Retail Clerks Union, Local No. 1404, AFL-CIO

National Labor Relations Board - Board Decisions

Feb 20, 1963

140 N.L.R.B. 1344 (N.L.R.B. 1963)

1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rate of 6 percent per annum on the backpay so computed. Interest shall also
be computed in accordance with the Woolworth formula on the amount due and
owing for each calendar period. It will also be recommended that the Company
make available to the Board, upon request, payroll and other records to facilitate
checking the amount due the above-named employee.
On the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Ladies' Garment Workers' Union, AFL-CIO, Local 55 is a labor
organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Company has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. By causing the Company to discriminate against employees in violation of
Section 8(a) (3) of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (2) of the Act.
4. By restraining and coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act, the Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b) (1) (A) of the Act.
5. By refusing to hire Alfred Galina until he had attained good standing in the
Union and clearance from the Union's hiring hall, the Company has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
6. 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. ]
Retail Clerks Union, Local No. 1404, AFL-CIO and Jay Jacobs
Downtown , Inc. Case No. 19-CP-35. February 20, 1963
DECISION AND ORDER
On August 16, 1962, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown.]
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The 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 Respondent's exceptions. We therefore
adopt the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
140 NLRB No. 127.
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 1345
The basic facts are not in dispute. Jay Jacobs Downtown, Inc.,
hereinafter referred to as Jacobs, operates a chain of women's ap-
parel shops in the Seattle, Washington, area. On August 1, 1961,
Jacobs opened a new store in downtown Seattle.' Prior to this date,
the Respondent made various unsuccessful efforts, described in detail
in the Intermediate Report, to persuade Jacobs to sign a collective-
bargaining agreement with the Respondent and to persuade the store
employees to join the Respondent. On December 7, 1961, the Respond-
ent sent a letter to Jacobs stating that it no longer sought an agree-
ment but would begin picketing on December 11, to inform the
public " ... that you are opposed to Labor Unions." The letter also
advised Jacobs that the Respondent would try to prevent interruption
of deliveries by notifying the Teamsters Union to instruct its members
to disregard the pickets. The picketing commenced on December 11
and continued until May 4, 1962, when it was enjoined by the U.S.
District Court.
The picket signs carried two different legends. One invited cus-
tomers to shop at a group of stores listed in the sign. The other read
as follows :
Jay Jacobs Non-Union. Please do not patronize. Help us pro-
tect and better our wage standards and working conditions.
Shop at other union stores. Retail Clerks Union, AFL-CIO,
Local 1404 B.
No representation petition has ever been filed.
The Trial Examiner found that the picketing was for a recogni-
tional or bargaining object; that the picketing continued for more
than 30 days without a representation petition having been filed; that
"an effect" of the picketing was to interrupt deliveries and to cause
work stoppages within the meaning of the publicity proviso to Sec-
tion 8(b) (7) (C) of the Act; and therefore that the picketing was un-
lawful under Section 8(b) (7) (C).
As the Respondent did not except to the Trial Examiner's finding
that its picketing was for a recognitional or bargaining object, and in
view of the events which preceded as well as those which accompanied
the picketing,2 we find initially, in agreement with the Trial Ex-
aminer, that the Respondent's picketing was for an object proscribed
by the Act.
We further find that the Respondent's picketing, although for a
recognitional or bargaining object, was for "the purpose" of truth-
fully advising the public that Jacobs did not employ members of, or
have a contract with, a labor organization and, therefore, that such
picketing fell within the ambit of the second proviso to Section
I Although the new store was opened on August 1, remodeling continued until sometime
after December 11, when the Respondent began picketing.
2 See Intermediate Report.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(b) (7) (C). We rely on the facts that: The pickets were instructed
to picket only at the customer entrances to the store and, if asked, to
inform drivers and other employees that the picketing was "advertis-
ing picketing"; picketing actually took place only at the customer en-
trances to the store 3 and the entrance reserved exclusively for use by
Jacob's employees was never picketed; the picket signs were addressed
solely to the public and the legends on the sign embodied in substance
the language of the publicity proviso; and the Respondent did not
engage in any conduct which was inconsistent with the purpose of in-
forming the public that Jacobs was nonunion. Moreover, in this
connection, we also deem it significant that before the picketing began
the Respondent notified two Teamsters locals that their members were
free to cross the picket line, and that when the Respondent discovered,
in April, that construction workers had declined to enter the store to
finish the remodeling job, it sent telegrams to the Seattle Building and
Construction Trades Council and to Jacobs stating that the picketing
was not intended to disrupt deliveries or the performance of work
on the premises. Further, the Respondent instructed the pickets to
tell truckdrivers that the picketing was not intended to interfere
with pickups and deliveries and to tell Jacobs' employees that its
picketing was "advertising picketing" and that "they should keep
working." It is thus clear, and we find, that the Respondent's picket-
ing was informational in nature and protected by the publicity proviso
unless an effect of the picketing was to interrupt deliveries or to cause
work stoppages within the meaning of the second proviso to Section
8(b) (7) (C) .
We find, however, in disagreement with the Trial Examiner, that
the Respondent's picketing did not have the statutory "effect." In
finding that the picketing had such an effect, the Trial Examiner re-
lied on three incidents which are described in detail in the Interme-
diate Report. The first was the refusal of a glazing contractor's
employees to cross the picket line for the purpose of installing two mir-
rors on a column in the store; the second was the delay from Friday
to Sunday in the repair of some floor tiles; and the third was a re-
fusal by a driver to deliver a shipment of electric light bulbs for use
in the store. In Barker Bros. Corp.,4 the Board held that the proper
test in determining whether delivery interruptions or work stoppages
at retail establishments are sufficient to remove the protection of the
second proviso is the "actual impact" on the picketed employer's busi-
ness. The question, we said, is whether the picketing has "disrupted,
interfered with, or curtailed" that business. In the instant case, the
picketing continued for a period of approximately 5 months and dur-
8 These entrances were also used for deliveries
4 Retail Clerks Union Local 34 et al . ( Barker Bros . Corp. and Gold's, Inc ), 138 NLRB
478 See also Retail Clerks International Association , Local 57, AFL-CIO (Hested Stores
Company ), 138 NLRB 498.
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 134-7
ing that time there were only three relatively minor refusals by em-
ployees of other employers to make deliveries or perform services for
Jacobs. There is no evidence in the record to indicate that Jacobs'
business was "disrupted, interfered with, or curtailed" as a result of
the interruptions of deliveries and work stoppages, or that the ab-
sence of mirrors, electric light bulbs, or the temporary absence of
floor tiles had any "actual impact" on Jacobs' business. Nor is this
result surprising in view of the Respondent's extensive efforts (de-
scribed supra) to insure that deliveries to Jacobs would continue not-
withstanding its picketing activities. Indeed, Jacobs himself testified
that no delivery of merchandise destined for resale had ever been pre-
vented or delayed because of the picketing, and that during the first
quarter of 1962, while the picketing was going on, approximately
$100,000 in merchandise was delivered to the store.
In light of all the foregoing, we find, in disagreement with the Trial
Examiner, that the above-described interruptions of deliveries and
work stoppages do not constitute "an effect." 5 As the picketing here-
in was informational and did not have the proscribed effect, we find
that it did not violate Section 8(b) (7) (C). We shall therefore dis-
miss the complaint.'
[The Board dismissed the complaint.]
The Trial Examiner also found that the picketing resulted in three additional in-
stances of interruption of deliveries or services , namely a delay in the repair of a stair
tread inside the store , a delay in the completion of some tile work outside the store, and
a refusal to deliver a shipment of clothing tags However , the Trial Examiner did not
rely on these incidents in finding a violation on the ground that the decision not to cross
the picket line in each case was made by a "high -level" supervisor . The Trial Examiner
construed the term "individual" In the publicity proviso of Section 8 ( b)(7)(C) as it has
been construed in Section 8(b) (4) to include only rank-and-file employees and low-level
supervisors . See Local Union No 505 , International Brotherhood of Teamsters, etc
(Carolina Lumber Company ), 130 NLRB 1438 In the absence of exceptions , and as in
any event, even if these incidents were also relied on in determining whether the Respond-
ent's picketing had the proviso effect, we would nonetheless find that the total impact of
the picketing was not sufficient to remove the protection of the proviso , we deem it un-
necessary to consider the Trial Examiner 's construction of the Act in this respect
i Our dissenting colleague takes the position that picketing is informational only in the
absence of independent evidence of a recognitional or organizational object and that any
interruption of deliveries or services constitutes "an effect" under the publicity proviso.
A majority of the Board rejected these views in Local Joint Executive Board etc (Crown
Cafeteria ), 135 NLRB 1183 , and in Barker Bros Corp , supra , footnote 4. We adhere to
our decisions in those cases Nor can we accept our dissenting colleague ' s argument that
the picketing in this case was not informational because the legend on the picket signs,
in urging customers to shop at unionized stores , went further than is permitted by the
publicity proviso and because the statement that Jacobs was "anti -union" in the instruc-
tions to the pickets was untruthful In the former connection , we note that the kind of
picketing contemplated by the publicity proviso inherently persuades potential customers
to shop elsewhere We do not regard an explicit statement of what is implicit in all
informational picketing as contaminating what would otherwise be lawful proviso picket-
ing See II Leg. Hist. 14-27. We also reject our dissenting colleague's view that the
picketing was untruthful since , apart from other considerations , the picket signs them-
selves were clearly truthful and there is nothing in the record to show that the pickets
actually communicated any untruthful statements to members of the public Moreover,
we seriously question whether a statement that Jacobs was "anti -union ," viewed in the
context of the lengthy dispute between Jacobs and the Respondent over recognition, can be
considered " untrue" for the purposes of the publicity proviso.
681-492-63-vol. 140-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER LEEDOM, dissenting :
Unlike the majority, I would find, in agreement with the Trial
Examiner, that the Respondent's picketing violated Section
8(b) (7) (C) of the Act. My colleagues of the majority do not deny
that the picketing was for a recognitional or organizational object.
They find, however, that the picketing was protected by the publicity
proviso. This finding, I believe, does violence to both the language of
the statute and the intent of Congress.
In the first place, the picketing herein, in my view, was not informa-
tional in nature and, therefore, did not come within the terms of the
publicity proviso at all. The publicity proviso carves out for informa-
tional picketing a narrow exception to the general limitation on recog-
nitional and organizational picketing which is contained in Section
8(b) (7) (C). However, as I have stated elsewhere,' picketing is
informational and protected by the proviso only if the language of the
picket sign is consistent with the language of the proviso and there is
no independent evidence of either a recognitional or organizational
object. I believe the picketing in the instant case failed to meet both
of these requirements.
Here, as found by the Trial Examiner, during a period of 4 months
prior to the start of picketing the Respondent conducted a sustained
campaign designed to gain recognition from the Employer and to
organize its employees. In my opinion, this conduct establishes beyond
doubt that the purpose of the Respondent's picketing was not to advise
the public that Jacobs was nonunion, but rather to gain recognition
and to organize Jacobs' employees. Nor can the Respondent's self-
serving letter prior to commencement of the picketing, disclaiming
recognitional or organizational objects, be effective to nullify months
of activity proving the contrary .8
Further, the picket signs themselves, in my view, show that the
picketing does not qualify for the protection afforded by the publicity
proviso. The proviso authorizes picketing for the purpose of truth-
fully advising the public that an employer has no union contract and
does not employ union members. The picket signs here not only stated
that Jacobs was nonunion but went considerably further by asking
the public to shop elsewhere and by listing the stores where it might
shop with the Respondent's approval. While the proviso allows a
union to tell the public that the picketed employer is nonunion, it
was never intended, in my opinion, to provide an opportunity for
unions to publicize the names of unionized competing employers.
' See the dissenting opinion in Local Joint Executive Board etc (Crown Cafeteria),
135 NLRB 1183.
8 Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc (Stork Restaurant, Inc ),
130 NLRB 543, 546, footnote 4; Supplemental Decision and Order, 135 NLRB 1173
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 1349
I would also find that the picketing was not protected by the proviso
for the additional reason that "the purpose" of the picketing was not
to "truthfully" advise the public that Jacobs had no union contract
or did not employ union members. The Respondent's written instruc-
tion to its pickets stated that they were to inform the public that it
should not patronize Jacobs because of its "anti-union attitude." How-
ever, the record does not show a single "anti-union" act on Jacobs'
part. On the contrary, Jacobs repeatedly stated to union agents that
he was perfectly willing to recognize the Union in the event that it
should represent a majority of his employees. In my judgment, the
"truthfulness" of the purpose to picket only to advise the public that
the Employer does not have a union contract is quite clearly refuted
when the union instructs the picketers to advise the public that the
employer is also "anti-union." The "truthfulness" test is not con-
fined to language in the picket sign as I read the statute, but extends
also to the circumstances surounding the picketing.
But even assuming that the picketing herein came within the ambit
of the publicity proviso, I would still find that it was unlawful because
it was accompanied by the proviso effect. The record shows that, on
three different occasions, individuals did not deliver goods or perform
services for Jacobs because of the picketing.' The majority finds that
these delivery stoppages and work delays do not constitute "an effect"
as contemplated by the publicity proviso because there was, in its view,
an insufficient impact on the Respondent's business. For the reason
stated in the dissent in Barker Bros.,10 I believe that such delivery in-
terruptions and work stoppages do constitute "an effect" of the picket-
ing for the purposes of Section 8(b) (7) (C). I would therefore find
that the protection of the publicity proviso was unavailable to the
picketing herein.
For the foregoing reasons, and as the Respondent picketed for more
than 30 days without a representation petition having been filed, I
would find that the Respondent violated Section 8(b) (7) (C) and
would enter an appropriate order.
9In view of the fact that I consider these work stoppages and interruptions of de-
liveries to be sufficient to remove the protection of the publicity proviso from the picket-
ing, I find it unnecessary to reach the question , considered by the Trial Examiner,
whether high-level supervisors are "individuals" within the meaning of Section 8(b) (7) (C)
and, therefore , whether the inducement of such supervisors constitutes "an effect" pro-
scribed by the publicity proviso.
10 138 NLRB 478.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before Trial Examiner Martin S. Bennett at Seattle, Wash-
ington, on June 14, 15, and 18, 1962. The complaint, issued May 2, 1962, and based
upon a charge filed January 11, 1962, alleges that Respondent Retail Clerks Union,
Local No. 1404, AFL-CIO, has engaged in unfair labor practices on and after
December 11, 1961, within the meaning of Section 8(b) (7) (C) of the Act by picket-
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the premises of Jay Jacobs Downtown, Inc., the Charging Party, with an object
of recognition, and without filing a petition under Section 9(c) of the Act, this
having an effect of inducing individuals employed by other persons not to perform
services in the course of their employment.
Oral argument was presented at the close of the hearing by Respondent and a brief
has been submitted by the General Counsel. On July 17, the Charging Party moved
that its counsel be permitted to make an appearance and participate herein. No
objection has been received, the motion is hereby granted, and the appearance duly
noted.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Jay Jacobs Downtown, Inc., herein called Jacobs, is a Washington corporation
which is engaged in the sale at retail of women's apparel at three outlets in the
Seattle, Washington, area. During the year 1961, this concern enjoyed retail sales
in excess of $600,000; it also purchased and received materials and supplies valued
at approximately $400,000 from outside the State of Washington. I find that the
operations of Jacobs affect commerce within the meaning of Section 2(6) and (7)
of the Act and that it would effectuate the purposes of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Retail Clerks Union, Local No. 1404, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act. The record discloses some references to,
Respondent as Local 1404-B, but Respondent concedes for the purpose of this case
that they are one and the same.
M. THE UNFAIR LABOR PRACTICES
A. The issue
It is undisputed that Respondent picketed several stores operated by Jacobs, and
particularly the new downtown Seattle store, from December 11, 1961, through
May 4, 1962, when the picketing was enjoined by a U.S. district judge. Respondent
has at no time filed a petition within the meaning of Section 9(c) of the Act.
The General Counsel contends that this picketing had an object of recognition or
bargaining within the meaning of Section 8(b)(7)(C) of the Act and a key issue
is whether an effect of the picketing was to induce individuals employed by other
persons not to deliver goods to or perform services at the Jacobs premises in the
course of their employment. If this is so, the second proviso of this section of the
Act, to which this is an integral part, would be taken out of the picture. Respondent
also contends that "effect" must be construed as "intended effect"; it contends that in
the absence of such intent and in the presence of certain affirmative action under-
taken by Respondent to limit such effect, the latter portion of the second proviso
does not come into play.
The record indicates that Respondent has never been certified as the representa-
tive of the employees in question. It may also be noted that there is some question
whether the picketing, in some respects, constituted publicity picketing within the
meaning of the proviso in that it goes beyond advising the public that Jacobs did not
employ members of or have a contract with Respondent.
B. Sequence of events
Jacobs has three stores in the Seattle area, one downtown, a second in the North-
gate section of the city, and a third in Aurora Village near the city limits; this case
is chiefly concerned with the downtown store. For many years, Jacobs operated a
small apparel shop in downtown Seattle. As Secretary and Treasurer John Gentile
of Respondent Union put it, the older store was a very small store and Respondent
did not represent any of the employees. Other evidence discloses that about 4 years
before the time material herein, Mrs. Zee Usbeck Lamberton, a business representa-
tive of Respondent, contacted Jacobs about organizing the former store, but dropped
the matter.
On or about August 1, 1961, Jacobs opened the new downtown store and trans-
ferred his operation to this location approximately one-half block distant from the
old store. This store was in the process of being remodeled pursuant to a contract
between Jacobs and a general contractor, Schuck Construction Company, which had
subcontracted various operations to five subcontractors. Because of an unrelated
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 1351
labor dispute, the projected completion date of the remodeling had been pushed
back from September 1 to approximately Christmas 1961. Thus, as of August 1,
when the store opened for business, various operations remained to be performed.
More particularly, when the picketing described below commenced on December 11,
the store required certain metal trim, tilework, mirrors, painting, floor covering, and
minor stair repair.
It is undisputed that for approximately 4 months prior to December 11, Respond-
ent attempted to organize these employees. I find that Jacobs was repeatedly con-
tacted by representatives of Respondent during the period from August through
November in an effort to get him to recognize and sign a contract with Respondent
covering this new store, as well as for the purpose of forcing his employees to ac-
cept Respondent as their bargaining representative. The record discloses the fol-
lowing activity.
About a week after August 1, Business Representative Lamberton 1 came to the
store and, as Jacobs uneontrovertedly testified, spoke privately with him. She
asked if she could speak with the 12 or 13 salesgirls at a store meeting or at a dinner
meeting "about them all joining the Retail Clerks Union." Jacobs told her that the
salesgirls were or should be busy with customers, but that he would relay her invi-
tation for a dinner or postdinner meeting to them; he did so.
As Jacobs uncontrovertedly testified, Lamberton visited the store many times that
month. She appeared a few days after the first talk and stated that inasmuch as
Jacobs had a new store, "You must now become Union"; that unlike the previous
store, "here we must insist" ; and that "your competitors insist that you become
Union." Jacobs replied, and the record demonstrates no subsequent change from
this position, that "I am perfectly satisfied if our employees so desire It is entirely
up to them. If they want to be Union, why, it's fine with me." I find that there is
no evidence that these or any other visits to the store were made for any other
purpose?
On August 16, Jacobs accepted Lamberton's invitation to meet with her and
Gentile in the union office. Gentile immediately announced, as Jacobs testified, that
Jacobs "must become Union." Jacobs replied that he was entirely willing to do so
"if our employees so desire" and asked if Lamberton had contacted the employees.
She replied that she was making "every attempt to do so." Gentile handed Jacobs
a form union contract for his inspection and consideration. Jacobs asked some
questions and pointed out that he was then paying higher salaries than those called
for by the contract. He conceded that some of his salespersons in another store
might be union members and repeated that union membership was a matter for de-
cision by the employees.
Gentile and Lamberton pointed out that there were health and welfare benefits for
unionized employees. Jacobs asked what these benefits were and the reply was
that the union representatives preferred to state these benefits to the salesgirls and
not to Jacobs. Jacobs asked if other unions would be involved. The reply was in
the affirmative and Mr. Lamberton was brought into the room. He announced that
his union would take jurisdiction over telephone operators, package openers, and
cashiers and that it had a health and welfare plan superior to that of Respondent.
Jacobs pointed out that his was a small operation without a telephone operator. A
day or two later, Mr. Lamberton sent Jacobs a sample contract together with a
health and welfare program.3 Jacobs observed and conversed with Mrs. Lamberton
in the store on a number of occasions during August, September, October, and
November. At all times Lamberton requested, as Jacobs uncontrovertedly testified,
that "We want the girls to join the Union." At one point, Jacobs prevented her from
conversing with salesgirls on the sales floor but did check out for her the informa-
To be distinguished from her husband who is business agent of a union identified as
the Freight Packers local, apparently a Teamsters local in Seattle.
s Gentile , who is Lamberton 's superior, testified at one point, inter alia, that Lumber-
ton "probably was in there to buy a dress." One may well express skepticism that a union
business agent would patronize an unorganized establishment and ignore its nearby
organized neighbors, but, in any event, Gentile ultimately admitted that Lamberton ".. .
was in the store for organizational purposes because we are interested in organizing
the store"
3 While Gentile claimed that he did not ask Jacobs to sign a contract, it is clear and
I find that by handing Jacobs the contract , and by discussing the health and welfare plan,
Respondent was seeking Jacobs ' signature to a contract at that time or in the near future
Gentile admitted that Jacobs took the contract with him on this occasion and Lamberton
admitted that she was attempting to organize these employees until December 7 Re-
spondent does not contend that it was interested in organizing the employees but not in
achieving recognition.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion she wished, namely, their correct addresses and telephone numbers. He in-
formed Lamberton that her dinner invitation had been relayed to the girls and told
her "many times, that I would be glad to sign up with the Union, if our girls would
do so, but it was entirely up to them."
Jacobs conversed further with Lamberton in October. At one talk, he told her
that he had been in touch with one Dorsey, counsel for the Seattle Retailers Asso-
ciation, and that Dorsey might contact her in the future .4 Lamberton replied that
this would be the "easiest way to handle things." Later that month, Lamberton
came in again and complained that Dorsey had not contacted her.
In November, Lamberton appeared at the store and again complained to Jacobs,
as he uncontrovertedly testified, that Dorsey had not contacted her. She said that
"she was making no headway with the girls, that this must be handled immediately,
otherwise, it would be just too bad." Jacobs replied that "there was nothing I could
do with the girls. I couldn't force them to come up to her union." Lamberton re-
plied, "Well, you'll see" and left .5
Gentile testified that Respondent concluded in December that it would be unable
to organize the store. That he regarded this, in part at least, as organization from
the top down, is evidenced by his testimony that his conclusion was based upon a
belief that Jacobs was "just fishing around and that there would be no possible
chance as far as the organization of the employees was concerned; so we decided
to do some advertising for our members and let them know about it." Similarly,
Lamberton admitted that she had attempted to organize the employees prior to
December 7, 1961, and that this had been unsuccessful. She claimed, as does Re-
spondent, that no such efforts were made after December 7.
On December 7, Gentile sent the letter appearing below to Jacobs. He also
testified that as of that date he contacted the respective secretaries of two Teamsters
locals in the area, informing both that pickets were being placed at Jacobs' store
only "for advertising purposes and to inform any of his drivers that they should
call the Union and ask about the pickets, that they were free to deliver all deliveries."
I find that these talks took place before the picketing started. The letter to Jacobs
states as follows:
Recently when you employed Union members we contacted you about a
collective bargaining agreement relating to the wages, hours and working con-
ditions of your employees.
Presently, we are informed that you do not employ any Union members.
Under these circumstances, we are advising you that we do not desire any con-
tractual relations with you.
Commencing December 11, 1961, however, we shall commence picketing
your places of business for the sole purpose of informing Union members, their
families and the public generally that you are opposed to Labor Unions In
doing this we will attempt to protect you against stoppage or curtailment of
deliveries to and from your places of business. We will do this by requesting
the Teamsters Union to instruct its truck drivers and delivery men to disregard
our pickets.
On December 11, picketing commenced at the front entrance of Jacobs' downtown
store as well as at his other locations. It was abandoned at Aurora Village on
December 27 but continued at the other two locations until May 4 when it was en-
joined. The pickets at the downtown store carried placards which reads as follows:
Jay Jacobs Non-Union. Please do not patronize. Help us protect and better
our wage standards and working conditions. Shop at other union stores.
Retail Clerks Union, AFL-CIO, Local 1404B.
The record also demonstrates that 3 days later the pickets donned jerkins. Printed
thereon was the phrase "Shop at these stores" and below were listed the names of
other Seattle stores which presumably are organized by Respondent.
While there are three entrances to this downtown store, one of which is a mezza-
nine entrance from an adjoining office building and not used by customers, there is no
loading-dock-type of entrance. Many deliveries, apparently of smaller parcels, are
made through the principal front entrance which is used by customers and, in large
4At the August 16 meeting. Gentile had proposed that Jacobs contact Por,ev with an
object of coming under the established health and welfare program of this orerntzatinn
5I believe it well established that an employer who recognizes a labor organization with-
out proof of majority representation, in what is known in industrial relations narlnnce as
organization from the top, has engaged in unfair labor practices within the meaning of
Section 8(a) (1) and (2) of the Act
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 1353
measure, by employees as well. It would seem that the major part of Jacobs' ship-
ments of merchandise came through without delay in that they were made by Railway
Express drivers who are affiliated with a labor organization other than the Teamsters.
After the start of the picketing, Respondent asked the Seattle Labor Council to
put Jacobs on its "We do not patronize" list and this was done. According to
Lamberton, at no time were strike sanctions asked or given.
There was little contact between the parties after the picketing started. However,
according to Jacobs and I so find, he encountered Gentile in the vicinity during
February. Both being golfers, Gentile suggested that they might play a game
someday "and talk about doing something about these pickets." 6
The record discloses that on April 24 Respondent sent the following wire to the
Seattle Building and Construction Trades Council:
Our picketing program at Jay Jacobs stores is solely for informational pur-
poses and is not intended to cause any of the members of any of your affiliated
unions to decline to enter upon such premises or to decline to perform the work
they have been assigned. Please advise all of your affiliates of this communica-
tion as soon as it is possible. Thank you.
On the same day, Respondent sent a wire to Jacobs stating that it had been advised
by Board agents that the picketing was considered to be unlawful because certain
construction or remodeling craftsmen had refused to enter the stores after observing
the pickets. The wire further stated that there was no intention to interfere with
the work of any employees and that the picketing was directed solely toward members
of the general public and for informational purposes only. It concluded by in-
corporating the text of the wire sent that day to the Building and Construction Trades
Council. As set forth, picketing continued until halted by injunction on May 4.
C. Object of the picketing
Initially, I find that for months Respondent had been attempting to obtain recogni-
tion as the bargaining representative of these employees. Having achieved little or
no success with the employees themselves, Respondent sought to accomplish this
through the medium of the employer, without going through an election by secret
ballot pursuant to Section 9(c) of the Act.
It is the position of Respondent that it commenced publicity picketing on Decem-
ber 11 within the meaning of the second proviso of Section 8(b) (7) (C) to truthfully
advise the public including consumers that Jacobs did not "employ members of, or
have a contract with a labor organization."
Respondent further contends that any evidence of the effect of this picketing which
would remove the protection of the first part of the proviso must be restricted to
evidence of "intended effect." This latter contention may be readily disposed of.
Congress well knew the difference between "effect" and "intended effect." This very
same section of the Act condemns picketing with "an object" of recognition under
these circumstances. I deem it a fair statement that "object" is synonymous with
"intended effect." Congress could readily have used the phrase "an object" in lieu of
"an effect" had this been its purpose. This contention is therefore rejected.
The pickets regularly included Gentile and Mrs. Lamberton as well as, on occasion,
Mr. Lamberton. As Gentile uncontrovertedly testified, the notice appearing below
was given to each picket for signature and returned to Respondent. The notice stated:
INSTRUCTIONS TO PICKETS
You are now participating in an important advertising program directed at
JAY JACOBS Womens Apparel Store. It is essential to the success of this
program that the following instructions be faithfully followed:
1. At all times you are to engage in peaceful picketing . You are forbidden
to engage in any altercation , argument or misconduct of any kind.
2. You are to walk back and forth on the sidewalk in front of the consumer
entrance to JAY JACOBS store. Stay away from the entrances to any other
e Gentile testified that Jacobs said at one of two chats, "Maybe we can take these pickets
off here," to which Gentile replied, "That depends upon things " In my observation,
Jacobs had the superior recollection of these events whereas Gentile was demonstrably an
excitable witness. In fact, Gentile originally was confused as to the date of the August 16
meeting in the union office, placing it in November. Jacobs' version has therefore been
credited.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store. As far as shopping centers are concerned, you will be given special
instructions for picketing in such locations.
3. You are not to picket in front of or in the area of any entrance of the
store which is apparently set aside for the use of store employees and delivery
men. As noted above, you are to limit your picketing to the consumer entrances
to the store.
4. If you are asked by any truck drivers who are making pickups or deliveries
what the picketing is about, you are to advise that it is advertising picketing, and
that it is not intended to interfere with pickups or deliveries (i.e that they are free
to go through). Similarly, if you are asked by store employees what the picket-
ing is about, you are to tell them that it is advertising picketing and that they
should keep working.
5. If you are given handbills to distribute, please distribute them in a courteous
manner, and if the customers throw them away on the ground, please see that
they are picked up at once, and that the area is kept clean
6. You are forbidden to use intoxicating beverages while on duty or to have
such intoxicating beverages on your person
7. If a store official or any other party should complain to you about the
picketing, advise them that you have your instructions and that their complaints
should be registered with the undersigned Union Representative.
8. You are forbidden to make any statements or express any opinions as to
the picketing program, other than to state that it is advertising picketing, and
that the Retail Clerks are asking the public not to shop at JAY JACOBS
STORES, because of JAY JACOBS anti-umon attitude. Further discussion is
forbidden.
These instructions should answer most of your questions concerning this
program However, if you have any additional questions, or if specific prob-
lems arise which require additional instructions, please call the undersigned.
RETAIL CLERKS LOCAL No. 1404-B,
By JOHN GENTILE,
(Secretary-Treasurer)
522 Denny Way
(Address)
Ma. 4-5530
(Phone Number)
I the undersigned picket have read the above instructions and will follow
the above instructions.
--------------------
(Picket's Name)
I find that a preponderance of the evidence supports the contention of the General
Counsel that at all times following the opening of Jacobs' new store in Seattle,
Respondent sought to organize the employees and obtain recognition as their bargain-
ing representative despite its disclaimer of December 7 and, more particularly, that
an object of the picketing which commenced on December 11, 1961, was to force
or require Jacobs to recognize or bargain with Respondent as the representative of
his employees.
(1) Respondent's representatives admit that prior to the disclaimer notice of
December 7 Respondent had sought a collective-bargaining contract covering the
employees of Jacobs; indeed, the disclaimer notice admits this. I find, therefore, that
for a period of 4 months prior to December 7 Respondent had sought to require
Jacobs to bargain with it. There is evidence of many visits from August through
November, apparently unsuccessful, in an effort to organize the employees at the
store. In August, Business Representative Lamberton told Jacobs that the Union
"must insist" that he be organized And, still in Aueust, Gentile told Jacobs that he
"must become Union." In November, Lamberton flatly told Jacobs, when he pro-
tertAd that he could not force his employees into the Union, that it "would be just too
bad" and also that "you'll see."
(2) Gentile admitted on the witness stand at one point that Respondent had such
an objective, testifying, as the General Counsel points out, that Respondent presently
has an organizational objective in that "we are interested in organizing the store."
(3) As found, Jacobs exchanged greetings with Gentile in February, approxi-
mately 2 months after the picketing had started and Gentile made reference inter
alia, to having a "talk about doing something about these pickets" If this nicketing
was solely consumer oriented. there was nothing in this area to discuss with Jacobs.
The only meaningful action that Jacobs could take was to recognize Respondent
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 1355
(4) The foregoing is reinforced by the language on the signs carried by the
pickets. The signs, it is true, state, consistently with the second proviso of Section
8(b) (7) (C), that Jacobs is nonunion and urge consumers to patronize other stores
which are union stores.
But the signs go on to ask for help to "better our wage standards and working
conditions." It is unchallenged herein that Jacobs pays wages above the union scale,
thus tending to negate any claim of "standards" picketing. And while Jacobs ap-
parently did not have a health and welfare plan, there is no showing or claim that
the union wage scale, plus an hourly figure representing health and welfare pay-
ments, would total more than Jacobs' existing wage scale? In a similar case where
it evaluated an even stronger disclaimer letter, the Board has found that a union
did have an object of recognition or bargaining in its picketing. Department &
Specialty Store Employees' Union, Local 1265, AFL-CIO (Oakland G. R. Kinney
Company, Inc.), 136 NLRB 335. See also Local 1199, Drug and Hospital Em-
ployees Union et al. (Janel Sales Corporation), 136 NLRB 1564.
(5) In paragraph 8 of its instructions to pickets, Respondent forbade them to
comment on the picketing program except to state that it was "advertising picketing,
and that the Retail Clerks are asking the public not to shop at JAY JACOBS
STORES, because of JAY JACOBS ANTI-UNION ATTITUDE .
There is not an iota of evidence in this record that Jacobs is "anti-union" in the
well-understood sense of the term. This record discloses only that he refused to
commit an unfair labor practice by recognizing a minority union and that he agreed
without reservation to recognize Respondent if the majority of his employees so
desired. The record is singularly silent as to any evidence of unlawful motivation or
of interrogation of employees on his part. Indeed, he even cooperated with Re-
spondent by verifying the correct names and addresses of his employees.
The inference is therefore warranted that the phrase "anti-union attitude" is un-
truthful and that in Respondent's eyes it means refusal or failure to unlawfully
recognize and enter into a contract with Respondent. As a result, this is entitled
to weight in evaluating Respondent's true objective in its picketing, and is evidence
that an object thereof was to achieve recognition.
D. Effect of picketing
There is substantial evidence to support the contention of the General Counsel
that "an effect" of the picketing was to induce individuals employed by other per-
sons "not to perform any services" in the course of their employment. Initially,
it may be noted, as Respondent urges herein, that I construe "individual" in terms
of Section 8(b)(7)(C) to mean precisely what the Board says it means in terms
of the Section 8(b) (4) proviso which is substantially identical, except for the permis-
sion under Section 8 (b) (7) (C) to engage in picketing.
Stated otherwise, there is nothing in the congressional history that I am aware
of to indicate that the word "individual" was intended to have a different meaning
under Section 8(b) (7) (C) than under Section 8(b) (4). Thus, the word "individual"
is interpreted here in the light of such Board decisions as Local Union No 505,
International Brotherhood of Teamsters etc. (Carolina Lumber Company), 130
NLRB 1438; Local 294, International Brotherhood of Teamsters etc. (Van Trans-
port Lines), 131 NLRB 242, enfd 298 F. 2d 105 (C.A. 2); Local 324, International
Union of Operating Engineers, AFL-CIO (Brewer's City Coal Dock), 131 NLRB
228; Upholsterers etc., Local No 61 (Minneapolis House Furnishing Company),
132 NLRB 40; Excavating and Building Material Chauffeurs etc. Local 379, etc.
(Consalvo Trucking Inc.), 132 NLRB 827; and Wholesale Delivery Drivers Local
848 (Servette Inc ), 133 NLRB 1501.
(1) W. P. Fuller Company has a subcontract from Schuck Construction Com-
pany for the installation of certain metal and glass work in the store. As of January
1962, the job was complete except for the replacement of two mirrors on a column.
Early in January, as glazier Aaron Klinga testified, and I so find, he and another
glazier, Edwards, were sent by Glazing Superintendent Herzog to replace these
two mirrors at the store. Klinga had observed the picket line approximately 1 week
before and as a result he and Edwards did not enter the store. This took place
at 8 a.m. and the store normally opens at 10a.m.
7It may be argued that to the extent the sign goes into Jacobs' wage standards, it goes
beyond the language of the proviso permitting a labor organization to truthfully publicize
that an employer (1) does not employ union members, or (2) does not have a union con-
tract See Local 3 , International Brotherhood of Electrical Workers , AFL-CIO (Jack
Picoult and Al Picoult d/b/a. Jack Picoult), 137 NLRB 1401.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Khnga testified that he telephoned his union hall and asked to talk with the busi-
ness agent. The latter was not in and Klinga was connected with Business Agent
Wolf of the Tile Layers Union. The Glaziers and the Tile Layers share an office
and the two business agents have adjoining desks. It would also seem that both
are affiliated with the Building Trades Council.
Klinga asked Wolf, as he uncontrovertedly testified, if the picket line was
sanctioned by the Building Trades Council and Wolf replied that it was. Klinga
relayed this information to Edwards, his coworker. As a result, the two glaziers
left the area, proceeded to another job, and returned to the Fuller shop at noon.
They did not ascertain the cause of the labor dispute and there is no contention
that under the language of the proviso to Section 8(b) (7) (C) they were required to
do so.
Klinga is supported here by the testimony of Glazing Superintendent Herzog of
the Fuller Company who uncontrovertedly testified that the two men telephoned
him and reported that they could not cross the picket line because it was sanctioned.
Herzog further testified, and I find, that approximately 1 week later he sent two men
other than Klmga and Edwards to the same job; he did not recall their names and
his records did not disclose this information. These men in identical fashion tele-
phoned back that they were unwilling to cross this sanctioned picket line. Herzog
then directed them to return to the shop and placed them on another assignment.
The mirrors were not installed until 2 days after the picket line was removed pur-
suant to a court injunction.
It would seem that Herzog may be more than a minor supervisor and, accord-
ingly, is not an individual within the meaning of the cases cited above, although the
record does not permit a precise finding that he is not such an individual. In any
event, although the testimony of Herzog is hearsay as to the second crew he sent,
I am convinced, and I find, that this testimony merits credence herein. This is so
because the circumstances of the second incident are of an identical pattern with
those of the first, with the picketing being carried on and having an identical effect
upon these employees. This is therefore the type of evidence to which reasonable
men may well give credence. It has accordingly been credited as evidence of the
effect of the picketing on these two other employees employed by Fuller.
(2) Mortrude Floor Company is a floor contracting firm which received a sub-
contract from Schuck to install floor tiles at the store. This work was completed
by December 11, when the picketing started, but it became necessary thereafter to
make certain repairs. Donald Gulden is a salesman for this concern. He has no
authority to hire or fire, but does make recommendations in this area. The record
does not disclose whether these are effective recommendations Gulden dispatches
repairmen to jobs which he has handled and testified that he supervises the men on
such jobs to some extent. I find that he is at best a minor supervisor who comes
within the definition of "individual" in the cases cited above. See Southern Illinois
Sand Co., Inc., 137 NLRB 1490.
Gulden received a telephone call from Schuck on a Thursday subsequent to De-
cember 11 that some tiles required repair. He went to the store on the following
day, Friday, looked over the job, and did some of the repair work himself. Because
Gulden knew of the picket line, he did not dispatch a repairman until Sunday when
the store was closed and the pickets were not present. The repair work was thus
done on Sunday at double-time pay. But for the existence of the picket line, Gulden
would have sent a repairman on a day other than Sunday and presumably at straight
time. Approximately I month later, other repairs were required and Gulden again
sent a repairman on Sunday at double time pay He testified that he had "very good
reason" to believe that the men would not want to cross the picket line; that he did
not want to put the repairmen in such a position; and that he believed their union
agreement stated that the men were not required to cross the line.
In fact, Gulden did call the business agent of the union that represents the em-
plovees of Mortrude which he identified as the Carpet and Tile Layers Union He
asked for advice and was told that Mortrude employees were not required to cross
the picket line if they refused. It was as a result of this, it would seem, that the
technique of doing the work at double pay on Sunday was devised 8
(3) Pacific Delivery Service is a truck transfer service company which delivers
merchandise from wholesalers to retailers in the Seattle area. It is owned by
Thomas Mowat who I find is not an individual for the purposes of this issue which
directly involves John Enderson, a driver for the firm.
8 Apparently this is the same local union which the employees of the Fuller Company
contracted in the previous incident.
RETAIL CLERKS UNION, LOCAL NO. 1404, AFL-CIO 1357
On April 25, 1962, an electrical supply house consigned a shipment of light bulbs
to Jacobs via Pacific. Enderson regularly delivers packages to Jacobs on his down-
town route and when the items are small, makes deliveries through the front en-
trance. As found, many deliveries are normally made in this manner. Enderson
uncontrovertedly testified, and I find, that he saw a female picket with a sign in front
of the store. He asked the woman if this was a picket line and the reply was in the
affirmative. Enderson later testified that his question was whether it was a picket
line or a strike; I deem it immaterial herein which question was asked. Enderson
left the area without making the delivery and I find that his failure to do so was
caused by his seeing the picket and the picket sign. He called his employer, told
him that there was a picket line, and asked for further instructions. He then re-
turned to the Pacific premises.
In a talk with Mowat that noon, the latter expressed the view that this was a
legitimate picket line and suggested that Enderson contact his union for instructions
or advice. Enderson telephoned Teamsters Local 174 and was connected with
either Business Agent Matulo or Business Agent Shea and probably the former.
Enderson asked if he should deliver the parcel and the reply was that it was up
to him. He pressed for a more direct response as to whether he "should or
shouldn't" make the delivery. The business agent refused to commit himself more
specifically, although manifestly, in addition to this middle-of-the-road reply, the
question permitted a precise affirmative or negative response. The delivery was
never made by Pacific although at a later date Jacobs picked up the merchandise
himself.9
Mowatt also presented testimony that on May 2 10 he was asked by Eastman Tag
Co. to pick up some merchandise for delivery to Jacobs. Because Mowat knew of
the existence of the picket line, he refused to do so. He discussed the possibility of
making this delivery with Enderson who was not questioned herein about this de-
livery Mowat decided, in view of the picket line, not to accept the job because it
would mean a double hauling charge, one charge for delivery to the Jacobs premises
and a second for taking the merchandise back when the delivery was not made
The decision, according to Mowat, was made by him. Although Mowat is
obviously not an individual within the meaning of the proviso, the circumstances of
this second incident impress me that his testimoney is reliable hearsay testimony
as to Enderson not making the pickup. On the other hand, Mowat admittedly made
the decision not to attempt it Accordingly, I base no adverse finding upon this
incident
There is also evidence of another matter here. James Murray, construction super-
intendent and office manager for the general contractor, Schuck Construction Com-
pany, testified that during the picketing he refrained from sending a carpenter
to repair a stair tread because of the presence of the pickets. In fact, his men
were instructed not to enter if pickets were present. One particular morning, pickets
were not present and his mechanic entered and fixed the tread.
Murray, a veteran of 7 years in his present post, testified that so far as he is con-
cerned there is no difference between a nonadvertising picket line, presumably in a
strike situation, and an advertising picket line and that in his experience his men
will not cross a picket line. As Murray put it, ".. . my boys are all union boys
and they would not go through a picket line. .
While it is clear that an effect of the picket line was to cause Murray not to perform
services for Jacobs, he also is not an individual within the meaning of the decisions
quoted above Accordingly, no finding adverse to Respondent is predicated upon
this incident.
Viewed similarly is certain testimony by Thomas Kingsbury, a partner in North-
west Tile Company whose contract for outside tile work was not completed on Decem-
6 Respondent has attacked Enderson's credibility herein, but the latter impre,sed me as
a truthful disinterested witness who gave the facts as he recalled them, and he was
corroborated by Mowat as to the incident. Attention was directed to several allegedly in-
consistent versions of the picket line incident. In the first, Enderson testified that this
was a picket line Later, he testified that he asked the picket if there was a strike In
response to a perhaps unintentionally misleading question which misquoted his prior testi-
mony, Enderson testified that he asked if there was a strike or a picket line I deem this
to be minor in significance. Furthermore, I think it a fair statement that a truckdriver
without a law degree may well equate a picket line with a strike and be unappreciative
of the existence of an advertising picket line unaccompanied by a strike of employees
Accordingly, his testimony has been credited
10The transcript has Mowat using the date of May 7 The testimony of Jacobs makes
clear, and I find, that this took place on May 2.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 11 . Kingsbury observed the picket line and as a result did not dispatch his men
or ask them to undertake the jab. He testified that his firm is unwilling to ask its
men to cross picket lines . At one point , during the picketing , he refused to finish
the job, although asked to do so by Murray in behalf of the general contractor.
While I believe that an effect of the picketing was to cause Kingsbury to refuse
to perform services at the store, he also does not meet the definition of individual
in the above-cited cases. Accordingly , and in the absence of evidence of effect on
individuals employed by this concern , no reliance is placed herein on this episode.
E. Conclusions
To sum up , the picket line was established in December 1961 , and a direct effect
was to halt the completion of the remodeling and also to interrupt deliveries. More
particularly, individuals employed by W. P. Fuller refused to enter the Jacobs
premises and install mirrors; an individual employed by Mortrude Floor Company
refused to dispatch a repairman except after a delay and only on Sunday at double-
time pay when pickets were not present ; and a driver employed by Pacific Delivery
Service refused to make deliveries.
In each of these instances , an individual refused to perform work or services
within the meaning of the second proviso to Section 8(b)(7)(C). Thus, with an
organization or recognition purpose behind the picketing, an effect of the picketing
was to bring about this result . And it is undisputed that no petition under Section
9(c) of the Act was filed within a reasonable time, or at any time.
I have already rejected Respondent 's contention that to establish a violation, the
phrase "an effect" must be read as "an intended effect." The Board and the courts
have long applied the test of foreseeable consequences in evaluating the conduct of
a respondent . As the U.S. Supreme Court noted, "a man is held to intend the
foreseeable consequences of his conduct." Radio Officers' Union v. N.L.R.B., 347
U.S. 17. And, as noted , in this very section of the Act, Congress has used the phrase
"an object," demonstrating that it well appreciated the difference between effect and
intended effect.
Respondent has cited the decision of the Court of Appeals for the District of
Columbia in Fruit and Vegetable Packers & Warehousemen , Local 760 et al. v.
N.LR.B. (Tree Fruits, Inc.), 308 F. 2d 311 where the court reversed a Board
finding of violations under Section 8 (b) (4) of the Act. It is noteworthy , however,
that the court in this very case went on to point out as follows:
It is significant that when Congress wanted to outlaw picketing per se, it knew
how to do so, as is evidenced by § 8(b)(7), which forbids a union in certain
circumstances "to picket or cause to be picketed any employer" if its object is to
force him to recognize an uncertified union.
Nor, in view of the specific language of the proviso, is it of any assistance to Re-
spondent that it wrote to and spoke with other labor organizations as it did. This
section of the Act is completely silent as to such conduct constituting a defense True,
it is entitled to weight and it has been so considered in determining whether the
picketing was for an unlawful object In addition , the lack of support for Respond-
ent's "intended effect" argument disposes of this. Actually, the testimony of Con-
struction Superintendent Murray of the general contractor is of interest here when
he pointed out that his men just would not cross a picket line.
Respondent did adduce evidence to the effect that various persons who did not
cross the line or who refused to direct employees to cross the line did not attempt
to contact Respondent to ascertain the true purpose of the picket line . But this
misconceives the issue . The Act forbids certain conduct by a labor organization: the
elements of a violation do not turn on whether an innocent third party thrusts or
does not thrust itself into the fray The quotation from the Radio Officers' case is
appropriate here. The law does not require the victim of a tort-feasor to ask if the
tort-feasor really means what he is doing or saying.
If Respondent's contention has merit , one may well envisage a lengthy social
hour between employees of innocent third parties and the pickets at the picket line
with the former, presumably untutored laymen, called upo" to deride w1'ether. as
reasonable men, the picketing should have an effect upon them . The fact is that
Congress has placed a single factual standard in the proviso and this is controlling,
although, needless to say, the issue might be regarded otherwise were an obviously
contrived effect demonstrated.
I deem it to be a more realistic view that even in the face of these efforts by
Respondent to publicize its allegedly true position , a business agent of the Teamsters
would do no more than take an equivocal position with a member who sought advice;
KEY WEST COCA COLA BOTTLING COMPANY 1359
it is quite understandable that he then refused to cross the picket line , consistent
with well-established trade union principles.
In view of all the foregoing considerations , I find that Respondent has engaged
in conduct violative of Section 8(b) (7) (C) of the Act by picketing the premises of
the Charging Party on and after December 11, 1961 , with an object of forcing or
requiring the latter to recognize or bargain with Respondent , without filing a petition
under Section 9(c) of the Act, this having an effect of inducing individuals employed
by other persons not to perform services in the course of their employment. Local
705, International Brotherhood of Teamsters etc. v. N.L.R .B., 307 F. 2d 197
.(C.A.D.C.); N.L.R.B . v. Local 239 , International Brotherhood of Teamsters, etc.,
289 F. 2d 41 (C.A. 2), cert. denied 368 U.S. 833 ; Hotel, Motel and Club Employees'
Union Local 568, AFL-CIO (Marriott Motor Hotels, Inc.), 136 NLRB 759; and
Automotive, Petroleum & Allied Industries Employees etc. Local 618 (Charlie's Car
Wash ), 136 NLRB 934.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of the employer set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States sand tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in conduct violative of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Retail Clerks Union, Local No. 1404, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. Jay Jacobs Downtown, Inc., is an employer within the meaning of Section
2(2) of the Act.
3. By picketing Jay Jacobs Downtown, Inc., when it was not certified, for more
than 30 days without filing a petition under Section 9(c) of the Act, with an object
of forcing said employer to recognize and bargain with it, such picketing having
an effect of inducing individuals employed by other persons not to make deliveries
or perform services in the course of their employment, Respondent has engaged in
unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Miami Coca Cola Bottling Company doing business as Key West
Coca Cola Bottling Company and General Sales Drivers &
Allied Employees Union Local 198, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of
America and Gerardo A. Dobarganes . Cases Nos. 12-CA-
2192(1-5) and 12-CA-2312. February 21, 1963
DECISION AND ORDER
On October 3, 1962, Trial Examiner Sidney D. Goldberg issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices violative of Section 8(a) (1) and (3) of the Act, and
140 NLRB No. 134.