Retail Clerks Int'l Association, Local 57, AFL-CIO

National Labor Relations Board - Board Decisions

Sep 7, 1962

138 N.L.R.B. 498 (N.L.R.B. 1962)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this kind of picketing still remained subject to possible defeasance,
in the absence of a timely petition, because of the clear statutory lan-
guage itself. But now, after this decision, it would appear that the
latter possibility has been almost entirely eliminated, and the pro-
viso's protection has been made practically absolute. In short, if
we now add our colleagues' decision in this case to their previous
decision in Crown, it would appear that to all intents and purposes
Section 8(b) (7) (C) has been removed from the Act.
For all of the foregoing reasons, and as Respondents concededly
picketed for more than 30 days without a petition having been filed,
we would find that Respondents violated Section 8(b) (7) (C), and
would enter an appropriate Order.
Retail Clerks International Association , Local 57, AFL-CIO and
Rested Stores Company . Case No. 19-CP-11. September 7,
1962
DECISION AND ORDER
On December 28, 1960, Trial Examiner Herman Marx issued his
Intermediate Report herein, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
±ion as set forth in the attached Intermediate Report. Thereafter, Re-
spondent filed exceptions to the Intermediate Report and General
Counsel also filed exceptions with a supporting brief.
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 brief, and the entire record in the
.case, and finds merit in the exceptions of the Respondent. Accord-
ingly, the Board adopts the findings of the Trial Examiner to the ex-
tent they are consistent with this Decision and Order.
The complaint alleges and the Trial Examiner found that the Re-
spondent violated Section 8(b) (7) (B) of the Act by picketing the
Great Falls, Montana, retail store of the Charging Party (hereinafter
referred to as the Company) within a year of the valid election of
March 18, 1960, with an object of forcing or requiring the Company
to recognize and bargain with the Respondent as the representative
.of the Company's employees or with an object of forcing or requiring
the Company's employees to accept the Respondent as their collective-
bargaining representative. Because of our disagreement with the
Trial Examiner's reasoning and conclusions, we briefly summarize
the facts.
138 NLRB No. 56.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 499
The Company operates a chain of retail variety stores. The grand
opening of the Great Falls store took place on January 20, 1960. Be-
tween the early part of January 1960 and January 27, 1960, Respond-
ent's business agent, Meyer, or its attorney, Graybill, contacted the
Company's store manager, Pascoe, or its personnel manager, Milius,
some eight times in an effort to obtain the Company's agreement to a
collective-bargaining contract with the Respondent. On a number of
these occasions, Meyer or Graybill directly or impliedly threatened to
picket the Company if it did not enter into such a contract. At various
times during these same contacts, Meyer or Graybill also requested that
the Company circulate Respondent's membership cards among its em-
ployees or that the Company furnish Respondent with a list of its
employees. During the last of these contacts, in a telephone call
from Graybill to Milius, Graybill asked which of several sample col-
lective-bargaining agreements (previously left by Respondent with
the Company) the Company proposed to execute. Milius declined to
give Graybill any commitment, at which juncture Graybill stated,
`'Well, we're not going to sit still," and thereupon announced that
the Company would be picketed to advise the public that the Company
did not have a union contract.
On February 9 Respondent commenced picketing, utilizing a single
picket carrying placards which read, "THIS HESTED STORE
HAS NO CLERKS' UNION CONTRACT AND NON-UNION
CLERKS. Patronize Union Clerks." That same day, an electrician
declined to cross the picket line and service he was to perform was
never performed by his company. On February 10 Graybill told
Milius that the Respondent no longer desired a list of employees and
that the picketing would continue. On February 20 a refrigerator
repairman at first refused to cross the picket line but made the repair
later that same day, after the picket left.
On February 23 the Company filed a petition for a Board election
and on March 1 it filed a charge alleging that the Respondent's picket-
ing violated 8(b) (7) (C). On March 2 Graybill notified the Board's
Regional Office that Respondent had never demanded recognition and
that it intended to resist the Company's petition on these grounds.
On March 10 the Regional Director notified both parties that the
8(b) (7) (C) charge had been investigated; that an expedited election
would be conducted in accordance with 8(b) (7) (C) and 9(c) and
that, accordingly, no 8(b) (7) (C) complaint would issue.
Thereafter, Respondent made several attempts to obtain a hearing
or delay the election. It also filed with the Board a request for leave
to appeal from the direction of election, urging, among other claims,
that the 8(b) (7) (C) charge upon which, along with the Company's
petition, the expedited election was predicated, was without merit.
662353-63-vol . 138-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board denied the request on March 18, 1960.1 Finally, Respondent
filed a statement with the Regional Director that it was withdrawing
from participation in the election, which was held as scheduled, on
March 18. The Respondent lost the election and ceased this period of
picketing that day.
On May 3 Respondent resumed picketing, utilizing a single picket
at Respondent's main or customer entrance carrying two signs, sand-
wich style, with the caption, "HESTED IIAS NO CLERKS' UNION
CONTRACT AND NON-UNION CLERKS." The picketing was
continuing at the time of the hearing before the Trial Examiner on
August 16,1960.1
There has been no contact (other than the picketing itself) be-
tween Respondent and the Company or Respondent and the Com-
pany's employees since March 18, when Respondent lost the election.
At the hearing in the present case, Respondent's business agent,
Meyer, admitted on cross-examination that Hested could obtain re-
moval of the picket by recognizing Respondent and entering into
a contract.
Section 8(b) (7) (B) proscribes picketing which has an object of
organization or recognition, within a year of a valid election. Hence,
in addition to a proscribed object, an essential element of this viola-
tion is the conduct of a valid election in the preceding year. Because
the election was "expedited" pursuant to Section 8(b) (7) (C), the
Respondent was not given a hearing on the petition prior to the
election.3 It was, of course, given a hearing on the sufficiency of the
petition in the present unfair labor practice proceeding as well as
on all other issues pertaining to the alleged violation of Section
8(b) (7) (B). The Trial Examiner found that the election was valid
and that the picketing on and after May 3 had an object of recog-
nition.4 Accordingly, he concluded that picketing during this period
violated Section 8(b) (7) (B).
In its argument to the Trial Examiner at the close of the hearing
and in its exceptions, the Respondent attacks the validity of the
election. We find merit in its contentions.
Section 9(c) of the Act requires that a hearing be held prior to
any election pursuant to a petition filed thereunder. There are two
1 The dental by the Board of the request for leave to appeal was In the nature of a
discretionary ruling which cannot be construed as a ruling on the merits.
a On July 7, 1960, the General Counsel filed a petition for a 10 ( 1) Injunction in the
U.S. District Court for the District of Montana . On October 25, 1960, the court handed
down Its decision In which it concluded that the evidence was insufficient to justify the
issuance of an injunction , because the postelection picketing, unlike the earlier picketing,
had no object other than to advise the public that the Company had no union contract
and employed nonunion clerks. Graham v . Retail Clerks Aeaociation , 188 F. Supp. 847
(D.C. Mont.).
8 See Sections 102 73 ct seq of the Board's Rules and Regulations, Series 8, as amended.
The Trial Examiner distinguished the contrary holding by the U.S. district court on,
the ground that the record before the court did not include the admission by the Respond-
ent's business representative that the picketing had an object of recognition.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 501
exceptions to this requirement: (1) consent elections under 9(c) (4) ;
and (2) elections where the petition is filed in a context of picketing
which would have violated 8(b) (7) (C) if the picketing continued
beyond a reasonable period of time not to exceed 30 days, without a
petition being filed. Hence, in the latter situation, if the picketing
would not have violated 8(b) (7) (C), the holding of an "expedited"
election would exceed the Board's authority, and such an election
could not therefore be valid for purposes of 8(b) (7) (B). Thus,
in order to determine the validity of the election herein, we are
obliged to examine whether the initial picketing (i.e., from Febru-
ary 9 to March 18, 1960), would have violated Section 8(b) (7) (C),
had it continued for more than 30 days without the filing of a
petition.
The Trial Examiner found that the initial picketing had an ob-
ject of organization or recognition. We agree with that finding.
However, for reasons appearing hereinafter, we disagree with his
further conclusion that the expedited election, predicated upon this
picketing, was valid. In the recent decision on reconsideration in
Crown Cafeteria,5 a majority of the Board concluded that where the
purpose of the picketing,is to truthfully advise the public, including
consumers , that an employer does not have union employees or a
union contract, then even though such picketing is for an object of
organization, recognition or bargaining within the meaning of Sec-
tion 8(b) (7), it is protected by the express terms of the second pro-
viso to Section 8(b) (7) (C). Such protection continues without the
need for filing a petition as long as the picketing does not have a
statutory "effect" within the meaning of the below-quoted proviso.6
The initial course of picketing, from February 9 to March 18 in
the present case, seems to us to be of the type protected by the exemp-
tion to 8(b) (7) (C), as was the picketing in Crown Cafeteria, supra.
The picketing herein was conducted by a single individual pacing
back and forth in front of the Company's customer entrance. The
legend on the sign announced to the public, including consumers,
using the main entrance, that "This Hested Store Has No Clerks
Union Contract and Non-union Clerks. Patronize Union Clerks."
The crucial question which remains is whether the initial picketing
lost its protected status by having a proscribed effect.
As indicated above, the picketing resulted in only one service stop-
page on February 9 and a temporary service delay of a few hours on
February 20. There is no evidence that these incidents in any way
interfered" with, disrupted, or curtailed the Employer's business.
135 NLRB 1183.
The last proviso to Section 8(b) (7) (C ) removes the privilege, created by the exemp-
tion , where:
. . . an effect of such picketing is to induce any individual employed by any other
person in the course of his employment , not to pick up, deliver or transport any goods
or not to perform any services.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, and for the reasons explained more fully in Barker
Bros. Corp.,' a companion case issued today, we find that the afore-
mentioned incidents were not sufficient to constitute "an effect" within
the meaning of the proviso to Section 8(b) (7) (C). Thus, in the
absence of a proviso effect, we conclude that the initial phase of the
picketing herein would not have violated Section 8(b) (7) (C) even
if it had continued for more than 30 days without the filing of a
petition and that therefore the expedited election in this case was
improperly directed and held."
In view of the foregoing, we find that, as an expedited election
pursuant to Section 8(b) (7) (C) should not have been conducted, the
March 18 election was not valid. Therefore, the picketing following
that election was not prohibited by 8(b) (7) (B). Accordingly, we
shall dismiss the complaint in its entirety and order that the expedited
election in Case No. 19-RM-288 be set aside.'
[The Board dismissed the complaint and set aside the election in
Case No. 19-RM-288.]
MEMBERS RODGERS and LEEDOM, dissenting :
Unlike our colleagues, we agree with the Trial Examiner that the
Respondent violated Section 8(b) (7) (B) of the Act as alleged in the
complaint. That section proscribes picketing, which has an object
of organization or recognition, within a year of a valid election. Our
colleagues dismiss the complaint on the ground that the expedited
election involved here, conducted pursuant to Section 8(b) (7) (C),
was not a valid election.
The election was properly conducted pursuant to Section 8 (b) (7)
(C). That section empowers the Board, where a 9(c) petition is
filed, to direct an election in a context of picketing which would have
violated 8(b) (7) (C) if the picketing continued beyond a reasonable
period of time, in any event not to exceed 30 days, without a petition
having been filed. Our colleagues find that the election was not valid
because the preelection picketing, although having an object of or-
ganization or recognition otherwise proscribed by Section 8(b) (7)
(C), was privileged in that it fell within the scope of the publicity
proviso and did not have an appreciable effect of stopping deliveries
or services to the employer being picketed.
We do not agree that the preelection picketing fell within the scope
of the publicity proviso. Although the picket sign stated: "THIS
HESTED STORE HAS NO CLERKS' UNION CONTRACT and
NON-UNION CLERKS. Patronize Union Clerks," during the pre-
election period, the Respondent's representatives visited the Com-
7138 NLRB 478
8 Oakland G . R. Kinney Company, Inc., 136 NLRB 335.
8 Ibid.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 503
pany's store manager or its personnel manager approximately eight
times in an effort to obtain the Company's agreement to a collective-
bargaining contract with the Respondent. On several of these occa-
sions, the Respondent's representatives requested the Company to
circulate the Respondent's membership cards among company em-
ployees or that the Company furnish the Respondent with a list of
company employees, and the Respondent's representatives expressly
or irrrpliedly threatened to picket the Company if it did not enter
into a collective-bargaining contract. Contrary to our colleagues, we
believe this evidence is material and is in itself sufficient to remove
the picketing front the protection of the publicity proviso as it shows
that the picketing was not solely "for the purpose of truthfully advis-
ing the public . . . that an employer does not employ members of,
or have a contract with, a labor organization...." Absent such an
exclusive purpose, in our view, the picketing did not fall within the
scope of the publicity proviso.
Moreover, even if the picketing could be viewed as otherwise en-
titled to the protection of the publicity proviso, the picketing clearly
lost such protection because an effect of the picketing was to induce
individuals employed by persons other than the picketed employer
not to perform services. Congress has plainly indicated that picket-
ing, although falling within the scope of the publicity proviso, loses
its immunity if "an effect" of such picketing is to induce any stoppage
or delay of delivery or services. It is clear that in this case there is
evidence of at least one work stoppage and a delay in performing a
service. Thus an electrician employed by a firm that regularly serv-
iced the Company declined to cross the picket line and the service
he was to perform was not performed by his firm during the duration
of the picketing. In addition, the record shows that a refrigerator
repairman refused to cross the picket line and perform the work
he. had been employed to do, although, at a later time the repairman
did make the repairs. In our view, therefore, for the reasons set
forth in our dissenting opinion in Barker Bros. Corp., et at., 138
NLRB 478, we would find that a clear "effect" of Respondent's
picketing was to cause a stoppage and delay within the meaning of the
statute.
Furthermore, even applying the interpretation which, as we indi-
cated in our dissenting opinion in Barker Bros., our colleagues have
erroneously engrafted upon the statute, we would still find that the
General Counsel has shown a "disruption" of the Company's business.
Certainly, the real meaning of the failure of the electrician to perform
the work he set out to do is to make it evident that,.for all intents
and purposes, a firm that regularly serviced the Respondent could not
do the work so long as the picketing lasted. As for the delay in the
rendition of refrigeration services, it seems to us that the nature of
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refrigeration being what it is, virtually any delay in effecting a re-
frigeration repair would necessarily have a serious impact upon a
business which is dependent upon it for its being.
For the reasons indicated above, and because, as the Trial Examiner
found, the Respondent picketed for recognition within a year of a
valid election, we would sustain the complaint.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding, issued by the General Counsel of the National
Labor Relations Board, alleges that a labor organization named Retail Clerks Inter-
national Association, Local 57, AFL-CIO (referred to herein as the Union or
Respondent) has violated Section 8(b)(7)(B) of the National Labor Relations Act,
as amended (73 Stat. 519 et seq., 29 U.S.C. 151 et seq.; also called the Act herein),
by picketing premises of an employer, Hested Stores Company (referred to herein
as Hested) with the object of forcing or requiring Hested to recognize and bargain
with the Union, or to force and require employees of Hested to accept and select
the Union as their bargaining representative, notwithstanding the fact that within
12 months preceding such picketing a majority of such employees had voted against
representation by the Union in "a valid election under Section 9(c)" of the Act.,
The Respondent has filed an answer which, in material substance, denies the com-
mission of the unfair labor practices imputed to it in the complaint.
Pursuant to notice duly served by the General Counsel upon the Respondent and
Hested, a hearing upon the issues in this proceeding has been held before Trial
Examiner Herman Marx, at Great Falls, Montana. The General Counsel and the
Respondent appeared through, and were represented by, respective counsel, and
participated in the hearing. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to adduce evidence, to file briefs, and to
submit oral argument.
Since the close of the hearing, upon motion and stipulation of the General Counsel
and the Respondent, I have entered an order correcting the transcript of the hearing
in various particulars. The transcript contains other errors, but as none of these
materially affect the issues, and since the parties have not included them in the
motion, I deem it unnecessary to correct such inaccuracies.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF HESTED'S BUSINESS; JURISDICTION OF THE BOARD
Hested is a Nebraska corporation; maintains offices in Omaha and Fairbury,
Nebraska, and is engaged in the business of selling merchandise at retail in a chain
of variety department stores. The stores include establishments in Nebraska, North
Dakota, South Dakota, Minnesota, Wyoming, Colorado, and Montana. The issues
in this proceeding center on only one of the stores (known as #98). It is located
in Great Falls, Montana.
During its "last fiscal year," Hested had a gross income in excess of $17,000,000;
and in the course of that period, it has shipped goods valued in excess of $50,000
into the State of Montana from points outside thereof. Thus, as the complaint
alleges and the answer admits, Hested is, and has been at all material times, engaged
in interstate commerce within the meaning of the Act. Accordingly, the Board has
jurisdiction of the subject matter of this proceeding.
U. THE LABOR ORGANIZATION INVOLVED
The Respondent, as the record establishes without dispute, is , and has been at
all material times, a labor organization within the purview of Section 2(5) of the
Act.
1 The complaint, which was issued on June 27, 1960, is based upon a charge filed with
the Board by Hested on June 8, 1960 Copies of the complaint and charge have been
duly served upon the Respondent.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 505
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Hested opened its store in Great Falls, Montana, on January 20, 1960, hiring
a complement of some 15 employees for the establishment. Most of these are
sales personnel; a few appear to be employed at a fountain or luncheonette in the
store. The Union does not, and has never, represented a majority of the store's
employees in an appropriate bargaining unit, whether by certification of the Board
or otherwise.
During the early part of January 1960, while the Great Falls store was being
prepared for its opening, the Union's business agent, Joe Meyer, called on the
establishment's manager, Steward Pascoe, identified himself and his capacity, and
asked Pascoe whether he "could sign a contract." Pascoe replied in the negative.
The upshot of Meyer's visit was that he gave Pascoe three copies of a contractual
form used by the Union, and the manager stated that he would send the copies to
Daryl Milius, Hested's personnel manager (whose office is in Omaha), since labor
relations were within Milius' jurisdiction.
Meyer returned to the store on January 13, and asked Pascoe if he had heard
from Milius, and, receiving a negative reply, said, "Well, we're going to have to get
on the ball, as the union would like to get this taken care of right away." Pascoe
reiterated that the matter was something for Milius to handle. Meyer came back
2 days later and again inquired if Pascoe had heard from Milius. Pascoe replied
that he had not, and then Meyer brought up the subject of picketing, stating that
the Union had picketed a Great Falls drugstore and had brought it "to its knees in
half a day of picketing." Meyer called on Pascoe at the store for a fourth time on
January 18; inquired again if the manager had heard from Milius; received a negative
reply; and then asked for a list of the store's employees. Pascoe stated that "com-
pany regulations" forbade him to supply such information, but that Hested's district
manager had authority to do so. Thereupon, Meyer telephoned the district manager,
and asked for, and was denied, the information.2
Milius came to Great Falls a day or so before the opening of the store, and,
pursuant to arrangements made by Pascoe with Meyer, met with the Union's business
agent on January 19. Meyer told Milius that the Union "had to have something
in writing and some assurance of (Hested's) intentions," and Milius replied to the
effect that he was unable to commit himself, stating either at that point or subse-
quently that he could not do so without discussing the matter with Hested's "execu-
tive committee." Meyer stated that Hested could either become a party to an
agreement in effect in Great Falls between the Union and an association of employers
or to a "separate contract." After some reiteration of positions previously taken
in the conversation, Meyer requested a list of the store's employees, and Milius
replied that it was contrary to "company policy" to supply such a list. Milius also
rejected a request that Hested distribute to the employees applications for member-
ship in the Union, and that was followed by a statement by Meyer to the effect
that the Union was reluctant to picket a new enterprise in Great Falls but would
picket the store unless Hested came to an "understanding" with the Union. At
one point or another, Meyer produced a form of contract, and said that Hested
could enter into such an agreement in lieu of "affiliating" with the employers'
association. To this, also, Milius replied that he could make no commitment. The
meeting ended with an arrangement to meet again later that day, Meyer stating
that he would endeavor to secure the attendance of the Union's attorney, Leo J.
Graybill, Jr.
Milius and Meyer met at the appointed time, but without the attorney who was
unavailable. In material respects, the discussion took much the same course as
the conversation held earlier. Meyer reiterated his demand for "assurance of
(Hested's) intentions," and his request for a list of the employees, stating, too, that
the store would be picketed if the list were not furnished; and Milius repeated his
2 Findings as to the several conversations between Meyer and Pascoe are based on
Pascoe's testimony. Meyer denied that he discussed with Pascoe "the possibility of sign-
ing a contract" or "the Issue of labor relations " This strikes an implausible note in view
of the fact, conceded by Meyer, that he gave Pascoe sample contract data. Moreover, as
will appear, Meyer's testimony lacks candor In other particulars. Thus, in the light of
the whole record , I am led to conclude that Pascoe's testimony is a better guide to findings
than that of Meyer.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position that he was unable to make a commitment regarding Hested's "intentions,"
and that the company's policy forbade the production of the list.3
On January 27, Graybill telephoned Pascoe and asked the latter if Hested was
going to give the Union "bargaining rights," to which Pascoe replied that he "couldn't
answer that." Graybill followed this with a question whether Pascoe wanted "the
union to take matters into their own hands." Pascoe asked Graybill what he meant
by this, but, instead of explaining , Graybill went on to another subject, inquiring
whether a list of employees would be furnished. Pascoe reiterated Hested's policy
of nondisclosure, and after some colloquy on that subject, Graybill asked, in sub-
stance, whether Hested would deal with the Union, and asserted that if the firm
did not do so, the Union would "have to picket" the store. Pascoe protested that
Hested was "just -a small firm" and had never been "involved in any union problems
before," and Graybill replied, "Don't give me that small-firm stuff," and inquired
whether "you want us to go ahead and picket you." Pascoe thereupon stated that
Graybill knew his business and could do what he wished.4
Shortly thereafter that same day, Graybill telephoned Milius at the latter's office
in Omaha, and, after some preliminaries dealing with Hested's failure to com-
municate with the Union, asked the personnel manager whether Hested intended
to become a party to the Union's agreement with the employers' association or to
sign a separate contract. Milius replied that he could give Graybill no "informa-
tion" at that point because he had none, and the attorney remarked that "we're not
going to sit still." After some reiteration of the respective positions, Graybill stated
that the Union was not interested in organizing the employees of the Great Falls
store, but was "going to picket to inform the public that [Hested] didn't have a
union contract." Following some additional colloquy that need not be detailed,
Graybill asked for a list of the Great Falls employees. Reiterating the Company's
policy on the subject, Milius asked why the list was desired, and Graybill remarked
that Milius knew nothing about "union organization," and suggested that the per-
sonnel manager seek advice of "a labor lawyer." (Milius' account of this conversa-
tion is undisputed.)
The Union began to picket the Great Falls store on February 9, using a single
picket who patrolled in front of the premises, wearing two placards in "sandwich"
fashion, each carrying the legend "This Hested Store Has No Clerks' Union Con-
tract and Non-Union Clerks. Patronize Union Clerks."
On February 10, the day after the picketing began, Milius called Graybill from
Omaha. The record reflects some conflict regarding details of the conversation, but
there is no material dispute that Milius stated that Hested could not understand why
the Union wished a list of employees; that Graybill replied, in substance, that the
store was being picketed, and that the Union no longer desired the list; and that
3 Findings as to both conversations between Milius and Meyer are based on Milius'
testimony . Actually, there is no large difference between them in material respects, for
it is evident from Meyer 's testimony that Meyer In effect sought contract negotiations
with Milius , intimated that the Union would picket if Hested did not sign a contract,
and asked for a list of employees However, in my judgment , Millus' version is a more
reliable basis for findings because Meyer 's account appeared tome to lack candor, using
indirection to dilute the impact of material facts . For example , It is clear that Meyer
sought the list of employees as a predicate to efforts to organize them ; yet the reason he
gave at one point was that disclosure of the identity of the employees would enable him
to collect dues from any who were members of the Union so that "they could still keep
up their death benefits" ; and this claim was followed by the question -begging assertion
that he also desired the list because he "would have liked" to know who was employed
at the store . It may also be noted , as regards Meyer 's credibility , that a blanket denial
by him that he told Millus that Hested would be picketed if it did not sign a contract
with the Union does not jibe with other testimony he gave to the effect that in reply to
a question by Millus as to what would happen if a contract was not signed, he told Millus
that the "only course the union has was [sic] to picket " [Emphasis supplied ]
' Findings as to Graybill 's discussion with Pascoe are based on the latter's testimony.
Much of Pascoe's account is undisputed, Graybill giving no details of the discussion in his
testimony beyond an observation that "I don't believe anything was said with reference
to a direct statement made on picketing, whether picketing would occur or picketing will
not occur" I think it likely that Graybill made the statements regarding picketing im-
puted to him, but, in any case, it is undisputed that he asked Pascoe whether he wanted
"the union to take matters into their own hands" ; and, clearly , that query , In the con-
text of circumstances , was a threat , albeit veiled , that the Union would picket the Great
Falls store unless Heated gave the organization "bargaining rights." Thus it actually
matters not whether Graybill made "a direct statement on picketing."
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 507
during the course of the discussion, Graybill told Hested that the picketing would
continue "till the cows come home." 5
On February 23, 1960, Hested filed a petition (Case No. 19-RM-288), under
Section 9(c) of the Act, with the Seattle office of the Board's Nineteenth Region,
alleging the picketing and the Union's claim for recognition, and, in effect, seeking
a determination whether a question of representation existed and a resolution thereof.
The petition was subsequently amended in particulars not material here. The Union
was notified in due course of the filing of the petition and the amendment thereof.
On March 1, 1960, Hested filed a charge (Case No. 19-CP-4-1) with the Seattle
regional office, alleging picketing in violation of Section 8(b) (7) (C) of the Act
(according to the sense of the allegations of the charge).
Graybill wrote to the regional office, on behalf of the Union, on March 2, 1960,
denying that the Union had "ever made a demand on the employers for representa-
tion," and stating that the petition would be resisted "on this ground."
Thereafter, by identical letters dated March 10, 1960, the Regional Director for the
Board's Nineteenth Region informed Hested and the Union that it appeared "ap-
propriate" to him, "on the basis of the investigation (of the petition) made to date,"
to hold an election to determine whether employees of Hested's Great Falls store
desired to be represented by the Union; and that, "pursuant to Section 8(b)(7)(C)
and 9(c) of (the) Act, and Section 102.77 of the (Board's) Rules and Regulations,
an election will be conducted as provided in the enclosed Notice of Election among
the employees . . . in a unit described as follows, which is hereby found to be
appropriate: All employees of Hested Stores Company #98 excluding fountain
and luncheonette employees, office clerical employees, guards, professional employees
and supervisory employees as defined in the Act." The enclosed Notice of Election
specified March 18, 1960 as the date of the election, and the time and place thereof.
This direction of election was made without the "appropriate hearing upon due no-
tice" specified in Section 9(c) (1) of the Act. In other words, what the Regional
Director ordered, under the authority of Section 102.77 of the Board's Rules and
Regulations, was, as the applicable regulation puts it, "an expedited election under
section 8(b) (7) (C) " of the Act.
The Regional Director also wrote to Hested on March 10, 1960, to the effect that
he did not deem further proceedings on the charge warranted, and would not issue
a complaint thereon, because "a timely valid representation petition" affecting the
employees involved had been filed "within a reasonable time from the commence-
ment of the picketing," and a determination had been made that "an expedited
election should be conducted upon such petition." The Union was notified of the
decision not to proceed on the charge.
On March 17, 1960, the Union, through counsel, filed with the Regional Director
a document entitled "Objections To The Election," which contains , among other
things, a denial that the Union has sought recognition by Hested or organization
of the employees; and registers "objection to the election." At the same time, the
Union also filed with the Regional Director a document requesting a deferral of
the election for a period of 5 days "from the mailing of the request" in order to
give the Union time "to ascertain the names and addresses of the employees" involved
in the election; and a direction to Hested that it make a list of such employees
available to the Union. By telegram dated March 17, 1960, addressed to the Union's
counsel, the Regional Director denied the requests contained in both documents.
5 The conflict in the evidence regarding the February 10 conversation centers primarily
on whether Graybill, as Milius testified (supported by Leonard Gano, a Hosted super-
visor, who listened to the conversation, at Milius' request, on an extension in the Omaha
office), asked what Rested proposed to do about unionization, and said that the picketing
would continue "till the cows come home" if the store were not unionized. According to
Milius and Gano, these remarks were made at some point after Millus told Graybill that
Gano was listening to the conversation. Conceding that he might have said that the store
would be picketed "till the cows come home," Graybill denied that the remark was tied
to any comment about unionization, and stated that he told Milius that there was "noth-
ing to talk about" ; that the Union was not interested in recognition by Rested or in
organization of the employees ; and that "the picket was on and would stay on " I have
some doubt that after the discolsure that Gano had been eavesdropping, Graybill who
has special knowledge of provisions of the Act, would, within the hearing of two witnesses,
make so bald and revealing a statement as one to the effect that picketing would con-
tinue until Rested recognized and dealt with the Union . However, the conflict need not
be resolved , for even if one assumes that the conversation took the course Graybill de-
scribes , I am persuaded , for reasons that will appear , that an object of the picketing was
to compel Heated to recognize and deal with the Union.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly before the date scheduled for the election, the Union filed with the Board
a request for leave to appeal from the direction of election, urging, among other
claims, that the charge, as the request puts it, "used as the basis for the expected
election has no basis"; that the Union had had no hearing on the allegations of the
charge, and thus had been denied "a formal opportunity" to disprove them; and
that for lack of such an opportunity, the Union had been "left with no remedy for
avoiding the expedited election even though the basis upon which the election was
ordered may in fact be false." The Board denied the request on March 18, 1960.8
That day, also, shortly before the time appointed for the election, the Union
notified the agent of the Regional Director handling the electoral arrangements
that it would not participate in the election On the same day, too, the Union dis-
continued the picketing. k
The election was held as scheduled. Of the nine ballots, seven were cast against
the Union; one was void; and one was challenged. On March 28, 1960, the Regional
Director issued a written certification to the effect that the Union had not received
a majority of the votes and was, therefore, not the "exclusive representative" of
the employees in the unit affected within the meaning of Section 9(a) of the Act.
On March 30, 1960, the Union, through Graybill, wrote a letter to the Cascade
County Trade and Labor Assembly, a federation of labor organizations located in
the Great Falls area, stating that it intended "to picket Hested's store" in the near
future "for informational purposes only," and disclaiming any "intent or desire .
to stop deliveries to Hested's store," but expressing the hope of influencing "the public
and friends of organized labor not to make purchases" from the establishment.
The Union resumed picketing of the Great Falls store on May 3, 1960, and was
still engaging in that activity at the time of the hearing in this proceeding. As before
the election, no more than one picket has been used at a time, and, as in the previous
activity, he has worn two signs "sandwich" fashion. Each sign contains the state-
ment: Hested's Has No Clerks' Union Contract and Non-union Clerks." In other
words, the composition of the signs is substantially the same as that used in the prior
picketing, except that the phrase "Patronize union clerks" has been omitted.
The resumption of the picketing was followed by the filing of the charge in this
proceeding, and the issuance of the complaint based on the charge, alleging that
the picketing since the election has violated Section 8(b) (7) (B) of the Act.
The picketing aside, the Union has made no effort since the election to secure
recognition by Hested as the representative of any of the latter's employees, nor
to deal with Hosted, nor has the Union made any attempt to organize the employees
in the unit involved in the election.
B. Discussion of the issues and concluding findings
It may be useful as a preface to stating and resolving the issues to set down the
relevant statutory language that bears upon them. To the extent material here,
Section 8 of the Act provides:
(b) It shall be an unfair labor practice for a labor organization or its agents-
( * * * * * *
(7) to picket or cause to be picketed, or threaten to picket or cause to be
picketed, any employer where an object thereof is forcing or requiring an
employer to recognize or bargain with a labor organization as the representative
of his employees, or forcing or requiring the employees of an employer to
accept or select such labor organization as their collective bargaining repre-
sentative unless such labor organization is currently certified as the representa-
tive of such employees:
* * * * * * *
(B) where within the preceding twelve months a valid election under sec-
tion 9(c) of this Act has been conducted, or
(C) where such picketing has been conducted without a petition under section
9(c) being filed within a reasonable period of time not to exceed thirty days
from the commencement of such picketing: Provided, That when such a peti-
tion has been filed the Board shall forthwith, without regard to the provisions of
section 9(c) (1) or the absence of a showing of a substantial interest on the
part of the labor organization, direct an election in such unit as the Board finds
to be appropriate and shall certify the results thereof: .. .
6 On March 21, 1960, the General Counsel denied a request by the Respondent for re-
view of the Regional Director's refusal to issue a complaint on the charge in Case No.
19-CP-4-1. The basis for denial was that "Section 102.81(a) of the Board' s Rules and
Regulations , Series 8, permits review of such action only at the instance of the charging
party."
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 509
The relevant provisions of Section 9(c) are:
(1) Whenever a petition shall have been filed, in accordance with such
regulations as may be prescribed by the Board-
(B) by an employer, alleging that one or more individuals or labor or-
ganizations have presented to him a claim to be recognized as the representative
defined in section 9(a);
the Board shall investigate such petition and if it has reasonable cause to believe
that a question of representation affecting commerce exists shall provide for an
appropriate hearing upon due notice. Such hearing may be conducted by an
officer or employee of the regional office, who shall not make any recommenda-
tions with respect thereto. If the Board finds upon the record of such hearing
that such a question of representation exists, it shall direct an election by secret
ballot and shall certify the results thereof.
From the findings made above, and the statutory provisions affecting them, it
is evident that the basic issues to be resolved are (1) whether the balloting held on
March 18 was "a valid election under Section 9(c)," within the meaning of Section
8(b)(7)(B); and (2) whether an object of the picketing since May 3, 1960, has
been to force or require Hested to recognize or bargain with the Union as the repre-
sentative of employees of Hested's Great Falls store, or to force or require such
employees to accept or select the Union as their bargaining representative.
As regards the first issue, the Respondent reads the phrase "valid election under
Section 9(c)" as meaning an election that follows the requirements of that section.
Thus, so the argument runs, as the March 18 election was directed and held with-
out the "appropriate hearing" specified in Section 9(c), the election was not "valid
. under Section 9(c)," and, hence, the picketing in question, irrespective of its
object, has not violated Section 8(b)(7)(B). At first blush, a literal reading of
Section 8(b)(7)(B) would seem to support this thesis, but that is so, I think, only
if one reads that section and'Section 9(c) in isolation from other provisions of the
Act and some pertinent legislative history to be noted later. Reading Section 8(b)
(7)(B) in conjunction with such other statutory terms, and with the applicable
history, I emerge with a conclusion that the election was "valid .. . under
Section 9(c)."
As an initial step in that direction, it should be borne in mind that Section 8(b)
(7) (C) expressly carves out an exception to Section 9(c) and has the effect of mak-
ing valid an election in the situations reached by Section 8(b)(7)(C). That being
the case, I think it a reasonable construction of Section 8(b)(7)(B) to treat an
election that falls within the exception as "valid ... under Section 9(c)." Put an-
other way, because of the exception, an election, such as that involved here, does
not offend Section 9(c) and hence is "valid" thereunder.
This view finds support in Section 9(c)(3) which provides, in part , that "[n]o
election shall be directed in any bargaining unit or any subdivision within which, in
the preceding twelve-month period, a valid election shall have been held." These
provisions do not distinguish between a "valid election" that follows the prescrip-
tions of Section 9(c) and one held under the terms of Section 8(b)(7)(C). Both
fall within the sweep of the prohibition, an obvious purpose of which is to promote
industrial peace and stability at least during a 12-month period following an elec-
tion. Significantly enough, as the legislative history of Section 8(b) (7) (B) makes
clear, that section has a similar aim, seeking in the process, to protect an employer
and employees affected by an election from the coercive impact of the proscribed
picketing during the identical period specified in Section 9(c) (3).7 It seems to me
that to treat an election held under Section 8(b) (7) (C) as "valid . . . under Section
9(c)" for the purposes of Section 8(b)(7)(B), as well as for those of Section 9(c)
(3), gives logical implementation and effect to the common underlying legislative
aim of Sections 8(b)(7)(B) and 9(c)(3).
Moreover, persuasive support for the view taken here of the interplay of Section
8(b)(7)(B) and 8(b)(7)(C) may be found in remarks made by Senator Kennedy.
spokesman for the party majority of the Senate Conference Committee that dealt
with the House Conference Committee on the terms embodied in those sections
4 See , for example, comment on Section 8(b) (7) (B). or comparable proposals that pre-
ceded it, by Senator Kennedy at 105 Cong Ree 5959-5960 ; Senator Goldwater at 105
Cong. Rec 5968-5969 ; Secretary of Labor Mitchell at 105 Cong Rec. 1568 ; and Senator
Morse at 105 Cong. Ree 16399.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alluding to provisions of Section 8(b)^(7)(B) and 8(b)(7)(C), then under con-
sideration by the conferees, he said on the floor of the Senate (105 Cong. Rec. 15900) :
. picketing can continue for only 30 days.
Under our substitute if the result of the picketing is to deny the entry of
goods, ... an early election may be obtained by an employer-a right he does
not have today. If the union loses the election , the picketing must cease.
If the union lost that election, it could not picket for a year . So I think this
would protect the employer from this attack by the unions to put pressure on
the employer to force him to coerce his employees to join-the- union, because
otherwise he would get deliveries.
In other words, we say, in effect: "You can start picketing with anything
you have, with any members you have; but if the picketing results in stopping
deliveries or service employees from entering the premises, then there must be
an immediate election." Then if the union loses the election it may not picket
until a year later. [Emphasis supplied.]
Senator Kennedy's remarks clearly suggest that in the legislative view Section
8(b) (7) (B) and 8(b) (7) (C) were interlocked and designed, in combination, to have
the mutually complementary effect of providing an expedited election in given situa-
tions without regard to the hearing requirements of Section 9(c)(1), and then, on
the basis of the election, barring recognitional and organizational picketing for the
12-month period specified in Section 8(b)(7)(B). I hold, in short, that the elec-
tion of March 18 had the effect of barring picketing proscribed by Section 8(b)
(7) (B).8
The remaining question , then, is whether the picketing that began on May 3
had a forbidden object. In assessing the motive for the picketing, it would be a
mistake, in my judgment, to follow the course, urged by the Respondent at the
hearing, of ignoring the events that preceded it, including the aim of the picketing
activity between February 9 and March 18. The correct way to view the record
is in full perspective, and such an approach to an evaluation of the motivation for
the second picketing entails an evaluation of the Respondent's conduct that preceded
the election
Taking that course, it is clear that at least one object of the initial picketing was
to force Hested to recognize and enter into a contract with the Union As is
evident from the findings made above, the Union repeatedly sought contractual
arrangements with Hested even before the store was opened, and continued its
efforts to secure recognition at least as late as Graybill's request of Pascoe on
January 27 for "bargaining rights" for the Union. These efforts were implemented,
it is important to remember, by repeated picketing threats, on occasion veiled as
when Meyer told Pascoe on January 15 that a Great Falls establishment had been
brought "to its knees in half a day of picketing"; sometimes in plainer terms as when
Meyer told Milius on January 19 that the Union would picket Hested's Great Falls
store unless Hested and the Union reached an "understanding," and when Graybill,
on January 27, in effect visualized for Pascoe the possibility that if the Union were
not given "bargaining rights," it would "take matters into [ its] own hands," and
followed this with a statement that if Hested did not deal with the Union, the
organization would "have to picket" the Great Falls store. Against that background.
I am unable to attach any weight to the Union's self-serving disclaimers, whether in
8I find no merit in the Respondent's view, advanced at the hearing, that the election
was invalid because Section 102 77 of the Board's Rules and Regulations, governing ex-
pedited elections , vests discretion in the Regional Director to determine whether to hold
a preelection hearing. What the regulation prescribes, and what the Regional Director
did, are no more than what Section 8(b) (7) (C) permits I note, too, that under well-
established doctrine, there was no constitutional right to a preelection hearing Empire
District Council v. Millis, 325 U.S. 697 As the Supreme Court has pointed out* "At
times a preliminary decision by an agency is a step in an administrative proceeding. We
have repeatedly held that no hearing at the preliminary stage is required by due process
so long as the requisite hearing is held before the final administrative order becomes effec-
tive." Ewing V. My8tinger & Casselberry, 339 U.S. 594, 598. Without deciding whether
the Respondent would have been permitted to present proof in this proceeding that the
Regional Director 's determinations ( such as, for example, his unit definition) were wrong,
it may be noted that the Respondent was not denied an opportunity to offer or present
such evidence at the hearing in this case Finally, it may be noted as regards the election
that there is no basis in the record for any claim that the Regional Director acted with
caprice or otherwise abused his discretion.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL 57, AFL-CIO 511
Meyer's testimony or in its communications sent to or filed with the Regional
Director or the Board, that the Union had no purpose, prior to the election, of
seeking recognition.
As regards the picketing since May 3, Meyer gave testimony to the effect that
the Union wants nothing of Hested and has no desire to organize its employees or
to seek recognition; and that the picketing is "informational" in nature, undertaken
with the aim of informing the Great Falls public that the Hested, store there is "non-
union and . . . (has) no clerks' union," thus, according to Meyer, enabling the public
to distinguish between "working conditions" in Hested's store and those prevailing
in unionized establishments in Great Falls. According to Meyer, also, at one point,
the object of the picketing is to put Hested's Great Falls Store out of business.9
The force of this testimony is materially weakened, in my judgment, by the fact
that Meyer claims that the preelection picketing, too, was soley "informational" in
intent, although it is clear beyond doubt that an aim of that picketing was to compel
Hested to recognize the Union and to enter into a contract with the organization. Be
that as it may, Meyer's claims regarding the objectives of the second picketing activity
impose a large burden on one's credulity for other reasons, notwithstanding the
"informational" language of the signs; the fact that since the election, at least, the
Union has made no effort, putting the picketing aside, to secure recognition by
Hested or to organize the store's employees; and the Union's letter of March 30
to the Cascade County Trade and Labor Assembly (a document, by the way, that,
like Meyer's description of the Union's picketing aims, has a self-serving cast).
Apart from the fact that "working conditions" at Hested's store are not governed
by a contract with the Union, there is no evidence that there is any difference
between them and conditions prevailing in any other Great Falls establishments.
For all that appears, indeed, it may be that Hested's store has better "working
conditions," but, in any case, in the absence of evidence of such a difference, and
taking into account the Union's repeated efforts before the election to secure recog-
nition and the purpose of the picketing in that period, there is good reason to
entertain a large doubt, to say the least, of the plausibility of Meyer's claim that
the goal of the picketing is to make the public aware of any difference in "working
conditions."
But even if one assumes the existence of such a purpose, some aspects of Meyer's
own testimony support a conclusion that at least one aim of the second picketing
activity is the same as an object of the first. After voicing the claims described
above, Meyer was asked "on what terms . Hested [could] be relieved of the
picket," and, in reply, he initially stated (evasively in my judgment) that he "would
have to talk with counsel first"; and then, pressed about the matter, he testified that
the terms upon which the company could be relieved of the picketing "would be
up to Hested's, to say what they would want to do." This of itself is an intimation
that if Hested acceded to the Union's previous recognition demands, the picketing
would be discontinued, but this view of the matter is strongly bolstered by subse-
quent testimony by Meyer that Hested "could probably negotiate" and thereby effect
removal of the picket. Such negotiation, as Meyer also conceded, would entail
recognition of the Union and contractual terms, despite the fact that the Union has
no right to represent the employees. Palpably, the admission that Hested "could"
achieve discontinuance of the picketing through contract negotiations that the Union
has no status to conduct runs counter to Meyer's claim that the goal of the picketing
is to drive Hested's Great Falls store out of business, and to his disclaimers that
the Union wants anything of Hested or that it has any interest in organizing Hested's
employees or in recognition by the Company.io
The sum of the matter is that I do not credit these disclaimers, and that upon
consideration of the total record, I am persuaded that the Union's attitude is that
discontinuance of the picketing is, as Meyer put it, "up to Hested's"; that what has
been "up to Hested's" since May 3, as before the election, is a decision whether
9 The General Counsel adduced undisputed evidence that on several occasions the picket-
ing induced employees of other employers not to make deliveries to the store or to per-
form services there. I deem it unnecessary to enlarge upon this aspect of the record, for
the application of Section 8(b) (7) (B) does not turn upon such evidence. In other words,
if the aim of the picketing in question fell within the proscriptions of the section, it
matters not whether the picekting induced a failure to make deliveries or perform services.
10 In finding, as I do, that an object of the picketing since May 3 has been to force
Hested to recognize and bargain with the Union, I do not base the conclusion on testimony
by the assistant manager of Hested's Great Falls store to the effect that on one occasion
in June 1960 the man picketing the store told him that he would continue to picket
"[tlill you guys join up." There is ample support in the record for the conclusion reached
without taking the picket's remark into account.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to accede to the Union's demands for recognition and bargaining; that an object
of such picketing has been, and is, to force and require Hested to recognize and
bargain with the Union; and that by reason of such picketing within a period of 12
months following the election of March 48, 1960, the Union has violated Section
S (b) (7) (B) of the Act."
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union, set forth in section III, above, occurring in connection
with-the operations of Hested, 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. CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following conclusions of law:
1. Hested Stores Company is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
2. Retail Clerks International Association, Local 57, AFL-CIO, is, and has been
at all material times, a labor organization within the meaning of Section 2(5)
of the Act.
3. Retail Clerks International Association, Local 57, AFL-CIO, is not, and has
not been at any material times, certified as the representative of a unit of Hested
Stores Company's employees appropriate for the purposes of collective bargaining,
within the meaning of Section 9 of the Act.
4. The election held among employees of Hested Stores Company in Great Falls,
Montana, as found above, was a valid election under Section 9(c) of the Act, within
the meaning of Section 8(b) (7) (B) of the Act.
5. By picketing with the object of forcing and requiring Hested Stores Company
to recognize and bargain with Retail Clerks International Association, Local 57,
AFL-CIO, as the representative of the said employees, within 12 months following
the said election, as found above, the said Union has engaged in, and is engaging
in, unfair labor practices, within the meaning of Section 8(b) (7) (B) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
"I am mindful that the conclusion reached here as to the aim of the picketing since
May 3 differs from the holding of the United States District Court for the District of
Montana in Graham v . Retail Clerks International Association (Heated Stores Co.), 188
F. Supp. 847 (D.C. Mont ). The cited decision arose from an action brought by the
General Counsel under Section 10 (1) of the Act to enjoin the picketing pending final
adjudication by the Board in this proceeding . Finding that the preelection picketing had
the aim of forcing Rested to recognize the Union, and the employees to accept it, the
court , for reasons not necessary to describe here, came to the conclusion, which it termed
"not entirely free from doubt," that there was insufficient evidence that the object of
the second picketing was the same as the first. That conclusion is not, upon close in-
spection , irreconcilable with that reached here, for it does not appear from the court's
opinion that it had before it the testimony by Meyer to the effect that the basis upon
which the picketing could be discontinued "would be up to Hested's," and that the Com-
pany "could probably negotiate" and thereby achieve the removal of the picket.
Metropolitan Life Insurance Company and Insurance Workers
International Union , AFL-CIO, Petitioner. Case No. 8-RC-
4599. September 7, 1962
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Arthur R. Mattson, hearing
138 NLRB No. 64.