Local 50

National Labor Relations Board - Board Decisions

May 15, 1956

115 N.L.R.B. 1333 (N.L.R.B. 1956)

LOCAL 5 0 1333
such authority has not been used.6 In view of his authority, we find
that the head checker is a supervisor within the .meaning of the Act,
and shall exclude him from the unit.
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: All production and maintenance
employees at the Employer's Hilo, Hawaii, plant, including diesel
truck-tractor drivers' and their helpers, mechanics and their helpers,
checkers, and shovel operators, but excluding bulldozer-tractor opera-
tors who are employed as agricultural laborers, dump-truck drivers,
the head checker, office employees, part-time employees, professional
employees, watchmen, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.)
United States Gypsum Company, 93 NLRB 91, 92 ( footnote 8) and cases cited therein.
The parties stipulated to exclude Richard J. K. Chong, listed by the Employer as a
diesel truck-tractor driver. Chong is the spouse of one of the firm's copartners . Accord-
ingly, we exclude him from the unit.
Local 50, Bakery and Confectionery Workers International Union,
AFL-CIO and Arnold Bakers Employees Association. Case No.
2-CC-321. May 15,1956
DECISION AND ORDER
On April 29,1955, Trial Examiner Charles W. Schneider issued his.
Intermediate Report in the above-entitled proceeding, finding that the
Respondent, Local 50, Bakery and Confectionery Workers Interna-
tional Union, AFL-CIO, hereinafter called Local 50, had engaged in
and was engaging in certain unfair labor practices in violation of
Section 8 (b) (4) (C) of the Act and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. Thereafter,
Local 50 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 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, with the following additions and
modifications :
We note that on May 12,1955, the Court of Appeals for the Second
Circuit heard arguments on the General Counsel's appeal from an
order of the United States District Court for the Southern District of
115 NLRB No. 208.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York,' denying the Regional Director's application, under Sec-
tion 10 (1) of the Act, for a preliminary injunction to restrain Local
50's picketing at the plant of Arnold Bakers, Inc. On June 28, 1955,
the Second Circuit affirmed the district court's order dismissing the
10 (1) petition for an injunction .2
There are two crucial questions in deciding whether there was a vio-
lation of Section 8 (b) (4) (C) ' in this case. Was "an object" of
Respondent Local 50 to force or require Arnold to recognize and bar-
gain with Local 50 rather than the duly certified Arnold Bakers
Employees Association? (2) Did Local 50's picketing activities at Ar-
nold's plant, including its shipping platform and employees' parking
lot, constitute inducement and encouragement of employees to engage
in a strike or concerted refusal in the course of their employment "to
use, manufacture, process, transport, or otherwise handle or work on
any goods, articles, or commodities or to perform any services" for
such an object?
In a carefully explicated Intermediate Report the Trial Examiner
answered both of these questions in the affirmative. The Board's ac-
ceptance of his findings and ultimate conclusion that Local 50 has
violated Section 8 (b) (4) (C) of the Act is based upon its independent
and painstaking study of the record and pertinent authorities. In so
doing the Board has been particularly mindful of the decision of the
Court of Appeals for the Second Circuit, cited above, affirming the
district court's denial of a preliminary injunction. The court's de-
cision in that case was not a final adjudication on the merits. The
record now before the Board is, of course, more complete than that
presented to the court. In exercising its statutory duty under Section
10 (c) of the Act initially to determine whether any person has en-
gaged in an unfair labor practice, the Board has been aided by the
completeness of the record and the detailed analysis and recommenda-
tions of the Trial Examiner unavailable to the court in the injunction
proceeding. If, however, the conclusions of the Board are regarded as
in conflict with those of the Second Circuit, such conclusions have not
been reached without due deference to the opinion of that court.
As set forth more fully in the Intermediate Report, Local 50's efforts
to achieve recognition as the representative of Arnold's employees ex-
tended as far back as 1943. In that year Local 50 lost an election con-
ducted by the New York State Labor Relations Board. In the years
that followed Local 50 sought to achieve its objective by various
means, including a suggestion to the president of the Association that
the latter merge with Local 50. This suggestion was rejected by the
Association and, as a direct result, a picket line was established at the
1 Douds v Local 50, Bakery and Confectionery Workers International Union, A. F. L.,
127 F. Supp 534 (D C, So N Y.).
2Ibid., 224 F. 2d 49 (C. A. 2).
LOCAL 50 1335
Arnold plant on August 12, 1954. On November 15, 1954, following
a Board-conducted election in which Local 50 refused to participate,
the Association was certified as the collective-bargaining representative
of Arnold's employees. Both before and after the certification Local
50 picketed the Arnold plant with signs stating that Arnold's em-
ployees had refused to join Local 50 and, in effect, requesting the
public to assist Local 50 in organizing Arnold's employees by refusing
to buy Arnold's products. While the wording of the signs was
changed after the Association's certification, the Trial Examiner
found, and we agree, that the new signs did not suggest any change in
the purpose or objective of the picketing. This objective, the Trial
Examiner found, was to force or require Arnold to recognize or bar-
gain with Local 50 presently as the representative of its employees.
The evidence upon which the Trial Examiner relies includes an ad-
mission by Local 50 that such was its object before the November 15
certification. After that date the Union contends that its object
changed and that publicity rather than recognition was its goal.
The Trial Examiner, however, points to seven different occasions after
November 15 in which pickets disclosed the purpose of Local 50 'to
induce employees to join that organization indicating, in his opinion,
a desire to achieve recognition or bargaining at a tme when the Associa-
tion was the certified bargaining representative. Apart from the
change in the picket signs, which is found to be insufficient, there is
no evidence that Local 50 took any steps to indicate that its purpose
had, in fact, changed. Indeed, as indicated above and more fully in
the Intermediate Report, the evidence is to the contrary.
The Supreme Court has held that it is sufficient under Section 8
(b) (4) if one of the Union's objects in inducing employees to strike
is "an object" proscribed under that section of the Act.3 It may be,
as the Court of Appeals for the Second Circuit pointed out in the
injunction proceeding in this case, that Local 50 desired to diminish
membership in the certified Union, to propagandize Arnold's em-
ployees, to win an election when an election could be held, and thus
ultimately to achieve recognition. These objectives may not be for-
bidden by Section 8 (b) (4) (C). The existence of such objectives,
however, does not, in our opinion, mean that Local 50 did not have
another objective, that of achieving immediate recognition by picket-
ing Arnold's plant. He who hopes for the ultimate does not spurn
the immediate victory. The Association's certificate of November 15
would bar an election for a reasonable period of time, in most instances
a year. During that time the Association and Employer could execute
a contract barring an election for at least 2 and possibly more years.
Thus, any objective Local 50 may have had of achieving recognition
N. L. R. B. v. Denver Bldg. & Construction Trades Council, et at., 341 U. S. 675, 688,
689.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through lawful means must be related to events far in the future and
over a period of time when the Association would be in a position
to more firmly secure the loyalty of Arnold's employees by its efforts
on their behalf. Even if Local 50 succeeded in wooing away all of
the Association's members the time for an election would remain the
same under well-established law. The record in this case shows that
Local 50 had demanded recognition when it was at the same time re-
fusing to participate in an election. It would therefore seem clear
that Local 50 did not consider the fact that it had not been and could
not be designated by the employees through an election a valid argu-
ment against its immediate recognition. In this context we must
then answer the question whether Local 50's efforts to achieve recogni-
tion as soon as possible without an election disappeared completely
as soon as the Association was certified. The Trial Examiner relies
for his negative answer in part on the rule of law that "a state of
affairs once shown to exist is presumed to continue to exist until the
contrary is shown." 4 He concluded that an object of the picketing
after certification was unlawful on the ground that there was no
evidence in the record to rebut the presumed continuity of Local
5O's admitted purpose in picketing the Arnold plant. While, of
course, it may be argued that a person charged with a violation of
the law may be granted the benefit of a doubt where opposing infer-
ences, 1 lawful and the other unlawful, are in the alternative, there
are 2 reasons which would make such a contention inapplicable to
the instant case. First, the unlawful object found by the Trial Ex-
aminer does not rest upon an inference. It is based upon a prior
admission and is a fact never disavowed in the course of the picket-
ing by Local 50. Second, under Section 8 (b) (4) a number of in-
ferences as to object may be warranted concurrently, only one of which
may establish an unlawful objective. That section of the Act, how-
ever, is satisfied as to object if the evidence is sufficient to support the
latter finding. Section 8 (b) (4) speaks of "an" rather than "the"
object. Accordingly, any inferences as to Local 50's lawful objectives
after certification must be of such a character as, in effect, to displace
its unlawful objective. Did Local 50 harbor a forbidden objective
after November 15? Its admitted objective before certification was
immediate recognition. Picketing continued after certification. The
professed object after certification, information to the public, was
viewed with skepticism by both the district court and the Court of
Appeals for the Second Circuit in the injunction proceedings. With no
evidence that Local 50 made known any change in its objective after
November 15, with its asserted objective repudiated by the courts,
with the opportunity for lawful recognition necessarily a remote
4 N. L. R. B. v. National Motor Bearing Co., 105 F. 2d 652 (C. A. 9) ; N. L. R. B. V. Piqua
Munising Wood Products Co., 109 F. 2d 552 (C. A. 6).
LOCAL 50 1337
speculation, the inference seems compelling to us that Local 50 after
November 15 did not abandon hope and purpose to emerge at once
as the recognized bargaining agent by reason of capitulation to its
pressure . The Trial Examiner found that its desire for immediate
recognition remained alive and was one of the continued objects of
its picketing. We are impelled to agree with the Trial Examiner's
conclusions.
As the Court of Appeals for the Second Circuit has pointed out, an
essential element of the unlawful object under Section 8 (b) (4) is the
intent of the Union to force or require an employer, here Arnold, to
yield to the Union's object. Whether or not such an intent existed
depends primarily upon the type of pressure brought to bear on the
employer and the consequences to be anticipated therefrom. This
aspect of the case therefore must be related to the nature and effect
of Local 50's picket line before Arnold's plant. If, as the Trial Ex-
aminer found, the picket line was an inducement to employees to strike
then certainly it may reasonably be anticipated that Arnold would
be under susbtantial pressure to yield to Local 50's demand for rec-
ognition and that the latter would be aware of and have intended to
apply such pressure.
We turn now to the question whether Local 50's picket line had the
effect of inducing and encouraging employees to engage in a strike or
a concerted refusal to work for their employers. In several recent
decisions the Second Circuit has laid some stress upon the element of
.a union's intent to cause a work stoppage when a picket line is estab-
lished. A finding of specific intent may not be necessary, the court
has held, if the inducement to cease work "was the inevitable result
or even the `natural and probable consequence' of the picketing"; s
otherwise, particularly where no work stoppage actually occurs, the
union may not be presumed to have intended to cause a work stoppage
by its picketing activities.' In his concurring opinion in N. L. R. B.
v. Local 459, Intl. Electrical Workers, CIO, cited above, Judge Hand
reasoned that if motive was, as he found it to be on the basis of the
Radio O fcers' case,' an essential element in an employer' s act of dis-
crimination to discourage union membership then motive was similarly
an essential element in a union's act of picketing to induce a work
stoppage. Absent a specific finding by the Board the court should
not presume, Judge Hand held, that an unlawful motive existed unless
"the evidence was so imperative that the Board would have been
obliged to find that the motive existed." In cases involving acts of
6 N. L. R. B. v. Business Machine and Office Appliance Mechanics Conf. Bd., Local 459,
Intl. Electrical Workers, CIO (Royal Typewriter Co.), 228 F. 2d 553, 560 (C. A. 2).
eIbid.; Douds v. Local 50, Bakery and Confectionery Workers, International Union,
A. F. L., supra.
7Radio Officers' Union of the Commercial Telegraphers Union, AFL v. N. L. R. B., 347
U. S. 17, 33.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,discrimination by an employer the Board in finding a violation of
Section 8 (a) (3) normally finds that an unlawful motive existed.
This is so because an employer necessarily discriminates among its em-
ployees, whether union or nonunion, in the day-to-day conduct of its
business. Discouragement of union membership, however, does not
occur merely because a union member is discharged. Discouragement
in most cases depends upon the actual motive of the employer which
the Board and the employees affected can reasonably infer from the
evidence. In some cases, of course, the discrimination is so directly
and solely related to the employees' union membership that discourage-
ment necessarily occurs without regard to the actual motive. In the
latter cases an unlawful motive may be inferred because a person is
held to intend the natural and foreseeable consequences of his conduct.
A union's picket line before an employer's plant alleged to be a viola-
tion of Section 8 (b) (4) presents, we believe, the converse situation
of an employer's discharge of a union member. Although employees
are discouraged in most instances only if they believe the discharge
was motivated by union animus, the mere existence of a picket line is
in most instances "a strike signal" 6 and induces employees to assist
the picketing union by refusing to work regardless of the motive of
the picketing union. Unlike an act of discrimination under Section
8 (a) (3), it is the rare rather than the usual picket line which cannot
be said to have this effect.9
Early in the history of the Taft-Hartley Act the Board was faced
with the question whether peaceful picketing was no more than free
speech protected by Section 8 (c) of the Act and beyond the pro-
scription of the term "induce and encourage" in Section 8 (b) (4).
A majority of the Board held that it was not so protected and this view
has been affirmed by the Supreme Court.10 In International Brother-
hood of Electrical Workers, Local 501, et al. v. N. L. R. B., supra,
703, 704, the court held :
c. To exempt peaceful picketing from the reach of § 8 (b) (4)
would be to open the door to the customary means of enlisting
the support of employees to bring economic pressure to bear on
their employer. The Board quickly recognized that to do so
would be destructive of the purpose of § 8 (b) (4) (A). It said
8 N. L. R. B. v. Denver Bldg. f Construction Trades Council , supra; International
Brotherhood of Electrical Workers, Local 501, et at . v. N. L. R. B., 341 U. S. 694, 700.
9 Our dissenting colleague concedes that a picket line before employee entrances "ordi-
narily constitutes a very potent form of inducement of work stoppages ." Unless the word
"ordinarily " differs substantially from the word "usual," our view of the law in this
respect would appear to be the same . As indicated below, we do not and need not decide
that all picketing "must always" induce employees to engage in a work stoppage. We
hold only that the usual picket line has such an effect . We hold further that there are
no material circumstances in this case to warrant the conclusion that the Union 's picket
line at Arnold 's plant was other than the usual and traditional union picket line.
10 N. L. R. B. v, Denver Bldg. & Construction Trades Council, supra,
LOCAL 50 1339
"To find that peaceful picketing was not thereby proscribed
would be to impute to Congress an incongruous intent to permit,
through indirection, the accomplishment of an objective which
it forbade to be accomplished directly." United Brotherhood of
Carpenters, 81 NLRB 802, 811.
In Hughes et al. v. Superior Court of California for Contra Costa
County," the Supreme Court quoted with approval the concurring
opinion of Mr. Justice Douglas in Bakery d' Pastry Drivers do Helpers
Local v. Wohl, 315 U. S. 769, 775, 776, in which he said that picketing
"is more than free speech, since it involves patrol of a particular
locality and since the very presence of a picket line may induce action
of one kind or another, quite irrespective of the nature of the ideas
which are being disseminated." That Court has also pointed out :
"The loyalties and responses evoked and exacted by picket lines are
unlike those flowing from appeals by printed word." 12 Again the
Court held that "picketing is more than speech and establishes a locus
in quo that has far more potential for inducing action or nonaction
than the message the pickets convey." 13 The type of response evoked
by a picket line has been characterized by the Ninth Circuit Court of
Appeals as follows: 14
The reluctance of workers to cross a picket line is notorious. To
them the presence of the line implies a promise that if they
respond by refusing to cross it, the workers making the appeal
will in turn cooperate if need arises. The converse, likewise, is
implicit. "Respect our picket line and we will respect yours."
In this setting the picket line is truly a formidable weapon, and
one must be naive to assume that its effectiveness resides in its
utility as a disseminator of information.
Affirmed by the Supreme Court in its view that picketing under
Section 8 (b) (4) is not protected by Section 8 (c), and mindful of
judicial decisions, cited above, that a picket line induces action un-
related to the literal appeal of the signs carried by the pickets, the
Board has consistently held that the traditional union picket line
before employee entrances has the effect of inducing employees to
refuse to work for the picketed employer.'5 This conclusion appeared
to the Board to have been so well established in the field of labor
relations that a specific finding of the union's actual motive in picket-
ing, while readily inferrable in most cases , did not seem to be a require-
11339 U. S. 460, 464, 465.
12 I bid.
13 Building Service Employees v. Gazzam , 339 U. S. 532, 537.
14 Printing Specialties and Paper Converters Union, Local 388 v. LeBaron, 171 F. 2d
331, 334.
15 Gemsco, Inc., 111 NLRB 82; Washington Coca Cola Bottling Works, Inc., 107 NLRB
299; Union Chevrolet Company, 96 NLRB 957.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment under Section 8 (b) (4). Such cases, of course, have not included
consumer picketing of customer entrances to stores or plants. Con-
ceivably, there may be other extraordinary circumstances in which
a picket line cannot reasonably be found to induce employees to strike.
In this respect we find it unnecessary to adopt the Trial Examiner's
finding that picketing an employer's place of business is in all circum-
stances inducement and encouragement of employees not to perform
employment services.
The inevitable appeal of a picket line to all employees regardless of
the words used on the signs has been a matter of particular concern to
the Board and the courts in a group of cases, of which the Moore Dry
Dock case 16 is a leading example. In that case the ship of a primary
,employer was moored at the dock of a secondary employer. Employees
of both employers were engaged in performing services for their
respective employers. The union picketed the premises. A charge
was filed alleging that the picket line had induced the employees of
the neutral employer to refuse to work for a prohibited objective.
If the picket line had the effect of such inducement and if an object
of the union was to force or require a cessation of business between
the two employers, then under the literal language of Section 8 (b)
(4) (A) a violation of the Act would have occurred. Confronted
with this problem, the Board was unable to find that inducement to
strike would not occur even where the sign clearly and unmistakably
notified the public that the dispute was only with the primary em-
ployer. Rather, the Board turned to Sections 7 and 13 of the Act
which guarantees employees their traditional right to strike. Balanc-
ing the right of employees to engage in a strike against the right of
neutral employers to be free from controversies not their own, the
Board in the Moore Dry Dock case established four criteria under
which picketing at a secondary employer's premises would be found
primary and lawful despite its incidental effect on such secondary
employers. Only one of these criteria related to the actual wording
on the picket sign.17 In the Moore Dry Dock line of cases neither the
Board nor the courts have found it necessary to establish the union's
motive to induce a strike by picketing. That motive is included in
the assumption that the picketing will have some effect on the busi-
ness of the neutral employer. The interference with the latter's
business, however, is suffered on the ground that employees other-
wise would be deprived of their rights u^der Sections 7 and 13 of
the Act. The Board's recognition of and attempt to conform the dual
19 Moore Dry Dock Company, 92 NLRB 547.
17 The remaining criteria were stated as follows : "(a) The picketing is strictly limited
to times when the situs of the dispute is located on the secondary employer 's premises;
(b) at the time of the picketing the primary employer is engaged in its normal business
at the situs ; ( c) the picketing is limited to places reasonably close to the location of the
sites;" Ibid., at page 549.
LOCAL 50 1341
congressional objectives of preserving the right to strike and the
right of neutral employers to be shielded from controversies not their
own has been approved by the Supreme Court in N. L. R. B. v. Denver
Bldg. & Construction Trades Council, supra, 692. The limitation on
the right to picket at a secondary employer' s premises on the basis
of objective criteria as set forth in the Moore Dry Dock case has been
approved by the Second Circuit Court of .=. ppeals in N. L. R. B. v.
Service Trade Chauffeurs, Salesmen cC Helpers Local 145, etc., 191
F. 2d 65.
In the instant case the picket signs carried by Local 50 did not
contain a direct appeal to employees of Arnold or other employees to
refuse to work for their employers. Moreover, it does not appear that
any employees refused to cross the picket line. With regard to the
latter circumstances, as the Court of Appeals for the Second Circuit
has held, the success or failure of a picket line does not determine its
legality under Section 8 (b) (4).18 Nor do we believe that the
wording of the picket sign in and of itself was sufficient to dispel the
normal reaction of employees, whether obeyed or not, to the existence
of this picket line before Arnold's plant. As the Second Circuit
Court of Appeals pointed out in the injunction proceeding, no custom-
ers ever come to Arnold's premises to buy bread and the shipping
platform which was picketed is on a back street little traveled by the
public.
Under the circumstances of this case and with due respect for the
opinion of the Court of Appeals for the Second Circuit, we find that
the picketing of Arnold's plant by Local 50 was intended to induce
and encourage employees to strike or concertedly refuse to perform
employment services for their employer with an object of forcing or
requiring Arnold to recognize or bargain with Local 50 as the repre-
sentative of its employees at a time when the Association had been
certified by the Board as the exclusive bargaining representative.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Local 50, Bakery and Con-
fectionery Workers International Union, AFL-CIO, its officers, rep-
resentatives, successors, assigns, and agents, shall:
1. Cease and desist, during the effective period of the certification
issued by the Regional Director of the National Labor Relations Board
on November 15, 1954, in Case No. 2-RC-7116, or any other certifica-
tion by the Board of a bargaining representative other than Local 50
for employees of Arnold Bakers, Inc., from inducing or encouraging
'IN. L. R. B. v. Associated Musicians , Local 802 , AFL, 226 F. 2d 900 ( C. A. 2).
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees of Arnold Bakers, Inc., or of any other employer, to
engage in a strike or concerted refusal in the course of their employ-
ment, to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or to perform
any service where an object thereof is forcing or requiring Arnold
Bakers, Inc., to recognize or bargain with Local 50 as the representa-
tive of any employees in the collective-bargaining unit covered by such
certification.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in its business offices in the New
York City area , where notices or communications to members are nor-
-mally posted, copies of the notice attached hereto marked "Appen-
dix." 19 Copies of said notice, to be furnished by the Regional Direc-
tor for the Second Region, shall, after being duly signed by an official
representative of Local 50, be posted by Local 50 immediately upon
receipt thereof and maintained by it for a period of sixty (60) con-
secutive days thereafter, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by
Local 50 to insure that such notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps Local 50
I as taken to comply herewith.
MEMBER RODGERS, concurring :
I am in agreement with my colleagues of the majority that the
picketing of the employee entrances of Arnold by Local 50 was in-
tended to induce and encourage Arnold's employees to strike or con-
certedly , refuse to perform employment services for Arnold with an
object of forcing or requiring Arnold to recognize or bargain with
Local 50 as the representative of its employees, although another labor
organization had been certified by the Board as the bargaining rep-
resentative of Arnold's employees. Because of the importance of the
principles of law involved in this case, I feel that some further ex-
plication of my position is warranted.
The situation which culminated in the picketing was not a sudden
development but rather the outgrowth of a long-standing conflict in
which for more than 10 years Local 50 unsuccessfully attempted to
become the bargaining representative of Arnold's employees. - Its
rival, the Arnold Bakers Employees Association, was certified by the
New York Labor Relations Board as far back as -1943, but Local 50
nonetheless continued in its efforts to gain adherents among these em-
19 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
LOCAL 5 0 1343
ployees. Failing in these attempts, Local 50 tried to get the Associa-'
tion to merge with it but without avail. Finally, at a conference on
October 21, 1954, at the Regional Office of- the National Labor Rela=
tions Board, in connection with a pending representation petition of
the Association, Local 50 declined to participate in an election con-
ducted by the Board. In the -representation election conducted on
November 4, 1954, with only the Association on the ballot (Local 50
having refused to appear), the Association received 306 out of 322 bal-
lots cast. On November 15,1954, the Association was certified by the
Board as bargaining representative of Arnold's employees.
The picketing began on August 12, 1954. The record shows that
Local 50 made it clear that it was picketing to obtain immediate
recognition and bargaining, and the Trial Examiner so found. More-
over, it is equally clear that Local 50 knew at the time that it had no
majority among Arnold's employees. Indeed, Local 50 does not
seriously dispute these facts. When, on November 15, 1954, as a re-
sult of the exercise of the orderly machinery of the Board through its
representation procedures, the Association was certified, Local 50 did
not desist in its persistent efforts. Instead, it continued its picketing
as before.
The courts have held that "a state of affairs once shown to exist is
presumed to continue to exist until the contrary is shown." 20 To
overcome this presumption, Local 50 relies on testimony of its business
agent, McIntyre, and on a change in the wording of its picket signs.
However, the Trial Examiner found, and the record abundantly sup-
ports his finding, that McIntyre's alleged change in purpose was no
more than a self-serving statement, and that the altered signs were,
if anything, a reaffirmation of the original appeal when the objective
concededly was to obtain immediate recognition and bargaining from
Arnold. Consequently, like the Trial Examiner, I conclude that the
evidence does not warrant the finding that Local 50 had changed its
objective after the certification date.
In the light of this clear and explicit evidence of unlawful objective,
utterly repugnant to the intent of the provisions of the Act which
proscribe conduct on the part of labor organizations in derogation of
the certified bargaining representative, there seems no doubt that the
picketing was designed to induce and encourage Arnold's employees
to cease rendering employment services for Arnold. The Board has
established the principle that picketing of employee entrances, even-
though peaceful and unaccompanied by specific acts, inevitably con-
stitutes inducement and encouragement of employees to engage in a
strike or other concerted refusal to perform employment services for
" N L R B v National Motor Bearing Co , 105 F. 2d 652 (C. A. 9 ) ; N. L. R. B. v. Piqua
Munising Wood Products Co , 109 F. 2d 552 (C. A. 6).
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their employer.21 The courts have held to the same effect 22 With this
principle of the law I am in-complete accord and apply it to the instant
case.
Furthermore, the resolution of this issue cannot depend upon the
success or failure of the picketing. As I read Section 8 (b) (4), and
as the courts have interpreted the language of that section, no such
requirement was intended 23 Indeed, the Court of Appeals for the
Second Circuit in N. L. R. B. v. Associated Musicians, Local 802,
AFL,24 stated :
They [the Respondents] contend that the words "induce and en-
courage" used in that section refer only to a successful inducement
and encouragement; where no actual strike or concerted refusal
to work ensues, no violation can be found. This view, however,
is supported neither by common understanding of the meaning of
these words nor by authority. [Emphasis supplied.]
In its recent decision in N. L. R. B. v. Business Machine and Office
Appliance Mechanics Conf. Bd., Local 459, Intl. Electrical Workers,
CIO (Royal Typewriter Company), 228 F. 2d 553, the Court of
Appeals for the Second Circuit reiterated its holding by stating :
We have recently decided that these words [induce and encourage]
do not require a finding that the picketing was successful in con-,
vincing any employees to strike or cease performing services.
Although the court in Royal denied enforcement; it appears that it
predicated its conclusion in this regard on the fact that the Trial
Examiner "made no finding that it was an object of the Union to
influence employees, nor did the Board make any additional finding
in this respect." The court added that "It cannot be assumed that a
picket line will prevent even unionized employees from crossing it
when the Union apparently intends that they shall cross and takes
steps to make its intent plain." Here, however, Local 50 picketed
during normal working hours at the entrances utilized by Arnold's
employees in gaining access to their places of work, and at shipping
platforms where many of Arnold's employees and the employees of
the independent truckers hauling Arnold's products perform their
work. Clearly, self-serving statements and in camera union instruc-
tions that were never put into effect cannot constitute "steps to make
its intent plain." I am, therefore,' of the opinion that the factual
21 Washington Coca Cola Bottling Works, Inc , 107 NLRB 299; Union Chevrolet Company,
96 NLRB 957.
'International Brotherhood of Electrical Workers, Local 501, et al v . N. L R. B., 341
U S 694 , 701-703; N. L . R B. v Denver Bldg. Trades Council, 341 U. S. 675; Curto v.
Longshoremen, etc., Union, 107 F. Supp 805 (D. C. Oregon).
23N. L. R. B. v. Denver Building and Construction Trades Council , 193 F. 2d 421, 424
(C. A. 10). See also Union Chevrolet Company, supra.
24 226 F. 2d 900.
LOCAL 50 1345
situation present here falls substantially within the rationale of the
Second Circuit. Consequently, even under the concept enunciated by
that court, which is more limited than that of the Board, I feel that a
finding is fully warranted that Local 50 by its picket line intended to
influence the employees to engage in a strike or concerted refusal to,
render employment services.
Finally, on this record, I cannot conclude that the picketing was
not intended to induce present concerted action. I have carefully con-
sidered the entire history of this rival union dispute, the repeated
efforts on behalf of Local 50 to obtain immediate recognition and bar-
gaining, the statements made to Arnold officials that picketing would
continue depending- on whether Arnold "signed up," and the efforts
on the part of Local 50 to wean away the officers of the employees'
current bargaining representative and to effect an immediate merger
or affiliation with that Union. In the absence of any evidence to the
contrary-and the present record does not disclose any-it must be
found that the purpose and intent of the picketing remained the same
throughout the entire course of the picketing, both before and after
the issuance of the certification. Nor can I find that conduct otherwise
actionable becomes no longer actionable merely because the union that
engaged in the picketing could not, as a matter of law, continue to
engage in it. We must be guided by the facts of the case, and the facts
abundantly support the Trial Examiner's findings.
For the foregoing reasons, I am of the opinion that a finding of
violation of Section 8 (b) (4) (C) of the Act is fully warranted. I
therefore join in affirming the findings and adopting the recommenda-
tions of the Trial Examiner.
MEMBER PETERSON, dissenting :
I cannot agree with my colleagues that Local 50 has violated Section
8 (b) (4) (C) of the Act because, in my opinion, the General Counsel
has failed to establish one of the essential elements for finding a viola
tion, namely, that Local 50's conduct after the certification of the
Association tended or was reasonably calculated to induce or encourage,
employees to engage in a work stoppage or to refuse to perform
services.
I find it difficult to fathom the position espoused by Chairman
Leedom and Member Murdock in this case. It seems to me that they
are simultaneously endorsing two conflicting legal concepts with
respect to what constitutes unlawful inducement and encouragement
within the meaning of Section 8 (b) (4), as an analysis of their opinion
will show.
The majority appears to be taking the position, in agreement with
the Trial Examiner, that union picketing at employee entrances of
390609-56-vol. 115-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer's plant is per se the kind of inducement and encourage-
ment proscribed by Section 8 (b) (4). Thus, in discussing its dis-
agreement with Judge Hand's reasoning in his concurring opinion
in the Royal Typewriter 25 case as to the importance of motive, the
majority states that ". . . the mere existence of a picket line is in
most instances `a strike signal' and induces employees to assist the
picketing union by refusing to work regardless of the motive of the
picketing union." [Emphasis supplied.] The majority then goes
on to quote language of certain Supreme Court decisions and one by
the Ninth Circuit Court of Appeals which it interprets as holding that
"a picket line induces action unrelated to the literal appeal of the
signs carried by the pickets. . . ." Therefore, according to the ma-
jority, "... the Board has consistently held that the traditional union
picket line before employee entrances has the effect of inducing em-
ployees to refuse to work for the picketed employer." Parenthetically,
a number of cases are cited at this juncture,26 each of which was
explicitly relied upon by the Trial Examiner herein as basis for his
legal conclusion that a picket line itself inevitably has this effect.
Finally, the majority states that its conclusion regarding the impact of
a picket line as inducement of employees to refuse to perform services
"... appeared to the Board to have been so well established in the
field of labor relations that a specific finding of the union's actual
motive in picketing ... did not seem to be a requirement under Sec-
tion 8 (b) (4)."
While I concede that union picketing at employee entrances of an
employer's plant ordinarily constitutes a very potent form of induce-
ment of work stoppages, and, in my opinion, this is what the Supreme
Court and the Ninth Circuit were saying in their decisions referred
to by the majority, I part company with Chairman Leedom and
Member Murdock, if they are holding that, as a matter of law, the
picketing must always be held to have this effect regardless of the
circumstances. On the contrary, I believe that the inference normally
to be drawn from such picketing, i. e., that its purpose is to induce
employees to cease rendering employment services, can be rebutted.
Accordingly, it is my view that consideration must be given to the
factual context in which the picketing occurs.
However, other portions of the majority opinion seem to agree
with my view regarding the rebuttable nature of the inference to be
drawn as to the purpose of a picket line. The majority admits-
although rather reluctantly-that conceivably there may be "extra-
ordinary circumstances" in which a picket line cannot reasonably
be found to induce employees to strike, and the majority also finds
N. L. R. B. v. Local 4 59, Intl. Electrical Workers, CIO ( Royal Typewriter Company),1 21
228 F. 2d 553 (C. A. 2).
26 See footnote 15, supra.
LOCAL 50 1347
it "unnecessary" to adopt the Trial Examiner's conclusion that picket-
ing an employer's place of business is in all cases inducement and
encouragement of employees not to perform employment services.
Also, the majority ultimately does find that the picketing of Arnold's
plant by Local 50 was intended to induce employee refusal to per-
form services. This would seem to imply, at least, that the majority
agrees that a specific finding of intent to induce is an essential ele-
ment rather than that the existence of the picket line itself establishes
such intent. But, it must be noted here that nowhere in its, opinion
does the majority point to any evidence other than the picketing alone
upon which it relies as support for its finding as to Local 50's intent.
If my majority colleagues are holding that the normal inference
of purpose which usually can be drawn from the existence of a picket
line can be rebutted, and that there may be "extraordinary circum-
stances" in which a picket line could not reasonably be found to induce
employees to strike, then I suggest they need look no further than the
instant case. Indeed, if this case does not constitute "extraordinary
circumstances" I confess that I am at a loss to imagine what the major-
ity would require a union to do before it would hold that the picket
line could not reasonably be found to induce employees to strike.
The evidence as to what occurred in this case clearly rebuts the
inference that Local 50 intended by its picketing to induce Arnold's
employees to refuse to work. In this regard, I consider these facts
extremely persuasive: (1) As admitted by the majority, the picket
signs did not appeal to employees to withhold services; (2) the
pickets were instructed to tell any employees of any employer who
asked that there was no strike or lockout in progress and that the em-
ployees should cross the picket lines; (3) there is no evidence of any
employee, either of Arnold or of an employer doing business with
Arnold, being specifically requested by Local 50 to strike or to cease
rendering services; and (4) no employee of any employer failed to
cross the picket line or ceased work. Similarly significant for me is
the fact that, although the drivers of the contract companies were
members of unions affiliated with Local 50, no driver was urged to,
or did, refuse to cross the picket line or to transport Arnold's goods.
In my opinion, the point made by the Second Circuit in Royal Type-
writer is well taken that "it cannot be assumed that a picket line will
prevent even unionized employees from crossing it when the union
apparently intends that they shall cross and takes steps to make its
intent plain. Such an assumption is even more doubtful when it ap-
pears . . . that the employees unanimously disregarded the pickets
and went to work." I think an examination of all the relevant evidence
here impels the conclusion that the Union made its intent plain that the
picketing was not engaged in for the purpose of deterring employees
from crossing the line.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (b) (4) does not ban inducement and encouragement in
the abstract , but only proscribes the inducement or encouragement of
employees to engage in a work stoppage or a refusal to perform em-
ployment services . I believe that the foregoing facts with respect to
Local 50 's conduct cannot fairly be said to have had that purpose or
necessary effect . Indeed, I note that in the only recorded discussions
which the pickets had with Arnold's employees after the Association's
certification the employees were asked only to join Local 50. It is
not my understanding that the mere inducement of employees to join
a union, unaccompanied by a request that they take some sort of
action affecting their employment relationship such as engaging in a
work stoppage , is outlawed.
The majority notes that no employees refused to cross Local 50's
picket line, but states that, "as the Second Circuit has held in the
Associated Musicians case, the success or failure of a picket line does
not determine its legality under Section 8 (b) (4)." If by this
statement the majority is interpreting the langauge actually used by
the Second Circuit to mean, as I think it does, that the inducement
or encouragement of employees to engage in a strike need not be suc-
cessful in order that it come within the proscription of Section 8 (b)
(4), then I agree. But, surely, the fact that the picketing did not
result in the withholding of services is relevant in deciding whether
the activity was intended or calculated to bring about a strike or a
concerted refusal to work. Indeed, as the Second Circuit stated in
the Associated Musicians case in describing the situation in the in-
junction proceeding in the instant case , "it was there argued [by the
General Counsel] that since the union must be held to intend the fore-
seeable consequences of its conduct, an illegal intent might be 'pre-
sumed ' from the mere fact of picketing. But we said that such a
presumption was hardly valid where the consequences did not in fact
follow. This is far from saying that under no circumstances can an
illegal intent be found unless the intent is translated into an actual
work stoppage." Also, I think that the following language of the
court in Royal Typewriter is equally applicable here :
The words of the statute, "to induce or encourage," do not neces-
sarily carry with them a requirement that intent to induce or
encourage be shown. It may be true that something less than a
finding of specific intent to induce or encourage employees will
suffice to support the Board's conclusion that § 8 (b) (4) . . .
has been violated. If it were shown that such inducement was the
inevitable result or even the "natural and probable consequence"
of the picketing this would perhaps be enough. Certainly if it
were shown that the employees actually ceased work, no finding
LOCAL 50 1349
of intent would be necessary . But in' this case there was insuffi-
cient evidence to support any of these findings. It was not shown
that the picketing had any tendency to induce the employees to
strike or cease performing services . The evidence showed, on
the contrary, that no employee refused to work... .
As I read these decisions of the Second Circuit, the court is holding
that success or failure is immaterial with respect to the issue of intent
to induce where the unlawful inducement can be established by a
,showing that such inducement was the inevitable result or the natural
and probable consequence of the picketing or by some other extrinsic
and objective facts such as the use of picket signs asking employees to
refuse to work, a strike call by the picketing union, or an actual cessa-
tion of work by employees. However, where intent to unlawfully
induce cannot be so established the fact that the picket line did not
result in the occurrence of a strike or refusal to perform employee
services is evidence that such a result was not intended by the picket-
ing union. Putting the foregoing another way, the circumstance that
not a single employee of any employer failed to cross the picket line
despite its long-continued existence is probative evidence that what-
ever inducement the picketing may have had for employees it was
not in the nature of inducement and encouragement of them to engage
in a work stoppage or to refuse to perform services.
I agree with the majority that the Second Circuit's decision in the
injunction proceeding was not a final adjudication on the merits.
But, after carefully examining the record now before the Board, I am
unable to find that significantly different facts have been presented
here than were before the Second Circuit in the injunction case which
would afford a substantial basis for not reaching the same legal con-
clusion. Moreover, if there ever was any question after the injunction
proceeding as to the position of the Court of Appeals for the Second
Circuit that picketing is not per se inducement and encouragement of
employees to refuse to perform services and that the inference that
picketing is engaged in for such a purpose is rebuttable , I think that
the court 's opinions in Royal Typewriter and Associated Musicians
clearly dispel any such doubt and amply support the views I have
expressed- herein . As I have heretofore stated, it is not clear to me
exactly what is the position of the majority . However, for the reasons
I have indicated , I do not believe that a finding that Local 50 has
violated Section 8 (b) (4) (C ) is justified , regardless of which legal
concept the majority relies upon. Accordingly , I would dismiss the
complaint.
MEMBER BEAN took no part in the consideration of the above De-
cision and Order.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 50, BAKERY AND CONFECTIONERY
WORKERS INTERNATIONAL UNION, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify you that :
During the effective period of the certification issued by the
Regional Director of the National Labor Relations Board on
November 15,1954, in Case No. 2-RC-7116, or any other certifica-
tion by the Board of a bargaining representative, other than the
undersigned labor organization, we will not engage in, or induce
or encourage the employees of Arnold Bakers, Inc., or of any em-
ployer, to engage in a strike or concerted refusal in the course of
their employment, to use, manufacture, process, transport, or
otherwise handle or work on, any goods, articles, materials, or
commodities, or to perform any services, where an object thereof
is to force or require Arnold Bakers, Inc., to recognize or bargain
with the undersigned labor organization in the collective-bar-
gaining unit of employees covered by such certification.
LOCAL 50, BAKERY AND CONFECTIONERY
WORKERS INTERNATIONAL UNION,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A charge having been filed by Arnold Bakers Employees Association against
Local 50, Bakery and Confectionery Workers International Union, AFL, the
General Counsel of the Board issued a complaint alleging that Local 50 had en-
gaged in unfair labor practices affecting commerce within the meaning of Section
8 (b) (4) (C) and Section 2 (6) and (7) of the National Labor Relations Act, 61
Stat. 136. Local 50 filed an answer denying the commission of the alleged unfair
labor practices. A hearing was held in New York, New York, on January 24, 25,
26, 27, and 28 and February 2 and 3, 1955, before the duly designated Trial Exam-
iner. All parties were represented at the hearing by counsel and were afforded
full opportunity to present and to meet relevant evidence, to examine and cross-
examine witnesses, to present oral argument, and thereafter to file briefs and pro-
posed findings of fact and law. On March 3, 1955, upon receipt of a stipulation
from the parties the hearing was, by order, closed, and time fixed, subsequently ex-
tended, within which to file briefs and proposed findings. A brief was thereafter
received from Local 50 on April 8, 1955.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
LOCAL 50
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY INVOLVED
1351
Arnold Bakers, Inc., is and has been at material times a corporation duly organized
under the laws of the State of New York.
Arnold Bakers maintains its principal office and place of business at 10 Travers
Avenue, Port Chester, New York, and plants and warehouses in Port Chester, New
York, and Byram, Connecticut, at which it is engaged in the baking, production,
sale, and distribution of bread, rolls, cookies, poultry stuffing, and baked products.
During the past year, and at all times material herein, Arnold Bakers, Inc., has
purchased, transferred, and delivered to its plants and warehouses in New York and
Connecticut, flour, butter, and other raw materials valued at in excess of 1 million
dollars, of which more than 90 percent was transported to said warehouses and
plants in interstate commerce from States of the United States other than New
York and Connecticut.
During the same period, and at all times material herein, Arnold Bakers, Inc.,
has produced and sold at its New York and Connecticut plants products valued at
in excess of 1 million dollars, of which amount products valued at more than $500,-
000 were transported from said plants in interstate commerce in States of the United
States other than New York and Connecticut.
It is conceded that Arnold Bakers, Inc., is engaged in commerce within the mean-
ing of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Arnold Bakers Employees Association, and Local 50, Bakery and Confectionery
Workers International Union, AFL, are labor organizations within the meaning of
Section 2 (5) of the Act. Timothy McIntyre, George Hudak, and Martin Hullah,
are business agents of Local 50, and agents of Local 50 within the meaning of the
Act. Louis Genuth is secretary-treasurer of Local 50, and also an agent.
III. THE UNFAIR LABOR PRACTICES
Reduced to its essentials, the issue is-whether Local 50, in picketing the plant of
Arnold Bakers, Inc., at Port Chester, induced or encouraged employees to cease
rendering employment services to their employers, with an object of forcing or re-
quiring Arnold to bargain with Local 50 at a time when Arnold Bakers Employees
Association was the certified representative of Arnold's employees.
Arnold Bakers, Inc., is a wholesale baker. Its offices and the principal portion
of its plant, which consists of a number of contiguous facilities, is located in the
city of Port Chester, in Westchester County, New York, with several auxiliary build-
ings in Byram, Connecticut, three-quarters of a mile away across the Byram River.
All the events here involved took place at or near the main office and the Com-
pany's loading dock, which are adjacent to each other in Port Chester.
Being a wholesale baker, Arnold does not engage in retail sales. It sells only to
franchised distributors, who are given the exclusive right to distribute the Com-
pany's products in specified geographical areas. These distributors, in turn, may
sell to subfranchisees of their own choosing, or sell directly to retail establishments.
All the Company's product is shipped from, and its raw materials received at, its
loading dock in Port Chester.
The Company delivers the finished product to terminals maintained by each dis-
tributor in his particular area. This delivery is mainly accomplished by trailer
truck, the equipment thereof being the property of, and the drivers employees of,
independent and ICC-licensed companies under contract with the Arnold company.
These drivers are members of the Teamsters Union, affiliated, like Local 50, with
the AFL. Each day of the week, except Saturday, from 8 to 13 of these trucks
will be loaded at the Arnold company platform in Port Chester and dispatched,
west to points in the New York area, north as far as Albany, east and north to
Providence and Boston, south and west to Washington, D. C., and to various in-
tervening points in those directions. Normally, to judge from dispatching schedules
in evidence, roughly a half dozen of these trucks will be loaded between the hours
of 9 a. in. and 6 p. in., the remainder at other hours. A lesser number will re-
turn to the dock at irregular intervals to deposit empty containers after having
completed their runs.
The exact character of the neighborhood of the plant is not specifically described
in this record, but to judge from photographs and a map in evidence, it is at least
in part residential, though not strikingly so. Travers Avenue, the street on which
the loading dock and the adjacent office front, is a one-way public street, bordered
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by a public sidewalk. The Company has a frontage on the north side of Travers
Avenue of approximately 175 feet. The main entrance to the office and plant is
on the east end of this frontage. This entrance is the principal means of pedestrian
ingress to the plant and office, and is used in common by employees and by members
of the public having business at the plant. On the west end is a three-story brick
building, formerly an apartment house, but now owned by Arnold. The frontage,
some 120 feet in length, between these 2 buildings, is an open area, part of-which
is devoted to off-street employee parking, the remainder opening on the shipping
platform. That platform is a loading dock about 70 feet in length, set back some
25 feet from the roadway and running parallel to it. Across Travers Avenue, on
the south side of the street, is an open space, known as the truck waiting area.
Here trucks may park awaiting call to the dock to be loaded. In addition to the
contract carriers, the platform is also used by trucks delivering raw materials, and
also by a number of panel trucks owned by Arnold, and operated by its employees,
which shuttle between the various plant buildings collecting finished products, which
they bring to the loading dock for assembly into orders and subsequent shipment.
It is thus seen that no purchaser or consumer of Arnold's goods calls at the
plant to take delivery of Arnold merchandise. On the other hand the plant is the
Company's principal place of business. Indeed, if its delivery operations are ex-
^cluded, this is the only place that it does business.
Arnold Bakers Employees Association, an independent labor organization of
employees at the Arnold plant, has been in existence at least since 1943. On
February 24 of that year the New York State Labor Relations Board conducted a
collective-bargaining election among Arnold's bakery employees. The Association
and Local 50 participated in this election, which was won by the Association. Pur-
suant to that result, the New York board, on March 8, 1943, certified that the
Association was the collective-bargaining representative of Arnold's employees. In
1948 a union-shop election was conducted by the National Labor Relation Board,
pursuant to the provisions of Section 9 (e) (1) of the National Labor Relations
Act, in which the employees authorized the Association to make a union-shop agree-
ment with Arnold.
Thus it is seen that as far back as 1943 Local 50 was interested in being recognized as
the bargaining representative of Arnold's employees. That interest was again mani-
fested in 1951 when, on February 21 of that year, a meeting was held in Arnold's
office between representatives of various unions and representatives of Arnold. The
unions represented, all AFL organizations, were Local 50, the Retail Clerks Union,
and Local 802 of the Bakery Drivers (International Brotherhood of Teamsters).
The Westchester County Trades Council was also represented. Secretary-Treasurer
Genuth and Business Agents McIntyre and Hudak represented Local 50. The
Company was represented by its president, Arnold, its personnel manager, Gordon
Kehler, and by several other officials.
There is dispute in the testimony, unnecessary to resolve, as to some of the oc-
currences at this meeting. It is conceded, however, that organization of company
employees by the AFL was discussed. After consideration of the testimony, and the
circumstances of the meeting, it seems apparent to me, and I find, that Local 50 was
represented there for the purpose of securing, and request was made-which was
refused-on its behalf for, recognition as bargaining agent of Arnold's employees.
In the same spring representatives of the same labor organizations met with offi-
cials of the Company and with officials of the independent Association at the office
of the Association. At this meeting the representatives of the AFL organizations
requested the Association's officials to persuade their members to affiliate with
Local 50; intimating that picketing might ensue if they did not. The Association's
officials demurred, saying that the employees did not wish to affiliate. After some
discussion, Local 50 Representative Genuth told the Association's officials to think
the matter over for another 30 days. John Acropolis, president of the Westchester
Trades Council, commented that he saw nothing to think over; that he was convinced
that the employees did not wish to join Local 50 and the meeting apparently broke up.
No picketing ensued.
In 1952 or 1953, or both, Local 50 officials contacted the Association's officials a
number of times with the object of securing the latter's cooperation in having the
Association's members affiliate with Local 50, or to have the Association itself merge
with Local 50. These efforts were uniformly unsuccessful.
In 1954 matters finally came to a head.- In the summer of that year Local 50
was engaged in an organizational drive in the Westchester County area . In apparent
pursuance of that campaign, Local 50 Business Agent Hudak arranged a luncheon
meeting between himself, Business Agent McIntyre, and President Calo of the
Association, which was held on Monday, August 9, 1954. At this meeting the
LOCAL 50 1353
Local 500 representatives asked Calo under what conditions the Association would
be willing to merge; at the same time indicating to Calo that arrangements could
be worked out to provide him with an official and remunerated position in Local
50. Calo replied, in effect, that the Association was not interested. Hudak and
McIntyre stated that, unless discussions toward merger or affiliation were under-
taken by Wednesday of that week, a picket line would be established around the
plant . The meeting apparently concluded on that note.
The Picketing
Three days after that meeting, on August 12, 1954, Local 50 began to picket
in front of the Arnold plant. The pickets, two in number, patrolled the length of
the Company's property line, using the north sidewalk on Travers Avenue. This
course took them past the main entrance to the plant and office and past the entrance
to the shipping platform and the employees' parking lot. The pickets were in-
structed by Local 50 officials not to speak to employees about union activity. They
were further instructed that if a truckdriver asked about the picket line, he should be
told that there was no strike or lockout in progress and that he should cross the
picket line.
The purpose of this picketing was concededly to induce Arnold employees to join
Local 50. The pickets patrolled from 9 a. in. to 6 p. in. on every day but Sunday.
The plant operates on a 24-hour basis each day of the week except Saturday.
Until November 16 the pickets carried signs or placards bearing the union label
and the following legend:
LOCAL 50 BAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION OF AMERICA
AFFILIATED WITH AMERICAN FEDERATION OF LABOR
WANTS THE EMPLOYEES OF ARNOLD'S TO JOIN THEM
TO GAIN UNION WAGES, HOURS AND WORKING CONDITIONS
HELP US TO ORGANIZE THESE EMPLOYEES
BY BUYING UNION BAKED PRODUCTS
On September 1, 1954, a conversation took place in front of the plant between
Gordon Kehler, the Respondent' s personnel manager, and Business Agents McIntyre
and Hullah of Local 50. There is conflict in the testimony of Kehler and McIntyre
as to some of the details of the conversation, but the essential contents are not
disputed. I find that the following occurred.
Kehler asked McIntyre and Hullah the purpose of the picketing. McIntyre
replied that the signs spoke for themselves. Kehler then asked whether Local 50
wanted the Company to make a move or to help them. McIntyre replied that they
expected no help, and that the Company knew what they wanted. Kehler observed
that the pickets were peaceful. McIntyre responded that it was not going to be
peaceful forever, and said that Local 50 would one day have 200 pickets walking
about. Kehler commented that the Company could not tell employees what union
to belong to; McIntyre countered that the Company was hiding behind the people;
and the conversation apparently terminated.
The number of pickets was never increased, and the picketing was never anything
but peaceful.
Some 2 days later, on September 3, 1954, Archie Drago, a personnel official of the
Company, and Business Agent McIntyre had a conversation in front of the loading
dock. There is dispute in the testimony of Drago and McIntyre as to some of this
conversation. Insofar as there is dispute, I find that the following occurred.
McIntyre told Drago that Local 50 was "through pussyfooting around"; said
that Local 50 could boost the Company' s sales if the Company would " sign up";
suggested that Local 50 could tell' the retail clerks in the stores which bread "to
push"; and intimated that Local 50 could stop Arnold trucks on the road. McIntyre
also accused Arnold and President Calo of the Association of "hiding behind the
people." -
None of the potential consequences intimated by McIntyre in this conversation ever
eventuated.
Relations between employees and the pickets, and between pickets and company
officials, appear to have been amiable-indeed almost cordial. Thus, in October
during a cold snap , President Arnold came out of the plant, asked the pickets'
whether they were cold, and invited them to make use of the Company' s enclosed
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrance vestibule at any time they wished to warm themselves. The pickets
occasionally spoke to employees about baseball and other sports, mainly in a
bantering vein-one of the pickets being a follower of the New York Giants base-
ball team. Sometimes the pickets encroached on company property, coming into
the shipping platform to talk to employees or drivers, but the Company made no
objection.
There is no evidence that, up to December, the pickets volunteered any comment
to employees about unions or the picketing activity-except in one possible instance.
That involved Clifford Robinson, a driver for Gramptan Springs Company, who
delivers bottled water to the plant weekly. When Robinson first encountered the
picket line in August 1954, he asked picket Smiley what was wrong. Smiley, con-
trary to his instructions, replied that Arnold was "supposed to go on strike," and
indicated that Local 50 wished Arnold's employees to join it. Smiley made no
suggestion that Robinson should not make the delivery. Robinson did make the
delivery. As be came out of the plant, he told Smiley that he would inform his
shop steward of the picket line, and let Smiley know what his "orders" were. What-
ever he ascertained, if anything, apparently satisfied Robinson, for he thereafter con-
tinued to make his deliveries without incident, other than occasional chats with
Smiley about baseball.
Both the pickets and McIntyre have on occasion been observed talking to truck-
drivers making deliveries or pickups at the plant, but there is no evidence that these
conversations related to the picketing. On occasion a picket has been observed ap-
parently jotting down the license number of a truck or other identifying insignia.
The picketing proceeded throughout August, September, and half of October.
It was peaceful, no employee or any employer refused to cross it, and, except for
the Robinson-Smiley incident, there were no conversationis between employees and
the pickets or other Local 50 representatives relating to the picketing activity.
Finally, on October 18, 1954, the Association filed a petition with the Board
requesting certification as the bargaining representative of Arnold's employees.
(Case No. 2-RC-7116, not reported in printed volumes of Board Decisions and
Orders.) Three days later, on October 21, 1954, a conference attended by repre-
sentatives of Local 50, the Association, the Company, and of the Board was held in
the Board's Regional Office in connection with the Association's petition. At this
conference Local 50 stated that it had no representation among Arnold's employees
and declined to participate in an election. Thereafter, on November 4, an election
was held among the Company's employees, with only the Association on the ballot.
Of 322 counted ballots, 306 were cast for the Association, and in due course, there
being no objections, the Regional Director certified on November 15, 1954, that the As-
sociation was the collective-bargaining representative of Arnold's employees within
the meaning of the Act.
On the day following the issuance of the certification, November 16, the pickets
began to patrol without carrying any signs. This course of action continued until
November 26, at which time new signs, bearing the union label and the following
legend, were introduced.
PLEASE DO NOT BUY ARNOLD'S PRODUCTS
ARNOLD'S EMPLOYEES HAVE REFUSED TO JOIN LOCAL 50
OF THE BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL
UNION AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
THE WORKING CONDITIONS AT ARNOLD'S ARE BELOW LOCAL 50
STANDARDS IN OTHER BAKING COMPANIES
PLEASE BUY BAKERY PRODUCTS MADE BY MEMBERS OF
BAKERY & CONFECTIONERY WORKERS UNION, A. F. L.
Picketing with those signs, on substantially the same schedule as that previously
followed, has continued from November 26 up to the time (at least) of the instant
hearing. Thus, by the time of hearing, the picketing had been proceeding for over
140 days, without evidence that any employee of any employer had at any time
failed or refused to cross the picket line.
It is conceded that Local 50 has no members among Arnold's employees. The
purpose of the picketing from August 12 to November 16 is stated by Local 50 to
have been to induce Arnold employees to join Local 50. The purpose of the picket-
ing thereafter is discussed at a later point.
LOCAL 50 1355
The picketing is the only means of publicity Local 50 has utilized. It has made
no appeals to its members not to buy Arnold products; nor has it sought to utilize
other media of communication, such as the distribution of handbills, or the use
of radio, television, or newspaper advertising, or the use of organizers. The asserted
reason for the failure to make use of these other media is that they were either too
expensive, or, in the case of handbill distribution, doubtful that municipal permission
could be secured. However, no inquiries were made as to cost or the securing of
permission for using any of these media in the Arnold dispute.
The credited testimony is that during December 1954 and January 1955 the pickets
spoke to some six Arnold employees about joining Local 50. These incidents were
as follows:
On December 4, employee Gailhard, returning to work after a layoff, told picket
Smiley, apparently in bantering fashion, "I thought you went south with the Giants."
Smiley replied, "No, not me, I am going to hang around here until you smarten up
and join up with us."
- On December 16, 1954, as employee John Conner came out of the plant, one of
the pickets asked him, "When are you going to join up with us?" Conner did not
reply.
Sometime between Thanksgiving and Christmas one of the pickets told employee
Paul Monty that, "If you belonged to our union, you wouldn't have to work these
hours, you would have better hours."
On January 5, 1955, the United States District Court for the Southern District
of New York denied the Regional Director's application, under Section 10 (1) of
the Act, for a preliminary injunction to restrain the picketing at Arnold's. Sometime
later in January, one of the pickets asked Monty when he was going to join Local
50, saying, "Now, that we won the case . . . it looks like you will have to join."
Monty responded, in sum, that if the other 350 employees "signed up" he would
have to, but that his signature alone would not "do any good."
Shortly after the denial of the injunction, apparently on January 6 or 7, picket
Smiley asked employee James Smith, in substance, when the employees were going
to join Local 50. Smith replied, in sum , that they were not required to. Smiley
then said that, "Soon we are going to tighten up on you."
About January 12, 1955, employee John Lyons encountered the pickets near the
apartment house on the west end of the property. They asked Lyons when he was
going to join Local 50, and spoke to him about improvements in working conditions
which Local 50 could secure for the employees.
Shortly after the beginning of the year, as employee Ralph Pearson was coming
out of the apartment house, the pickets asked him when the employees were "going
to sign up." 1
Conclusions
1. The objective
The complaint alleges that by its picketing and other action since November 16,
1954, Local 50 has induced and encouraged employees to strike or to cease rendering
employment services with an object of forcing or requiring Arnold to recognize or
bargain with Local 50 rather than with the certified independent Association. No
unfair labor practice is alleged in the conduct which took place before November
16, 1954.
Local 50 denies inducing or encouraging employees to strike or to cease rendering
services, and denies that its objective after November 16 was the prohibited one. Its
conduct after November 16, Local 50 says, is not in the nature of inducement or
encouragement. Its objective after November 16, Local 50 states in its brief, is
"the publicizing of the union affiliation of the Arnold employees to the public, in
the hope that the public would purchase bakery products made by members of
Respondent Union instead of products made by members of the Independent."
In order to substantiate his allegations the General Counsel must establish each
and all of the following propositions: (1) That the actions of Local 50 since
November 16, 1954, constituted inducement or encouragement of employees to strike
or to concertedly refuse to perform employment services; (2) that those actions
constituted and had the object of the application of a force or requirement upon
Arnold; (3) that the purpose of Local 50 was to have Arnold recognize or bargain
with it; and (4) that another labor organization was the representative of the
employees whom Local 50 wished to be recognized for.
i Another employee witness for the General Counsel, who testified to an incident of
solicitation similar to those above, was, in my judgment, too confused to warrant reliance
upon his testimony.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to item (4), there is no dispute that the independent Association was, and is,
the certified representative of Arnold's employees.
We turn then to the other considerations. We first consider the question of
objective.
For this we need go back no further than August 1954. It is evident from the
stated facts , indeed I consider it to be conceded, that a purpose of Local 50's picketing
prior to November 15, 1954, was to secure the membership of Arnold employees in
Local 50, with the objective of being recognized at that time as the bargaining repre-
sentative of those employees.
It is also evident , and I find, that Local 50 sought from August to mid-November
to force and require Arnold to grant it immediate recognition: Thus, in the con-
versation of September 1, 1954, between Personnel Manager Kehler and Business
Agents McIntyre and Hullah, Local 50's representatives warned Kehler that "it
isn't going to be peaceful forever"; and further declared that "someday we,will have
200 pickets walking around here." And on September 3, 1954, Business Agent.
McIntyre told Personnel Official Drago, of Arnold, that Local 50 was "through
pussyfooting around"; suggested that Local 50 could enlist the services of retail
clerks to increase or to retard the sales of Arnold bread, depending upon whether
the Company "signed up" or did not; and also intimated that trucks carrying Arnold'
bread could be stopped on the road. In their context these statements were threats
of action by Local 50. As such they constituted conduct designed to force or re-
quire Arnold to take action to effectuate Local 50's objective. The question being
whether the statements were in quality threats, and it being that they were, it is im-
material that they were not carried out.
It is consequently found, that from August 12 to November 15, 1954, the objective
of Local 50 in its picketing was to force or'require Arnold to recognize or bargain
immediately with Local 50. The question is then whether that continued to be
Local 50's objective after November 15, 1954. I find that it did.
"A state of affairs once shown to exist is presumed to continue to exist until
the contrary is shown ." N. L. R. B. v. National Motor Bearing Co., 105 F. 2d 652
(C. A. 9).
"It is a well-established rule of evidence that when the existence of a personal
relationship or state of things is once established by proof, the law presumes its
continuance until the contrary is shown or until a different presumption arises
from the nature of the subject matter." N. L. R. B. v. Piqua Munising Wood
Products Co., 109 F. 2d 552 (C. A. 6).
The question is then whether the evidence here is sufficient to overcome the
presumption that the objective of Local 50 continued to be the same after Novem-
ber 15, 1954, as it had been before. Where a condition of fact or purpose is shown
to exist at one point in time, and there is no external circumstance inconsistent with
the conclusion of its continued existence at a reasonable point in subsequent time,
the burden is on the party asserting its disappearance to establish that it has ceased
to exist . Particularly is that true where the question is one of purpose-which is
a fact exclusively within the knowledge of the creator of the purpose; and most
especially is it true where it is the creator himself who seeks to have the non-
existence established, and his interest will be served by such a finding. Under such
circumstances, the testimony of the originator of the purpose must be weighed
with more than ordinary care, not necessarily so much because he will be prone
to dissemble, as from a recognition that self-interest may readily translate , genuinely
but inaccurately, what ought to be so into what is in fact so.
The only evidence here to the effect that the objective did change is to-be found in
2 asserted facts, 1 testimonial, the other inferential. The testimonial fact is Busi-
ness Agent McIntyre's. He testified that after November 15 Local 50's objective
was altered. According to McIntyre, the purpose after that date became "to advise
the general public that Arnold products were not being produced by members of
the American Federation of Labor," with the hope that "the general public would
purchase bread baked by the employees we have under contract"; that the stand-
ards at Arnold's were lower than Local 50's, and that Local 50 thus sought to pro-
tect its standards. The correctness of the hypothesis and the legality of the means
aside, I think it beyond dispute that this objective would be proper, if established.
The inferential fact is the change in the wording of the picket signs on November
26. We are asked to infer therefrom that the alteration in the placards establishes
a revision of objective, or at least indicates one.
But when the content of the signs is compared, one can scarcely conclude that
they evidence a shift in objective. Thus, the August signs state 1 essential fact
and contain 1 appeal. The fact stated is that Local 50 wanted Arnold's employees
to join Local 50 "to gain union wages, hours and working conditions." The appeal
LOCAL 50 1357
is that the public should "help us to organize these employees by buying union
baked products."
The November signs, on the other hand, state 2 essential facts and contain 1
appeal . The appeal, though worded differently, is little different in content from
that on the August sign. The differences are mainly that the public should buy
goods made by Local 50 members, rather than buy "union baked products." Added
is the specific request not to buy Arnold products. This addition, however, re-
sulted in no substantial alteration in meaning or effect of the original appeal. An
injunction to buy only union baked goods, in the sense in which the term was
used on the August sign , was necessarily an appeal not to buy Arnold goods. In
sum, the stated request of the November signs was the same as in the August ones:
for the public to boycott Arnold's products and to buy instead merchandise produced
by Local 50 members.
The additional fact asserted on the November placards was that the working con-
ditions at Arnold's were below standards in other companies; a message likewise
implicit in the declaration on the August sign to the effect that Local 50 wanted
Arnold's employees to join them in order "to gain union wages, hours and working
conditions." Most significant also is the fact that the apparent reason for the
November picketing, as stated on the November placards, is that the Arnold em-
Sloyees "have refused to join Local 50"; the same fact as that which, realistically,
was the motivating cause for the August picketing.
In sum , nothing in the new signs tends to suggest any change in the purpose or
objective of the picketing. They are quite consistent with the conclusion that the
objective remained the same as before. Indeed, if I have correctly analyzed them
above, they appear to constitute a mere reaffirmation of the original appeal.
As has been stated, the other evidence proferred by Local 50 as to its asserted
shift in purpose is the testimony of a single Local 50 representative-Business Agent
McIntyre. His testimony, in sum, is that following the certification Local 50 aban-
doned its hope to secure the affiliation of Arnold employees, because he (McIntyre)
"knew that we had no legal right . . . to try to organize employees at Arnold."
McIntyre's further testimony as to what the new objective was has been set out here-
tofore.
I cannot assign that testimony sufficient probative value to warrant the conclusion
that the objectives of Local 50 were revised after the certification of the Associa-
tion . In the first place, there is no evidence that this asserted alteration was com-
municated by McIntyre to anyone prior to the beginning of litigation. For all that
the record discloses to the contrary, the determination was one made solely by
McIntyre in his own mind. There is no suggestion that it was ever conveyed to
the executive board of Local 50, the governing body of the organization, or to other
officials of the Local, or was ever adopted by them. It seems unlikely that on so
important a legal matter-one admittedly recognized by McIntyre himself-that
Local 50 could or would have changed its objective without there being in exist-
ence, and in control of Local 50, reliable and probative extrinsic evidence thereof.
The minutes of Local 50's executive board meetings contain no reference to the
matter; no other official of Local 50, or any other person, appeared as a witness
to corroborate McIntyre's testimony in this regard; and there is no documentary,
written. or circumstantial, evidence to support it. Under such circumstances, Mc-
Intyre's unaided testimony is not , in my judgment, sufficient to establish a change
in objective after November 16 by Local 50. Indeed, the reasonable inferences
from established facts suggests a conclusion contrary to that testimony.
Thus, if this were a bona fide and exclusively consumer boycott , one would
expect that it would have been addressed-or at least communicated-through
Local 50's newspaper or otherwise, to Local SO's 4,000 members in the area, them-
selves a part of the consuming public. But it is conceded that no appeal was made
to Local 50's members not to buy Arnold products.
As has been seen , the only objective evidence of any change in the conduct of
the picket line was the alteration in the wording of the sign. That, however, is
not only not indicative of a shift in the original objective-but rather suggestive of
an adherence to it.
Moreover, the objective of the picketing must, in the final analysis, be determined in
large part either from the admissions of Local 50, or induced from a reasonable
interpretation of its manifested conduct: that is, from the picketing and the ac-
companying action. The intent of McIntyre, even if established, to revise the ob-
jective is of little weight if the visible conduct-the picketing plus its accompanying
circumstances-gives a contrary impression. For what was being sought here was to
communicate an idea. An idea in McIntyre's mind , however sincere, cannot prevail
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against a contrary one evidenced in the overt acts of the pickets. And their conduct
is contrary to McIntyre's testimony.
Thus, as has been seen, on 7 different occasions after November 16, with 6
different employees, the pickets disclosed their purpose to induce the employees to
join Local 50. This was exactly their admitted purpose prior to the certification.
That that may not have continued to be McIntyre's purpose, as he asserts, is com-
pletely beside the point. To the ordinary observer, evaluating the situation in the
most reliable way he can-from Local 50's external conduct-there is nothing in
Local 50's action after the certification indicating an objective different from the one
it sought prior to the certification. It is no defense that the pickets' action was in
violation of their instructions. Having been put there to communicate an idea,
Local 50 assumed the risk that they would do so accurately, and assumed respon-
sibility for the concept they actually communicated. It cannot confine its liability
to the undisclosed proposition it now asserts it wished to be disseminated, or to
the unapparent objective it says the pickets were intended to have represented.
One or perhaps two of these incidents might be dismissed as isolated or pure
banter, and thus unrepresentative, but here the number is too substantial to be
characterized other than as indicative of the design of the pickets, and consequently-
whether authorized or not-the design of Local 50.
Upon these considerations it is my conclusion that the evidence does not support
the conclusion that Local 50 altered its objective after the certification of the Asso-
ciation. It is consequently found that after the certification of the Association on
November 15, 1954, the objective of the picketing remained the same as before
the certification, namely, to force or require Arnold to recognize or bargain with
Local 50 immediately as the representative of its employees.
In view of that finding it is unnecessary to decide what the answer would be if the
objective had been, as suggested in some portions of McIntyre's testimony and in
the brief, to secure a "merger" of the Association and Local 50, or to seek only future
recognition when authorized by law. See Gemsco, Inc., 111 NLRB 82; cf. Union
Chevrolet Company, 96 NLRB 957; Francis Plating Co., 109 NLRB 35; Petrie's,
an Operating Division of Red Robin Stores, Inc., 108 NLRB 1318; Swee-T-Shirts,
Inc., 111 NLRB 377.
We turn now to the question as to whether there was prohibited inducement and
encouragement of employees.
2. The inducement and encouragement
The General Counsel asserts, and Local 50 denies, that the picketing constituted
inducement and encouragement of employees to cease rendering employment serv-
ices. As has been seen, there is no evidence that any employee of any employer,
either of Arnold or of an employer doing business with Arnold, was specifically
requested by Local 50, or any agent of it, to strike or to cease rendering services.
Indeed, the pickets were instructed to tell any employee who asked that there was
no strike or lockout in progress, and that the employee should cross the picket
line. There is no evidence of substantial disregard of these instructions. During
the 5 months or more which the picketing covered prior to the instant hearing
there is no evidence that any employee failed to cross the picket line. I do not find
that the apparent recording by the pickets of the identification insignia on trucks
of employers doing business with Arnold constituted acts of, or action preliminary to,
inducement of employees; for the reason that such conduct is equally consistent with
a conclusion of a lawful purpose to induce employers. See Washington Coca Cola
Bottling Works, Inc., 107 NLRB 299; Richfield Oil Corporation, 95 NLRB 1191,
1216-17.
The allegation of inducement and encouragement must therefore rest, in the final
analysis, on the proposition, asserted by the General Counsel, that picketing is per
se and in all circumstances inducement and encouragement of employees to refuse
to perform employment services. This conclusion Local 50 contests. Its argument
is thus summarized in its brief:
. when picketing activity is alleged to be a violation of the Act, the contents
of the sign, the scope and extent of related activity, if any, the presence or
absence of any other acts which could reasonably lead an observer to conclude
than an actual attempt had been made at inducement of employees, the state-
ments of the parties during the period in question, the entire context of fact-
all must be taken into consideration before a determination can be made that
inducement or encouragement of employees to withhold services was present
or was reasonable to infer under all the circumstances.
LOCAL 50 1359
It is my conclusion, however, contrary to Local 50 's position , that the General
Counsel correctly states the law of the Board.
Thus, in the Washington Coca Cola case, 107 NLRB 299, the Board said:
We find no merit in the Respondent 's assertion that the picketing was intended
only to embarrass the nonstriking employees of Coca-Cola, or to prevail upon
the buying public to boycott Coca-Cola's products. This broad argument, that
picketing-wherever it occurred-is aimed only at publicizing a labor dispute
and not at inducing work stoppage by employees who are required in their
regular employment to cross the picket line, has been too often rejected to re-
quire further elaboration here.
That decision was quoted and followed in the later cases of Gemsco, Inc., 111
NLRB 82, and Royal Typewriter Company, Inc., 111 NLRB 317. In the Gemsco
case Trial Examiner Leff, citing Coca Cola and Union Chevrolet Company, 96 NLRB
957, as authority, made, and the Board adopted, the following statement:
Though in form ' the picket signs. simply appealed to company employees to
join the Union, and though there is no independent evidence that company
employees were otherwise ever specifically requested to engage in a strike or
concerted refusal to work, established Board authority nevertheless requires the
conclusion that the picketing in itself constituted an inducement and encourage-
ment to the employees of the Company to engage in a strike or other concerted
refusal to perform services for their employer. [Emphasis supplied.]
It seems apparent to me from these authorities that in the Washington Coca Cola
case, if not before , the Board established the broad principle of law that union
picketing of employee entrances , even though peaceful and unaccompanied by
specific acts of encouragement , inevitably constitutes inducement of employees to
engage in a strike or other concerted refusal to perform employment services for
their employer. If Coca Cola left the conclusion in doubt, I think that the Gemsco
and Royal decisions nail it down inescapably . The opinions of the Board in several
other cases appear to corroborate that conclusion : Thurston Motor Lines, Inc.,
110 NLRB 748; Associated General Contractors of America, Inc., Georgia Branch,
110 NLRB 2192; National Trucking Company, 111 NLRB 483; Goodyear Tire &
Rubber Company of Alabama, 112 NLRB 30.
It is true that in Coca Cola, Gemsco, and Royal there were specific incidents of
employees refusing to cross the picket line. From that it is argued here that the
Board's statements in those cases are to be interpreted in the context of fact in
which the picketing occurred-normally a quite sound argument ; and that in each
instance the refusal to cross the picket line was evidence that the picketing in fact
constituted inducement and encouragement . In this case , the reasoning continues,
the circumstance that not a single employee failed to cross the picket line over a
period of 140 days is substantial evidence that the picketing was not in the nature
of inducement or encouragement . This contention , it should be noted, is not the
equivalent of asserting that the failure of the inducement is a defense to it. It is
instead an argument that the conduct was not inducement.
If this were a case of first impression , Local 50's proposition might present a
troublesome legal question . I think, however, that it is disposed of, and foreclosed,
by the Coca Cola, Gemsco , and Royal decisions . I interpret those cases as holding
that union picketing in front of employee entrances ti; an employer's place of
business in connection with a labor dispute is in all circumstances inducement and
encouragement of employees not to perform employment services . This is not to
say that the conduct is therefore illegal. If it is for a valid objective such inducement
is not improper . It is only where it is for a prohibited objective that it is unlawful.
That the Coca Cola and Royal cases involved picketing at secondary situses, rather
than at primary ones, as here, is not a distinguishing circumstance . That fact has
relevance only upon the question as to whether the inducement was permissible,
not upon whether it existed.
That the picketing in the Coca Cola, Royal, and Gemsco situations occurred
in a context of independent evidence of inducement was, in my appraisal , a coin-
cidental , and not a determinative , factor in those cases . In sum , as I interpret
its holdings , the Board would have found the same way even if there had been no
such independent evidence . If it is argued that that conclusion makes it imprac-
tical or perhaps impossible to publicize the facts of a labor dispute in particular
circumstances by peaceful picketing, and raises constitutional considerations, that
is a proposition which must be addressed to the Board and the courts , whose deci-
sions are binding on the Trial Examiner-or to the Congress.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the authority of the Coca Cola, Gemsco , and Royal cases it is found that the
picketing of the Arnold plant by Local 50 induced and encouraged employees to
strike or concertedly refuse to perform employment services for their employers.
It having already been concluded that that action was directed to an objective pro-
hibited by Section 8 ( b) (4) (C) of the Act, it is further found that since November
16, 1954, the picketing was in violation of Section 8 (b) (4) (C).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Local 50 set forth in section III, above , occurring in connection
with the operations of the Arnold Company described in section I, above , have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Local 50 has engaged in certain unfair labor practices , it will
be recommended that it be ordered to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Arnold Bakers Employees Association and Local 50, Bakery and Confectionery
Workers International Union , AFL, are labor organizations within the meaning of
Section 2 (5) and Section 8 (b) (4) (C) of the Act.
2. On and since November 15, 1954 , Arnold Bakers Employees Association has
been the exclusive bargaining representative , certified by the Board , of the employees
of Arnold Bakers , Inc., in an appropriate unit , in accordance with the provisions of
Section 9 of the Act.
3. Since November 16, 1954 , Local 50 has induced and encouraged employees of
the Arnold Company and other employers to engage in a strike or other concerted
refusal in the course of their employment to perform services for their employer,
an object thereof being to require the Arnold Company to recognize or bargain
with Local 50 as the representative of employees of Arnold notwithstanding that
Arnold Bakers Employees Association had been certified as the representative of
such employees under the provisions of Section 9 of the Act. By such conduct
Local 50 engaged in unfair labor practices within the meaning of Section 8 (b) (4)
(C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Passaic County News Co ., Inc. and James G. Courtis
Newspaper & Mail Deliverers' Union of New York & Vicinity,
Independent and James G. Courtis . Cases Nos. 2-CA-4421 and
2-CB-1541. May 16, 1956
DECISION AND ORDER
On February 8, 1956, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Union filed ex-
^ceptions to the Intermediate Report with a supporting brief. No
exceptions were filed by the Employer.
115 NLRB No. 216.