Retail Store Employees' Union, Local 692, Etc.

National Labor Relations Board - Board Decisions

Nov 24, 1961

134 N.L.R.B. 686 (N.L.R.B. 1961)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Employer is engaged in interstate commerce within the meaning of the
Act.
2. The Respondent is a labor organization within the meaning of the Act.
3. The General Counsel has not established by a preponderance of the evidence
that the picketing of the Union had as an object to force the employer to recognize it
or the employees to select it as their bargaining representative within the meaning of
Section 8(b) (7) (B ) of the Act.
[Recommendations omitted from publication.]
Retail Store Employees ' Union , Local No. 692 , Retail Clerks
International Association , AFL-CIO and Irvins, Inc. Case
No. 5-CP-10. November 21, 1961
DECISION AND ORDER
On November 29, 1960, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged 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 and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and finds merit in the exceptions of the General Counsel.
Accordingly, the Board adopts the fmdings,a conclusions, and recom-
'The Respondent 's request for oral argument is hereby denied as , in our opinion, the
record, exceptions , and briefs adequately present the positions of the parties.
2 We agree with the Trial Examiner 's findings that the Respondent engaged in picketing
for an object of forcing or requiring Irvine to recognize , or its employees to select, the
Respondent as the bargaining representative, in violation of Section 8(b)(7)(B) of the
Act In reaching this conclusion we rely , inter alia, upon the testimony of Buckner,
Respondent 's business representative , which was given in the Section 10 ( 1) injunction
proceeding in the U S District Court for the District of Maryland The parties stipulated
before the Trial Examiner that this testimony of Buckner be considered as evidence in
the instant proceeding . In substance , Buckner 's testimony was that the picketing would
be discontinued if Irvins would assemble the employees , would give them certain assurances
as to their free choice in the selection of a bargaining representative, and would invite
the Respondent 's representatives to also address the employees Although admitting the
parties ' stipulation into evidence , the Trial Examiner refused to consider this testimony
in the belief that it was not "probative evidence for or against Respondent" (See
Intermediate Report, footnote 17 ) We disagree In determining the objective of a
union ' s picketing, the testimony of a principal actor ( here, the Respondent 's business
representative ) as to the conditions required before such action will be discontinued is
quite probative and entirely relevant as to the issue of object Cf. Wigmore , Treatise on
Evidence, vol I, sec 28, et seq ; cf. vol II, sec 475. Accordingly, in addition to the
evidence ielied upon by the Trial Examiner , we find that Buckner ' s testimony , particularly
in the light of Respondent 's earlier communication to Irvins that it disclaimed recogni-
tion "until a majority [ of the employees ] indicate their desire to be represented by our
134 NLRB No. 53
RETAIL STORE EMPLOYEES ' UNION, LOCAL 692, ETC. 687
mendations of the Trial Examiner, except insofar as they are incon-
sistent with the following :
The Trial Examiner found that the Respondent commenced picket-
ing Irvins for an admittedly proscribed object on May 31, 1960. This
picketing continued, without interruption, until October 3, 1960, when
the Federal District Court for the District of Maryland issued its
order granting temporary injunction "pending the final adjudication
by the Board." 3 On June 13, 1960, the Respondent filed a representa-
tion petition and, on August 18, 1960, an election was conducted. Of
189 votes cast, the Respondent received 50 votes, 95 votes were cast
against it, and 44 ballots were challenged. As the challenged votes
were insufficient to affect the outcome of the election, and as no objec-
tions were filed, the Regional Director, on August 26, 1960, certified
the results of the election, stating that the Respondent did not receive
a majority of the votes cast and, therefore, was not the exclusive bar-
gaining representative.
The Trial Examiner, having properly found that the Respondent's
postelection picketing was for an object proscribed by Section 8(b)
(7) (B) of the Act, recommended that the Respondent cease and de-
sist from picketing Irvins for such object "for a period of 1 year
following the election of August 18, 1960." The General Counsel filed
exceptions to the Trial Examiner's recommended notice and order,
contending that an appropriate remedy in 8(b) (7) (B) cases should
provide for no such picketing for 1 year, computed from the date
of the certification of results of the election (in this case August 26,
1960), rather than from the date of the election itself (August 18,
1960).
In support of his exceptions, the General Counsel contends that
both the language and legislative history of Section 8 (b) (7) (B) indi-
cate a congressional purpose to insure to an employer a full "twelve
month" period insulated from picketing following a lost election.
Noting that only after the Board issues its certification of results can
it be determined that a "valid election" has in fact been conducted,
the General Counsel argues that the only way to provide the security
which Congress intended is to predicate the violation upon picketing
occurring after the issuance of the certification of results. Finally,
insofar as there might be an area of potential conflict created between
Sections 8(b) (7) (B) and 9(c) (3),4 the General Counsel urges that,
local ," constitutes probative testimonial evidence that the Respondent was desirous of
organizing Irvins' employees in order to he in a position to demand recognition.
'John A Penello v Retail Store Employees Local Union No 692 , Retail Clerks Inter-
national - I ssooiation, AFL-CIO (Irvins, Inc ), 188 F. Supp 192 (D C Did , 1960 ), grant
of injunction affirmed 287 F 2d 509 (C.A. 4).
* Section 9 ( c) (3) provides , in pertinent part , that "No election shall be directed in any
bargaining unit or any subdivision within which , in the preceding twelve-m onth period, a
valid election shall have been held " [ Emphasis supplied ]
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for remedial purposes in 8(b) (7) (B) cases, the Board's "election
year" rule 5 should give way to the "certification year" rule.'
Although we find merit in certain of the General Counsel's argu-
ments, we do not believe that either his certification of results pro-
posal or the Trial Examiner's election date recommendation wholly
answers the question of what remedy is appropriate in cases involving
violations of Section 8(b) (7) (B) of the Act. Moreover, the issues
raised by the General Counsel's exceptions are not confined solely to
the matter of remedy ; also brought into focus is the question of when,
in point of time, does a labor organization's postelection picketing
constitute a violation of Section 8(b) (7) (B). Thus, the Board is
faced with two distinct questions : First, the determinative date for
purposes of finding the violation; secondly, the determinative date
for purposes of providing an appropriate remedy.
As it is axiomatic that "the relief which the statute empowers the
Board to grant is to be adapted to the situation which calls for re-
dress,"' we first consider the precise nature of the violation before
we address ourselves to the question of appropriate relief.
1. The violation
Section 8(b) makes it an unfair labor practice for a labor
organization
(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 forc-
ing or requiring the employees of an employer to accept or select
such labor organization as their collective bargaining representa-
tive, unless such labor organization is currently certified as the
representative of such employees :
(B) where within the preceding twelve months a valid election
under section 9 (c) of this Act has been conducted.. . .
The gravamen of a violation under this section is the determination
that picketing (for a proscribed object) is being carried on despite the
5 Under the long-established interpretation of Section 9(c) (3), the Board holds that the
"twelve-month" limitation runs from the date of balloting and not from the date of the
certification of results where no union was selected as bargaining representative. See,
e.g, Mallinckrodt Chemical Works, 84 NLRB 291, 292 ; Kolcast Industries , Inc., 117
NLRB 41b, 419
6 In support of his position that the decisive date for the violation and remedial relief
should be based on the "certification year " rule, the General Counsel notes that when a
union wins an election , the Board holds that its rights as bargaining representative extend
fi om the date of its certification and not from the date of the election . See, e g , Centr-O-
Cast & Engineering Company, 100 NLRB 1507; N.L.R .B. v. Ray Brooks , 204 F. 2d,899
(CA. 9), affd 348 US 96.
7 N L R B. v Mackay Radio it Telegraph Co , 304 U.S. 333, 348.
RETAIL STORE EMPLOYEES' UNION, LOCAL 692, ETC. 689
fact that within the past 12 months a valid election was held. It is
of no moment that the labor organization engaged in the picketing
may not have participated in the prior election,' for in clear and un-
equivocal terms the section bans postelection picketing by any but a
"currently certified" union." Thus, where "no-union" is selected by
the employees, the employer and his employees may not be picketed
for a proscribed object for the next succeeding 12 months following
that valid election.
The foregoing is made clear by the Section's terms, as amplified by
the supporting legislative history. What is not as clear, however, is
what measure the Board is to apply in determining when "a valid
election" has been conducted. In considering this question, the Board
has been particularly aware of the difficulties which confront the
General Counsel in handling charges filed under this section because
of the statute's lack of certainty as to when the violation occurs. In-
deed, the Board recognizes that this question is no less troublesome
to labor organizations and employers alike in terms of ascertaining
where the bounds of the section are to be laid.
The Board has decided that in 8(b) (7) (B) cases, the decisive date
for purposes of ascertaining when there has been a valid election
conducted under Section 9(c) of the Act is the date on which a cer-
tification of bargaining representative, or a certification of results
is issued in a Board-conducted election.1° In arriving at this position,
the Board necessarily had to choose between the alternatives previ-
ously noted : The date of balloting or the date on which the results
of the election are certified. In making the latter date the determina-
8 Section 8 ( b) (7) (B) is concerned with the situation where "the Board has held an
election during the preceding twelve months and the picketing union had either failed to
win the election or even to participate in it , and had thereby also failed to demonstrate
that it represented a majority of the employees of the picketed employer " Vol. II,
Legis Hist ., LMRDA 1959 , at p. 1184 ( 3). In such a situation , " then no union may
picket for recognition or organization for 12 months " Vol II , at p. 1858(3). See also,
vol. II, pp. 1187 ( 2), 1361 ( 1), 1377 ( 3), and 1462(3).
9 However , " if a union wins such an election and is certified by the Board , it may picket
without violating this section 8(b) (7) " Vol II , Legis. Hist. , LMRDA 1959, at p
1858 ( 3). This protection is expressly guaranteed by the "unless" clause in the first para-
graph of Section 8(b) (7) Cf. vol If, Legis . Hist, LMRDA 1959, pp . 1720(3) and
1722(1-2).
10 Although the General Counsel has limited his argument to the situation where, in an
election , no union receives a majority of the valid votes cast and thereafter a "Certification
of Results" is issued , we believe the determination as to when "a valid election " has been
conducted is equally applicable to the situation in which a union does receive a majority of
the votes and is thereafter " Certified" as the employees ' bargaining representative In
the former situation (which is the instant case ), no union is permitted to engage in recog-
nition or organizational picketing for a period of 12 months , whereas'in the latter situa-
tion, no union except the certified union may engage in such picketing (see supra , footnotes
8 and 9 ). But in both situations , as more fully discussed hereafter , there must first be a
determination that "a valid election " has been conducted , and this determination occdrs on
the date of issuance of either a "Certification of Results " or "Certification of Representa-
tive. " Accordingly , although our discussion hereafter will concern itself primarily with
the instant case wherein no union was certified , it is intended to apply as well to the case
where the converse situation obtains
630849-62-vol 134-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive date, the Board notes that there is legislative history to support
its decision." The Board also believes that the "certification of re-
sults" date will more realistically conform with, and give meaning
to, the concept of when "a valid election" has been conducted-an
essential determination for purposes of Section 8(b) (7) (B). The
election day count of the ballots is only a preliminary determination;
for an election, under the Board's rules, is not a conclusive and final
determination until the time for filing challenges and/or objections
has expired'12 or until it has been determined that a runoff election
is not required.13 Thus, the status achieved by a labor organization
as indicated by a tally of ballots issued on the election date may
change appreciably when the results of the election are finally deter-
mined on the certification date. Until there is such a "final deter-
mination" of the results of an election, there is no basis for proceeding
on a charge alleging a violation of Section 8(b) (7) (B).
Accordingly, the Board has decided that no violation of Section
8 (b) (7) (B) should be deemed to lie until all challenges and objections
have been ruled upon or otherwise disposed of, or until it has been
determined that a runoff election is not required; 14 and since such
final disposition is the condition precedent to the issuance of a cer-
tification of results, the date upon which such certification is issued
will coincide with the determination that a "valid election" has been
conducted.
2. The remedy
As for the remedy to be applied in 8(b) (7) (B) cases, the Board
has concluded that neither the election date nor the certification of
results date is dispositive. In fashioning a remedy adapted to "the
situation which calls for redress," the Board has been mindful of the
fact that the congressional purpose underlying Section 8(b) (7) (B)
is to provide a 12-month period free from picketing for a proscribed
objective following an election in which no union is selected as a
bargaining representative.15 This 12-month period is the outer limit
"See , e g., statement of Congressman Rhodes ( vol II, Legis Hist., Lb1RDA 1959, p
1462 ( 3)) that Section 8(b) (7) (B ) "also piotects the employer and his employees from
harassment where an election under NLRB provisions has resulted in a "no union' [sic]
certsficatron . . .11 [ Emphasis supplied ] See also Senator Goldwater 's analysis on the
differences between the }louse - Senate bills ( vol. II , Legis list , LMRDA 1959, p.
1361 ( 1)): "The prohibitions on picketing during the 12-month period after an election
where no union was certified [fall within Section 8 ( b) (7) (B)] [Emphasis
supplied ]
12 See NLRB Rules and Regulations , Series 8, Section 102 69
13 See NLRB Rules and Regulations, Series 8, Section 107 70
14 Although a labor organization which does not participate in a Board election has no,
standing to file challenges or objections , the final determination that a "valid election" has
been conducted must nevertheless be made before such labor organization will be deemed
subject to the provisions of Section 8(b) (7) (B ). See supra, footnote 8
15 See references to legislative history, supra , footnotes 8 and 11.
RETAIL STORE EMPLOYEES' UNION, LOCAL 692, ETC. 691
which Congress has prescribed in the section, and manifests a clear
intention to curtail picketing for 1 year in order to "protect the em-
ployer and his employees from harassment." 16 An apt analogy may
be drawn between the congressional purpose sought to be achieved
under Section 8(b) (7) (B), and a similar purpose which was intended
in 1947 when Congress amended the Wagner Act by the addition of
Section 9(c) (3). By including the 12-month limitation on the fre-
quency of Board-conducted elections in Section 9(c) (3), Congress
intended to, and did effect a reasonable balance between a union's
interest in gaining representational status, and the employees' interest
in maintaining stability and repose after having exercised their free
choice in a representation election." Although Section 9(c) (3) is
concerned with the principle of stability and repose vis-a-vis em-
ployees after they have voted in an election, Section 8(b) (7) (B)
now extends the principle for the benefit and protection of the em-
ployer as well where, following such election, a union engages in
proscribed picketing. Therefore, and consistent with the foregoing
salutary principles, the Board believes that it will best effectuate the
policies of the Act if the remedy adopted under Section 8(b) (7) (B)
preserves to employers and employees a 12-month period free from
picketing, while at the same time ensuring that the prohibition on
the union's picketing activity will not, due to circumstances beyond
its control, be unreasonably extended beyond the same period of time.
Accordingly, the Board has decided that, absent unusual circum-
stances warranting different treatment," remedial orders in Section
8(b) (7) (B) cases will require a cessation of all recognitional and/or
organizational postelection picketing for a period of 12 months, which
period shall be computed from the date the labor organization termi-
nates its picketing activities (either voluntarily or involuntarily).19
Since the labor organization which engages in picketing has complete
control over its operations and is able to determine when, where, and
for how long the picketing should go on, it will now be able to ascertain
the precise period which the Board's Order will cover in the event its
10 Vol. 11, Legis. Hist., LMRDA 1959, p. 1462(3).
17 See discussion N.L.R.B. v. Ray Brooks, cited supra, footnote 6. Cf. Vickers, Incorpo-
rated, 124 NLRB 1051, 1052. The principle of 1 year's stability and repose, as contem-
plated by Section 9(c) (3), is of prime importance regardless whether the employees'
decision at the polls is to select or reject a bargaining representative. Additionally, see
vol. 1, Legis. I3ist., LMRA 1947, at p. 418, where it is noted that the 12-month limitation
on frequency of elections will "impress upon employees the solemnity of their choice, when
the Government goes to the expense of conducting a secret ballot . . . .
19 In this regard the Board is leaving open for later determination the treatment which
should be given to novel or unusual fact situations. Thus, for example, the remedy
adopted herein will not, necessarily , he considered dispositive of a situation in which a
labor organization engages in intermittent picketing, or where the picketing continues to
the date of a Board Decision and Order.
10 Thus, the labor organization might decide to discontinue its picketing or, contrary
to its own designs, the picketing might be halted through formal (State or Federal)
injunctive processes.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct is found to be unlawful.20 And since it is the picketing, and
not solely the fact that "a valid election" has been conducted, which
goes to the heart of the violation of Section 8(b) (7) (B), the remedy
provided herein adapts itself to the situation which calls for redress
and, in the Board's opinion, will most effectively "translate into actu-
ality the policies of the Act." 21
Applying the foregoing principles to the facts of this case, the Re-
spondent's challenges to the election of August 18, 1960, were disposed
of on August 26, 1960, the date upon which the Regional Director
issued the certification of results indicating that the employees did not
select the Respondent as their bargaining representative. As the issu-
ance of this certification constitutes the final determination that "a
valid election" has been conducted, we find that the Respondent's
picketing on and after August 26, 1960, for objects proscribed by Sec-
tion 8(b) (7), constitutes a violation of subparagraph (B) thereof.
As previously discussed, the determinative date for computing the
duration of the Board's cease-and-desist order is the date on which the
labor organization's unlawful picketing is terminated. In the instant
case, Respondent's picketing was enjoined by the Federal District
Court for the District of Maryland on October 3, 1960. Accordingly,
in order to remedy the violations found, and to effectuate the policies
of the Act, the Respondent will be ordered to cease and desist from
picketing Irvins, Inc., Baltimore, Maryland, for objects proscribed by
Section 8 (b) (7) of the Act, for a period of 12 months computed from
October 3, 1960. We shall also require the Respondent, thereafter, to
refrain from engaging in recognitional and/or organizational picket-
ing of Irvins, Inc., Baltimore, Maryland, where within the preceding
12 months a valid election shall have been conducted.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Retail Store Em-
ployees' Union, Local No. 692, Retail Clerks International Associa-
tion, AFL-CIO, its officers, representatives, agents, successors, and
assigns , shall:
1. Cease and desist from :
(a) Picketing or causing to be picketed, or threatening to picket,
Irvins, Inc., Baltimore, Maryland, an object thereof being to force or
2 To adhere to the Trial Examiner 's recommendation and order a cessation of picketing
from the date of balloting , the Board would be including in the computed period the
picketing which occurs between the date of the election and the date of the certification
of results-a period during which the labor organization is permitted to picket ( assuming,
of course , that there is not outstanding any lawful impediment to the labor organization's
continued picketing ) Such an order would unquestionably reduce the statutory ban on
picketing to less than the 12-month period intended by Congress.
21 Phelps Dodge Corp v. N.L.R B., 313 U.S. 177, 188.
RETAIL STORE EMPLOYEES ' UNION, LOCAL 692, ETC. 693
require Irvins, Inc., to recognize or bargain collectively with it, or to
force or require the employees of Irvins, Inc., to accept or select it as
their collective-bargaining representative, for a period of 1 year from
October 3, 1960.
(b) Picketing or causing to be picketed, or threatening to picket,
Irvins, Inc., for any of the aforementioned objects, where within the
preceding 12 months a valid election under Section 9 (c) of the Act has
been conducted which the Respondent did not win.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post in Respondent's business offices and meeting halls, copies
of the notice attached hereto marked "Appendix." 22 Copies of said
notice, to be furnished by the Regional Director for the Fifth Region,
shall, after being duly signed by official representatives of Respond-
ent, be posted by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its members are cus-
tomarily posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Mail to the Regional Director for the Fifth Region signed
copies of the aforementioned notice for posting by Irvins, Inc., the
Company willing, in places where notices to employees are customarily
posted. Copies of said notice, to be furnished by the Regional Di-
rector for the Fifth Region, shall, after being duly signed by Re-
spondent's official representatives, be returned forthwith to said
Regional Director.
(c) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
have been taken to comply herewith.
22 In 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 "
APPENDIX
NOTICE TO ALL MEMBERS OF RETAIL STORE EMPLOYEES ' UNION,
LOCAL No. 692, RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO
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 picket, or cause to be picketed, or threaten to
picket, Irvins, Inc., Baltimore, Maryland, where an object thereof
is to force or require Irvins, Inc., to recognize or bargain collec-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lively with us, or its employees to accept or select us as their
collective-bargaining representative, for a period of 1 year from
October 3,1960.
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, Irvins, Inc., Baltimore, Maryland, where an object thereof
is to force or require Irvins, Inc., to recognize or bargain collec-
tively with us, or its employees to accept or select us as their
collective-bargaining representative, where a valid election which
we did not win has been conducted by the National Labor Rela-
tions Board among the employees of Irvins, Inc., within the
preceding 12 months.
RETAIL STORE EMPLOYEES' UNION, LOCAL
No. 692, RETAIL CLERKS INTERNA-
TIONAL ASSOCIATION, AFL-CIO,
Union.
Dated---------------- By-------------------------------------
(Representa tive) ( 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.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This Case No. 5-CP- 10 brought under Section 10(b) of the National Labor
Relations Act, as amended ( 61 Stat. 136, 73 Stat . 519), herein called the Act, on
a charge filed August 29, 1960, by . Irvins, Inc. (herein called Irvins ), against
Respondent Retail Store Employees' Union , Local No. 692, Retail Clerks Interna-
tional Association , AFL-CIO ( herein called Respondent or Respondent Union),
was heard by the duly designated Trial Examiner in Baltimore , Maryland, on
October 10, 1960 , on a complaint of the General Counsel dated September 8, 1960,
and an answer of Respondent dated September 16, 1960.
The complaint alleges, and Respondent denies, that since August 26, 1960, Re-
spondent , in violation of Section 8(b)(7)(B ) of the Act, picketed four retail stores
of Irvins in Baltimore, Maryland , to force or require Irvins to recognize and bargain
with Respondent as the collective-bargaining representative of the employees of
Irvins, and to force or require the employees of Irvins to accept and select Respondent
as their collective -bargaining representative.
Respondent , General Counsel , and the Charging Party were represented at the
hearing and all parties were afforded an opportunity to be heard , to introduce relevant
evidence , to present oral argument, and to file briefs . Counsel for all parties filed
briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent in its answer admits, that Irvins, a Mary-
land corporation with its principal office in Baltimore, Maryland, is engaged in
operating four retail department stores, a warehouse, and office building in Balti-
more, Maryland. The complaint also alleges, and Respondent also admits, that
during the 12-month period preceding September 8, 1960, Irvins had gross sales
valued in excess of $500,000, and purchased merchandise and supplies valued in
excess of $50,000 which were shipped from points outside the State of Maryland
to Irvins' places of business in Baltimore, Maryland. I find that Irvins is engaged in
commerce within the meaning of Section 2(6) of the Act, and that assertion of
jurisdiction is warranted.
RETAIL STORE EMPLOYEES' UNION, LOCAL 692, ETC.
II. THE LABOR ORGANIZATION INVOLVED
695
The Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Evidentiary findings
On May 9, 1960, Respondent Union filed with the office of the Regional Director
of the Board's Fifth Region located in Baltimore, Maryland, a petition for certifica-
tion as collective-bargaining representative of the employees of Irvins' four retail
establishments. The petition specifically excluded the employees of Irvins' ware-
house and office as well as watchmen, guards, drivers, and supervisors as defined in
the Act. The Respondent stated in the petition that it had not requested Irvins to
recognize it as collective-bargaining representative, and that Irvins had not declined
to represent it as collective-bargaining representative.
On May 13, 1960, Respondent Union distributed to Irvins' employees a letter
addressed to "Dear Friend" and signed by Alvin Akman, its secretary-treasurer.
The letter contained a notice of the Respondent's filing of its petition for certification
as bargaining representative, and a quotation of Section 7 of the Act. Section 7
guarantees employees the right to bargain collectively through a representative of
their own choosing and to engage in other concerted activity, and the right to refrain
from engaging in such activities. The letter also contained the statement that Re-
spondent Union had been informed that Irvins had violated the Act by coercing
and intimidating employees, that it was gathering evidence of such conduct and
would place it in the hands of its attorneys, that charges would be filed with the
Board against Irvins, and the latter requested to order that any employees who were
fired, forced to resign under pressure, intimidated, or coerced be reinstated in their
jobs with backpay or made whole for the injury suffered. The employees were
requested to inform the Respondent Union of any mistreatment by Irvins in order
for Respondent Union to take legal action against it. The concluding paragraph
stated that Respondent Union was contemplating direct economic action against
Irvins, and would take such action unless it ceased union-busting conduct and dealt
fairly with Respondent Union. It identified itself as the employees' choice. Floyd
C. Buckner, representative of Respondent Union, testified that the economic action
referred to in the letter was picketing.
Following a hearing on May 26, 1960, at the Regional office, on its petition of
May 9, 1960, for certification as bargaining representative, Respondent Union with-
drew it. The evidence does not disclose the reason for the withdrawal. Respondent
Union's witnesses contend that the hearing covered only the question of appropriate
unit. On May 31, 1960, Respondent Union began picketing Irvins' four retail stores
with picket signs bearing the legend, "Irvins refuses to recognize Local 692. Retail
Store Employees Union-R.C.I.A., AFL-CIO." The picketing with this picket sign
legend continued through August 18, 1960, the day of the Board-conducted election.
Starting on or about June 3, 1960, and continuing through August 18, 1960,
Respondent Union distributed at the entrances to Irvins' four retail stores to Irvins'
employees and to the public, including customers, two leaflets. The receivers of the
leaflets were asked in one not to trade at Irvins' stores, and in the other not to
patronize Irvins' stores. In the first leaflet, they were asked to refrain from doing
business with Irvins as good neighbors helping Irvins' employees gain decent work-
ing conditions and fair pay. Irvins was charged with firing employees because they
exercised their American right to join the union of their choice. This leaflet's
message ended with the request: "Please don't support low wages and union busting
with your purchasing dollar." In the second leaflet, Irvins was accused of being
unfair to organized labor, firing employees who joined Respondent Union, paying
most of its employees below recognized minimum wage levels, and refusing to have
a Board election among sales personnel only. The public, including customers, were
asked to help raise Irvins' employees standard of living, and not to buy at Irvins'
stores until a union sign was in the window.
On June 10, 1960, Irvins filed a charge with the Regional Office alleging that
Respondent Union was picketing for recognitional and organizational objects with-
out filing a petition for certification of collective-bargaining representative within
30 days of the commencement of the picketing, and thereby violated Section 8(b)
(7) (C) of the Act. On June 13, 1960, Respondent Uriion filed a petition required
by Section 8(b) (7) (C) for certification of collective-bargaining representative in
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same appropriate unit covered by the petition it filed on May 9, 1960, and with-
drew on or about May 26, 1960.1
On June 17, 1960, John A. Penello, Regional Director for the Board's Fifth
Region, dismissed Irvins' unfair labor practice charge filed June 10, 1960, by reason
of Respondent Union's petition filed June 13, 1960, and notified Irvins and Respond-
ent Union of the dismissal, and the scheduling of an election to be held on June 23,
1960, in the appropriate unit of Respondent's employees stated in Respondent
Union's petition filed June 13, 1960. On June 22, 1960, the day before the scheduled
election, Respondent Union filed an unfair labor practice charge alleging that Irvins
violated Section 8(a)(1) of the Act by intimidation and coercion of its employees
and threats thereof. The Regional Director thereupon postponed the election sched-
uled for June 23, 1960, pending the disposition of the charge. On June 30, 1960,
Respondent Union filed an amended charge alleging additional acts of intimidation,
coercion, and threats by Irvins in violation of Section 8(a) (1) of the Act. No
allegation was contained in the original or amended charge that Irvins had dis-
charged employees as stated in the leaflets it had been distributing since June 3, 1960.
On July 8, 1960, Irvins and Respondent Union executed a settlement agreement
approved by the Regional Director, in which Irvins, without conceding that it
violated the Act as charged, agreed that it would not in the future engage in conduct
in violation of Section 8(a) (1) of the Act as identified by the words of that section
of the Act, and by the conduct Respondent Union charged that Irvins had com-
mitted. Irvins also agreed to post notices in its retail establishments to this effect.
Irvins posted the notices on July 10, 1960.
On August 9, 1960, the Regional Director determined that there could be held
on August 48, 1960, without interference with Irvins' employees' rights to vote in
a representation election in a free and voluntary manner, the election he had orig-
inally scheduled for June 23, 1960, and which he had canceled on June 22, 1960,
because of the charge Respondent Union filed against Irvins on that date. Respond-
ent Union and Irvin were so notified on August 9 as well as notified that there
would be a preelection conference on August 17, 1960. On August 15, 1960,
Respondent Union sent a telegram to Irvins asking it for permission to address Irvins'
employees. There is no evidence as to whether Irvins replied or did not reply to
the telegram. On August 17, 1960, the preelection conference was held at the Re-
gional Office. Representatives of Respondent Union participated in the conference.
Neither at this time nor since the August 18 election date was announced, did Re-
spondent Union raise any objection to the holding of the election. Neither did
it complain at any time of any conduct by Irvins violative of the settlement agree-
ment of July 8, 1960.
On August 18, 1960, the Board election was held. The tally of ballots, dated
August 18, 1960, showed that of 189 votes cast by Irvins' employees, 50 votes
were for Respondent Union, 95 votes were against it, and 44 votes were challenged.
A statement was contained on the tally sheet that the challenged ballots were not
sufficient in number to affect the outcome of the election, and that a majority
of votes had not been cast for Respondent Union. Buckner, on behalf of Re-
spondent Union, stated on the tally of ballots that he acted as observer in the count-
ing and tabulating of ballots, and certified thereon that the counting and tabulating
were fairly and accurately done, that the secrecy of the ballots was maintained,
and that the results were as indicated on the tally. Buckner also acknowledged
service of the tally. On August 18, 1960, following the election, Respondent Union,
by two representatives who acted as observers on behalf of Respondent Union at
the balloting, certified that the balloting was fairly conducted, that all eligible
voters were given an opportunity to vote their ballots in secret, and that the ballot
box was protected in the interest of a fair and valid vote.2
On August 19, 1960, Respondent Union, by its Secretary-Treasurer Akman, sent
a letter to President Perellis of Irvins. In the first paragraph of the letter, Respond-
ent Union stated that in view of the results of the election, it would not request
recognition nor accept recognition until the majority of Irvins' employees indicated
their desire to be represented by Respondent Union. In the second paragraph of
the letter, Respondent Union stated that it felt obligated to inform the Baltimore
1 The petition stated that Respondent Union had requested Irvins to bargain on June 2,
1960 , but had received no reply.
2 A certification of the results of the August 18 election was issued by Regional Director
Penello on August 26, 1960 He stated therein that a majority of votes were not cast for
Respondent Union , and that it was not the exclusive collective-bargaining representative
of Irvine' employees.
RETAIL STORE EMPLOYEES' UNION, LOCAL 692, ETC. 697
labor movement and the people of Baltimore of the antiunion conduct of Irvins
and its supervisors, agents, and representatives, of threatening, coercing, and in-
timidating employees. It further stated in this paragraph that it planned to advertise
to the public what it considered to be Irvins' "reprehensible anti-union position."
On August 19, 1960, Respondent Union changed its picketing procedure at Irvins'
four retail stores. One picket instead of two patrolled each of the stores. The
picket sign legend was changed to read, "This is a Non-Union Store-Irvins Op-
poses Unions for its Employees-Please do not Patronize." There followed the
identification of the Respondent Union.3 The picketing was begun at 12:30 noon
and was ended at 5 p.m., on Monday, Tuesday, and Wednesday. On Thursday,
Friday, and Saturday, the starting time was 1:30 in the afternoon and the ending
time was 9 p.m. Prior to the Board election, the picketing also began at 12:30
noon on Monday, Tuesday, and Wednesday, and at 1:30 in the afternoon on
Thursday, Friday, and Saturday. However, on Monday, Tuesday, and Wednesday
it had ended at 5:30 p.m., instead of 5 p.m., and on Thursday, Friday, and Saturday,
at 9:15 to 9:30 p.m., instead of 9 p.m. The store hours at Irvins during all the
picketing ran from 9 a.m. to 9 p.m. on Monday, Thursday, Friday, and Saturday,
and from 9 a.m. to 5:30 p.m. on Tuesday and Wednesday. The lunch periods for
Irvins' employees during the entire period of the picketing were between the hours
of 11 a.m. and 2 p.m.
Buckner testified that the picketing prior to August 19, 1960, was to obtain
Irvins' recognition of it as the employees bargaining representative, and to obtain
its acceptance by Irvins' employees as their collective-bargaining representative. He
claimed that the picketing following the election was to convey information only.
The information conveyed, according to -Buckner, was the information set out in
its letter to Irvins on August 18, 1960. Buckner testified that between July 10
and August 18 he talked with 12 to 18 employees about union activity. According
to him, they said that the posting of the notice on July 10, 1960, pursuant to the
settlement agreement of July 8, 1960, had not removed the fear from their minds
that Irvins would carry out its threats to blacklist them among all department stores
in Baltimore, with the result that they would never be able to work in a store again.
Buckner said he discussed with these employees the rights they had under the Act,
and the settlement agreement of July 8, 1960, and the notice posted on July 10, 1960.
Buckner also testified 4 that the picketing would be discontinued if certain con-
ditions were met by Irvins. He stated that Irvins would have to assemble employees
to reassure them it would not carry out threats it previously made, further reassure
them that they would be subject to no pressure and would have a free choice in
the selection of a bargaining agent, and, finally, invite the representatives of Re-
spondent Union to address the assembled employees. Buckner testified further that
if these conditions were met the picketing would be discontinued.
Akman, secretary-treasurer of Respondent Union, testified that a meeting was
held on August 5, 1960, attended by him, Buckner, Ken Friedman, an organizer,
and Joseph E. Finley, attorney for Respondent. According to Akman, they had
lost six of eight elections prior to the August 18 election, and foresaw the possibility
of losing the August 18 election. The four of them, as a result, according to Ak-
man, determined to pursue a policy of informing the public after a lost election, by
picketing and other publicity, of the conduct an employer engaged in prior to an
election which was protected by Section 8(c) of the Act. Section 8(c) excludes
from conduct violative of the Act, employer expressions of opinion regarding unions
or union activity which do not contain any threats of reprisal or force or promise
of benefit. According to Akman, the failure of Respondent Union to win the
August 18 election was due to the statements made to employees by President
Petrellis of Irvins, and other representatives of Irvins which were protected by
Section 8(c) of the Act. Finley, counsel for Respondent, supported this position in
statements he made in the course of the hearing.
3 As previously found, the picket sign legend up to and including August 18, 1960, the
day of the election, read "Irvins refuses to recognize Local 692-Retail Store Employees
Union-R C I.A., AFL-CIO."
4 The U.S District Court for the District of Maryland enjoined Respondent's picketing
on October 3, 1960, by a temporary injunction order. Penello v. Retail Store Employees
Local Union No. 692, Retail Clerks International Association, AFL-CIO, 188 F. Supp.
192 (D C. Md.) The testimony of Buckner in that proceeding was stipulated by counsel
at the hearing before the Trial Examiner on October 10, 1960. The stipulation was re-
ceived in evidence by the Trial Examiner exclusive of any rulings thereon by the court, or
of any findings of the court premised on such evidence.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Analysis and concluding findings
The issue to be decided is whether Respondent's picketing following the Regional
Director's certification on August 26, 1960, of the results of the August 18, 1960,
election violated Section 8(b)(7)(B) of the Act. This section reads as follows:
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 em-
ployer 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 organization is currently certified as the representative of
such employees:
(B) where within the preceding twelve months a valid election under section
9(c) of this Act has been conducted, or
(C) 5
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).
Respondent Union has never been certified by the Board as collective-bargaining
representative of Irvins' employees. General Counsel concedes that the picketing
prior to the election on August 18 was legal. A violation, if committed, would run
6 Counsel for Respondent Union argued that the second proviso in subparagraph (C)
should be read into subparagraph (B) by applying the statutory rule of construction in
pari materia This proviso is:
. . that nothing in this subparagraph (C) shall be construed to prohibit any picket-
ing or other publicity for the purpose of truthfully advising the public (including
customers) 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
This proviso, while it makes evidence of a refusal to handle goods due to the inducement
of the picketing proof of illegal object under the stated conditions (see McCleod v
Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees
Union, AFL-CIO, at at, 280 F 2d 760, 764 (C.A. 2) ), excludes as proof of object evidence
of other effects or consequences, foreseeable or actual, when the stated conditions are
present. See Botany Worsted Malls v US, 278 U S 282, 289
The theory of Respondent Counsel's representation is that subsections (A), (B), and
(C) alike govern recognitional and organizational picketing by a noncertified union, that
they should be read together, and so read, the second proviso in subsection (C) is also a
part of subsections (A) and (B). The presence in (C) of a first proviso precludes such
a rationale This first proviso, which directs the Board to "forthwith" direct a representa-
tion election and certify the results, applies only to a subsection (C) situation Moreover,
while the general subject matter is the same, each subsection treats of a different phase of
it. In addition, in the situations covered by (A) and (B), the employees either have
selected or rejected a bargaining representative, but in the subsection (C) situation, the
employees may not have reached the point of selection or rejection So the application
of the proscription on picketing to (A) and (B) situations will not interfere with em-
ployees' rights guaranteed by Section 7, but might have had that effect when applied to
a (C) situation without the limitation contained in the second proviso
The presumption is that a proviso refers only to the provision to which it is attached,
and, as a general rule, is deemed to apply only to the immediately preceding clause
United States v. McClure, 305 U S. 472; Dollar Sav Bank v United States, 19 Wall
(U.S.) 227. The above analysis supports this rule Rules of statutory construction or
interpretation such as in part matersa serve a purpose only when they aid in disclosing
legislative intent. Posseluis v First Nat Bank, 264 Mich. 687, 251 N.W. 429, cert denied
292 U S 697 ; United States v. One Ford Auto, 292 F 2d 207 (C A.D.C) ; Detroit Citizens
Street R Co v Detroit, 64 F. 2d 648 (CA 6) Representative Griffin, cosponsor of the
Landrum-Griffin bill, which emerged substantially as the final law, stated in reference to
the second proviso that "it pertains to subsection (C) only [emphasis supplied], and
therefore consumer appeals for organizational or recognitional purposes are banned after
an election." NLRB, Legislative History of Labor-Management Reporting and Disclosure
Act of 1959 (U.S. Govt. Printing Office), p. 1812. See also id. at p 1858. So the second
proviso of (C), applies to (C) only.
RETAIL STORE EMPLOYEES' UNION, LOCAL 692, ETC. 699
only from August 26, 1960, the date of the certification of results of the election, since
the complaint alleges that the violation was from that date. Respondent Union con-
cedes that objects of picketing engaged in prior to August 19, 1960, were to secure
recognition by Irvins, and acceptance by Irvins' employees, of Respondent Union as
bargaining representative.
Respondent Union changed its picket sign legend on August 19, 1960, to a state-
ment that the store being picketed is a "Non-Union" store, and that "Irvins Opposes
Unions for its Employees," followed by a "Please do not patronize" request. One
picket patrolled in front of each of Irvins' four stores with this picket sign during the
store's operating hours. By stating that the store was a nonunion store, customers
understood Respondent Union to be stating that Irvins had no relations with unions.6
More specifically they understood Respondent Union to be stating that Irvins refused
to recognize it as the representative of its employees. They would be helped in having
this understanding by the legend on the picket sign used by Respondent Union from
May 31, 1960, until August 18, 1960, that "Irvins refuses to recognize Local 692."
Customers also understood Respondent Union to be stating in the words of the new
picket sign legend that Irvins opposes unions for its employees, that Irvins gave ex-
pression to a policy, either in terms of speech or conduct, that the employees were
not to become members of Local 692 or seek representation by Local 692. How it
opposed union membership or representation was left to the customer reading the
sign to surmise. He was certainly aided by the legend on the sign carried by the
pickets the prior June, July, and the first 18 days of August, that "Irvins refuses to
recognize Local 692." The words "Please do not patronize" are clear and unam-
biguous. They clearly convey the request not to do business with Irvins. It is logical
to assume that the purpose of the picketing was intended to induce present or future
conduct. So to the customers, Respondent Union's picketing on and after August 19,
1960, was an appeal to cease doing business at Irvins' four retail stores until Irvins
recognized Respondent Union as the representative of its employees. This finding is
supported by the evidence that the picketing not only followed immediately an elec-
tion lost by Respondent Union, but also picketing, the distribution of leaflets, and
other conduct of Respondent Union with the obvious and admitted objects of recog-
nition by Irvins and acceptance by its employees of Respondent Union as bargaining
representative.7
A foreseeable consequence of this picketing was the forcing or requiring of Irvins
to recognize and its employees to accept Respondent Union as bargaining representa-
tive.8 The threat, as well as the actual consequence of losses in sales, could well be
enough to cause Irvins to fear economic disaster and escape from it by recognizing
Respondent Union, and to cause Irvins' employees to fear for their jobs, and to
guard against losing them by accepting the Respondent Union as collective-bargaining
representative. Prior to the addition of Section 8(b)(7) to the Act, the courts and
the Board determined that the type of conduct engaged in by Respondent was reason-
ably calculated to have that effect 9 Congress in enacting Section 8(b) (7) (B), con-
sidered the economic loss resulting from picketing following an election in which the
employees rejected the union, and aimed to protect the employer and the employees
from this hardship, when the object was recognition or acceptance as bargaining
representative.1e -
The objective standard for determining object from foreseeable effects or conse-
quences has been recognized in the field of labor relations.ii Moreover, the fact
6It is elementary that words are to be given their common and ordinary meaning absent
a showing that they have a special or technical meaning
7 There are no presumptions in favor of or against Respondent Union arising from
Respondent's conduct prior to August 19, 1960 However, evidence of Respondent's con-
duct prior to that date can be, and has been, considered in determining the object of the
picketing under scrutiny See Stan Jay Auto Parts and Accessories Corporation, 127
NLRB 958
8Peaceful picketing for an object proscribed by Section 8(b) (7) satisfies the words
"forcing or requiring" in that section. Stan Jay Auto Parts and Accessories Corporation,
supra.
8 Teamsters Local v Vogt, Inc , 354 U S 2S4; Capital Service, Inc, d/b/a Danish Maid
Bakery, et at v. N L R B , 204 F. 2d 848, 853 (C A 9) , Curtis Brothers, Inc, 119 NLRB
232, 236, revoked on other grounds 362 U S 274 The actual happening of the foreseeable
consequence is not a necessary condition. Curtis Brothers, Inc, supra, at p 237
10 NLRB, Legislative History of Labor-Management Reporting and Disclosure Act of
1959 (U.S. Govt Printing Office), pp 472, 1518, 1523, and 1813
11 The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H Bull
Steamship Company) v. N L.R.B , 347 U S. 17, 45-46, 51. The Supreme Court applied
'700 DECISIONS OF ATATIONTAL LABOR RELATIONS BOARD
that Congress in limiting the proof of a violation of subsection (C) of Section
8(b)(7), in a situation described in the second proviso to that subsection, recognized
as evidence of a violation the actual effect or consequence of a refusal to make
pickups, deliveries, or transfers or to perform services, is persuasive that it considered
the consequences or effects reasonably calculated to flow from the picketing to con-
stitute proof of object, with respect to other -(C) situations and those under (A)
and (B)
Respondent Union by way of defense showed that it engaged in independent acts
it claims reveal an intention to convey information only by its picketing, and not to
force or require Irvins to recognize it or Irvins' employees to accept it, as bargaining
representative. Common sense prevents me from considering this picketing with a
please do not patronize request contained in the picket sign legend as merely a
vehicle for the dissemination of ideas.12 Respondent's defense will have to show
that what appears to be an illegal object from the analysis of the picket sign legend
considered with Respondent Union's prior conduct, and from the foreseeable conse-
quence of forced recognition and acceptance due to economic coercion through
customers, was not in fact intended by Respondent Union. It is not enough for
Respondent to show that a second object of the picketing was to convey information.13
Respondent contends that its letter to the president of Irvins, signed by Secretary-
Treasurer Akman, and dated August 19; 1960, the same day that it changed its
picketing, discloses the true object of the picketing, to merely inform the public of
certain antiunion conduct of Irvins. The letter stated that Respondent Union did
not seek or desire recognition by Irvins or acceptance by its employees as bargaining
representative in view of the results of the election, accused Irvins of threatening,
intimidating, and coercing employees, and announced that it intended to "advertise"
to the public the "reprehensible anti-union position" of Irvins.
So Respondent in its August 19 letter charged Irvins with engaging in conduct
violative of Section 8 (a)( I) of the Act and the terms of the settlement agreement
of July 8, 1960. But Respondent, during the period from July 8 to August 19, 1960,
did not file an unfair labor practice charge or otherwise complain to the Regional
Director of this alleged illegal conduct. Nor had it filed any such charge or com-
plaint by October 10, 1960, the day of the hearing. Neither did Respondent request
the Regional Director to delay the holding of the election when, on August 9, 1960,
he announced that an election could be conducted in which Irvins' employees could
cast their ballots in a free and voluntary manner, and scheduled it for August 18,
1960, as well as a preelection conference for August 17, 1960.14 Nor was such a
request made thereafter. Respondent union representatives attended the preelection
conference, acted as observers at the election and at the counting of the ballots,
and certified that the election and the counting were conducted fairly, that the
secrecy of the ballot was preserved, and that the tally of the ballots was accurate.
The value of the August 19 letter as evidence is rendered more doubtful by the
testimony of Buckner, Respondent's representative and organizer, and Akman, its
secretary-treasurer. Buckner testified that Respondent sought to disclose to the
the common law rule that a man is held to intend the foreseeable consequences of his
conduct, id at p 45, citing Cramer v. US., 325 U S. 1, 31 ; Nash v US, 229 U.S 373,
376; U S v Patten, 226 U.S. 525, 539; Agnew v U S, 165 U S 36, 50. Courts of appeals
have applied the ruling in Radio Officers in cases involving union conduct as well as
employer conduct. NLRB v Local 140, United Furniture Workers of America, CIO,
et at (Brooklyn Spring Corp ), 233 F. 2d 539, 541 (C A. 2) ; NLRB. v. Oklahoma City
General Drivers, Warehousemen and Helpers, Local Union 886, International Brother-
hood of Teamsters, etc (Chief Freight Lines Co.), 235 F. 2d 105, 107 (C.A. 10) ; Olin
Mathieson Chemical Corporation v. N.L.R .B., 23'2 F. 2d 158, 161 ( C.A. 4). But cf . Douds v.
Local 50, Bakery and Confectionery Workers International Union of America, AFL
(Arnold Bakers, Inc.), 224 F 2d 49 (C.A 2) ; and NLRB. v. Local 50, Bakery & Con-
fectionery Workers International Union, AFL-CIO (Arnold Bakers, Inc.), 245 F. 2d 542
(C A. 2). In these cases customers did not use the area picketed. The findings and
conclusion I make in this case are premised on the picketing considered in the context of
this case
12 Peaceful picketing, a potent economic weapon, is more than speech, and may be
banned by 'Congress when aimed at preventing a valid public policy. Teamsters Union v
Vogt, Inc, 354 U S. 284, 289-293
13 N L R B. v Denver Building and Construction Trades Council , et at ( Gould d
Preisner), 341 U S. 675, 688-689.
14 See Robert P Scott, Inc . v. Rothman , 46 LRRM 2793 (D.C.D.C.) ; Colony Materials,
Inc. v Rothman , 46 LRRM 2794 (D.C D.C.).
RETAIL STORE EMPLOYEES' UNION, LOCAL 692, ETC. 701
public by the picketing threats made by Irvins' officials prior to July 8, 1960, respon-
sible for the continuation of a fear in the minds of employees after July 8 that if they
favored the Respondent Union they would lose their jobs, and not be able to secure
employment elsewhere in the Baltimore area . According to Buckner, 12 to 18
employees informed him of this fear between July 8 and August 18. Akman,
Respondent's secretary-treasurer, assisted by Finley, Respondent' s counsel , testified
that the picketing was intended to disclose to the public only statements made by
Irvins' officials to employees unfavorable to the Respondent Union, but protected
by Section 8(c) of the Act.15 This constitutes an admission by Akman that the
representation in the August 19 letter, which he signed, that Respondent Union was
informing the public by the picketing of conduct constituting threats, intimidation,
and coercion was not true. Akman's admission is supported by his testimony that
at the meeting of August 5, 2 weeks prior to the date of the letter, at the office of
Respondent Union, attended by him, Buckner, Organizer Friedman, and Finley,
Respondent Union' s counsel , the decision to inform the public of legal conduct by
Irvins unfavorable to Respondent Union was determined.
This analysis of the evidence convinces me that no weight should be attributed to
the August 19 letter or to the conclusionary testimony of Buckner and Akman, as
to what the picketing was intended to accomplish.16 In any event, on studying the
picket sign legend comprised of the statement that the Irvins' store is a nonunion store
and that Irvins opposes unions for its employees, and the request not to patronize
the store, I fail to find the slightest clue as to what the August 19 letter, or Buckner's
or Akman's oral testimony states was intended to be disclosed to the public, including
customers, by the picketing; namely, that Irvins threatened, intimidated, and coerced
employees with respect to their union activity, or that a fear of loss of employment
caused by threats made by Irvins continued in the minds of its employees after the
settlement agreement of July 8, 1960, or that Irvins made statements to employees
that were expressions of opinion without threat of reprisal or force or promise of
benefit, but which showed that Irvins did not favor Respondent Union or other unions.
I credit the evidence that there was no disruption of deliveries, pickups, or trans-
fers, or performance of other services, by employees of other employers by reason
of the picketing, and that Respondent Union representatives or agents saw to it that
the picketing did not interrupt these activities. However, while this evidence shows
that Respondent did not seek to accomplish an illegal object through the economic
hardship of a disruption of services, it fails to dent the evidence that Respondent was
seeking to achieve an illegal object by appealing to customers not to trade with
Irvins, and their response to the appeal. I further find that evidence of object from
foreseeable consequences is not limited to evidence of disruption of deliveries, pick-
ups, and transfers, or other services, since for the reasons stated in footnote 5, supra,
the second proviso to subsection (C) is not applicable to subsection (B).17
The statement in Respondent Union's letter of August 19, 1960, that it was not
seeking recognition by Irvins or acceptance by its employees, as bargaining repre-
sentative is not supported by the evidence. I have not commented on the fact that
Respondent Union conveyed only to Irvins the representation that it would not
accept the role of bargaining representative. It made no effort to communicate this
"information" to the customers of Irvins through whom it was compelling Irvins
to recognize it, and its employees to accept it, as bargaining representative
For the above reasons, I conclude and find that Respondent Union's picketing of
Irvins' four retail stores in Baltimore on and after August 26, 1960, violated Section
8(b) (7) (B) of the Act.
15 Section 8(c) provides that "The expressing of any views, arguments, or opinion, or
the dissemination thereof, whether in written, printed, graphic, or visual form, shall not
constitute or be evidence of an unfair labor practice under any of the provisions of this
Act, if such expression contains no threat of reprisal or force or promise of benefit "
1° The conflicts in this evidence of Respondent have made it unnecessary for me to
determine whether its conclusionary nature would have permitted me to attribute any
weight to it in the presence of the more probative evidence of the picketing itself and
Respondent's prior conduct, from which I can draw my conclusions, rather than accept
those of Respondent See A C A. v. Doed8, 339 U S 382, 411 ; and Spokane & 1 E R.
Co v US., 244 U S 344, 351.
171 do not consider the testimony Buckner gave in response to the inquiry as to what
Irvins had to do to cause Respondent Union to voluntarily discontinue the picketing, to
be probative evidence for or against Respondent General Counsel argued that it dis-
closed an illegal object, and counspi for Respondent argued that it disclosed a legal object.
702 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 Irvins 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
Having found that Respondent Union has engaged in an unfair labor practice
in violation of the Act, I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
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. Irvins, Inc., Baltimore , Maryland, is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Retail Store Employees ' Union , Local No. 692, Retail Clerks International
Association, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
3. By picketing the four retail stores of Irvins, Inc., located in Baltimore, Mary-
land, from August 26, 1960 , until enjoined by the United States District Court for
the District of Maryland on October 3, 1960, with an object of forcing or requiring
Irvin, Inc., to recognize it or bargain with it as the collective-bargaining representa-
tive of the employees of Irvins , Inc., or forcing or requiring the employees of Irvins,
Inc., to accept or select it as their collective -bargaining representative , although it
had not been currently certified as the collective -bargaining representative of such
employees , and a valid election under Section 9(c) of the Act had been held within
the preceding 12 months, Retail Store Employees ' Union, Local No. 692, Retail
Clerks International Association , AFL-CIO, engaged in an unfair labor practice
within the meaning of Section 8(b) (7) (B ) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Glaziers, Glassworkers & Glass Warehouse Workers Local
Union No. 1778, Brotherhood of Painters , Decorators and
Paperhangers of America , AFL-CIO [Dixie Glass Co., Inc.]
and Fred Hunt. Case No. 23-CB-376. November P,4, 1961
DECISION AND ORDER
On August 14, 1961, Trial Examiner John P. von Rohr 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 a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its power in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers 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
134 NLRB No. 71.