 1959 stated simply : "Please
Do Not Patronize. Retail Clerks 344, Retail Clerks International
Association, AFL-CIO."'
On September 29, 1959, Respondent Local sent a circular letter to
other unions in the Alton, Illinois, area. Making reference at the out-
set to the prior picketing as having been organizational, the letter
pointed out that the Company had published a statement in a local
newspaper setting forth its position in respect to Respondent Local
and, apparently, inviting public support for its position; and that the
Local had been unsuccessful in attempting to purchase space in the
local newspaper in order to respond to the Company's statement. Ac-
cordingly, the letter continued, the Local decided, instead, to send to
other trade unions in the area a letter enclosing a presentation of its
own position in the matter. The letter went on to ask the other unions
to post this presentation on their bulletin boards so as to bring it to
the attention of their members.
On November 13, 1959,6 picketing for recognition, bargaining, or
organization within a year after a valid election became unlawful
under Section 8(b) (7) (B) of the Act. Several days later, the Com-
pany filed the charge in this proceeding alleging that the Respond-
ent's picketing was violative of Section 8(b) (7) (B). The complaint
issued on November 20, and a Federal district court injunction issued,'
at the request of the General Counsel, on November 28, 1959, bringing
an end to the picketing.
The critical issue presented to us for determination is whether the
Respondent's picketing on and after November 13, 1959, was for the
proscribed objective of recognition, bargaining, or organization, for
absent such a finding there is no basis for invoking the provisions of
Section 8(b) (7) (B). As already set forth, the Board found that an
In the initial stages of the picketing , other signs were used bearing the legend "Em-
ployees of This Store Are Not Members of Local 344 " Devices bearing this legend were,
however, no longer utilized after the spring of 1959
9 The effective date of the unfair labor practice provisions of the Landrum - Griffin
amendments to the Act.
7 Salvatore Cosentino v. Local 344, Retail Clerks International Association , 45 LRRM
2660 ( D.C. S. Ill I.
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1273
objective of recognition existed when it issued its Decision- and Direc-
tion of Election on December 2, 1958. Moreover, Respondent Local
in its letter of February 6, 1959, acknowledged as of that time that it
was maintaining its picket line in an effort to organize the employees.
The Trial Examiner, however, after hearing all the witnesses and
considering all the evidence, concluded that by June 1959 Respond-
ents had abandoned their efforts to obtain recognition or bargaining,
or to organize the employees, and thereafter sought by their picketing
merely to enlist public support against the Company's nonunion
standards. The Trial Examiner rejected in this regard a contention
that the September 29 circular letter indicated that as of that date the
picketing still had an objective of organization.
General Counsel, however, takes issue with the Trial Examiner and
argues, in substance, that because the picketing prior to November 13,
1959, was for an object of recognition, bargaining, or organization, it
must be conclusively presumed that the picketing was for these pro-
scribed objects thereafter. Like the Trial Examiner we reject this
presumption. We find, as he did, that all efforts to organize the
employees had ceased by June 1959 and that efforts to obtain recogni-
tion or bargaining had been abandoned even earlier.
Our dissenting colleagues call attention to the prefatory comment
in the September 29 circular letter characterizing the prior picketing
as organizational. On this basis they argue not only that the picket-
ing was still organizational in September, 2 months before the
Landrum-Griffin amendments became effective, but also that the
picketing must be read as being for the same objective after the effec-
tive date of the amendments. Contrary to our dissenting colleagues,
we reject the application of a presumption of the continuity of a
state of affairs in construing the legality of picketing where there is
no substantial independent evidence to support such a presumption.8
We are not persuaded that the September 29 circular letter con-
stituted such substantial independent evidence. We conclude and find
that the picketing on and after November 13, 1959, was not for the
object of recognition, bargaining, or organization, but rather was
simply, as it purported to be, an appeal to consumers not to patronize
a company whose wages and other conditions of employment were
considered substandard for the area.
We recognize, of course, that the Board has in the past considered
picketing to protest substandard working conditions to be the equiva-
lent of picketing for an object of recognition or bargaining. Our
dissenting colleagues still adhere to this view. However, the majority
of the Board has ruled to the contrary in Houston Building and Con-
8 See Ivan C. McLeod v Chefs, Cooks , Pastry Cooks and Assistants, Local 89, et al.
( Stork Restaurant ), 280 F. 2d 760 , 761, 764, and related cases there cited.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction Trades Council (Claude Everett Construction Company),
136 NLRB 321, and Calumet Contractors Association, et at., 133
NLRB 512. See also Charles A. Blinn, d/b/a C. A. Blinn Construc-
tion Company, 135 NLRB 1153, particularly footnote 29 and authori-
ties there cited.
Accordingly, we conclude that the General Counsel has not sus-
tained his burden of proving that the picketing on and after Novem-
ber 13, 1959, was for an object of organization or recognition. The
complaint, therefore, fails."
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
We disagree with our colleagues that the General Counsel has not
sustained his burden of proving that the picketing herein continued
to have recognition or organization as objectives on and after Novem-
ber 13, 1959.
The Board has held that events occurring before the amendments
to the Act in 1959, which did not constitute unfair labor practices
when they occurred, can properly be considered in determining the
object of later acts alleged to constitute unfair labor practices.10 Such
events, set forth above in our colleagues' recitation of the facts of this
case, clearly show that the picketing herein included both objects.
The Local's letters of September 29, 1959, which were widely circu-
lated less than 2 months before the filing of the charge, furnished the
most recent indication that these were the objects of the picketing.
Whether prefatory or not, the letters candidly admit that the Local
had "legally been picketing for organizational purposes since July 10,
1958." 11
The letters also complained about the "unfairness" of the Com-
pany's "nonunion standards." By this reference to the "unfairness"
of the Company's "nonunion standards," the letters also reveal a con-
tinued object of recognition. In the context of the Local's continuous
picketing and its organizational campaign, and also in view of the
type of circulation given these letters, i.e., to other unions in the im-
mediate area, this characterization of the Company's employment
standards as "unfair" has the same force and effect as placing the
Company's name on an "unfair" list. Such an action on the part of
a union at the time it is picketing an employer constitutes an attempt
to attempt to obtain conditions and concessions which normally
'We do not reach or consider other questions discussed by the Trial Examiner, par-
ticularly the legislative history and meaning of Section 8 (b) (7) (C) and its provisos
°Local 239, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ( Stan-Jay Auto Parts and Accessories Corporation ), 127 NLRB
958, 962.
"Retail Store Employees' Union Local No 692 , Retail Clerks International Association,
AFL-CIO (Irvin, Inc.), 134 NLRB 686, footnote 2.
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC . 1275
result from collective bargaining , and thus amounts to a claim for
recognition.12
Respondents' sole defense is that the election in December 1958 was
invalid because the Local had not asserted a claim to be recognized as
the bargaining representative of the Company's employees. However,
as the Board thrice found in the representation case, the Local was
in fact at all relevant times continuing to assert a claim for recognition.
Based on all the evidence, including the Board's previous deter-
minations in the representation case, we would find and conclude that
the Respondents' picketing prior to November 13, 1959, had an object
of forcing or requiring the Company to recognize and bargain with the
Local, and also had an object of forcing or requiring the Company's
employees to select the Local as their collective-bargaining representa-
tive. Because the objects of a continuing act, such as the picketing
here, must be presumed to continue as long as the act of picketing
continues, we would further find and conclude that the picketing on
and after November 13, 1959, continued to have such objects," par-
ticularly since there is an absence of rebutting evidence occurring
subsequent to the letters of September 29.14 Inasmuch as such picket-
ing occurred within 12 months of a valid election under Section 9(c)
of the Act, we would find that Respondents thereby violated Section
8(b) (7) (B) as alleged in the complaint.
12 See Haskell C Carter, et al, d/b /a Carter Manufacturing Company, 120 NLRB 1609,
1610 (Member Fanning dissenting)
13 See California Association of Employers , 120 NLRB 1161, 1166. (Member Fanning
dissenting)
14 The Trial Examiner stated that the testimony of Jones, the secretary -treasurer of the
Respondent Local, was that, by June 1959 , the Local "abandoned all thought of persuading
the employees to membership " Even if Jones ' testimony were specifically to the effect
that the Local subjectively abandoned the purpose of organization , we do not consider
testimony of this type as a competent or reliable foundation for determining the basic
issue in this case.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Alton Myers Brothers , Inc., herein called the Company
or the Charging Party, the General Counsel of the National Labor Relations Board,
herein called the General Counsel, by the Regional Director for the Fourteenth
Region (St. Louis, Missouri), issued the complaint herein, dated November 20,
1959, against Local 344, Retail Clerks International Association, AFL-CIO , herein
called Local 344, the Union, or the Respondent Local, and against Retail Clerks
International Association, AFL-CIO, herein called the International or the Inter-
national Respondent . Copies of the complaint , alleging that the Respondents have
violated and are violating Section 8(b) (7) (B) of the National Labor Relations Act,
as amended , 61 Stat . 136, 73 Stat. 519, herein called the Act, or the amended Act,
and notice of hearing thereon were duly served upon all parties.
In substance , the complaint allegations said to establish the commission of an un-
fair labor practice by the Respondents are: On December 12, 1958, in a secret election
conducted by the Board , the employees of the Charging Party's retail store in Alton,
Illinois, voted against representation by the Respondent Local; the Local picketed that
retail store on and after November 13, 1959; the Respondent International approved,
authorized , and supported the said picketing ; and the object of such picketing by the
Local was to force or require the Company to recognize the Local as exclusive bar-
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining representative of the employees, and to force or require the employees of
the store to accept and select it as their bargaining agent.
The Respondents filed an answer to the complaint, in which they raise no issue
respecting procedural matters. They deny, however, that the Charging Party's com-
mercial operations fall within the minimum jurisdictional standards established by
the Board; that the election conducted in December 1958 was a valid election;
and that the object of the picketing here under attack was either to compel
recognition by the Company or to organize the employees.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
in St. Louis, Missouri, on December 17, 1959. All parties were represented by
counsel, who were afforded full opportunity to participate in the hearing, to examine
and cross-examine witnesses, and to introduce relevant evidence. All parties argued
orally at the end of the hearing, and the General Counsel filed a brief with the
Trial Examiner after it closed.
Upon the basis of the entire record in the case, and from my observation of the
single witness heard at the hearing, I make the following:
FINDINGS OF FACT
The State of the Record
This is one of the first complaint proceedings instituted by the General Counsel
pursuant to the recent amendments to the Labor-Management Relations Act, legisla-
tion enacted in the fall of 1959 and commonly referred to as the Labor-Management
Reporting and Disclosure Act of 1959. The particular section of that law constituting
an amendment to the Taft-Hartley Act of 1947, by its terms took effect on Friday,
November 13, 1959. The charge in this case was filed on Monday, November 16.
In terms of conduct by the Local Union which is said to be unlawful, the objective
facts are few and simple. With approval and authorization of its International,
Local 344 maintained a single picket who walked back and forth in front of the
customer's entrance of the Alton Myers Ladies Apparel Store with a sign reading;
"Please do not patronize. Local 344, Retail Store Employees' Union, AFL-CIO."
This picketing went on during Friday, November 13, and continued each business
day thereafter through November 28, when it was enjoined by a restraining order
issued in the Federal district court. Was this picketing activity proscribed by Section
8(b)(7)(B) of the amended Act, as precisely alleged in the complaint?
As in all cases coming before the Board, regardless of what section of the old
or amended Act is involved, there are a number of essential factual allegations neces-
sary to establish the commission of an unfair labor practice. This case is no dif-
ferent. Many allegations are procedural or formal, and have not been controverted
in the answer, such as timely and proper service of charge and pleadings, and the
fact of the Respondents being labor organizations. Other, more substantial allega-
tions also stand admitted. Thus there is no question that Local 344 established and
maintained the picket line, and that its International auhorized and helped pay for
it. Three issues are raised by the pleadings, each a component element of the
General Counsel's case. The first is a contest over jurisdiction. The other two
controvert essential facts necessary to prove the commission of the unfair labor
practice proscribed by the new statutory language upon which the entire proceeding
rests. One disputes the validity of the 1958 election, and the other questions
the complaint assertions as to the "object" of the pickeing the following November.
The General Counsel called only one witness at the hearing-Paul Jones, secretary-
treasurer and business agent of Local 344. In addition to the oral testimony of
Jones, the General Counsel placed into the record, through this witness, a single
document dated February 1959. Beyond this, the General Counsel's proof in sup-
port of the entire complaint was limited to directing the Trial Examiner's attention
to portions of the steno' raphic transcript of the hearing before a Trial Examiner
in a prior Board proceeding (Case No. 14-CB-686 [127 NLRB 10271), and to two
decisions issued by the Board in Case No. 14-RM-174. In turn, the Respondents
called no witnesses to the stand, but offered instead the entire transcripts and exhibits
of the hearings in .the two earlier proceedings, with the request that the evidence
received in those cases, both oral and documentary, be considered here in their
defense The Unions sought thereby to avoid duplication of testimony by the same
witnesses and resubmission of the same documents or exhibits. Both the General
Counsel and counsel for the Charging Party agreed that their cross-examination of
the Respondents' witnesses , should they appear personally in this hearing, would be
substantially no different from what it was in the prior cases. They raised no ob-
jection to this indirect method of receiving the Respondents ' evidence . Their ob-
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1277
jection to receipt into evidence of those other transcripts and exhibits was based
solely on arguments of relevancy and materiality.
Because the General Counsel saw fit to prove certain of the essential allegations
of this complaint by reference to earlier proceedings , and because the Respondents,
in turn, offered their defense in the form of more inclusive referral to testimony given
in those other cases, an understanding of the record made here requires a brief
explanation of Case No. 14-RC-174 and Case No. 14-CB-686.
Local 344 first started to picket the Alton store on July 10, 1958, and has never
discontinued the activity. Twenty days later the Company filed a petition-Case
No. 14-RC- 174-asking for an election among the employees . A hearing on that
petition was held on September 22, when Local 344 urged dismissal of the petition
on the ground it had not, and was not, claiming to represent the employees. On
that record the Board disagreed , and in its decision directing an election it said:
.. We find that the Intervenor [Local 344] has made a claim for recognition
as collective bargaining agent of certain employees of the employer...." Accord-
ing to the Respondents' contention now the evidence taken at that RM hearing,
received as part of the record here, proves instead the Board was wrong.
The election took place on December 12, Local 344 lost, and its picketing continued
as before The Company thereupon filed a charge-Case No. 14-CB-686-in which
it asserted that the continuing picketing-by a union shown conclusively to represent
only a minority of the employees-was an unfair labor practice because its object
was to compel the Company to extend recognition. Again the Union denied such
purpose or object in its picketing. The General Counsel issued a complaint and a
hearing in Case No. 14-CB-686 took place on May 18 and 19, 1959, before Trial
Examiner Bellman. The principal issue litigated there was whether the picketing
which followed the election in fact was designed to win recognition despite the
lack of majority status in Local 344. It is the record made at this hearing that
now also is received in evidence here. Trial Examiner Bellman, in his Intermediate
Report issued on November 30, 1959, was of the opinion that the evidence record
in both proceedings, considered together, did not show a continuing claim for
recognition and he recommended dismissal of the complaint . That case is now be-
fore the Board on exceptions by the General Counsel.
Two of the issues litigated in those proceedings are before me now-jurisdiction
and exclusive recognition as an object of the picketing. Two other issues to be
decided here-the validity of the 1958 election and organization as an object of the
recent picketing-were not presented before, but the records of the other cases tell
a story of some pertinence, and are therefore to some extent at least material here.
I see no substantial issues of credibility presented to me, on the complaint in this
case. by the record as made The disagreements expressed by various witnesses who
testified in any one of the three hearings pertain entirely to matters of opinion, intent,
or motives in actions that took place. In substance , the apparent testimonial dis-
agreements amount to no more than conflicting assertions as to what inferences should
or should not be drawn from facts which in reality are not controverted at all.
Indeed, the competing contentions, although appearing to be conflicts in testi-
mony, are only restatements of the opposing arguments made by the General
Counsel and the Charging Party on one side, and the Respondents on the other.
1. THE BUSINESS OF THE COMPANY
Alton Myers Brothers, Inc , the Charging Party here, is an Illinois corporation
having its principal office and place of business in Alton, Illinois, where it is engaged
in selling at retail wearing apparel and other merchandise. Testimony concerning
the extent of the Charging Party's business operations and its relationship with
seven other separate corporations, each of which operates a similar retail establish-
ment in another city in the State of Illinois, received in the representation case hear-
ing, lead the Board to find in its Decision and Direction of Election in that proceed-
ing that the Charging Party is "one of a group of seven corporations owned by the
Myers family which for purposes of jurisdiction constitute a single employer."
Further detailed facts relating to the integrated character of the commercial opera-
tions of these seven corporations and their individual stores was received at the
hearing in Case No. 14-CB-686. In contending that the business of Alton Myers
Brothers, Inc , may not be viewed as joined for jurisdictional purposes with the op-
erations of the other six corporations controlled almost exclusively by the Myers
family, the Respondents argue essentially that there is insufficient evidence of common
ownership and control. Upon consideration of all the pertinent evidence contained
in both of the earlier case transcripts , I am satisfied, and I find, that the business
of the Charging Party is sufficiently integrated with that of the other six Myers family
corporate businesses to constitute a single employer with them for jurisdictional pur-
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses. As the records show clearly that the gross volume of sales of all seven stores
totals, in an annual period, in excess of $5,000,000, I find that Alton Myers Brothers,
Inc., is engaged in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to exercise jurisdiction herein.'
II. THE LABOR ORGANIZATIONS INVOLVED
Local 344, Retail Clerks International Association, AFL-CIO, and Retail Clerks
International Association, AFL-CIO, are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The basic theory of the complaint and the 1958 election
The precise and limited conduct of the Respondents under attack by this complaint
is its maintenance of a one-man picket line in front of the Company's retail store
from November 13, 1959, and thereafter. The sole issue presented, as a question of
law, is whether that picketing violated Section 8(b)(7)(B) of the newly added title
of the statute. In pertinent part, Section 8(b)(7)(B) reads as follows:
SEC. 8. (a) .. .
(b) It shall be an unfair labor practice for a labor organization 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 rep-
resentative 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 currently certi-
fied as the representative of such employees:
(A) where the employer has lawfully recognized in accordance with
this Act any other labor organization and a question concerning rep-
resentation may not appropriately be raised under section 9(c) of this
Act,
(B) where within the preceding twelve months a valid election
under section 9(c) of this Act has been conducted, .. .
Virtually each phrase in the above statutory language makes necessary a factual
allegation in the complaint to spell out an unfair labor practice. Certain of the
necessary facts, however, are clear on the record or established beyond question by
the pleadings themselves. The Respondents are admittedly labor organizations;
Local 344 placed the picket in front of the store and therefore literally picketed
or caused the location to be picketed. Concededly, also, the Respondent Interna-
tional approved and authorized such picketing activitiy by its Local; indeed, as the
evidence directly shows, it contributed to the cost of such picketing in an amount
not exceeding $40 per week. There is no question therefore that the International
also, within the necessary intendment of the above statutory language, "caused" the
picketing here involved. There is also no question that the picketing was of an
"employer," for the Company has about 20 employees at this location. And finally,
it is also conceded by the pleadings that neither Respondent Local nor Respondent
International was, on November 13, or at any time thereafter, "certified as the rep-
resentative of such employees."
Two additional facts, spelled out in the statutory language, and therefore as pre-
cisely alleged in the complaint, are disputed by the Respondents, and are thus
thrown back upon the General Counsel as an affirmative burden resting upon the
prosecution to prove the commission of the unfair labor practice proscribed by
Section 8(b) (7) (B). The first is that there has been a "valid election under Section
9(c)" within the 12 months preceding November 13, 1959, and the second is that "an
object" of the picketing was recognition by the Company or organization of its em-
ployees. I think it can fairly be stated that the word "object" as used in this section
is a synonym for "purpose," "motivation," or "state of mind" in the actor or actors
involved.
'Carolina Supplies and Cement Co., 122 NLRB 88; The Bellingham Hotel Company,
125 NLRB 562; Hale8ton Drug Store8, Inc., 86 NLRB 1166.
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1279
Like all cases presenting a pivotal question of object or motivation in human
conduct, this one also must be appraised in the light of the total record. Objectively,
however, what was done and what was said during the critical times when, according
to the complaint, the Respondents violated the new law, is simply stated and com-
pletely uncontradicted.
The store in question has two entrances, one on Piasa Street, known as the customer
entrance, where on occasion during the business day employees also enter or leave.
Around the corner, there is a dock or loading platform where all deliveries are made,
and where employees also come and go. The store hours are from 9 to 5 or, on
certain days, from 9 a.m. to 9 p.m. The single picket arrives at the customers'
entrance a few minutes after the store opens and leaves a few minutes before it
closes in the afternoon or evening. He carries a sign, either a sandwich arrange-
ment or an umbrella. The sole legend he has displayed from November 13 and
thereafter, reads: "Please do not patronize. Retail clerks 344, Retail Clerks Inter-
national Association, AFL-CIO." Neither the picket nor any other agent of the
Respondent Unions has engaged in any other conduct in connection with this picket-
ing, either with respect to the employees of the store or with respect to the public.
It does not appear, and it is not claimed, that any union representative has com
municated with the Company or with any of its employees in any other way or in
any other place since long before November 13.
If the thought conveyed by the picket is taken at its face value-literally-it can
only be said that he addressed himself to the public, or to the purchasing customers
approaching the retail store. Accordingly, absent any further evidence to show a
demand for recognition upon the Company, or some legal theory whereby the
placard phrase "Do no patronize" could be read as saying something quite different
from its direct meaning, I could only conclude that the General Counsel has failed
to prove the existence of either of the two objects in picketing outlawed by
Section 8(b)(7).
The General Counsel nevertheless argues, as he necessarily must in order to fit
this picketing within the proscription of Section 8(b)(7), that the object was to
"force or require" the Company to recognize or bargain with Local 344, or to
"force or require" the Company's employees "to accept or select" Local 344 as their
bargaining agent. His argument is twofold, and was ably expanded both in the oral
argument at the close of the hearing and in the written brief thereafter. One line of
reasoning suggests that the illegal purposes, or "objects," are revealed by events
which occurred long before November 13, 1959, some of them as far back as June
1958. A second theory advanced as justification for ignoring the literal wording of
the picket sign and imputing instead to the picket one or both-the General Counsel
did not say which-of the prohibited objectives, is a purely legal argument that
Section 8(b)(7) must be read as proscribing informational picketing as a form of
conduct necessarily included in the congressional intent. His contention on this
point is that regardless of all else that may appear in the record, and even ignoring
all events which preceded November 13, 1959, the statutory language prohibits
picketing which is addressed solely to the consuming public during the 12-month
period following a Board-ordered election.
As subparagraph (B) of Section 8(b) (7) concerns itself with picketing "where
within the preceding 12 months a valid election" has been conducted, the Re-
spondents' attack upon the validity of the prior election must be disposed of first.
It is a longstanding principle of Board law that an election sought by an employer
in an RM proceeding can only be conducted where a question concerning repre-
sentation is found to exist by virtue of a union claim for recognition in an appro-
priate bargaining unit.2 At the hearing in Case No. 14-RM-174, Local 344 argued
extensively that on the facts there appearing no such question concerning repre-
sentation could be found. Relying in part on the picketing then going on, and in
large measure upon a statement which the union business agent had shortly before
made to the store employees, the Board found that a demand for recognition had
been made and it proceeded with the election. Before the election could be held,
Local 344 moved for reconsideration, reiterating its same arguments. The motion
was denied. After the balloting, in its objections to the election, the Union a third
time urged the same contentions upon the Board in a further attempt to vitiate the
entire proceeding, and again the Board considered and rejected its asserted dis-
claimer of interest. The attack upon the validity of that same RM proceeding, urged
now as a total defense to the complaint, rests entirely on the very same grounds,
thrice considered and rejected by the Board.
2 Herman Loewenstein, Inc, 75 NL1IB 377
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not believe that I am free, in this proceeding, to pass judgment upon the cor-
rectness of the Board's formal determination in the representation case. In effect
the Respondents are attempting a collateral attack upon the Board's earlier decision.
The Board's decisions carry with them a presumption of regularity and correctness
and, where newly discovered evidence becomes available, the proper avenue for
reversal of such determinations is either request to the Board itself for change, or
judicial review in the courts as prescribed by law. While it is true that Section
8(b)(7) has recently been added to the statute as a whole, it remains as but an
amendment to existing law. I see nothing in its language altering other provisions
of the statute. Thus, Section 9(d), which establishes a procedure for review of
representation case determination by the Board in the courts of appeals, remains
unchanged.3 The General Counsel's analogy between the instant situation and long-
standing decisional precedent in unfair labor practice cases under Section 8(a)(5) is
strongly persuasive here. Affirmative bargaining orders based on unlawful re-
fusals to bargain may be set aside by the courts on findings that the Board erred in
its unit, eligibility, contract bar, etc., determinations in the preceding representation
proceedings. The subordinate issues are nevertheless not litigable in the proceeding
before the Trial Examiner? Were the Board to find that the Respondents unlawfully
picketed the Alton store in November of 1959 in violation of Section 8(b)(7)(B),
I believe the Respondents would be privileged under Section 9(d) to call upon the
court of appeals, in enforcement proceedings, to review the representation case
determination and to decide ultimately whether or not, as required by subparagraph
(B) of Section 8(b)(7), there had taken place within a 12-month period of the
picketing, a "valid election" under Section 9(c).5
In the course of the hearing on complaint in Case No. 14-CB-686, further evidence
was taken regarding the object of the Respondents' picketing That evidence also is
now a part of this record. The question there turned on the Union's object after the
election-between December 12 and May 19, 1959. That case was not concerned
with whether or not there existed a question concerning representation on Decem-
ber 2, 1958, when the Board directed the election, or on December 12, when it took
place. Accordingly, I see nothing in that proceeding, or in Trial Examiner Bellman's
conclusion that in his opinion Local 344 had not in fact demanded recognition,
requiring me to reach a like determination, or to attempt to invalidate the Board's
decision in the RM Case.
Respondents' counsel articulated a separate attack upon the validity of the elec-
tion in terms of "the bargaining unit," saying that even if it be found a recognition
demand was made, no unit finding was or could be made and therefore the election
must nevertheless fall. This is a specious argument, and no more than an attempt
to create an issue where there is none . The election was held among all the store
employees with the usual exceptions, a unit presumptively appropriate Local 344
refused to take a position on the unit question at the representation case hearing. I
find its argument now entirely without merit.
For purposes of this proceeding, therefore, I find that the General Counsel has
satisfied the affirmative requirement set out in Section 8(b)(7)(B) that there has
been conducted, within the 12-month period preceding the November 13, 1959,
picketing, a valid election under Section 9(c) of the Act.
B. Motivation
1. The General Counsel's per se argument
The General Counsel advances the unequivocal argument that picketing limited
to direct and express appeals to the consuming public not to buy-or which does no
more in words than advise the public of the existence of a labor dispute-is outlawed
by Section 8(b) (7). This argument is made to the exclusion of all others, and
ssection 9(d) of the Act reads as follows'
Whenever an order of the Board made pursuant to section 10(c) Is based in whole
or in part upon facts certified following an investigation pursuant to subsection (c)
of this section and there is a petition for the enforcement or review of such order,
such certification and the record of such investigation shall be included in the
transcript of the entire record required to be filed under section 10(e) or 10(f), and,
thereupon the decree of the court enforcing, modifying, or setting aside in whole or
in part the order of the Board shall be made and entered upon the pleadings, testi-
mony, and proceedings set forth in such transcript
4 Pittsburgh Plate class Company v. NLRB., 313 U.S 146
5 N.L.R B. V. Worcester Woolen Mills Corporation, 170 F. 2d 13 (C.A 1)
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1281
proceeds even on the assumption that there is no other evidence indicative of the
object or purpose of the picketing. Apparently recognizing that the language of
Section 8(b)(7), read literally, does not support his position, the General Counsel
urged two subordinate arguments which, according to him, support his proposed
construction of the critical statutory language . The first requires inverse reasoning
from a proviso to subparagraph (C) of Section 8(b)(7), and the second is reliance
upon the legislative history of the recent amendments to the statute
When I test this per se argument against the language of those particular phrases
of the statute which the complaint, as limited, alleges to have been violated, I can
only conclude that the General Counsel's position is logically untenable. The section
outlaws picketing "where an object thereof is forcing or requiring an employer to
recognize . or forcing or requiring the employees . . . to accept or select such
labor organization . . . If the congressional intent had been to outlaw all
picketing in the circumstances of this case, there would have been no purpose in
adding the limiting subsequent language which specifies two objectives in picketing.
That there may be other objectives in picketing is a proposition that flows inevitably
from this language, and not a conclusion requiring an inference on my part Against
this, the General Counsel's suggestion that there is no other type of picketing can
only be sustained by implying, quite deviously and inferentially, an unspoken mean-
ing at variance with the words themselves. To prohibit picketing having either one
of two specified objectives, necessarily means, in plain language and logic, that the
proscription is not intended also to outlaw picketing which may have other objectives.
When this limiting language of the statute was brought to the General Counsel's
attention in the course of the oral argument at the close of the hearing, and the
question posed whether the section outlawed all picketing, he professed inability to
conceive of any picketing which did not have as its object either compelling recogni-
tion or compelling employees to join the Union. I have no difficulty imagining a
picket line, even during the 12-month period, with other objects. The object could
be a protest against the unwarranted discharge of a union leader or an unlawful
lockout,6 a desire to distribute jobs among members of different races,7 consumer
boycott, or, as, perhaps in this very case, an appeal to the public to take their
business elsewhere in order to assist union members employed in other stores to
continue their enjoyment of established wage scales. In any event, the question at
the moment is not what was the object of Local 344 in establishing the one picket
at the Alton store, but rather whether or not an appeal to the public must logically
and literally be equated with a demand for recognition or compulsion upon em-
ployees to join the Union.
I think that at bottom the General Counsel's true argument is that a realistic ap-
preciation of the nature of picketine and the conduct and objectives of labor
organizations generally-sometimes called the Board's expertise-compels an infer-
ence that notwithstanding the words on a picket's placard, the union's object always
is recognition or organization. In the broad philosophical sense that labor organiza-
tions have as their ultimate goal improvement of the working conditions of employees
in general, and of their members in particular, there is much to be said in favor of
this blanket assertion . However, laws having been written as they are, the courts
having long recognized substantial distinctions between legal and illegal objectives,
and this very statute, in more than one section , itself detailing particularized ob-
jectives only as proscribed in certain situations , I think the General Counsel calls
for too broad a conclusion of law He is virtually calling upon the Board to ignore
the absence of record proof of illegal object and to find, purely upon the basis of
its own knowledge, that the Respondents have violated the law I am not aware
that the Board has ever proceeded on any such theory of law or practice.
Nor does the Board's holding in the Curtis Brothers line of cases, support an
opposite view il The Board did say there that nicketine brings a coercive effect to
bear upon the employees, and to that extent, court decisional law is in agreement 9
Whatever the inevitable effect of picketing may be, it stands apart from the object
for which a picket line may be established. Because the union's purpose in the
6 The legislative history leaves no doubt that picketing to protest unfair labor practices
is not covered by Section 8(h)(7).
S New Negro Alliance v Sanitary Grocery Co , 303 U S 552
s Drivers, Chauffeurs and Helpers. Local 639, etc (Curtis Brothers, Inc ) 119 \TLRP.
232, enforcement denied 274 F 2d 551 (CAD C ), cert granted 359 U S 9c5 lira 362
U S 2741 ; United Rubber, Cork , Linoleum and Plastic Workers of America, A FT- C10 and
its Local 511 (O'Sullivan Rubber Corporation), 121 NLRB 1439, enfd. 269 F. 2d 694
(C.A. 4).
9 Hughes et al . v Superior Court of California for Contra Costa County, 339 U 9 460
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curtis Brothers situation is to compel the company to deal with it, the employees are
forced into membership in order to avoid the compulsion upon them. Each such
case, however, contains independent evidence as to the union's motive, entirely
apart from the mere fact of picketing. In none of the cases has the Board con-
cluded that because a union picketed, and because the effect of the picketing was to
coerce, it followed that an illegal purpose had also been proved. Instead, the lead
decision expressly reserved questions involving picketing with different objectives.'o
2. The proviso to Section 8(b)(7)(C)
Subparagraphs (A) and (B) of Section 8(b)(7) deal with what picketing is
outlawed in the situation where the employer is lawfully dealing with a bargaining
agent other than the picketing union, and the situation during a 12-month period fol-
lowing a Board election. The third subparagraph-(C)-concerns itself with picket-
ing which is carried on without any representation petition being filed. Subparagraph
(C), being subordinate to 8(b)(7) as are subparagraphs (A) and ( B), is also con-
fined, with respect to the type of picketing which is prohibited, within the require-
ment that it must first appear that "an object thereof is forcing or requiring an
employer to recognize . . . or forcing or requiring the employees . to select
such labor organization . .... In its entirety, subparagraph (C) reads as follows-
(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 sec-
tion 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
employed by any other person in the course of his employment, not to pick up,
deliver or transport any goods or not to perform any services.
In reasoning that by the second proviso in this subparagraph Congress inferentially
revealed its intention to outlaw informational picketing in the "object" language of
Section 8(b) (7), the General Counsel points to the words ". . . picketing . . . for
the purpose of truthfully advising the public (including consumers) . . He
would have it that had Congress not intended to prohibit picketing which "advises"
the public or "consumers" in the first place, it would not have taken pains to permit
it in limited situations. The small license then becomes proof of the big prohibition.
There does appear to be a superficial logic in this contention if appraisal of the
proviso be restricted to the idea of "advising the public" and the word "consumers."
These words, considered alone, do seem to describe the Alton store picketing under
attack in this case. If each of three parallel statutory provisions proscribe a certain
type of conduct, and one of the three, by excepting proviso, grants permission in a
special case to engage in a modified foim of the proscribed conduct, it would cer-
tainly follow that a like license is not granted under either of the other two pro-
visions. And that may be true here also if the proviso in question be read in its
entirety. This does not mean, however, that the excepting proviso can serve to
change the type of conduct outlawed initially in the overriding language of Section
8(b)(7).
Indeed, it could as logically be said that the proviso itself makes plain the con-
gressional awareness of diversified motivations that move unions to engage in picket-
ing activities. Section 8(b)(7) uses the word "object" and the proviso speaks of
"purpose." There is no substantial difference in the meaning of these words, and
the statute as a whole nowhere suggests it. Thus, the statutory language, in terms,
appears to concern itself with three types of picketing-recognition, organization, and
public information. But the General Counsel says I must ignore the total language
of the proviso and find instead that although Congress spoke of picketing for pur-
poses of advising the public, it really meant to say that there is no difference between
such an object and recognition or organization . Such reasoning would require a
to "Picketing in other contexts, picketing for other purposes, picketing by majority rep-
resentatives, present different questions which are not now before us, and this decision is
not to be taken as prejudging the legality of union conduct not here litigated." Curtis
Brothers, supra, p. 238.
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1283
construction of subparagraph (C) of variance with its words, in order to reach
a construction of Section 8(b)(7) inconsistent with its own plain language.
This case does not require definitive declaration of the meaning of subparagraph
(C); these comments serve only to rebut the General Counsel's assertion that it
necessarily must be read in a manner conclusively proving the correctness of his con-
struction of Section 8(b) (7). I nevertheless appreciate that if the proviso relates
only to information picketing, and that if information picketing is not proscribed in
Section (b) (7), there would appear no logical explanation for its presence in sub-
paragraph (C) as a special license. An explanation of such possible anomaly could
well be found in the further language of the proviso; it permits the union to advise
the public that an employer does not employ members of, or have a contract with, a
labor organization. But such a legend on a picket's sign would be direct evidence of
organization and recognition object in the union, precisely the conduct outlawed
above in the pervasive introductory language of Section 8(b) (7). Again, if the per-
missive reach of the proviso were as broad as the proscription which it qualifies, all
of subparagraph (C) would become pointless. This conclusion, too, may be avoided
by the final clause, which is in substance a proviso to the proviso. After setting out
an exception to the basic proscription, the proviso qualifies the license so granted
with the phrase "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, deliver or
transport any goods or not to perform any services."
When all of the foregoing language is read together, including every phrase of
Section 8(b) (7) (A), (B), and (C), there could emerge the following logical scheme
as the congressional intent: All picketing for the purpose of recognition or organiza-
tion is prohibited when another union is recognized, when an election has been held
during the past year, and when no representation petition is filed, except that, in
the third situation, there may be such picketing but only to the extent that it brings
results short of an actual work stoppage by any employee, whether of the picketed
employer or of any other. Of course, I do not here decide the precise meaning of
the various phrases in subparagraph (C), or what conduct is or is not permitted
under its second proviso This case presents no such issue. I do conclude, how-
ever, if only because it can very reasonably be construed as set out above, that the
presence of the proviso in subparagraph (C) is insufficient ground for holding, as the
General Counsel contends, that Section 8(b)(7) prohibits more than its language
plainly says.
3. Legislative history
As stated above, the General Counsel finally argues that the congressional intent
to establish an all-embracing ban on picketing by Section 8(b) (7)-one broader
than its literal wording-is shown by its legislative history. And he points to certain
comments by particular members of Congress during its consideration before pas-
sage. This was highly controversial legislation; individual declarations as to the
hidden meaning of final phrases used, or of intent in the minds of the legislators-
whether restrictive or expansive of the proposed statute-must therefore be weighed
with caution. As is also to be expected in the circumstances, there are statements
of interpretation which reveal an intent, in the minds of other Congressmen, not
to ban all picketing, certainly not public information
The 1959 amendments were adminstration sponsored, and the basic concept under-
lying Section 8(b)(7) was first explained by Secretary of Labor Mitchell to the
Senate Subcommittee on Labor. He discussed S. 748, which contained a section
504(a), worded almost exactly like the eventual 8(b)(7) which became law. This
section 504(a) contained four subparagraphs subordinate to the initial ban of
picketing aimed at "forcing or requiring" recognition or union membership. S. 748
was not reported to the Senate; in its place the Senate committee reported out
S. 1555, which contained no ban on picketing at all. On the floor of the Senate,
Senators Prouty and Keating successfully proposed amendments to S. 1555, and
thereby added to it Section 8(b)(7), reading like the original section 504(a) of
S. 748, but with two subparagraphs only, substantially comparable to the eventual
subparagraphs (A) and (B) of the resultant enactment In conference between the
two Houses, a third-subparagraph (C)-was added by agreement.
In a memorandum submitted to the Senate subcommittee (Hearing before the
Subcommittee on Labor, U.S. Senate, 86th Cong., 1st sess., p. 409) Secretary
Mitchell explained section 504(a) as follows:
Section 504 of S. 748 is intended to restrict picketing only when it is used as
means of coercing an employer to recognize, or his employees to accept, a union
which none or only a few of the employees desire as their bargaining repre-
64179 5-63-vol. 136-82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentative. This picketing would be prohibited only when it takes place under
one of the four conditions set forth in the section.
The analysis of the Secretary then went on to detail the four subparagraphs con-
tained in S. 748, and to comment on the intended meaning of each: He concluded
by referring back to the entire picketing section with:
In any event, in order for picketing to be prohibited under the administration's
proposal, the Board would have to find that the object of the picketing is to
force its recognition upon the employers or its selection as a bargaining repre-
sentative upon the employees. If the object of the picketing was in fact to
protest an employer's unfair labor practice, it would not be prohibited If the
object of the picketing was in fact to inform the public of the existence of a
labor dispute or the existence of substandard working conditions, it would not
be prohibited. [Emphasis supplied.]
The Secretary also spoke to the subcommittee by answering questions posed by
Senators Kennedy and Morse of the committee, as follows:
Q. (By Senator KENNEDY.) No 6. All of the restaurants in a city, except
one, are organized and have contracts providing high wages and good working
conditions. One restaurant is not organized and, as a consequence, its prices
are lower and it is taking away business from the organized restaurants.
1. Would it be a violation of Section 503(a) [secondary boycott provision]
or Section 504(a) of the Eisenhower-Goldwater bill if-(a) the union placed a
picket in front of the unorganized restaurant stating that the restaurant paid
lower wages than other restaurants in the city?
A. Since this is primary activity, it obviously would not be covered by
Section 503(a). It would not be a violation of Section 504(a) unless (1) it
were found as a fact under the particular circumstances of the case that the
Union's actual objective is recognition by the employer or organization of the
employees; and (2) it were found as a fact that any of the conditions listed in
(A) (B) (C) (D) of the proposed Section 8(b) (7) existed.
Q. If, as a result of the picketing, all of the employees continued to go to
work and all suppliers crossed the picket line and the only effect was on the
public?
A. The answer would be the same as under 6.
Q 9(d) if the union at the same time were attempting to organize the em-
ployees of the nonunion restaurant?
A. The answer would still be the same.
The Secretary also answered the following question of Senator Morse.
Q The purpose of this picket line is just to appeal to the general public not
to patronize this store or this plant, because it is a plant in which wages are
low, and the employees are not organized, and therefore, in the opinion of the
union it is detrimental to labor standards in the community. Would your bill
prevent that picket line?
A . if the object is in fact to appeal to the public to withhold patronage,
it would not be covered by Section 504 of the bill.
Explanatory statements voiced by Senators Prouty and Keating on the floor of
the Senate when they moved to restore a ban on picketing into the proposed S 1555
indicate quite clearly it was not their understanding all picketing would be pro-
hibited, but only recognition or organizational picketing. Thus, Senator Prouty,
whose Section 8(b) (7) had three subclauses, said:
The amendment imposes certain modest limitations on organizational and
recognition picketing. It does not ban or in any other manner diminish the
right of a union to picket for any other objective. Under my amendment a
union would be prohibited from picketing or threatening to picket an employer
only where the object of such conduct was to force the employer to bargain
or deal with the union or to force the employees either to join the union or to
select or accent it as their collective bargaining representative Every other
kind of picketing would be absolutely unaffected by this amendment.il
Senator Keating proposed a modified version of Senator Prouty's amendment,
similar with respect to the basic proscription, but setting out only two subpara-
Il Congressional Record, Senate, April 24, 1959 , p. 5961.
0
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1285
graphs-(A) and (B)-in place of the three in Senator Prouty's proposal. Senator
Keating explained, as to his understanding of the proposed section:
under this amendment a union would be prohibited from picketing or
threatening to picket an employer only when the object of such procedure was
to force the employer to bargain or deal with the union, or to force the em-
ployees either to join the union or select or accept it as their collective bar-
gaining representative. Every other kind of picketing would be absolutely un-
affected by this amendment.12
The proscriptive language set out in the two amendments proposed by Senators
Prouty and Keating is almost identical to the present Section 8(b) (7).
The foregoing statements are strong indication that Section 8(b) (7) ought not be
read to ban informational picketing addressed directly to the buying public and
showing no recognition or organization purposes. On the other hand, Representa-
tive Griffin, cosponsor of the original Landrum-Griffin bill passed by the House
of Representatives and which eventually emerged substantially as the final law,
indicated a contrary understanding. Referring to the second proviso to subpara-
graph (C) after the joint conferees had agreed, he said it "pertains to subsection
(C) only and therefore consumer appeals for organizational purposes are banned
after an election." Congressional Record A7915, September 10, 1959.
Further, the Senate conferees, reporting to the Senate and referring to the agreed-
upon Section 8(b) (7) in its entirety, said:
On organizational picketing, then, we once again accept the House version
except for two provisions which we think fair and reasonable: (1) a union may
use pickets in an effort to organize until there is an election in which the
N.L.R.B. can find out the employees' wishes; (2) nothing should be done to
stop picketing in the absence of a contract or an election, which has only the
effect of notifying the public of nonunion conditions and asking the employees
to join the Union.is
And in an early discussion of various proposed amendments, Senator Kennedy
said, "I suggest that perhaps a much better procedure would be to provide that for
a certain period of time following a legitimate election, there could be no picketing."
Congressional Record, Senate, April 24, 1959, pp. 5959-5960.
I do not think these excerpts from the legislative history of the 1959 amendments
serve to lend any substantial support to the General Counsel's per se theory respect-
ing the legality or illegality of a picket who says only "do not patronize." The
comments of Secretary Mitchell and Senators Prouty and Keating point more di-
rectly to a conclusion of legality in such picketing than the remarks of Congressman
Griffin and of the Senate conferees' call for a contrary conclusion. Indeed, the
conferees' statements, as well as that of Mr Griffin, are not inconsistent with an
intent to ban only such consumer appeals which have for their purpose recognition
or organization. At best, the legislative history, to the exent that I have been able
to research it, reveals disagreement among various individual legislators, and, in
view of the express limitation on prohibited objects spelled out in Section 8(b)(7),
cannot justify a reading at variance with the statutory language and extension of
its literal scope. Particularly difficult would it be to permit inconsistent legislative
history to breathe a total ban on picketing into the words of Section 8(b) (7), when
by so doing the section could well be deemed unconstitutional under the rule of
Thornhill v. Alabama, 310 U.S. 88
I conclude, in view of all of the foregoing considerations, that the General
Counsel's per se theory is without merit in this case.
4. Evidence of unlawful "object" apart from the picketing itself
The second or alternative ground upon which the General Counsel argues that
the November 13, 1959, picketing must be called unlawful, is that. apart from
events occurring after that date, there is "background" evidence sufficient to estab-
lish substantially and affirmatively that the true "object" or motivation of the
November picketing was to compel recognition by the Company and to force its
employees to join Local 344. This evidence is entirely limited to what was said
and done long before the proscriptive legislation here invoked was enacted, at a
time when the activities to which the General Counsel now points were not unlawful,
and all of its 6 months or more before the charge was, or could be, filed.
12 Congressional Record, Senate, April 24, 1959, p. 5977
33 Congressional Record, Senate, August 28, 1959, p 15907.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Local 344 first established its picket in front of the store back cn July 10,
1958, the picket carried two placards, one reading, "Please do not patronize," and
the other, "Employees of this store are not members of Local 344." Either simul-
taneously or alternatively, the picket continued to use these placards into the spring
of 1959. Precisely when the Respondents discontinued use of the legend which said
the store employees were not members of the Union is not clear on the record.
Jones, the Local 344 business agent who testified on this subject without contradic-
tion, said that the sign was used "for several months" from the time of the original
picketing until "possibly sometime in the spring of 1959," and was discontinued
"some months after" July 1958. While I am unable to pinpoint the precise day when
the change in the picketing announcement was made, I am satisfied on the total
evidence that the Respondents discontinued reference to the employees' nonmember-
ship in the Union by mid-May 1959.
After the Company filed its petition with the Board on July 30, 1958, calling for
an election, its attorney, Mr. Hoagland, enlisted the aid of a Mr. Doty, an official
of a Teamsters local in Alton, with an eye to bringing about a settlement of the
problem created by the picketing. Doty interested himself by communicating with
Jones and asked whether the latter would be willing to speak to the Company's
employees at the local meeting hall of the Teamsters. Jones accepted the invitation,
and the manager of the store then invited all of the employees to the Teamsters'
hall to hear him. On August 4, 1958, such a meeting took place, where Jones ex-
plained the benefits of membership, and urged employees to join Local 344. During
the meeting, in reply to a question, Jones said it was the intent of his union to con-
tinue the picketing in the event the employees should not choose to become mem-
bers, or even reject it at any secret ballot election which the Board might hold.
Following the meeting Jones personally solicited a number of store employees,
visiting them at their homes. He was only slightly successful.
Throughout this entire period, from before inception of the picketing to the
present, Local 344 communicated with the Company only once, by letter dated
June 26, 1958. This is an extended document inquiring whether the store employees
were members of any union or covered by any collective-bargaining agreement, and
advising that it was the intention of Local 344 to picket the store if neither situation
prevailed. The letter also explicitly assured the Company that the Union was not
demanding recognition or execution of a contract, and that it would not do so until
such time as a majority of the employees should choose Local 344 as their bargain-
ing agent. The Company never answered the letter.
In addition to the foregoing proof relative to the Union's object the following
November, there are two documents received in evidence. One is a letter written
by Local 344 on February 6, 1959, and signed by its business representative, Jones.
When the Company charged the Union, after it lost the December election, with
picketing for exclusive recognition, the Regional Director sent a routine inquiry
asking Local 344 to state its position with respect to the new charge (Case No.
14-CB-686). In its reply letter Local 344 disavowed any claim to representation,
and said it was carrying on "organizational activity" among the employees by the
picketing and by contacting "one or more" of the employees "several times." The
second document is a form letter written by Local 344 to other unions in the city of
Alton and dated September 29, 1959. In substance, the purpose of this circular
letter was to respond to and counteract an advertisement which the Company had
placed in a local newspaper explaining, in a favorable light, its position vis-a-vis
the Union, and, apparently, inviting public support of its position. The letter goes
on to say that Local 344 had been unable to prevail upon the newspaper to publish
its answer to such public announcements by the Company, and that therefore
Local 344 requested the other unions to post certain documents on their bulletin
boards to advise their membership of Local 344's position in the disagreement then
current with Alton Myers. In opening this long letter, Jones introduced his subject
by passingly referring to the current picketing as "organizational." He said, "As
you may have noted, the Myers Bros. Clothing Store in Alton, whom we have legally
been picketing for organizational purposes since July 10, 1958, inserted a half page
ad in the Alton Evening Telegraph on Saturday, September 5, 1959, entitled `A Labor
Day Question' in which ad they attempted to disrupt the traditional spirit of loyalty
of honest trade unionists toward one another to discredit our union in the eyes
of the community."
The foregoing evidence was offered to impart to the picketing late in 1959 the
objectives outlawed on November 13 by Section 8(b) (7). That one of the original
objects of Local 344 had been to organize the employees was freely conceded at
the hearing before me in December last. Jones testified, however, that sometime in
May, surely before June 1, 1959, Local 344 abandoned all thought of persuading
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1287
the employees to membership and that its object in continuing the picketing was
purely to enlist public support. There was no rebuttal to his direct testimony that
the only contact ever had between the Union, or any of its agents, and the em-
ployees occurred when he addressed them pursuant to the virtual invitation of the
Company and during a brief period of personal solicitation, with practically no
successful results, immediately following that meeting. The evidence is positive
that no picket ever spoke to a single employee after May 1959, and there is no
evidence, nor is it claimed, that any picket or union representative ever spoke to
store employees at all on the picket line. On this aspect of the case, the General
Counsel's theory spells out a presumption of continuity in an object or motivation
•once established. Therefore, regardless of whether or not the Union abandoned its
attempt to force the employees into membership by picket line coercion, the back-
ground evidence does prove that at one time, at least, organization of the employees,
as an object of the picketing, was a fact.
As to the second object proscribed by Section 8(b) (7)-recognition-the Re-
spondents strongly contend that Local 344 never claimed to represent the employees
and never voiced any such demand to the Company, or to any of its representatives.
And, in a literal sense, their assertion is correct. The testimony stands uncontra-
dicted that, except for the June 1958 letter mentioned above, no union agent or
picket ever spoke a word to the Company, on or off the picket line. At the hearing
before me, the General Counsel seemed to lay much stress on the fact that at the
August 4 meeting, in the Teamsters Local hall, Jones said the picketing would con-
tinue even if the employees rejected Local 344. He argued this statement showed
there was no relationship between the picketing and employee organization as a
union objective. And I think he was right, thus far. Does it follow, however, as
the General Counsel seems to argue further, that because organization was thus
shown not to be the object, the purpose must have been recognition without repre-
sentation? Could it not also have been, as the Union always insisted, and as the
picket signs themselves announced, that the object was to prevail upon the public
not to buy, and to take their business elsewhere, thereby helping the Union enjoy
the working standards won at other commercial establishments? On this specific
question-whether Local 344 had claimed recognition before the December 1958
elections-Trial Examiner Bellman, after fully appraising the very same evidence
now before me, concluded that it had not been shown, by substantial affirmative
proof, that the Union ever claimed recognition. Were it necessary in this case, I
would make the same finding. For reasons which will appear, I deem resolution of
this precise issue immaterial to the ultimate question presented here.
In fact, the General Counsel does not rely upon what happened at the August 4
meeting to prove that the Local originally sought recognition and that such object
continued and still existed in November a year later. He based his affirmative case
primarily upon the fact that on December 2, 1958, when the Board directed an elec-
tion in Case No. 14-RM-174, it was satisfied that a question concerning representa-
tion existed and found that the Union, as shown by its activities generally, had in
fact claimed recognition. It is the Respondents who rely on the record evidence of
what happened back in 1958 to disprove the essential allegations of this complaint,
and who introduced the record transcripts of the earlier cases over the General
Counsel's objection. Indeed, the General Counsel insisted all of this evidence is
immaterial now.
I am not sure I fully understand the General Counsel's position as to what weight
should be accorded here to the Board's RM case decision. At one point he said that
I, as Trial Examiner, am "bound" by the Board's determination there that Local 344
had claimed recognition , and that the Respondents are not privileged, in an unfair
labor practice case, to "relitigate," or "recanvass" a decision made by the Board in
a preceding representation case. Later he said the Board's earlier finding is an
"element" of proof, to be considered together with any other material and relevant
facts. If it is the record facts which must be evaluated , I fail to see how a Board
opinion, thrown in among them, can add or detract from what was shown to have
been done and said. It is not, nor can it be argued here, that on this substantive and
essential element of the case-the object of the picketing in November-a Board
decision 11 months earlier is res judicata.
As I see the General Counsel's total argument , it reduces itself to a straight pre-
sumption theory: in the early days of the picketing the Union's purpose was recog-
nition and organization ; the picketing has continued without interruption ; there is no
affirmative evidence that these objects were abandoned ; ergo, it must be presumed
the objects, now unlawful , still existed in November 1959. That an object at one
time was organization has been conceded . That an original object was also recog-
nition it doubtful on the record as it now stands, even considering the Board's RM
1 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case decision. That was not a litigated proceeding but only an investigation. In any
event, I will assume, for purposes of decision here, that before September 28, 1958,
when the evidence was taken upon which the Board's finding rested, Local 344
sought recognition from the Company. Such fact being established, then, it be-
comes an "element" of the proof required on the question of motivation, for the
General Counsel granted his presumption theory was not an irrebuttal argument.
I do not believe the background evidence in this case suffices to satisfy the affirma-
tive burden of proof resting upon the General Counsel respecting the essential
allegation of the complaint regarding "object" or purpose The presumption theory
finds greatest support in Board decisions involving violations of Section 8(b)(1)(A)
and 8(b)(4)(C) of the Act prior to the 1959 amendments. The Board has had
frequent occasion to examine continuous picketing which started before an election
and continued without substantial interruption thereafter. In some cases, the em-
ployees elected to remain unrepresented, and the picketing organization was charged
with demanding recognition despite its minority status, a violation of Section
8(b)(1)(A). In others, the election resulted in certification of union A, and the
continued picketing by union B was alleged to be in derogation of the outstanding
certificate, and therefore a violation of Section 8(b) (4) (C). In all the cases ad-
vanced by the General Counsel it was shown that the union's object before the
picketing had been recognition, and the Board presumed a continuation of such
object in the absence of any change in the picketing, despite the union's disclaimer
of representative status.
A significant and material distinction between most of those cases and the situation
here is that in the cited decisions the presumption was required to jump only 1 day,
as it were. A day before the election recognition was an object; the day after it was
illegal and the Board said the presumption held Each case turns upon a determi-
nation of the object the very next day. In contrast, one of the objects here involved-
organization-was not unlawful immediately following the election, but was only
made so by enactment of Section 8(b)(7), which became effective November 13,
1959. This presumption, therefore, must start with what was shown on Septem-
ber 28, 1958, or, at latest, in May of 1959, and be carried over into November. Like-
wise as to recognition: it existed in September 1958, and must carry 14 months
into late 1959.14 A presumption being, in its very nature, a substitute for positive
evidence, it is necessarily weakened in its persuasive force by the passage of time.
Especially is this so when, as here, in the extended intervening period there are
changes in circumstances, both legal and factual
There is a further distinction between these "presumption" type cases and the
record evidence supporting the complaint here. In virtually all of them there was
either evidence (direct or implied) of illegal objective after the critical election, or
proof of such object in the events occurring within the 6-month period preceding
the filing of a charge. In the O'Sullivan case the respondent union publicized its
demand for a contract after the election and during the period when the continued
picketing was alleged to be illegal.15 In the J C. Penney case, supra, the postelection
picketing said the store was a threat to "union working conditions," thereby at least
implying an object to negotiate conditions of employment with the company In
the other cases the original demand for recognition was made less than 6 months be-
fore the charge or, if earlier, it was considered only as "background" evidence to
explain picketing, or other activities within the 6-month period which were deemed
ambiguous in the total circumstances. For example, in Andrew Brown, supra, the
Board considered a demand made in July 1955, although the charge was filed in
August 1956. It did so, however, in view of the fact that the postelection picketing,
inconsistently with the union's assertion, seemed to be aimed entirely at deliverymen
of other employees and that the picketing "remained unchanged since its inception"
14 See Retail Store Employees Union, Local 1595, et at (J C Penney Company, Stoic
No 309), 120 NLRB 1535, election held January 17, 1957, hearing July 30 1957, illegal
objective alleged and found starting January 18 Paint Varnish it Lacquer Makers Union.
Local 1242 at at. (Andrew Brown Company), 120 NLRB 1425 election held April 10, 1956,
charge filed August 31, 1956, reverting back to April 11, 1956 Jimmy Ran Rush, et at
(Casper Manufacturing Co ), 123 NLRB 216 election held October 10, 1957, hearing on
charge December 10 of same year Comparable facts* Curtis Brothers. Inc , supra, Inter-
national Association of Machinists, Lodge No 311 et at (Machinery Overhaul Co.), 121
NLRB 1176; Knitgoods Workers Union, Local 155 etc (Packard Knitwear. Inc ), 118
NLRB 577; Knit Goods Workers' Union, Local 155 etc (James Knitting Mills), 117
NLRB 1468.
is United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and its
Local 511 (O'Sullivan Rubber Corporation), 121 NLRB 1439.
LOCAL 344, RETAIL CLERKS INT'L ASSN., AFL-CIO, ETC. 1289
Here, practically all the evidence indicative of prohibitive object antedates the
6-month period before November 16, 1959, when the charge was filed. Section
10(b) of the Act, however, provides that "no complaint shall issue based upon any
unfair labor practice occurring more than 6 months prior to the filing of the charge
Within this 6-month period the only evidence relating to the Respondent
Union's object is the picket sign, which says only "Do Not Patronize," and Jones'
passing reference in his letter of September 29, 1959, to the picketing as being
organizational. I see no ambiguity in the picket's legend, literally addressed to the
consumer public, which could require or justify a search for explanation in other
"background" evidence. Jones' characterization of his Union's activity in September,
when he attempted to offset the Company's adverse publicity by appealing to other
labor organizations in the area, could as well have been intended to advertise only the
peaceful and lawful nature of its ultimate purpose, rather than the immediate object
of the picketing itself. At best, his single phrase remains an isolated admission
against interest.
If, as would appear, Board findings of illegal conduct may not be reached by
giving "independent and controlling weight" to events which occurred outside the
statutory 6-month period, reliance by the General Counsel upon the September 29
letter may well bring this case within that rule of law. See News Printing Co., Inc.,
116 NLRB 210, where the same group of employees were denied wage increases both
in 1952 and again in 1953 and 1954. To prove illegal motivation in the later dis-
criminations, the General Counsel relied upon a prior Board decision finding illegal
motivation in the 1952 conduct of the employer. In reversing the Trial Examiner
and dismissing the complaint, the Board said: "While evidence, whether record or in
the form of prior Board findings, concerning conduct which occurred prior to the
statutory 6-month period may be utilized as background evidence to evaluate
Respondent's subsequent conduct, it is well established that Section 10(b) of the
Act precludes the Board from giving independent and controlling weight to such
evidence." Inferentially reaffirmed in Paramount Cap Manufacturing Co., 119
NLRB 785. See, also, Armco Drainage and Metal Products, Inc., 106 NLRB 725,
where an unlawfully assisted shop committee was under attack in a proceeding alleg-
ing violation of Section 8(a)(2) of the Act by the employer. In dismissing this
element of the case, the Board deemed itself precluded, by Section 10(b) of the
statute, from considering the employer's conduct, more than 6 months before the
charge, in forming and dominating the shop committee, notwithstanding the con-
tinued recognition accorded the committee well within the 6-month period. Cf.
Bryan Manufacturing Company, 119 NLRB 502, enfd. 264 F. 2d 575 (C.A.D.C.),
cert granted 360 U S. 916 [reversed 362 U.S. 411 ]
The General Counsel's presumption theory harkens back to an old principle under
this statute that "a state of affairs once shown to exist is presumed to continue to
exist until the contrary is shown " N.L R.B. v. National Motor Bearing Co., 105 F.
2d 652 (C.A. 9). He nevertheless concedes that subsequent events, or changes
in the "state of affairs" can weaken or defeat the presumption. In the J. C. Penney
case, the Board said: "While the presumption is strong but not conclusive, it is not
irrebuttable." There were two significant changes in the "state of affairs" here after
the spring of 1959, the last period of the "background" evidence. First, the picket
signs were changed, with the Union no longer publicizing the fact that the store
employees were not union members, and all efforts to communicate with the em-
ployees in any manner were abandoned. Second, a new law was passed establishing
new rules regarding picketing. In Local 50, Bakery and Confectionery Workers
International Union, AFL-CIO (Arnold Bakers), 115 NLRB 1333, reversed,
245 F. 2d 542 (C.A. 2), the Board attached significance to postelection picket signs
revealing a desire to induce employees to join the union and deemed them indica-
tive of a particular objective. It must follow that elimination of such signs is also
a material change in the character of the picketing. More important, on this matter
of changed circumstances, is the intervening enactment of Section 8(b)(7), now
confronted by the Union for the first time. It is one thing to presume overnight
continuity of a particular objective into an immediately following period, when its
illegality has been known and clearly established. It is quite another to ride the
presumption for more than 6 months (organization object), or over a year (recog-
nition object), from times when they were not unlawful into the later period when
the illegality was first declared via a proscription which could not have been known
in advance to any of the parties. Apart from the fundamental unfairness of such an
approach, in this case Section 8(b)(7) carries with it, as has traditionally been true
with newly created statutory prohibitions, a built-in statute of limitations, quite apart
from the old Section 10(b). Section 707 of the 1959 amendments provides: ".. .
no provision of this title shall be deemed to make an unfair labor practice, any act
1.290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is performed prior to such effective date which did not constitute an unfair
labor practice prior thereto." Certainly the spirit, at least, of this saving clause
would be violated if "independent and controlling weight" were given to events which
occurred at any time before November 13, 1959, quite in the same manner as such
controlling significance accorded to "background " evidence would do violence to
Section 10(b).
Upon consideration of all the foregoing , and of the entire record , I find that the
General Counsel has not proved, by the necessary substantial and affirmative evi-
dence, that the object of the Respondents' picketing on or after November 13, 1959,
was to force or require either recognition by the Company, or acceptance of Local
344 as their bargaining representative by the Company's employees . All of the
evidence indicative of illegal object long antedates the period covered by the com-
plaint, and I deem it too remote to satisfy the burden of proof required by the stat-
ute. I shall therefore recommend dismissal of the complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Alton Myers Brothers , Inc., Alton, Illinois, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Local 344, Retail Clerks International Association , AFL-CIO, and Retail
Clerks International Association, AFL-CIO, are labor organizations within the
meaning of Section 2 (5) of the Act.
3. The allegations of the complaint that the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(b) (7) (B)
of the Act, as amended , have not been sustained.
RECOMMENDATION
It is hereby recommended that the complaint against the Respondents be dismissed.
New Yorker Towers, Ltd. d/b/a Hotel New Yorker and Glenn
Shannon. Case No. 2-CA-8116. April 24, 1962
DECISION AND ORDER
On January 5, 1962, Trial Examiner Fannie M. Boyls issued her
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has not engaged in the unfair labor practice alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and the Respondent filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
136 NLRB No. 126.