Bartenders, Etc., Union, Local 58

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1315 (N.L.R.B. 1962)

BARTENDERS , ETC., UNION, LOCAL 58 1315
but, on the contrary , was economic in character . The strike being economic, under
established law is was permissible for the Respondent to make permanent replace-
ments of its striking employees , and I find that such replacements were made in
the cases of all the strikers who applied for reinstatement . Under these circum-
stances, the Respondent 's refusal to reinstate the striking employees found herein to
have made unconditional application for reinstatement , was not violative of the Act,
and I must recommend dismissal of this allegation of the complamt.3
In conclusion : I have intentionally made my findings herein on a broader base
than was required by my ultimate conclusions , to avoid the consumption of addi-
tional time and expense which would be incurred in a remand were the Board to
disagree with my interpretation and application of its Plaza Provision Company
decision.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with its business operations 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
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. Columbine Beverage Company is an employer within the meaning of Section
2(2) of the Act and is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Local Union No. 435, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees concerning their union activities, attitudes, and
intentions with respect to union activities; by threatening them with reprisals if
they engaged in a strike or other protected concerted activities ; and by promising
rewards to those who refrained from strike activities, the, Respondent interfered
with , restrained, and coerced its employees in the exercise of rights guaranteed by
Section 7 of the Act, thereby engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices violative of Section
8{.a) (3) and (5) of the Act , as alleged in the complaint.
[Recommendations omitted from publication.]
9I do not view the Respondent ' s letter to its striking employees , informing them that
unless they returned to their jobs they would be replaced, as dischargees, but as a correct
statement of the law with respect to the status of economic strikers.
Bartenders and Hotel and Restaurant Employees Union, Local
58 of the Hotel and Restaurant Employees and Bartenders
International Union , AFL-CIO and Fowler Hotel , Inc. Case
No. 25-OP-2. September 28, 1962
DECISION AND ORDER
On March 31, 1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Union had engaged in the unfair labor practices alleged
in the complaint and recommending that it cease and desist therefrom
138 NLRB No. 114.
662353-63-vol. 13 8-8 4
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Union filed exceptions to the Inter-
mediate Report.
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 the entire record in the case, and
finds merit in the Union's exceptions. Accordingly, the Board hereby
adopts the Trial Examiner's findings of fact but not his conclusions
or recommendations, for the reasons set forth below.
The Trial Examiner, although finding that the Union's picketing
conformed with the terms of the publicity proviso to Section
8(b) (7) (C) of the Act, nevertheless concluded that the picketing
violated that section. He reasoned that "the object" of the Union's
picketing was to force the hotel to recognize and bargain with the
Union, and the picketing was not solely "for the purpose of advising
the public" that the hotel was nonunion. [Emphasis supplied by the
Trial Examiner.]
As we held in Crown Cafeteria, 135 NLRB 1183, the mentioned
publicity proviso carves out a significant exception to the general ban
on recognitional and organizational picketing. The proviso was in-
tended to permit picketing which truthfully advised the public that
the employer did not have a contract with the union, unless the picket-
ing was accompanied by a proviso "effect." Here, the picket language
was substantially in the words of the proviso,' and the picket signs
were displayed only at the public entrances to the hotel.' Accord-
ingly, conceding that the Union had bargaining or recognitional ob-
jectives, as our dissenting colleagues assert, we find that the picketing
was clearly informational and within the proviso. As there is no
evidence to indicate that the picketing had any "effect," we shall dis-
miss the complaint.
[The Board dismissed the complaint.]
MEMBER FANNING, concurring :
I concur in the finding by Chairman McCulloch and Member Brown
that the Union did not violate Section 8(b) (7) (C) by its picketing.
In my opinion, however, the picketing was lawful because the Union
was "currently certified" as the representative of Fowler's employees.
I No exceptions were filed to the Trial Examiner's rejection of the General Counsel's
offer of proof concerning an incident where an employee allegedly refused to cross the
picket line to make a delivery Moreover, the General Counsel admitted that the proffer
was immaterial to his theory of the case.
2 Oakland G. if. Kinney Company, 136 NLRB 335.
3 Cf. Philadelphia Window Cleaners and Maintenance Workers' Union, Local 125
(Atlantic Maintenance Co ), 136 NLRB 1104.
BARTENDERS, ETC., UNION, LOCAL 58 1317
Section 8(b) (7) removes picketing for recognition or organization
from its proscriptive ambit where the picketing union holds a certifi-
cate as the exclusive bargaining agent of the employees involved. In
1956 the Union and Holt, Fowler's predecessor, submitted the question
concerning representation of Holt's employees to the Indiana State
Division of Labor. An election was held, the Union won by a vote
of almost 2 to 1, and was certified. There is nothing in this record
to indicate that the election, which was conducted by a responsible
State agency, was affected by any irregularities or did not meet the
standards imposed by the Board for the conduct of its own elections.
This Board has consistently ruled that it would accord the same effect
to the results of State board elections, regularly held, as it would to
its own 4 Neither Section 8(b) (7) nor its legislative history reveal
any congressional intent to impinge upon this Board policy.
I am in complete accord with Judge Swygert's conclusion in the
Section 10(1) proceeding 5 that the Union's picketing was lawful be-
cause it possessed a certificate by virtue of the Division of Labor elec-
tion. And, like Judge Swygert, I attach no significance to the fact
that there was a change of ownership of the hotel after that certificate
was issued.'
Accordingly, I join in the Order dismissing the complaint.
MEMBERS RODGERS and LEEDOM, dissenting :
We dissent from the reversal of the Trial Examiner and the dis-
missal of the complaint.
The opinion of Chairman McCulloch and Member Brown is, in our
view, an unwarranted extension of majority decision in Crown Cafe-
teria, 135 NLRB 1183. The picket sign here stated : "ON STRIKE
For Renewal of Our Union Contract. EMPLOYEES OF FOWLER
HOTEL, Members of Hotel Employees Union AFL-CIO, Local 58."
Unlike Chairman McCulloch and Member Brown, we do not see how
a picket sign, which on its face states that the purpose of the picketing
is to secure renewal of a union contract, can be deemed limited to the
purpose of advising the public that the employer does not have a
union contract. The sign clearly and necessarily encompasses recog-
nition and bargaining; language such as this, which affirms the posi-
tive purpose to secure renewal of a contract, can hardly be deemed
"substantially" in the language of the Act, which permits informa-
tional picketing only in the absence of such a purpose. Accordingly,
apart from any other considerations,' we would find that the language
4 See T-H Products Company, 113 NLRB 1246 (involving an Indiana State Laboi
Division election and certificate) ; Olin Mathie8on Chemical Corporation, 115 NLRB
1501; Bluefield Produce and Prove8ion Company, 117 NLRB 1660.
c Getreu v . Bartenders and Hotel and Restaurant Employees Union, 181 P. Supp. 738
(D.C.N.D. Ind.).
9 See Colony Materials, Inc., 130 NLRB 105, and cases cited in footnotes 2 and 3 therein
7 See the dissenting opinion in Crown Cafeteria, supra.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the picket sign precludes a finding that the picketing was protected
by the publicity proviso. Nor, for the reasons set forth by the Trial
Examiner in his Intermediate Report, can we agree with Member
Fanning that the Respondent can be deemed to have been "currently
certified" within the meaning of Section 8(b) (7). We would there-
fore find that by picketing for more than 30 days after the effective
date of Section 8(b) (7) (C), without a petition having been filed, the
Respondent vio] ated that section of the Act.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act as amended (61 Stat. 136), was heard before Trial Examiner George A. Down-
ing in Lafayette, Indiana, on March 2 and 3, 1960, with all parties represented.
The amended complaint, issued on January 7, 1,960, by the General Counsel of the
National Labor Relations Board, and based on charges duly filed and served, alleged
that Respondent had engaged in unfair labor practices proscribed by Section
8(b) (7) (C) of the Act by picketing the Fowler Hotel on and after September 4,
1959, with an object of forcing and requiring Van Orman-Fort Wayne Corporation
(herein called Van Orman), the manager of the Fowler Hotel, to recognize and
bargain with Respondent as the collective-bargaining representative of the employees
of the Fowler Hotel although Respondent was not currently certified as the repre-
sentative of said employees and although such picketing had continued for more
than a reasonable period of time without a valid petition having been filed under
Section 9(c) of the Act.
Respondent answered, denying the unfair labor practices and pleading various
affirmative defenses based on an alleged certification by ,the State Division of Labor,
a collective-bargaining relationship with the prior owner of the hotel, and a refusal
to bargain by the subsequent owner of the hotel. Respondent averred that its
strike and its picketing in protest of that illegal action was protected concerted
activity, and that the Board was estopped to deny that the certification was not
a certification within the meaning of Section 8(b),(7) of the Act, because of the
Board's arbitrary and unlawful failure to assert jurisdiction over hotels. Respond-
ent also asserted various constitutional defenses under the first and fifth amendments,
e.g., denial of due process and deprivation of freedom of speech and assembly.
Upon the entire record in the case and from my observation of the witnesses
I make the following:
FINDINGS OF FACT
I. THE EMPLOYER 'S BUSINESS
Van Orman, an Indiana corporation, with its principal office and place of business
in Fort Wayne, leases and operates .the Van Orman Hotel and Embers Club in
Fort Wayne, Indiana; it owns and operates the Van Orman Hotel and Van Orman
Suburban Hotel, Bloomington , Indiana; ,and it operates and manages the Van Orman
Northcrest Hotel in Fort Wayne. Since on or about September 9, 1959, Van
Orman has managed the Fowler Hotel in Lafayette pursuant to a contract with
Fowler Hotel, Inc., the owner thereof. All of said hotels are over 75 percent
transient. During 1959 Van Orman has received in excess of $2,250,000 in gross
receipts from said hotels, and it purchased goods and supplies valued in excess of
$25,000 which were shipped to it from points outside the State.
During the calendar year 1958 the gross receipts of the Fowler Hotel were
$367,870.58, and during 1959 they were $445,416.57. During the latter year total
purchases for Fowler Hotel from extrastate sources exceeded $68,000.
As Respondent's brief questions the Board's jurisdiction, contending that only
the operations of the Fowler Hotel are to be considered because the transaction
between Van Orman and Fowler Hotel, Inc., was not at "arm's length," we review
briefly the history of the hotel's ownership and management.
Around July 1, 1958, Fowler Hotel, Inc., a newly formed corporation of six
stockholders, purchased the hotel from Holt Hotel Company, the former owner,
but assumed none of Holt's liabilities or contracts. On September 9, 1959, Van
Orman took over the management and operation of the hotel under a contract
dated September 4, with Fowler Hotel, Inc., which provided in part that all manage-
BARTENDERS , ETC., UNION, LOCAL 58 1319
ment prerogatives were to be vested in Van Orman, including sole and exclusive
power to hue, discharge, supervise, fix compensation of, and otherwise direct the
employees of the hotel. Contemporaneously, Harold Van Orman, Jr., president
of Van Orman and owner of 99 percent of its stock, purchased from each of
Fowler's individual stockholders 50 percent of his stock holdings. At the same time
Mr. Van Orman was elected president of Fowler Hotel, Inc., whose board of direc-
tors also placed in his hands all matters concerning labor relations policy, though
he testified that it was in his capacity as president of the Van Orman corporation
that he had, under the management contract, complete control of the operations
of the hotel.
There is no support in the record for the claim that either the management
contract or the stock transaction was not at "arm's length," and there is no hint
that either or both transactions were made simply to qualify for NLRB jurisdiction.
Nor does the evidence that the employees and supervisors remained, with little
change, and that they were paid from Fowler Hotel funds by checks signed by
officers of Fowler Hotel, Inc., reflect upon the nature of the transaction.
3 therefore conclude and find that Van Orman is engaged in commerce within
the meaning of the Act. The Bellingham Hotel Company, 125 NLRB 562; cf.
Southwest Hotels, Inc., 126 NLRB 1151. Of course, it is plain that if only the
operations of the Fowler Hotel were considered, the Board's jurisdictional standards
were not met either in 1958 or 1959.
II. RESPONDENT AS A LABOR ORGANIZATION
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The issues in this case are mainly legal issues, there being no disputes as to any
material fact. The main issue which the General Counsel raises is whether there
is any basis, under the circumstances in this case, for application of the second
proviso to subparagraph (C) of Section 8(b)(7), i.e., picketing "for the purpose of"
truthfully advising the public, etc. (See section C, infra, where all material portions
of the statute are quoted.)
The issues which Respondent raises in its brief vary somewhat from those stated
in its answer. Thus it questioned for the first time the Board's jurisdiction (an
issue disposed of under section I, supra), thereby departing from, if not abandon-
ing, the defense made in the answer that the Board had arbitrarily and unlawfully
failed to assert jurisdiction. Assertion of the jurisdictional issue also weakened
Respondent's defense (which it still continues to urge) that it was conducting an
unfair labor practice strike in protest of Van Orman's refusal to bargain with it.
The main issue which Respondent raises is whether an alleged certification by the
Indiana Division of Labor in 1956 will qualify it as being "currently certified" as
the representative of the Fowler Hotel employees within the meaning of Section
8(b)(7).
B. The evidence
The nature of Respondent 's defenses requires consideration of the history of the
collective -bargaining relationship which existed between Respondent and Holt Hotel
Company, the former owner of the Fowler Hotel . In April 1956 a consent repre-
sentation election was conducted by the Indiana State Division of Labor of all the
employees named on a list of 54 elibible voters as agreed to by the Holt Company
and Respondent , with .the Company agreeing further to recognize the Union as the
exclusive bargaining agent if over 50 percent of those voting should select the union.'
Those who were listed included all the hotel employees except the supervisors, the
auditors , the bartenders (who were represented by a separate union at the time),
and the restaurant employees, who were employed by a lease concessionaire. The
Union won the election 34 votes to 18 , and the Commissioner certified the results
Thereafter Holt and Respondent entered into a contract effective from June 1,
1956 , to May 31, 1958, with a provision that it should continue after May 31, 1958,
I The State act Is not a labor relations statute as such, but under it the Commissioner
of Labor is given authority to mediate and arbitrate labor disputes and to conduct elec-
tions where the parties voluntarily agree to submit. No provision is made for finding an
appropriate unit and none for any formal certification (though the Commissioner certifies
the results of the election), nor are sanctions provided for failure to recognize or bargain.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from year to year, unless either party gave at least 30 days' notice prior to any
yearly period of an intention to modify or terminate the agreement.
Beginning in July 1958 Fowler Hotel, Inc., took over the operation of the hotel
and also began then to operate the restaurant as the employer of its employees.
The new owner refused to recognize the union, despite formal demands made in
September and October 1958, though it informed Respondent's business agent it
would negotiate if a majority of the employees desired representation.
A strike of union members was called on October 17, 1958, in protest of Fowler's
refusal to renew the old contract, with some 24 union members going out and
approximately 15 union members remaining at work. However, the total number
of hotel employees, on October 16, excluding supervisors, but including restaurant
employees, 3 bartenders, and 2 parking lot employees 2 aggregated approximately
80, of whom approximately 50 reported to work on the 17th and 58 on the 18th.
The picketing has continued without interruption to date, with a banner bearing
the following legend:
ON STRIKE
For Renewal of Our
Union Contract
EMPLOYEES OF FOWLER HOTEL
Members of Hotel Employees'
Union AFL-CIO, Local 58
Respondent's counsel conceded in his opening statement that, "We have con-
tinued uninterruptedly to picket the employer for renewal of the contract, which we
agree is the object." [Emphasis supplied.] All the evidence is in accord with that
statement, including Van Orman's testimony concerning two conferences with Ardith
Howard, Respondent's business agent, in September and November 1959 Van
Orman also testified that in the latter conversation he offered to negotiate if Howard
could prove a majority, but Howard replied he did not think the Union could win
an election because the restaurant employees had beenbrought in, as well as other
new employees.
Respondent has at no time filed a petition under Section 9(c) of the Act, though
on February 2, 1960, either the Van Orman Corporation or Fowler Hotel, Inc, filed
a petition in Case No. 25-RM-112, on which a hearing was scheduled for March
7, 1960. On February 24, 1960, Respondent filed a charge against Fowler Hotel,
Inc., in Case No. 25-CA-1232, alleging violations of Section 8(a) (1) and (5).3
C. Concluding findings
The issues herein require close attention to the statutory language. Section
8(b) (7) (C) provides, to the extent here relevant, that it shall be an unfair labor
practice for a labor organization or its agents-
(7) to picket or cause to be picketed . . . any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with the
labor organization as the representative of his employees . . . unless such
labor organization is currently certified as the representative of such employees:
(C) where such picketing had been conducted without a petition under Section
9(c) being filed within a reasonable period of time not to exceed thirty days
from the commencement of such picketing: Provided, That when such a peti-
tion has been filed the Board shall forthwith, without regard to the provisions
of section 9 (c) (1) or the absence of a showing of a substantial interest on the
part of the labor organization, direct an election in such unit as the Board finds
to be appropriate and shall certify the results thereof: Provided further, That
nothing in this subparagraph (C) shall be construed to prohibit any picketing
or other publicity for the purpose of truthfully advising the public (including
consumers) that an employer does not employ members of, or have a contract
with, a labor organization, unless an effect of such picketing is to induce any
individual 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.
2 At the time of the 1956 election, the parking lot attendants were employees of a
separate corporation and plainly not on the agreed list of eligible voters.
3 On March 10, after the close of the hearing herein, the Regional Director wrote the
Trial Examiner, with copies to counsel for Respondent and the Charging Party, that he
had investigated that charge and dismissed it on March 3.
BARTENDERS , ETC., UNION, LOCAL 58 1321
It should also be noted that under the provisions of subparagraphs (A) and (B)
picketing for the proscribed object is banned respectively, where the employer has
lawfully recognized another union and a question concerning representation may
not be appropriately raised under Section 9(c) of the Act, and where a valid election
under Section 9(c) has been conducted within the preceding 12 months
Consideration of the case properly begins with the General Counsel's contention
that there is no basis under the circumstances of this case for application of the
second proviso, supra, (i.e., picketing for "the purpose" of truthfully advising the
public. etc.) because the evidence established that the object of the picketing was to
force Van Orman to bargain. That contention raises a question as to the puzzling
use by Congress of offsetting synonyms,4 though with different modifiers, i.e., an
object versus the purpose. And since we start, of course, with the assumption that
Congress' choice of language was intentional, not aberrant, the problem is to deter-
mine what it meant.
The legislative history of the earlier Taft-Hartley amendments (1947) showed that
Congress then, too, dealt with the present terms. Thus, Senator Taft pointed out,
in his supplementary analysis of that Act as passed that (93 Congressional Record
6859):
Section 8(b)(4), relating to illegal strikes and boycotts, was amended in
conference by striking out the words "for the purpose of" and inserting the
clause "where an object thereof is."
It was that very statement which the Supreme Court found persuasive, in reaching
the conclusion in N.L.R.B. v. Denver Building and Construction Trades Council,
Gould & Preisner, 341 U.S. 675, 689, that as the term "an object" was used in
Section 8(b)(4), "It is not necessary to find that the sole object of the strike was
[the proscribed one]." 5
Coming now to the 1959 amendments, we find that Congress used the identical
terms again in amending Section 8(b)(4) and in enacting a new subsection (7),
both being parts of a comprehensive scheme to regulate picketing. In so doing,
Congress gave not the slightest hint of disagreement with the Court's interpretation,
thereby indicating its acceptance of that construction. Thus as the Court observed
of a similar situation surrounding the Taft-Hartley amendments (Gullett Gin Com-
pany, Inc. v. N.L.R.B., 340 U.S. 361, 366:
In the course of adopting the 1947 amendments Congress considered in great
detail the provisions of the earlier legislation as they had been applied by the
Board. Under these circumstances it is a fair assumption that by reenacting
without pertinent modification the provisions with which we here deal, Congress
accepted the construction placed thereon by the Board and approved by the
courts.
Cf. Apex Hosiery Company v. Leader, 310 U.S. 469, 488.
Furthermore, such little legislative history as bears directly on the subject indi-
cates affirmatively that in using "the purpose," Congress meant the only purpose.
Most of the references to Section 8(b)(7)(C) occurred at and after the conference
stage, when the Senate conferees were endeavoring to salvage some sort of their
position in effecting a compromise under the House (Landrum-Griffin) bill. Speak-
ing to a compromise proposal which later became the present section, Senator
Kennedy stated, on August 28, 1959, (105 Daily Congressional Record 15900) :
Under our substitute proposal organizational picketing can take place only
under limited conditions. All are in our opinion most fair and equitable.
' Though both words have a variety of meanings, in different senses, they appear to be
synonymous in the sense used in Section 8(b) (7) (and in 8(b) (4) as amended). Thus,
Webster's New International Dictionary not only uses each term in defining the other,
but uses some of the same terms and synonyms in defining each.
Purpose: 1. That which one sets before himself as an object to be attained ; the
end or aim to be kept in view . . design; intention
2. The object, effect, or result aimed at, intended, or attained
Object: That by which the mind, or any of its activities, is directed ; that on
which the purposes are fixed as the end of action or effort ; that which is
sought for; end; aim; motive; final cause. [Emphasis supplied ]
If Congress had reversed its choice, using "the purpose" in place of "an object," the
conclusion would plainly follow that it would have intended the purpose to mean the
sole purpose.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Second. Picketing, in the absence of a contract or an election, which has
only the effect of notifying the public of non-union conditions, and asking the
employees to join the union would not be banned. [Emphasis supplied ]e
That statement was repeated in the analysis which accompanied Senate Resolution
181. 105 Daily Congressional Record 15906-15907, August 28, 1959.
On September 3, 1959, Senator Kennedy, speaking to the conference report, com-
mented further on the subject of organization picketing (105 Daily Congressional
Record 16413):
When the picketing results in economic pressure through the refusal of other
employees to cross the picket line, the bill would require a prompt election.
Purely informational picketing cannot be curtailed under the conference report,
although even this privilege would have been denied by the Landrum-Griffin
measure. [Emphasis supplied.]
See also the following post-legislative comment by Senator Goldwater, concerning
the second proviso, on October 2, 1959 (Congressional Record Appendix A8525) :
The second proviso to the third prohibited provision grants the following
exemption from said third prohibition only-and not from the first two:
Where the union engages in picketing or other publicity for the sole purpose
of truthfully advising the public that an employer does not employ members of
or have a contract with a labor union. In those circumstances, such picketing
may be carried on indefinitely [ unless the effect is to induce employees, etc.]
[Emphasis supplied.]
The foregoing interpretation of the statutory language, brings us face to face with
the argument that it makes the second proviso of subparagraph (C) meaningless, a
view which is most forcefully stated in the cogent opinion of District Judge Swygert,
who denied the Regional Director's petition for a Section 10(1) injunction against
Respondent. Thus, as Judge Swygert pointed out (45 LRRM 2496, 3498):
It is difficult, if not impossible, to imagine any kind of informational picket-
ing pertaining to an employer's failure or refusal to employ union members or to
have a collective bargaining agreement where another object of such picketing
would not be ultimate union recognition or bargaining. In most instances
certainly the aim of such informational picketing could only be to bring
economic pressure upon the employer to recognize and bargain with the labor
organization. To adopt petitioner's interpretation of subparagraph (C) would
make the second proviso entirely meaningless.
Though certainly the situations are limited in which the second proviso can have
practical meanmg,7 they are by no means nonexistent. That there remains some
area within which the proviso can operate is plainly shown by the findings in Radio
Broadcast Technicians, Local Union No. 1264 of the International Brotherhood of
Electrical Workers, AFL-CIO (WKRG-TV), 123 NLRB 507. There the Board
adopted the Trial Examiner's holding that where a union picketed an employer after
losing an election and where it conducted a campaign to induce a boycott of the
employer by the public and by the employer's advertisers, the object of the union's
conduct was not to force the employer to recognize or bargain with the union, but
to protect its bargaining position with competing union stations and thereby enable
it to maintain the level of wages and working conditions for employers whom it
represented
Under the circumstances in this case it is unnecessary to map out the exact bound-
aries of the lebensraum in which the second proviso can operate. I conclude and
find on all the evidence in the case, including the concession of Respondent's counsel,
that the object of Respondent's picketing on and after November 13, 1959, was to
force and require Van Orman to recognize or bargain with Respondent as the repre-
sentative of its employees, and that, though said picketing and other publicity was
incidentally truthful, it was not for the purpose of advising the public that Van Orman
did not employ members of or have a contract with it.
The Senator ' s capsule summary of the language of the second proviso is not precise ;
he apparently equated publicity that an employer does not employ union members with
solicitation of employees to join the union. Moreover, in his statement next quoted below,
he recognized the possibility of picketing only for information.
9 There is, of course, a further limitation on the proviso which robs it of practical
effect, and that is the exemption is lost if any employee of another employer is induced
by the picketing not to pick up or deliver goods or not to perform services.
BARTENDERS, ETC., UNION, LOCAL 58 1323
I therefore conclude and find that under the evidence Respondent's picketing did
not fall within the protection of the second proviso .8
We now reach the question whether Respondent's alleged certification by the
State Division of Labor in 1956 will qualify it as being certified within the meaning
of Section 8(b)(7). The answer is plainly in the negative. The statutory scheme
shows that the certification which Congress had in mind was one made by NLRB
under Section 9 of the Act. Thus, throughout Section 8(b) (7) Congress referred
specifically to questions concerning representation, to elections and the conducting
of elections by the Board, and to the filing of (representation) petitions, all under
Section 9(c) of the Act. The conclusion is inescapable that in excepting a "certified"
union from the reach of the picketing ban, Congress meant one which is certified
by the Board under that section. There is no suggestion in the legislative history
that Congress intended or assumed that the term would or should include a certifi-
cation by a State board. To the contrary, such comments as bear directly on the
point indicate that a certification by NLRB was contemplated. See e.g., Extension
of Remarks of Senator Dirksen, 105 Daily Congressional Record Appendix A8274-
8275, September 18, 1959.
Two Board decisions which Respondent relies on afford no support, for both
preceded the present amendment and both were concerned with wholly unrelated
subjects of statutory regulation, not even remotely akin to the present restriction on
picketing. Thus, Olin Mathieson Chemical Company, 115 NLRB 1501, involved
application of the Board's 1-year rule against the conducting of a representation
election in a case where a State board had conducted a valid election within the
year. In Bluefield Produce & Provision Company, 117 NLRB 1660, the Board
chose to apply (also in a case where a State agency had conducted an election within
a year) its rule that a certification based on a Board election must be honored for
a reasonable period-ordinarily 1 year-absent unusual circumstances.
Even were it assumed that the above holdings might be entitled to some persuasive
weight during the first year of a State certification, it is plain that they are inapposite
here in view of the lapse of time and the intervening circumstances, including the
changes in ownership and management, the enlargement of the unit, and the loss of
Respondent's majority. Respondent could in no case, therefore, be regarded as
currently certified within the meaning of Section 8(b) (7).
Respondent also contends that it was at all times conducting an unfair labor
practice strike because of an alleged refusal to bargain by Van Orman and the
previous owner of the hotel. Laying aside the bare legal question whether picket-
ing to protest an employer's unfair labor practice is privileged under Section
8(a)(7)(C), Respondent's defense is wholly without merit under the circumstances
here. Preliminarily, it should be observed that Respondent filed no charge with
the Board until the eve of the hearing.
There are numerous reasons which preclude a finding that Respondent was con-
ducting an unfair labor practice strike. Starting with the State law, there is no
labor relations statute as such in Indiana, no statute which requires bargaining,
no statute which defines or proscribes unfair labor practices, and no board or agency
which is empowered to fix an appropriate unit for bargaining or to issue a formal
certification therein. There is neither statute nor decision which fixes the obligations
of successor concerns to continue recognition of a union which was recognized by
a predecessor nor, indeed, any which fixes the time during which the predecessor
itself is required to extend recognition. Furthermore, whatever the union's majority
status was in the alleged unit as it existed up to July 1, 1958, the evidence showed
plainly sufficient enlargement thereafter that Respondent was without a majority at
the time the strike began on October 17, 1958, and at all times thereafter. For all
of the foregoing reasons there could have been no unfair labor practice under the
State law and no finding that the strike was an unfair labor practice strike prior to
September 9, 1959.
There can also be no finding under the Federal act that the strike was an unfair
labor practice strike on and after September 9, 1959. In the first place, because
Respondent failed to file a timely charge, Section 10(b) precludes a finding that
unfair labor practices were in fact committed during the earlier period-a neces-
sary prerequisite to the finding that the strike began as, or was converted into, an
unfair labor practice strike. Greenville Cotton Oil Company, 92 NLRB 1033, enfd.
8 Because the General Counsel contended that the final clause of the second proviso
was without application under his theory of the case, the Trial Examiner rejected his
offer of proof ( on his admission that the evidence was immaterial and his refusal to
amend the complaint in such a manner that the evidence would be material) concerning
an actual incident of an employee's refusal to cross the picket line to make deliveries.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
197 F. 2d 326 (C.A. 5), review denied, American Federation of Grain Millers v.
N.L.R.B., 197 F. 2d 451. But see, contra, N.L.R.B. v. Brown and Root, Inc., 203
F. 2d 139, 145-146 (C.A. 8). The strike must, therefore, be found to be an economic
strike Ibid.
The merits of the belated charge filed in Case No. 25-CA-1232 on February 24,
1960, cannot be determined by the Trial Examiner for two reasons: his assignment
does not cover that case, and the charge was dismissed by the Regional Director on
March 3, 1960. However, as above found, the evidence showed that Respondent did
not in fact represent a majority of the Fowler Hotel employees in an appropriate
unit at any time after the strike began on October 17, 1958.
Respondent's attempt to raise constitutional issues of freedom of speech and
assembly and of violation of the first and fifth amendments is wide of the mark.
Respondent's picketing, though peaceful and truthful, was plainly for an object
which the Act proscribes. Therefore, neither Section 8(c) nor the constitutional
guarantees can serve to protect or immunize it. International Brotherhood of Elec-
trical Workers, Local 501 (Samuel Langer) v. N.L.R.B., 341 U.S. 694, 705;
N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 690-691
and cases there cited in footnote 22. Furthermore, the constitutionality of the
statutory provisions will be assumed at the Trial Examiner and Board level pend-
ing contrary adjudication by the courts. Bluefield Produce & Provision Co., supra,
at p. 1663.
Respondent's answer also raised various equitable defenses based on what it terms
the Board's arbitrary and unlawful action in refusing to assert jurisdiction over
hotels. Though its brief seems to abandon those defenses by asserting that Fowler
Hotel did not meet the Board's jurisdictional standards (see section I, supra), the
defenses will be briefly considered. They are plainly without merit.
The Board announced as early as January 11, 1959, its determination to assert
jurisdiction in hotel cases (press release R-586), and on ,May 14, 1959, it an-
nounced the standards which it would apply (press release R-610). Respondent was
free to test the jurisdictional question by filing either a representation petition
under Section 9(c) or an unfair labor practice (refusal to bargain) charge under
Section 10(b). It did not do so either before or after the change of management
on September 9 or after the enactment of Section 8(b)(7) on November 13.
Aside from the principle (which Respondent recognizes) that estoppel does not run
against the Government, its own laches prevents reliance on the alleged failure by
the Board to assert jurisdiction. Furthermore, it was plain that prior to Septem-
ber 9, 1959, Fowler Hotel did not meet the Board's jurisdictional standards. Re-
spondent's contention that the management contract with Van Orman was not an
"arm's length" transaction has been rejected. Even were its contention sound, it
could have tested the jurisdictional question by filing a representation petition with
the Board, thereby protecting itself against an unfair labor practice charge.
It is therefore concluded and found that by picketing ,the Fowler Hotel for more
than a reasonable time after November 13, 1959, with the object found herein,
and without a petition being filed under Section 9(c), Respondent has engaged
in and is engaging in unfair labor practices as defined in Section 8(b)(7)(C) of
the Act.
IV. THE REMEDY
Having found that Respondent has engaged in activities which violate Section
8(b) (7) (C) of the Act, I shall recommend that it cease and desist therefrom and
that it take certain affirmative action of ,the type conventionally ordered in such cases,
which I find necessary to remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Van Orman-Fort Wayne Corporation is an employer within the meaning of
Section 2(2) and 8(b) (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. By picketing the Fowler Hotel for more than a reasonable time after Novem-
ber 13, 1959, with an object of forcing or requiring Van Orman to recognize and
bargain with Respondent as the collective-bargaining representative of the employees
of the Fowler Hotel, without a petition being filed under Section 9(c) of the Act,
Respondent has engaged in and is engaging in unfair labor practices as proscribed
by Section 8(b) (7) (C) of the Act.
NEW YORK CENTRAL TRANSPORT COMPANY 1325
4. The aforesaid unfair labor practices having occurred in connection with the
operations of Van Orman-Fort Wayne Corporation as set forth under section I,
supra, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and substantially affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
New York Central Transport Company and Sidney Schwartz.
Case No. 7-CA-3344. September 28, 1962
DECISION AND ORDER REMANDING CASE TO THE
TRIAL EXAMINER
On June 29, 1962, Trial Examiner Eugene E. Dixon issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent is not an employer within the meaning of Section
2(2) of the Act and recommending that the complaint herein be
dismissed as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Re-
port and a supporting brief. A brief was filed by the Respondent.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and finds merit in the
General Counsel's exceptions.
The Respondent, New York Central Transport Company, a wholly
owned subsidiary of the New York Central Railroad Company, does
business in seven States, including Michigan. During the first 9
months of 1961, Respondent received a total revenue of about
$9,250,000. Of this amount, $250,000 was due to pickup and delivery
via truck from shipper to receiver; an equivalent amount was re-
ceived from leasing flexivans to the New York Central Railroad;
and $37,000 was received in the form of commissions for the ship-
ment by truck of privately owned household furniture. The largest
amount, $4,750,000 was directly earned from interstate piggyback
operations performed for the New York Central Railroad Company.
Deliveries of packaged material for shipment by railroad boxcar
and interstate truck deliveries from terminals produced $1,312,000 in
revenue. The Respondent collected $2,860,000 from trucking service
for delivery of goods from a rail terminal to points of destination.
Testimony taken at the hearing revealed that about 10 percent
of the Detroit area operation is devoted to intercity mail service pur-
suant to Government contract. This service includes both the high-
way hauling of preloaded trailers and piggyback transportation. It
138 NLRB No. 131.