Teamsters "General" Local No. 200, Etc.

National Labor Relations Board - Board Decisions

Nov 24, 1961

134 N.L.R.B. 670 (N.L.R.B. 1961)

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would hold is that where the contract might tend to interfere, the-
Board should not withhold from employees the right to determine
their representation in a Board-conducted election. Our colleagues
here are doing precisely the opposite. For it is clear, from the broad
sweep which our colleagues are giving to their revised rules, as evi-
denced by their application of these revised rules to the facts in this
case, that they have held that no union-security provision will remove
a contract as a bar unless , its nonconformity with the Act is so blatant
that even the blind must see it.
Applying the Keystone rules to this case it is clear, apart from any
other considerations, that the contract in issue does not give incumbent
nonmember employees any grace period. We would find, accordingly,
that the contract is not a bar- and the petition was timely.''' As there
are no other issues in the case, we would therefore direct an election
in the stipulated unit.
14 National Brassiere Products Corp, 122 NLRB 965
Teamsters "General" Local No. 200 International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America and Howard Bachman , Joseph B. Bachman and
Myron J . Coplan, a Partnership d/b/a Bachman Furniture
Company. Case No. 13-CP-15. November 24, 1961
DECISION AND ORDER
On November 14, 1960, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in any unfair labor practices
and recommending that the complaint be dismissed in its entirety, as
set forth in the Intermediate Report attached hereto. Thereafter,
the General Counsel, the Respondent, and the Charging Party 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 prejudicial 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
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.' Com-
pare Retail Store Employees' Union, Local No. 692, Retail Clerks
'Although we find, in agreement with the Trial Examiner, that the Respondent's picket-
ing was not conducted for an object proscribed by Section 8(b) (7) (B) of the Act we do
not adopt or rely upon that portion of the Intermediate Report relating to the distinction,
sometimes made , between the so-called ultimate and immediate objects which are alleged
to underlie all picketing
134 NLRB No. 54.
TEAMSTERS "GENERAL'' LOCAL NO. 200, ETC. 671
International Association , AFL-CIO (Irvin, Inc.), 134 NLRB
686.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM dissenting :
Section 8(b) (7) (B) of 'the Act is violated where a labor organiza-
tion, which is not currently certified, pickets for either a recognitional
or organizational object "where within the preceding twelve months
a valid election under section 9(c) . . . has been conducted." There
is no dispute that the Respondent, at all times material herein, was
not the currently certified bargaining representative,2 or that its
picketing occurred within the 12-month period following the conduct
of a valid election. Thus, the only remaining element required under
Section 8(b) (7) (B) to make out a violation-and the issue as to
which we disagree with our colleagues-is the factual determination
whether the Respondent's postelection picketing was conducted for
either a "recognitional" or "organizational" object 3
The facts, as found by the Trial Examiner, are not in dispute and,
in our opinion, clearly disclose that Respondent's picketing was un-
lawful. It is beyond doubt that the Respondent demanded recog-
nition from the Employer when initial contact was made on
March 24, 1960. At that time the Respondent had in its possession
authorization cards signed by five employees (out of a unit of seven).
Apparently confident of its chances for success in a Board-conducted
election,' the Respondent filed a representation petition less than 1
week after it made its demand for recognition. Thereafter it vigor-
ously prosecuted its interest in the election process through the filing
of objections and challenges. It is obvious that all of this activity
was directed toward the achievement of but one goal-recognition.
The Respondent initially sought to gain representative status through
the Employer's acquiescence to its demands, and later, by invok-
ing the Board's election processes, sought a Board certification by
2 Indeed , as disclosed by the record herein, the Respondent commenced its picketing
activities 15 days after the Regional Director issued the certification of results indicating
that the Respondent failed to receive a majority of the valid votes cast in the election in
which it participated
3 As stated by the Supreme Court in Drivers, Chauffeurs and Helpers Local Union
No 639, International Brotherhood of Teamsters , etc (Curtis Brothers ), 362 U S 274•
'.'[The Landrum-Griffin Act of 1959] goes beyond the Taft-Hartley Act to legislate a com-
prehensive code governing organizational strikes and picketing and draws no distinction
between 'organizational' and 'recognitional' picketing "
4 At the hearing before the Trial Examiner, Hammer, Respondent's business iepre "na-
tive, testified that five of the seven employees had visited the Respondent's office ill the
early pact of ,March, had signed authorization cards, and had each paid a $50 initiation
fee That the Respondent indeed felt confident of its ability to win an election is further
evidenced by the fact that it was willing to go to the polls on April 15, notwithstanding
the fact that the Employer's alleged unfair labor piactices occurred, at least in part, prior
to the execution of the consent-election agreement between the Employer and Respondent
Such misconduct on the part of the Employer certainly would have afforded the Respondent
a proper basis for having the election postponed
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means of which the Respondent could lawfully compel the Employer's
recognition.
It is true that before the Respondent lost the election, it limited
itself to pursuit of recognition through lawful procedures. ' It was
only after the issuance of the certification of results, when it became
clear to the Respondent that it had irrevocably lost the election and
could not otherwise compel recognition, that the Respondent decided
to picket the employer.5
The Respondent would have the Board believe that notwithstand-
ing the clear evidence of recognition inherent in the prepicketing
activities, any such object disappeared when it decided to picket. By
some sort of supposed transmutation, the Board is asked to disre-
gard-and the majority apparently does disregard-all the events
that preceded the picketing. The Board is also asked to accept-and
the majority does accept as true-the Respondent's assertion that,
even "though it wouldn't further the local's end," it engaged in
picketing solely for the object of protesting the Employer's unfair
labor practices.6 To thus disregard the significant events, and to
accept Respondent's assertions in the face of those events, is highly
unrealistic, and ignores what is obviously the Local's real objective.
S During the hearing before the Trial Examiner , Respondent's business representative
testified as follows.
Q. Now I believe that Local 200 attributes the loss of the election to Bachman's
unfair labor practice , is that correct;
A. That's right
Q And the object of the picketing , in whole or part, was in a sense to teach
Bachman ' a lesson, is that more or less correct, colloquial [ sic] speaking?
A. To advertise to the public that he was in an unfair labor practice.
Q Now what did you hope to achieve by this advertising;
A. Just to let the people-satisfaction , I imagine, of letting the people know.
Q. What kind of satisfaction would this give to the Local;
A 'Well, Bachman is located in a neighborhood where there is a lot of laboring
people They are labor - conscious people up there . . . . Well , they would know that
be committed an unfair labor practice and act accordingly.
Q Now what sort of satisfaction would the Local get out of Bachman's loss of
business , how would it further the Local's end;
A It wouldn't further the Local's end
"Respondent ' s business representative testified that the decision to protest against the
Employer was made during a conversation among several of Respondent ' s representatives,
and that the conversation "came up because we were-talking about elections , and we had
lost another one about the same time and we got to talking about losing elections." It
would appear that little weight should be given to the Respondent ' s defense that it was
solely concerned with protesting unfair labor practices when the Respondent ' s business
representative testified that the decision to picket developed from the Respondent's con-
cern over the loss of an election and therefore the loss of a legal basis for compelling
recognition.
Moreover , the unfair labor practices which the Employer Is alleged to have committed
were settled on June 1, 1960 , prior to the date when the Respondent commenced picketing.
Significantly , this settlement agreement, which was approved by the Regional Director as
providing a full remedy for the alleged violations, was executed not only by the Employer,
but by the Respondent Union as well Thus, it may further be questioned how much
weight to accord Respondent 's argument that it was seeking to protest unfair labor
practices when the facts demonstrate that Respondent was satisfied that an adequate and
appropriate remedy was being provided by the Board's processes
TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 673
Congress could not, and in our opinion did not, intend to have Sec-
tion 8(b) (7) (B) construed in a manner which would permit a union
to subject an employer and its employees to the pressures of picketing
immediately after these same employees have rejected the union in a
Board-conducted election. Indeed, by specifically abolishing in Sec-
tion 8(b) (7), the Board-created distinction between "organizational"
and "recognitional" objectives' Congress unequivocally expressed its
intention to free an employer and his employees from picketing fol-
lowing an election when it has been determined that the Union is
not the representative of the Employees. Our colleagues, however,
are ignoring this congressional concern over postelection picketing,
just as they are ignoring the preelection evidence and the inferences
compelled thereby as to the Respondent's postelection objectives. The
effect of our colleagues' decision is to allow a union to pop up with a
picket line 5 minutes after it has lost an election, and to extinguish the
existence of a recognition objective through the device of a self-
serving picket sign.
We cannot accept the Respondent's defense-that its sole objective
in picketing the Employer was to protest his alleged unfair labor
practices. Nowhere does it appear that the Respondent communicated
to the Employer or to anyone, a disclaimer of its intention to continue
to press for recognition. Moreover, it is revealing that Respondent
engaged in no picketing to protest the Employer's alleged unfair labor
practices, prior to the election, when it would have appeared that
a protest was imperative. The Respondent might have been expected
to picket for this purpose when the misconduct occurred (prior to
April 8, 1960), or when it filed its objections and 8(a) (1) charges
(on April 20, 1960), or even when the Regional Director overruled
the objections and refused to set aside the election (on June 1, 1960).
The Respondent chose none of these times. Instead, on the very
day the Regional Director overruled its objections, it entered into a
settlement agreement with the Employer with respect to its pending
8 (a) (1) charges. Only thereafter did it begin to picket : After its
charges had been settled and after the Employer had commenced
posting the notice which the Respondent, by executing the settlement,
had agreed was sufficient to remedy the Employer's alleged unfair
labor practices. To say that its picketing in these circumstances
was in protest of the unfair labor practices strains credulity to the
breaking point. There is thus no evidence in the record, other than
the Respondent's self-serving assertions, which are belied by its own
conduct, that the Respondent was picketing for an object other than
those proscribed by Section 8(b) (7), and no evidence from which
7 For example, compare Hamilton's Ltd., 93 NLRB 1076, with 3 Beall Brothers 3, et at.,
110 NLRB 685.
630849-62-vol. 134-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it might be inferred that its picketing was not in furtherance of its
original recognitional objective.
Accordingly, 'we would find that the recognition object which the
Respondent initially sought and failed to obtain through the election
route, continued to exist as at least "an object" when it resorted to
picketing after the election."
8 As stated by the Federal district court in the injunction proceeding herein, Cavers v
Teamsters "General" Local No 200, IBT, 188 F . Supp 184 (D C .E Wis ) : " We are satis-
fied that the recognition demand [made March 24, 1960 ] did not go into orbit in the
cosmos but remained on a very down to earth plane , amid employees , employer and union "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case , with all parties represented , was heard before A. Norman Somers, the
duly designated Trial Examiner , in Milwaukee , Wisconsin, on August 16, 1960,
on complaint of the General Counsel and answer of Respondent . The issue was
whether the picketing of the Employer 's premises by Respondent Union was in
violation of Section 8(b)(7)(B ) of the Act, as modified by the Labor -Management
Reporting and Disclosure Act of 1959 . ( Public Law 86-257, 86th Cong ., 1st sess.) 1
The parties waived oral argument, and have submitted briefs, which have been duly
considered.
On the entire record,2 and from my observation of the testimony as given, there
are hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Bachman Furniture Company, the Charging Party, sometimes referred to as
Bachman or the Employer, is a three -man partnership operating a retail furniture
business in Milwaukee , where it has a store and warehouse . It does an annual
business exceeding $500,000 , and receives merchandise and materials from ' out,of
the State in excess of $50 ,000 a year . Jurisdiction is undisputed.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Teamsters "General" Local No. 200, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , is a labor
organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Introduction : The basic issue
Respondent is charged with violating Section 8 (b)(7)(B) of the Act as modified
by the 1959 statute , which forbids a union from picketing for 1 year after a ' valid
Board election, where an object is to compel the employer to recognize or the
employees to select it . 3 Respondent admits picketing the Employer 's store within
less than a year after a Board election , but denies that this was done with either of
the proscribed objects.
B. The evidence
The essential facts of the case are formally stipulated , and were the basis of the
decision in the district court proceeding ( supra, footnote 1). At the hearing before
i Prior to the hearing before me, the matter was heard in the U S. district court on a
petition for a restraining order under Section 10 (1) of the Act On August 18, 1960,
Chief Judge Tehan of the Eastern District of Wisconsin rendered his opinion and issued
a restraining order , which is still in force Cavers v Teamsters "General" Local No 200,
IBT, 188 F Supp 184 (D C E «-is )
' As corrected on notice to the parties on September 8, 1960.
Section 8(b) (7) is quoted in full infra, at footnote 6.
TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 675
me, the stipulated facts were supplemented to some extent by the testimony of Fred
Hammer, business representative of Respondent Union, who was put on the stand
by the General Counsel as an adverse witness. The question of its binding character
apart, a proper exercise of our decisional function would call for a careful considera-
tion of the district court's opinion in the 10(1) proceeding. It would therefore seem
appropriate to summarize the facts as stipulated here and in the court proceeding,
before turning to such additions thereto as were supplied by the testimony. The
stipulated facts are these:
On March 24, 1960 (the year embracing all events here considered), the Union
made a bargaining demand on the Employer on behalf of a unit of seven employees,
consisting of its truckdrivers, warehousemen, and helpers. At the time of such
demand, a majority of the employees in that unit had signed cards applying for
membership in the Union and designating it as their bargaining agent.
On March 30, the Union filed a representation petition under Section 9(c) of the
Act. On April 8, a consent-election agreement was signed. The election was con-
ducted on April 15, and at that time a tally showed two votes for the Union, three
against, and three ballots challenged. On April 20, before the challenges were ruled
upon, the Union filed objections to the election based upon the alleged misconduct
of the Employer. On the basis of it, the Union, the 'same day, also filed charges of
unfair labor practices against the Employer under Section 10 of the Act. The mis-
conduct alleged was to the effect that sometime after the consent-election 'agreement,
the Employer individually interviewed a majority of the eligible employees in its
office, in the course of which it "discussed [its] opposition to the Union and prom-
ised the employees a 30-cent per hour increase, if they voted against the Union."
On June 1, the Regional Director issued his report overruling the objections
because according to his investigation, the alleged misconduct, with one exception,
occurred before April 8, the date of the election agreement, and hence "may not be
considered as a basis for setting aside an election." The exception in question con-
sisted of an unsworn statement by an employee to the effect that he had a "discussion"
with Myron J. Coplan, one of the employer partners "some time around April 8,"
concerning a contemplated wage increase for the force. The Regional Director
considered this last too "indefinite as to time," to constitute standing alone a basis
for upsetting the election.4 In the same report, the Regional Director upheld one
of the three challenges, and directed that the other two ballots be opened. These
were evenly split, and so a revised tally of the ballots signed by the parties on June 7
showed three votes for the Union and four against. Accordingly, on June 13 the
Regional Director issued his certification, attesting to the Respondent's defeat in the
election.
The foregoing terminated the Section 9(c) representation proceeding. In the
Section 10 unfair labor practice proceeding, the Union and the Employer, on June 1
(the day on which the Regional Director issued his report on the objections to the
election), signed on the Board's standard form, an informal "Settlement Agreement,"
which was approved by the Regional Director on June 3. Under it, the Employer
agreed to post a notice for 60 days to the effect that it would not interrogate em-
ployees regarding their or any other employees' union activities, affiliations, or
sympathies, or "in any other manner" invade their rights under the Act. On June 9,
the Employer commenced the posting of the notice.
On June 28, the Union, for the first time, commenced picketing the Employer's
premises The picketing occurred solely at the store and not at the warehouse, 5
miles away, where the majority of the employees in the unit work. The picket sign
read, on one side:
Bachman admits unfair
labor practices
0
4 The employee in question related that the "discussion" with Coplan occurred in the
company office and on the selling floor of the store, in the course of which Coplan said
"the Company was contemplating raising the wage rates " Coplan, the report stated,
admitted this last, but estimated the date of the talk as preceding March 24. Similar
statements were attributed by other employees to Howard Bachman, another partner, but
the time fixed was around March 20 The report recites that no employees were called
into the office for individual interviews, and further that at the end of April, after the
election, but while the objections were yet'under investigation, the Employer granted an
increase of 30 cents an hour
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And on the other:
Unfair labor practices
violate Federal law
The only discussion concerning the picketing took place in a telephone call made
by the attorney for the Employer to union counsel shortly after the picketing began.5
The Employer's attorney read the language of the picket sign. Union counsel replied
that it "sounded like the truth to him," that the Company "had tried to cover up
[its] activities" and "knew or should have known when it engaged in these activities
that Local 200 would try to take some retaliatory action," and that "it would be a
fight." There was no mention of recognition.
This completes the facts as formally stipulated. The additional evidence supplied
by the testimony of Business Representative Hammer at the hearing was substantially
to the effect that the Union's majority designation at the time of the bargaining
demand on March 24 consisted of applications of five persons who had come to.
the union office requesting to be represented by it, and who, at the time they signed
the application, paid a $50 initiation fee. In regard to the activities which were the
basis of the Union's objections to the election and the charge against the Employer,
Hammer testified the Union learned about them the night before the election. The
decision to picket, he testified, was made about 10 days before June 28, when the
picketing began. The occasion, as Hammer testified, was the Union's losing still
another election in the local area among a unit of employees comparable to and under
circumstances similar to this one. Hammer testified that he and Frank Ramney, the
secretary-treasurer of the Union, who "usually makes the decision" concerning these
matters, then got to talking "about unfair labor practices" and "losing elections,"
that they felt that "the public wouldn't be able to see the signs that were posted
[pursuant to the Settlement Agreement]," so they "figured we ought to do something
about it," whereupon, with no mention of picketing at that time, they decided to,
"check with the [Union's] attorneys and see just what we can do." After a con-
ference with the Union's attorney, it was decided to picket this Employer and not
the other company, because, he testified, this was the Union's second experience with
this Employer, the latter having 2 years earlier, according to Hammer, discharged
two men for "signing up with the Union." The language of the picket sign was
prepared by Union's counsel, and the Union is paying for the picketing activity.
The conversation between the respective attorneys came after the Employer's counsel
made a direct call to Hammer, and the latter without discussing the matter, referred
him to union counsel.
Hammer testified that while he foresaw that the Employer might approach the
Union about removing the pickets, he did not, in view of Bachman's past history,
envision any prospect of its recognizing the Union, nor was that the Union's purpose;
and that the purpose was merely to achieve "the satisfaction" in a "labor-conscious
community," of "letting people know" about Bachman's activities, even though "it
wouldn't further the Local's end to do so."
C. Conclusion concerning object of the picketing
The only issue, as previously stated, is whether the picketing, admittedly occur-
ring within the 1-year postelection period mentioned in (B) of 8(b) (7), had a recog-
nitional or organizational object, as proscribed in the body of that provision .6
5Its contents are recited in a memorandum prepared by a Board field examiner on the
basis of separate inquiries from each attorney, and which each accepts as correct. There
is no agreement as to the precise date of the conversation, but the inference is that it
occurred in the interval between the commencement of the picketing on June 28 and the
filing of the charge by the Employer on July 1. This is based on the sense of the talk
The call was aimed at ascertaining the Union's stated purpose in picketing-a step which
a lawyer would normally take before deciding whether to file a charge.
9 Because of the interdependency of the various parts of Section 8(b)(7), we quote the
relevant portions of all its subdivisions, as follows:
Svc 8(b). It shall be an unfair labor practice for a labor organization or its
agents-
s s • r •
(7) to picket or cause to be picketed, or threaten to picket or cause to be picketed,
any employer where an object thereof is forcing or requiring an employer to recognize
or bargain with a labor organization as the representative of his employees, or forcing
or requiring the employees of an employer to accept or select such labor organization
0
TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 677
The Union claims that the General Counsel has not met his affirmative burden
of establishing that the picketing had either of those forbidden objects, and that such
evidence in the record as is rationally indicative of purpose not only does not sup-
port the accusation of a forbidden objective but affirmatively refutes it . The Gen-
eral Counsel , on the other hand, reminds us, as did the court in its decision in the
10(1) proceeding , that we must look beyond the Union's "self-serving" assertions
concerning purpose and determine objective "through inferences to be drawn from
the actions of the parties." ( 188 F. Supp . 184.) Invoking this standard, the Gen-
eral Counsel contends that "the sequence of events compels the inference that the
picketing was for an unlawful object." The only elements in the sequence relied on
would seem to be, first, the election and then the picketing , and as I read his brief,
his argument is not that this sequence constitutes positive evidence which affirma-
tively demonstrates the existence of the unlawful object , but rather that it subjects
the Union to "the presumptions that inevitably arise in post-election picketing," in
accordance with Board authority developed under the Curtis Brothers doctrine,1
which we discuss later . The district court, on the other hand, found the Union's'
object was to compel the Employer to recognize it, and in doing so it explicitly dis-
claimed that its conclusion was based upon presumptions relating to the inherent
intentions underlying picketing as such. It stated ( supra, footnote 1) :
We have not been influenced in our judgment by what is invariably the ultimate
or long-term goal of every Union , to enlist all eligible workers within the
Union jurisdiction . It would not only be unfair, but would make meaningless
certain other sections of the statute. The test we applied was that of an
inquiry into a reasonably immediate objective of the Union , and have found
that to be recognition . [Emphasis supplied.]
The conclusion that recognition was a "reasonably immediate objective" was
expressed by the court in rather positive terms, as follows ( ibid.) :
We can form no other conclusion from the totality of the Union 's acts within
the relevant period of March 24, 1960 to the present but that it has had for an
objective and its objective the recognition of the Union . All of the facts found
definitely point towards the objective of recognition and there is a total absence
of any persuasive facts that there is an objective other than recognition.
A conclusion thus emphatically expressed by a court , quite apart from whether it is
formally binding upon us, is entitled to respectful and serious consideration. I have
therefore considered carefully the totality of acts which impelled the court to the
conclusion it reached . As I see it, the elements in the totality on which the court
relied as positive support for an inference of recognitional intent are not essentially
different from that relied on by the General Counsel in invoking the presumption
concerning inherent purpose of picketing itself. These are the facts that the picket-
ing, which began on June 28, was preceded by a bargaining demand made by the
Union on March 24, after which it instituted a representation proceeding before the
Board and participated in it to ultimate conclusion . The court would seem to have
been impressed with each successive step pursued by the Union within the representa-
tion proceeding as progressively strengthening evidence of the intent which underlay
the later picketing . Indeed , it is this series of steps, which constituted , as far as I
as their collective bargaining representative , unless such labor organization is cur-
rently certified 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 representation may not
appropriately be raised under section 9(c) of this Act,
(13) where within the preceding twelve months a valid election under section
9(c) of this Act has been conducted, or
(C) where such picketing has been conducted without a petition under sec-
tion 9 ( c) being filed within a reasonable period of time not to exceed thirty
days from the commencement of such picketing : . . 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 con-
sumers ) 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
° Drivers, Chauffeurs, and Helpers Local 639 , International Brotherhood of Teamsters,
Chau f eurs, Warehousemen and Helpers of America , AFL-CIO ( Curtis Brothers, Inc ),
119 NLRB 232 , set aside in 274 F. 2d 551 (C .A.D.C.) and ( affirming the C . A.) 362 U.S. 274.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can see, the totality of acts impelling the court to its conclusion . As appears in the
extract from the court 's opinion quoted in the footnote below , each step in the pro-
ceeding is cited as a' separate "act" in proof of the recognitional objective of the
picketing , the cumulative force of which, in the court 's opinion overpowered such
evidence as was relied upon to show that the picketing was otherwise motivated .8
With utmost deference to the court , I would initially observe that an election pro-
ceeding, with all successive steps laid down by law for an authoritative determination
of the question of representation involved in it, is a unitary matter, and even if we
were to assume that participation therein is validly citable to a participant 's detriment,
I would be rather hard put to it to see how that detriment is compounded by the par-
ticipant 's following successive steps specifically prescribed therein by the legal au-
thority. Nor am I quite able to attach the same significance as does the court to two
of the culminating steps followed by the Union, namely, the filing of objections on
April 20, based on the Employer's alleged unfair labor practices and the signing of the
revised tally of June 7, both of which the court, in the quoted extract (supra, footnote
8), characterizes as further pursuit of the recognitional objective . The signing of the
revised tally, in which the Union acknowledged its defeat, would hardly seem to me
to lend itself to that description, but the filing on April 20 of the objections based
upon the Employer's alleged misconduct does. However, it was a pursuit of that
objective of recognition within the channels of orderly procedure as laid down by
the Board, completely unaccompanied by resort to economic pressures, the motivation
for the later use of which is now the subject at issue. And this brings us to the
difficulty with the assumption underlying the inference drawn by the court and the
"presumption" sought to be invoked by the General Counsel.
The assumption is that because the purpose of the proceeding was to obtain recog-
nition, that too was a purpose of the picketing after the election. It would seem to
me that there is an unbridged gap between these two propositions . The election pro-
ceeding provided a legal framework within which the Union could seek to establish
through an ultimate certification a legally inescapable right to recognition. Would it
follow that after pursuing the statutory procedure to its ultimate step and acknowl-
edging its defeat in the revised tally, the picketing, however else it was explained, had
the purpose of obtaining by economic force what had been sought to be obtained by
legal process ? In support of an affirmative answer to this question , the General Coun-
sel seeks to bridge the gap between mere participation in the proceeding and the later
picketing by invoking, as previously indicated, "the presumptions that inevitably arise
in post-election proceedings ." On that point, the General Counsel 's brief is silent
about a matter concerning which the district court was at pains to be specific It
draws no distinction between a "reasonably immediate objective " of recognition, to
which the district court expressly directed its inquiry and the "long-term goal of every
Union," which the district court disclaimed as a factor entering into its decision. As
to a "reasonably immediate objective ," the General Counsel does not spell out how
such an objective is to be presumed in the case of a union which elected to support
its rejected bargaining demand by resort to established statutory channels, and in
making this choice had avoided picketing at a time when it could legally have done
so under Section 8 (b)(7)9 and which , if successful , could have achieved for it (in
view of the majority designation at the time ) a recognition which was legally invul-
nerable. Nor do I see any effort to support the proposed presumption that a union,
even though it has not resorted to economic force for a recognitional objective when
8The court stated (188 F Supp 184):
The evidence is overwhelmingly clear that recognition was the Union' s objective on
March 30, 1960 when the Union petitioned for representation election , on April 8,
1960 when it was a party to a consent election agreement on April 15, 1960 when
it participated in the election and exercised its right of making challenges. It is
likewise abundantly clear that on April 20, 1960 the object of recognition was still
being pressed by the Union, although at this very time the record shows that it then
had knowledge of the acts of Bachman which it now asserts is the aggravation which
justifies the picketing which began two months later, on June 28, 19601 It also
appears that later, on June 7 1960, a representative of the Union participated further
in the recognition attempt by signing the Revised Tally of Ballots. We are satisfied
that the recognition demand [made March 241 did not go into orbit in the cosmos but
remained on a very down to earth plane, amid employees, employer and the Union
1 On April 20, 1960, the unfair labor practice charge against Bachman was filed by
Local 200
e I e , for a reasonable period, not exceeding 30 days without filing a 9 ( c) petition,
and, provided it did file one within such period , for the duration of the representation
proceeding.
TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 679
it could lawfully have done so with legally invulnerable results will thereafter resort
to economic coercion for the same objective when it is unlawful to do so and where,
if successful, the prize obtained would be vulnerable to nullification by Board process.
The General Counsel relies on the Board's decisions in Curtis Biotheis, supra,
footnote 7, and also on the J. C. Penney case.10 It should here be explained that
although these cases arose before the enactment of 8(b),(7) and involved the doc-
trine, ultimately rejected by the Supreme Court (supra, footnote 7), that picketing
by a minority union to force recognition by an employer invaded the protected rights
of employees, in violation of 8(b) (1) (A), the cases, as the General Counsel contends,
still present applicable criteria for determining whether picketing in a given situation
is for a recognitional object despite a union's disclaimer of such object. It happens
that in those cases the nonrecognitional motive asserted by the unions was to organize
the employees, which Section 8(.b)(7) has since outlawed no less than a recogni-
tional motive (supra, footnote 6), and the language of the picket signs used in each
case to promote organization was construed by the Board as having a recogni-
tional purpose implicit in them (namely, that the picketed plant is nonunion). But
what is even more significant is that there the postelection picketing found by the
Board to be recognitional in its purpose was the continuation of a preelection course
of conduct affirmatively shown to have had a recognitional motivation. The unions
had thereby manifested a preexisting disposition to resort to that economically
coercive device in order to force recognition.
Highlighting this last is that in both these cases, the election proceedings were not
voluntarily initiated by the unions, as was done by the Union here in an effort to
demonstrate its legal right to recognition. They were initiated by the employers,
and the unions sought to avoid participation in them by disclaiming an interest in
recognition, at the same time that they continued a preexisting course of picketing,
demonstrated to have had recognition as its object This brings us to another vital
distinction between those cases which is this: There the asserted reason for the picket-
ing other than the then forbidden one was found to fail not only because of a pre-
existing course of conduct demonstrating the contrary but also because of concur-
rent conduct (in the form of signs branding the plants as nonunion in a manner
implying a demand for recognition) which discredited the asserted reason. Addi-
tionally, the asserted reason did not have the circumstantial support to lend it the
kind of credence which could offset the inference flowing from the illicit preexisting
course of conduct. We discuss this in the next paragraph.
As stated, the Board in those cases was passing upon whether the unions, each
lacking a majority designation, were, after a Board election, picketing to force recog-
nition by the employer-conduct which the Board then, under the doctrine enunci-
ated in Curtis Brothers, deemed to be a violation of 8(b) (1) (A) if engaged in by
a minority union. The unions in each case disclaimed that recognition was their
purpose and asserted the object of their picketing was only to organize the employ-
ees. The Board refrained from passing upon whether the minority picketing for this
asserted purpose of organization would also be an 8(b) (1) (A) violation (see Curtis,
supra, at 239) because it was satisfied from the evidence that despite the absence
of mention of recognition in the picket signs used, recognition was indeed the pur-
pose. In so concluding, the Board, as previously noted, took note of the fact that
the picketing under consideration was a continuation of a course of picketing for
recognition long preceding and continuing during the election, and also of the
absence of circumstantial details to lend the credence to the asserted purpose. Thus
in Curtis, until the employer challenged the union's majority by filing the representa-
tion petition, the union had for a year picketed to force concessions from the em-
ployer refused by the latter at the bargaining table (the union having been the certi-
fied agent at the time of impasse) which is a purpose inseparable from recognition,
and although after the petition was filed, the union in Curtis changed its picket sign
so as to avoid mention of recognition, the Board, in the representation proceeding
in Curtis, ordered an election and rejected the union's disclaimer of interest in repre-
senting the employees, saying (114 NLRB 116, 117)
In the light of all the material facts of this case, including the certification of the
Petitioner," the circumstances preceding the strike, the nature of the first signs
carried by the pickets, the brief discontinuance of picketing, and its early
resumption, we are convinced that the current picketing is not for the sole
purpose of getting employees to join the Union, as the more recent picket signs
1ORetail Store Employees Union, Local 1595, Retail Clerks International Ascociatton,
AFL-CIO (J. C Penney Company, Store No 509), 120 NLRB 1535
"Sic. This is an inadvertence The petition there was filed not by the union, but the
employer,-as the docket designation (Case No 5-RDi-281) indicates
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicate , but is tantamount to a present demand that the Employer enter into a
contract with the Union without regard to the question of is majoriy status
among the employees concerned . [Emphasis supplied.]
In concluding , in the later unfair labor practice proceeding in Curtis, that the
picketing after the election was still for recognition , the Board adverted to the fact
that "the picketing persisted without significant interruption from its inception . .
and it persisted beyond the employees ' almost unanimous rejection [of it ] in a secret
election." Concerning the change in the picket sign adopted at the time of the
disclaimer in the representation proceeding , the Board referred to its prior comment
in the representation proceeding , and noted further that the signs "continued to
publicize the fact that the Company employed nonunion workmen and called the
Company `unfair to Teamsters ' for that reason ," and finally noted ( 119 NLRB at
234):
Such expressed dissatisfaction with the Company 's position, however, harkens
back to the Union's original dispute in the postcertification bargaining , for the
record also shows that the strike resulted from the Union 's failure to win its
union-security contract demands.
Similar bases for the Board's conclusion existed in the Penney case ( supra, foot-
note 10). There too the union 's disclaimer of a recognitional purpose in its picketing
was discredited against a background of prior use of that economic weapon for that
very purpose. As the Board there said ( 120 NLRB at 1536) :
Moreover , when a union has expended funds in an organizing campaign and in
picketing for recognition , when it subsequently participates in an election which
it loses 6 to 0, and continues to picket but announces that it is not picketing for
the purpose of compelling recognition in the face of the Board's finding that it
does not represent a majority of the employees involved, there is not a conclu-
sive, but a strong presumption , that the announced motive for , and objective of,
the picketing are mere pretexts, and that the real intent of the picketing is to
obtain recognition despite the lack of majority status . [ Emphasis supplied.]
That is the context for the statement of the Board, relied on here by the General
Counsel, concerning the quantum of proof required to overcome the "not conclusive
but strong" presumption of a recognitional purpose. It said ( ibid.) :
There may be circumstances under which a union may show that its motives
and objectives are not those originally announced , but in our opinion it will
require strong and conclusive evidence to show affirmatively that it is not
continuing to picket for recognition. [Emphasis supplied.]
Even then the Board indicated that it would deem the presumption of the continu-
ance of the recognitional purpose overcome if there are circumstantial details present
which lend credence to the asserted purpose. So, in respect to the union 's claim in
Penney that its purpose was merely to organize the employees , the Board noted the
absence of corroborative details, there being no evidence that the Union "resorted
to such traditional organizational methods as the distribution of circulars , personal
solicitation of employees or the use of picket signs addressed to the employees"
(p. 1536).
The basis for the presumptions invoked in the cases relied by the General Counsel
'bears interesting comparison with the facts of this case . Here not only is there no
showing of a prior resort by the Respondent to economic force to exact recognition,
but the background on that score would seem rather exculpatory. As previously
indicated, the Union avoided the force -laden alternative of picketing , at a time when
it was legally available to it and the result securable thereby would have been legally
unassailable . Instead, it chose to initiate and it pursued to final conclusion the orderly
process laid down by statute. Rendering the proposed presumption further inappli-
cable, it would seem fair to note, is the fact that the election apart , such factors as
here exist rather tend affirmatively to support and to lend credence to the purpose
asserted by the Union as being the motivant for the picketing begun on June 28. The
Union asserts, as did its counsel in the telephone conversation initiated by Respond
ent's attorney , that the picketing , which was newly commenced on June 28, was in
retaliation for the Employer 's asserted unfair labor practices. On that score, the
question is not whether the Employer in fact engaged in them ; or whether the Union's
protest over them was sufficiently timely under Board rules to warrant upsetting the
election . The relevant subject of inquiry , it should be noted , is whether the Union
honestly and reasonably believed that the Employer had engaged in the kind of
misconduct to which it attributed the change in attitude originally manifested when
a majority of the employees came to it on their own initiative , so as to lend credence
to its assertion that it was sufficiently angered thereby to want to discredit the
TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 681
Employer in the public's mind without regard to whether this would result in recog-
nition or not. In the light of the data in the Regional Director's report confirming
that the Employer had given assurances to employees of a raise (albeit not at a
time when the Union under Board rules could avail itself thereof as a basis for in-
validating the election), the Union could reasonably and honestly feel that the
Employer had by allurements of a raise corrupted the choice of the group as originally
manifested when they requested the Union to organize them. Tending to fortify
it in that belief would be the portion of the Regional Director's report to the effect
that one of the partners of the Employer had admitted giving such an assurance to
an employee. Of course, the Union's learning of this too late to try to postpone the
election by reason of it hardly wins it the laurel for alertness, and for aught that
appears, its resentment of the Employer may well have been compounded by a
modicum of self-reproach over its own slackness. That, taken with the fact, as
developed at the hearing before me, that the Union had in the interim lost still another
election under circumstances deemed by it to be similar to this one, could well drive
it to resort to measures calculated to shield employees against similar conduct by
employers in the area in the future. The Union could understandably believe that
while a notice by the Employer assuring that it will not in the future invade the
employees' rights was good as far as it went, such assurance could be made doubly
sure by a demonstration that the price of such conduct is loss of patronage in a labor
conscious community.
It is in the light of the latter that we consider the passage in the Board's opinion
in Penney on which the General Counsel places his greatest emphasis, as follows
(p. 1537) :
Experience in the affairs of man teaches that unions, as well as other types of
organizations, do not go to the expense, time, and effort necessary to maintain
a picket line without some hope of recouping the expense they have thus put
themselves to. It is difficult to believe that unions engage in picketing for the
sole purpose of malicious harassment or the incidental annoyance such picketing
may cause the public.
The "expense, time, and effort" of picketing undergone by the Union under the
circumstances here disclosed would seem to be free of the imputation of irrational
aimlessness which the Board indicated would normally inhere unless tied in with a
recognitional objective. To ascribe such objective to the picketing would, in the
circumstances here disclosed, stamp it with even greater irrationality, since union
counsel, who guided the action, would be well aware that any recognition gained
thereby, in view of the results of the election, as subscribed to by the Union in the
revised tally of June 7, would not hold up. On the other hand, if publicizing the
fact of the Employer's misconduct would result, as it was intended, in a loss of
public patronage, then the Union could reasonably feel that its expenditure would
be justified because of the lesson learned thereby by this and other employers in
the area in the future. Indeed, if recognition were the objective, there would be as
much motivation for picketing the other firm at which the Union had recently lost
an election as this Employer. The fact that the Union was limiting the expense of
picketing to this Employer would tend to lend credence to its assertion that it was
saving its fire for the employer against whom it felt the greater resentment. Here,
again, one should not, as he need not, take at face value the Union's assertion that
2 years earlier this Employer discharged two men because they joined the Union.
Whether this last occurred for the reason assigned by Business Representative Hammer
is not here in issue. The only significance of his testimony on that score is that-it
points to a background which, taken with what the Union reasonably deemed to have
happened in 1960, would impel it to make this Employer its retaliatory target
The effect of the above, it would seem to me, would be that the General Counsel's
presentation lacks both the evidence to warrant an inference or the basis to raise a
presumption that the Union's purpose in picketing was other than the one avowed
in the picket sign, as confirmed in its counsel's explanation thereof to the Employer's,
attorney, and in its business agent's testimony at the hearing-which was to publicize
the fact, as it reasonably saw it, that the Employer was not respecting the rights of
self-organization of employees as guaranteed by the Act. It is difficult to see how,
in the state of the evidence here presented, a contrary result would be legally recon-
cilable with the affirmative burden, here borne by the Government, of estab-
lishing a proscribed motive. This applies as well to the question of whether a
purpose of the picketing was to organize the employees. It is to be noted that the
district court in the 10(1) proceeding, on the record before it, saw no basis for
attributing that motive to the picketing. This view receives added support in the
further facts developed in the hearing before me, for, as already appears, the organiza-
tion of the employees, which constituted the basis of the bargaining demand on
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 24, took place with no solicitation by the Union: The five persons in the
seven-man unit came to the Union on their own initiative asking to be organized
and paid a rather steep initiation fee to demonstrate their interest. Further, there
is no evidence that the Union at any time since the picketing began approached or
solicited any of the employees; and it confined the picketing to the retail store area
away from the warehouse, where the bulk of the employees in the unit worked. Of
course, to the extent that any loss of consumer patronage caused by the picketing
would help deter the Employer from invading the employees' free choice should the
employees acquire a renewed interest in the Union, it is an aid to organization in
that sense. But I would not see that a motive to insure a climate free of employer
interference with the employees' voluntary choice in the future is the kind of organi-
zational purpose which Section 8(b)(7) was intended to outlaw, and I would not
understand the General Counsel so to contend.
The result, then, is that the General Counsel has failed to establish that the
picketing had, to use the district court's term, a "reasonably immediate objective"
of forcing recognition from the Employer or forcing the employees to select it as
their bargaining agent.
This brings us to what I would conceive to be the predominant issue in this case,
which is whether assuming that recognition or organization were only a long-term
or ultimate objective of the Union, it would nevertheless still be forbidden within
the 1-year postelection period prescribed by Section 8(b) (7) (B). If that question
were to be answered in the affirmative, the result, for all practical purposes, would
be to ban all picketing, even of a purely informational character, during the 1-year
period of (B) (and by parity of reasoning ) "the contract bar" period of (A) of
8(b) (7), since, as the district court here, like other courts too have observed,12
"invariably the ultimate or long-term goal of every union [is] to enlist all eligible
workers within the union jurisdiction." So while the district court was at pains to
make explicit its rejection of such long-term goal as basis for its decision, I am not
so sure, from a careful reading of the Government's briefs before the district court
and myself, but that that is not the basic pitch of the Government's claim of the
Union's liability here under 8(b)(7)(B). This impression is derived from what
the briefs omit as well as from what they say. Thus in neither brief does the Govern-
ment specify, as the district court was careful to do in its opinion, whether the
proscribed motive claimed to exist was "reasonably immediate" or the long-range
one, which the district court indicated is normally attributable to all picketing. In
the brief before the district court, the Government seemed to lay stress on portions
of the legislative history lending surface plausibility to the view that all picketing,
even purely informational, was to be outlawed during the "contract bar" and 1-year
postelection period of (A) and (B), respectively, of 8(b)(7), to which we shall
advert shortly (infra, footnote 14). And in the brief before me, the Government
cites as evidence to support an inference that the Union had a proscribed object in
picketing, a portion of the record which it claims to be an admission by Business
Representative Hammer that "the Union was naturally interested in getting a con-
tract from the Employer if it was possible." The documentation therefor happens
to be a statement from the chair, in cutting off a question by the General Counsel's
representative as to whether the Union would "have any objection to signing a con-
tract with the Employer if [it] got a majority," to the effect that we may assume
that the Union would not object. It would seem clear from the nature of the interro-
gation that its premise was that even a long-term goal of recognition, such as is
assumed in here to all picketing, would be sufficient to condemn the picketing here.13
19 See Getieu v Bartenders and Hotel and Restaurant Employees Union, Local 58, et al
(Fowler Hotel), 181 F Supp. 738 (D C N Ind ) ; Penello v. Retail Store Employees Local
Union No 692, et al (Irvsns, Inc ), 188 F. Supp 192 (D,C. Md.) ; cf NLRB v. Local 50,
Bakery & Confectionery Workers International Union, AFL-CIO (Arnold Bakers, Inc ),
245 F. 2d 542, 547 (CA 2)
is The interrogation was as follows
Q (By Mr. WYNNE ) Now did you or the Local have any philosophical objections
to signing the contract with Bachman, if you had a majority of the employees-
Mr UELMAN: Now, I object-
TRIAL EXAMINER. Sustained, proceed.
Q (By Mr WYNNE) Do you have any objections to signing a contract with
Bachman, if you get a majority of the employees)
TRIAL EXAMINER: We'll assume the answer is "yes," that he has no objection, if
lie represents the majority of the employees Proceed from there We'll assume
the answer is yes Proceed
I'll assume the answer is "yes," in favor of ha'ing a contract, and "no" on the
question of opposition to having a contract.
TEAMSTERS "GENERAL "' LOCAL NO. 200, ETC. 683
As stated, some portions of the legislative history of 8(b) (7) do lend surface
plausibility to a view that because all picketing normally has at least a long-term
goal of organizing the employees and obtaining recognition from the employer,
Congress, during the periods of "contract bar" as specified in (A) and of 1-year
following an election as in (B) of 8(b)(7), wanted to insure a complete period of
repose by putting a stop to all picketing. This inheres in extracts appearing to say
that for some reasonable period following an employee election, there should be a
ban on picketing, without qualification of the latter term.14 But it would seem
rather clear that the ostensibly unqualified use of that expression was in a context
of its employment for one of the proscribed objects.15 Even as thus qualified,
however, we are still faced with the question of whether Congress, intended that
the reach of the ban on recognitional or organizational picketing during the "con-
tract bar" and postelection periods of (A) and (B), extends to all picketing, how-
soever motivated, because of certain residual organizational or recognitional pres-
sures inhering in all picketing. This problem did not go unnoticed during debate
and was the subject of concern expressed by persons with as diverse views as
Senators Goldwater and Morse. Senator Goldwater adverted to the problem in
discussing that portion of the House Bill as passed in August 14, 1959 (II LH 1691),
which enacted a ban on picketing after an election (and during a period of "contract
14 Thus, there is the statement of Senator Kennedy on April 24, 1959, during the debate
on his and Senator Ervin's bill as ultimately passed by the Senate (S 1555) agreeing that
it would be pioper "to provide that for a certain period of time following a legitimate
election, there could not be picketing " II Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959 (GPO, 1959), hereafter cited as "LH," at 1182-1183
Also, there are the statements of Representatives Thompson and Udall, members of the
House Labor Committee, on August 11, 1959, in their "Analysis of the Landrum-Griffin
Labor Reform Bill" (II LH 1576) -
When the Labor Board conducted an election, all the employees have a free oppor-
tunity to Indicate their choice of bargaining representative If they vote not to be
represented by a union, their choice should be respected For a union to picket their
employer after an election is to attempt to coerce the employees in supporting the
union against their express desire Therefore, the committee bill forbids such
picketing
The ensuing paragraph makes a similar argument to justify a ban on picketing during
the "contract-bar" period as embodied in subsection (A) of 8(b)(7)
Senator Morse, in his speech on the conference bill on September 3, 1959, said (II
LH 1427) :
Suppose there has been an election, and the union has lost overnhelmingly. The day
after the election is over, bingo, there is another picket line I think both the em-
ployer and the public are entitled to some protection in such a case It is perfectly
fair to have a rule that under such circumstances a picket line cannot be stretched
in that kind of labor dispute, for a reasonable period of time. [Emphasis supplied ]
15 Secretary of Labor Mitchell, in explaining the equivalent in the "Administration"
bill (S. 748) to present 8(b)(7), stated (II LH 1568):
Under the present law, the employer and the employees may be subjected to organi-
zational picketing, even though the employees have rejected representation by the
picketing union
The administration's proposal would eliminate this possibility by barring repre-
sentation picketing If within the preceding 12 months a valid election has been held
After the employees have indicated their rejection of union representation they should
be left free for a reasonable period of time from organizational efforts by picketing.
The total effect of these proposals would be to regulate picketing so that employers
and their employees will not be subject to the continuous coercion of an organizational
picket line [Emphasis supplied ]
Senator Kennedy, in reporting on the conference bill on September 3, 1959, said (II
LH 1433)
Subdivision (B) [of 8(b)(7)1 bars picketing for organizational or union recognition
for 12 months after an election in order to secure the expressed desire of the em-
ployees In both cases [I e, the "contract bar" situation of (A) and the post-
election period of (B) ] the prohibitions relate only to picketing in an effort to
organize employees or secure recognition in a bargaining unit covered by the existing
contract or prior election
To similar effect Is the statement of Senator Goldwater the same day (II LH 1437)
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bar") substantially as proposed on the Administration Bi l,16 and also extended the
liability to private damage suits to which unions were already subject, under
Section 303, for violations of 8(b ) (4), to violations of 8(b ) ( 7) as well . Concern-
ing this Senator Goldwater observed (II LH 1361) :
Few instances of picketing will be found where at least a remote objective of
the union cannot be found to be related to recognition . The result of the
departure from existing labor policy could well be upsetting to the balance
between the rights of employees and the rights of employers . In addition, in
the absence of clear legislative history showing a contrary intention , this pro-
vision might make it an unfair labor practice to picket against an employer's
unfair labor practices in many instances, since frequently it may be found that
organization is also an object.
Similar apprehension that 8 (b) (7) might be construed to ban what is only "protest
picketing" was earlier expressed by Senator Morse ( II LH 1320 ). And in his
speech on the Conference bill on September 3, 1959, quoting Senator Goldwater's
comment above , he stated (II LH 1429) :
The House conferees insisted that a picket line protesting unfair labor practices
would not be a violation of the antipicketing provisions of their bill . But why
did they steadfastly refuse to say so in their bill? Everyone knows that protest
picketing when the union has not gained recognition contains at least a sub-
stantial objective of promoting organization.
The paradox is that Senator Morse, in giving vent to these forebodings , supplied
the legislative history which Senator Goldwater recommended to insure against
interpreting 8(b) (7) in the manner they both thought should be avoided , for no time
anywhere was issue taken with the statement that the House conferees insisted that
"a picket line protesting unfair labor practices would not be a violation of [8(b )(7)1."
But there would be still another answer to Senator Morse 's question of why the
House conferees did not embody their assurance that protest picketing would not
violate 8(b)(7): It was unnecessary . To have forbidden even such picketing would
have been , in effect, to bar all picketing . And so, the Senator's question could be
countered with another: Why, in putting a ban on postelection ( and "contract bar"
period ) picketing , did Congress expressly qualify it in the manner it did, if it thought
that all picketing during such periods was for an object as stated in the qualification?
The fair conclusion then would be that Congress in enacting the prohibition of
8(b) (7) was not concerned with residual or long-range goal inhering in even protest
picketing , but intended to reach picketing during such periods, which had recognition
as a "reasonably immediate goal."
There is a strong suggestion in the General Counsel 's statement of his legal posi-
tion that Congress , by specially legislating upon informational picketing in the
proviso to subparagraph ( C) impliedly set the limit for all informational picketing
under 8 (b)(7), thereby barring it during periods embraced by (A) and (B). In
essence, the argument is that in order to make "informational " picketing permissible
at all under 8(b)(7), Congress provided a special proviso to subsection (C), per-
mitting such picketing only during periods other than those covered by (A) and (B),
and then only under certain conditions. See supra , footnote 6.
The contention fails to take account of the particular kind of informational picket-
ing which is the subject of the proviso of (C). The proviso states that nothing in
it is to be construed as prohibiting "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
is to induce stranger employees to refuse to make pickups or deliveries or perform
services). Picketing conveying such a message had been construed by the Board
in cases exemplified by Curtis and Penney , previously discussed, as evidence of an
intention or the basis of a presumption that it was intended to force recognition, which
had to be overcome by contrary evidence . (Cf. WKRG-TV Inc.. 123 NLRB 507,
538.) The proviso , consistently with its manifest purpose of carving out a special
exemption for picketing truthfully conveying such information , immunizes it during
periods encompassed by (C), as long as it does not cause disruption in pickups or
deliveries , in either of two ways-either, as interpreted by some Trial Examiners 17
by rendering it altogether immune without regard to whether it has a recognitional or
16 Compare Section 504(a) of S 748 (1 LH 144-145) with Section 705(b)(1) of the
House bill (II LH 1700)
14 Leonard Smitley and Joseph W Drown d/b/a Crown Cafeteria a copartnership,
130 NLRB 570; Stan-Jay Auto Parts and Accessories Corporation , 127 NLRB 958
TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 685
organizational object, or as interpreted by the Trial Examiner,18 endowing it prima
facie with a presumption of innocence of purpose, to replace the presumption, applied
in prior Board precedents, that it is for a prohibited purpose, with the result that
any claim that such picketing was for an illegal purpose would have to be estab-
lished by evidence extrinsic to the contents of the picket sign.
The toregoing, however, is peculiar to the kind of informational picketing de-
scribed in the proviso to subparagraph (C). It is manifestly no basis for interring
the congressional intent in respect to informational picketing of another character.
(Penello v. Retail Store Employees, etc., supra, and does not rationally warrant
attributing to Congress an intention, to render proscript informational picketing of
whatever kind during the periods embraced by (A) and (B), or make the fact that it
occurs during such periods the basis, without more, for a presumption or inference
that it was for a purpose forbidden in the body of 8(b) (7). Penello v. Retail Store
Employees, etc., supra. Graham v. Retail Clerks International Association, Local
No. 57, AFL-CIO (Hested Stores Co.), 188 F. Supp. 847 (D. C. Mont.). Either of
the two restrictive interpretations would place the kind of stricture upon peaceful
communication which would raise a constitutional issue (see Graham v. Retail Clerks,
etc., supra), thereby making applicable the presumption that such was not the
congressional purpose.19 This presumption is fortified by the portions of the legis-
lative history, previously cited, negating a purpose to construe 8(b) (7) as forbidding
picketing in protest against unfair labor practices.
In concluding that Congress did not intend to ban protest picketing during the
periods embraced by (A) or (B) of 8(b) (7), I do not wish to be understood as im-
plying that all "protest" picketing is to be taken at face value. Implicit in our juris-
prudence is the good faith of its use, but the burden is on the one who asserts the
absence of good faith to establish it.
The conclusion would depend upon all the circumstances. We might find a service-
able guideline in the more familiar area of criteria for determining motive in 8(a) (3)
discharge cases. An employer who, after learning that an employee has joined a
union, discharges him on a ground having no rational factual basis, has rendered
his motive suspect; and, by parity of reasoning, a union which, immediately after
losing an election, places picket signs containing accusations having no rhyme, reason,
or basis in reality, may well be said to have laid itself open to the inference that the
picketing is a pretext to mask a purpose to wrest by economic pressure what it has
been unable to attain by orderly legal process. Applying the 8(a)(3) analogy one
step further, if an employer discharges an employee on a ground having a reasonable
basis in reality and which would normally move an employer to dispense with an
employee's services, then that ground cannot be brushed aside as a pretext to mask
an antiunion motive, in the absence of affirmative evidence to that effect, apart from
the mere fact that the discharge occurred after the employer learned the employee
had joined a union. A corresponding application of the principle that "an unlawful
purpose is not lightly to be inferred" 20 would indicate that picketing in purported
protest against unfair labor practices which a union reasonably believes to have been
committed by an employer is not to be taken as a pretext to hide an illegal motive in
the absence of affirmative evidence demonstrating it to be so, apart from its having
occurred after an election-and more especial" so where attendant circumstances
confirm the presumption of innocence, to which every accused person is entitled from
the outset. These include, as previously mentioned, the absence of a background of
prior resort to picketing by the Union in order to force recognition from the em-
ployer, its prior avoidance of that recourse even when legally available to it, and
its electing instead to seek to demonstrate its right to recognition through established
statutory channels, and the absence of any overture on its part either to the employer
or to the employees, which would tend to impugn the purported purpose of the
picketing.
The fair conclusion in the light of the above is that the General Counsel has not
met the burden of establishing by a preponderance of the evidence that the picket-
ing had a "reasonably immediate" recognitional or organizational object, or (except
to the extent that such long-range objective is commonly attributed to picketing of any
character) even an ultimate one.
On the basis of the foregoing, and upon the entire record, I hereby make the
following:
1s International Ladies' Garment Workers' Union, AFL-CIO (Saturn & Sedran, Inc )
136 NLRB No 44
19 Cf U.S v CIO., 335 U.S 106, 120, and cases cited.
20 N.L R.B v. T A. MoGahey, Sr., et al, d/b/a Columbus Marble Works, 233 F 2d
406, 413 (C.A 5).
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 findings,2 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 Irvins 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. 1, sec. 28, et seq.; ef. vol. II, sec. 475. Accordingly, in addition to the
evidence relied 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.