Retail Store Employees' Union, Local No. 428, Etc.

National Labor Relations Board - Board Decisions

Mar 14, 1963

141 N.L.R.B. 503 (N.L.R.B. 1963)

RETAIL STORE EMPLOYEES' UNION, LOCAL 428, ETC. 503
Retail Store Employees ' Union , Local No. 428, Retail Clerks
International Association , AFL-CIO and Martino's Complete
Home Furnishings . Case No. 20-CP-57. March 14, 1963
DECISION AND ORDER
On July 5, 1962, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take affirmative action,
as set forth in the attached Intermediate Report. Thereafter, the
Respondent filed exceptions to the Intermediate Report together with
a supporting brief.
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 Interme-
diate Report, the exceptions and brief, and the entire record herein,
and finds merit in the Respondent's exceptions. Accordingly, it adopts
the findings, conclusions, and recommendations of the Trial Examiner
only to the extent consistent herewith.
We agree with the Trial Examiner's conclusion that Respondent's
picketing, which commenced on December 7, 1961, at Martino's retail
stores, was in furtherance of recognitional and organizational objects.
It does not follow, however, that because the picketing continued for
more than 30 days without the filing of a petition, Respondent must
therefore be held to have violated Section 8(b) (7) (C) of the Act.
The Board, in construing the second proviso to that section has held
that, even where picketing is conducted for a proscribed object, a vio-
lation of Section 8 (b) (7) (C) is not established if the picketing is for
the purpose of truthfully advising the public, including consumers,
that the employer does not employ members of, or have a contract
with, a labor organization, unless an effect of such picketing is to dis-
rupt, interfere with, or curtail the employer's business.'
The picketing in the instant proceeding was clearly conducted for
informational purposes. Thus, the picketing actually took place in
front of the consumer entrances to Martino's retail stores during the
normal hours when these stores were open to the public; the picket
signs urged the public not to patronize Martino's, and leaflets were
distributed also urging the public not to shop at Martino's because
Martino's had no contract with Respondent and did not operate under
union conditions. Respondent did not take any action inconsistent
with such informational purpose. Indeed, uncontradicted testimony
'Retail Clerks Union Local 324 and Retail Clerks Union Local 770, etc (Barker Bros
Corp and Gold's, Inc ), 138 NLRB 478.
141 NLRB No. 40.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establishes that the Respondent deliberately refrained from taking
action to secure the observance of its picket line by union members.'
It is conceded, nonetheless, that there were some instances in which
deliveries to Martino's by its suppliers were interrupted or delayed
because of the refusals of driver-employees of such suppliers to cross
the picket line. We must thus decide whether, in these circumstances,
the picketing lost its protected status, despite its informational aspect,
because of a proscribed "effect." Contrary to the Trial Examiner, we
find no such effect.
The informational picketing under consideration here continued
unbroken for at least 6 months and during this entire period none
of Martino's employees either refused to cross the picket line or failed
to perform services because of the picketing. Moreover, as indicated
above, the Union at all times refrained from resorting to internal
union procedures available to it to induce other labor organizations
and their members to refrain from making deliveries or otherwise
performing services at Martino's. Apart from six or seven isolated
instances,' the record establishes that all of Martino's suppliers made
their deliveries in the normal course of business. There were at least
224 completed orders during the last 5 months of this period, in,addi-
tion to approximately 50 "no charge" deliveries and pickups, and the
record is devoid of any showing that the picketing had any real
impact on the operation of Martino's business.
Considering the totality of the events during the 6-month period
within the rationale of our decision in Barker Brothers, supra, we
do not find that Respondent's informational picketing produced "an
effect" within the proviso to Section 8 (b) (7) (C) .' We shall, accord-
ingly, dismiss the complaint.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
Our colleagues have found, and we agree, that the Respondent's
picketing had an object of recognition within the meaning of See-
For instance, had Respondent obtained sanction for the picketing through a convoca-
tion of the Santa Clara County Central Labor Council, that would have been indicated
by conspicuous armbands worn by the pickets and particular language on the picket signs
showing that the picket line was authorized by the Council and was to be respected by
other union members Also, concerted observance of the picket line could be obtained
from the Teamster Union, which was not a member of the Council, through contact by
Respondent with the local Teamster liaison committee No attempt whatsoever was made
by Respondent under these internal union procedures to induce other local labor organiza-
tions and their members to observe the picket line. Under all the circumstances, we do
not attach the same significance as the Trial Examiner does to the fact that neither the
picket signs nor the "Do Not Patronize" lists published by the Respondent in the news-
papers mentioned that the picketing was not intended to interfere with deliveries.
3 The parties stipulated that these were the only such instances , and the record other-
wise fails to support the Trial Examiner's statement that they were "illustrative rather
than isolated."
4 The district court denied a temporary injunction in this matter . Hoffman -Taff, Inc. v.
Retail Stare Employees , 206 F. Supp . 271, 51 LRRM 2297.
RETAIL STORE EMPLOYEES' UNION, LOCAL 428, ETC. 505
tion 8(b) (7) of the Act and that the Respondent's leaflets, distrib-
uted on the picket line, contained, in substantial form, the language
of the second proviso to Section 8(b) (7) (C). However, we do not
agree with them that the Respondent's picketing became "informa-
tional" within the meaning of the second proviso.
We have said in earlier cases that so-called informational picketing
may be conducted only where there is no independent evidence of a
proscribed object and where such picketing does not have the effect
of inducing a work stoppage.' The Trial Examiner found, as do we,
that there was independent evidence of a proscribed object here.6 Ac-
cordingly, since the Respondent is not the certified representative
and since the picketing has continued for more than 30 days without
filing of an election petition, and since the record shows that, despite
the language of the picketing signs and the leaflets, the picketing
had both an object and the purpose of compelling the Employer to
recognize and bargain with the Respondent, we would find, as did
the Trial Examiner, that the Respondent's picketing violated Section
8(b) (7) (C).
Furthermore, even if the picketing could be viewed as "informa-
tional," we, unlike our colleagues, would find a violation here. The
Trial Examiner correctly concluded that there were seven instances
in which truckdrivers for carriers refused to cross the picket lines
to bring goods to Martino's two stores. It follows, therefore, for
the reasons stated in our dissenting opinion in Barker Bros., supra,
that "an effect" of the Respondent's picketing was to induce delivery
stoppages within the meaning of the staute in violation of Section
8(b) (7) (C).7
Accordingly, we would sustain the complaint.
5 See, for example , our dissenting opinion in Local Joint Executive Board of Hotel and
Restaurant Employees and Bartenders International Union , etc ; et at ( Leonard Smtitley,
et at. , d/b/a Crown Cafeteria ), 135 NLRB 1183, and our concurring opinion in San Diego
County Waiters and Bartenders Union Local 500, etc. ( Norhunt, Inc , d/b/a Joe Hunt's
Restaurant ), 138 NLRB 470
6 Thus, there is evidence of the following background of successive events against which
the picketing occurred : ( 1) The Respondent Union bad represented Martino 's employees
as part of a multiemployer unit; (2) the Respondent Union continued to claim to repre-
sent Martino's employees despite the disbanding of the multiemployer unit, sending two
letters requesting recognition to Martino's and proposals for a new contract ; and (3) the
Respondent Union filed a petition for the multiemployer unit, which the Board dismissed
on grounds of inappropriate unit In addition , with respect to the picketing itself, there
is the testimony at the instant hearing by the secretary-treasurer of the Respondent
Union to the effect that the picket line (which followed the dismissal of the above-
mentioned petition by about 10 days ) would be removed in the event a contract was signed
with Martino's
-, Indeed here, unlike Racier Bros, the Respondent took no afhimative steps to inform
other unions in the area, the public, or the pickets themselves, that the purpose of the
picket line was not to stop deliveries.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on January 8, 1962, by Martino's Complete Home Furnish-
ings, herein called Martino's , the Regional Director for the Twentieth Region (on
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 9, 1962, issued a complaint against Retail Store Employees' Union, Local
No. 428, Retail Clerks International Association, AFL-CIO, Respondent herein,
alleging violations of Section 8(b)(7)(C) of the National Labor Relations Act
(29 U.S.C., Sec. 151, et seq ), herein called the Act. In its answer, Respondent
denied the commission of any unfair labor practices and for an affirmative defense
alleges that Section 8(b) (7) (C) is unconstitutional in that it abridges freedom of
speech.
Pursuant to notice, a hearing was held before Trial Examiner Henry S. Sahm at
San Francisco, California, commencing on May 28 and concluding on May 31,
1962. All parties were represented at the hearing and were afforded full opportunity
to be heard, to introduce relevant evidence, and to present oral argument. Excellent
briefs were filed by both parties which have been fully considered.
Upon consideration of the entire record and the briefs of the parties, there are
hereby made the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Martino's Complete Home Furnishings, the Employer herein, at or adjacent to
whose two business establishments (the main store and the budget store) the alleged
unlawful conduct occurred, is a California corporation, with its two stores located
at San Jose, California, where it is engaged in the retail sale of furniture, appliances,
and home furnishings. During 1961, Martino's received gross revenue from sales
in excess of $500,000 and purchased and received directly goods valued in excess of
$80,000 from sources located outside the State of California. Upon the foregoing
facts, it is found that Martino's is engaged in commerce within the meaning of
the Act.
II. THE STATUS OF RESPONDENT
Respondent admits that it is a labor organization within the meaning of Section
2(5) of the Act. It is found accordingly that it is a labor organization within the
meaning of Section 8(b) (7) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
In February 1957, a group of retail furniture dealers, including Martino, formed
a multiemployer association called the Retail Furniture Council of Santa Clara
County and executed written authorizations to one Edward H. Moore, which gave
him authority to represent the members in collective-bargaining negotiations with
labor organizations. On April 1, 1957, Moore, on behalf of this employer associa-
tion, entered into a collective-bargaining contract with the Respondent Union.
On March 10, 1960, the members of the Santa Clara Retail Furniture Council
terminated their relationship with Moore and substituted as its bargaining repre-
sentative the California Association of Employers, a multiemployer group, herein
called CAE. On April 1, 1961, the Retail Furniture Council of Santa Clara County
was dissolved and the constituent members, including Martino, notified the Union
through CAE on May 2, 1961, that it no longer desired to bargain as a group 1
In the meantime, the Union on March 2, 1961, had informed CAE that it wished
to begin negotiations in an effort to reach a new agreement as the then current
agreement with the employer-members was due to expire on July 31, 1961. Although
CAE informed the Union subsequently, on May 2, 1961, that the multiemployer
group had disbanded and the employer-members, including Martino's, no longer
desired to engage in group bargaining, the Union, nevertheless, on May 25 and
June 23, 1961, sought to negotiate a contract with Martino's individually.2 To that
end, the Union sent Martino its proposals for a new contract after expiration of the
then contract which had been negotiated originally with the multiemployer group.
The then current contract which was due to expire on July 31, 1961, contained a
union-security provision which required employees of the employer-members of
the multiemployer group to become or remain members of Respondent Union in
order to hold their jobs. On May 19, 1961, Martino's employees petitioned the
Board to decertify the Respondent Union as their bargaining representative. The
1 General Counsel's Exhibit No 5 See also General Counsel's Exhibit No 8 There is
no evidence to substantiate Respondent's statement in its brief that CAR informed Re-
spondent that the former members of this group would henceforth bargain as individuals
through CAE.
2 General Counsel's Exhibits Nos 3 and 4.
RETAIL STORE EMPLOYEES ' UNION, LOCAL 428, ETC. 507
Union was so notified by the Board whereupon the Union, upon receipt of written
withdrawal notices from these employees, suspended them. The Union filed a
petition on May 26, 1961, seeking an election in order to be certified as collective-
bargaining representative of the employees in the multiemployer group which in-
cluded Martino among them. The Board on November 27, 1961, dismissed the
Union's representation petition 3 on the ground that:
An unequivocal intent to abandon multiemployer bargaining was clearly estab-
lished and communicated to the Union. As such action was timely taken, we
find that there is no longer in existence the multiemployer unit sought by the
union in its petition... .
The Board also dismissed the employees' decertification petition because the Union
was not certified nor were the single-employer units then the currently recognized
units as "each of the Employers, individually, constitutes a unit appropriate for
bargaining." Goldeen's Inc., supra.
On December 7, 1961, approximately a week after receiving the Board's decision,
the Union began to picket 4 Martino's two stores and said picketing was continuing
as of the time of this hearing.5 The legend on the picket signs carried by the pickets
read:
Please do not shop at Martino's. Retail Store Employees' Union, Local 428,
AFL-CIO.
Leaflets distributed by the pickets read as follows:
PLEASE DON'T SHOP AT
MARTINO'S
Martino's has no contract with our union
The employees in this store do not enjoy union wages and other working
conditions. They do not have the advantage of many other benefits of union
9 Goldeen's, Inc, 134 NLRB 770.
4 Respondent appears to take issue with characterizing whatthe Union's representatives
were doing as "picketing" when they walked back and forth before Martino's stores hold-
ing in their hands a stick to which was attached a placard upon which was written cer-
tain words (see infra), and distributing leaflets. See General Counsel's Exhibit No. 12
which are pictures of the Union's representatives taken in front of Martino's store. Cf.
Service and Maintenance Employees Union, Local 399, AFL-CIO (The William J. Burns
International Detective Agency, Inc ), 136 NLRB 431. In this regard the Dictionary of
Labor Law Terms, 2d ed. 1953, p. 94, "Commerce Clearing House," defines a "picket" as
"one who patrols a place of business to publicize the existence of a labor dispute, a union's
desire to represent the employees, or the fact of non-union working conditions " The
same source defines "Picketing" as:
Patrolling by pickets. Mass picketing is by large numbers of closely ranked per-
sons, often conveying threats of violence and attempting to prevent access to com-
pany premises. Minority picketing is picketing by a union which is not the collective
bargaining agent of a majority of the workers in the unit involved. Organizational
picketing is intended to induce employees of the picketed establishment to become
union members. Publicity picketing is intended to indicate to the public the existence
of a labor dispute; it has been distinguished by the United States Supreme Court
from signal picketing, the intent of which is to persuade other union members to
leave their work or to refuse to enter the premises Recognition picketing is an
attempt to obtain status as collective bargaining agent by a union which may or may
not actually represent a majority of workers in the unit. Stranger picketing is
picketing by representatives of a union which does not represent the employees of
the picketed establishment.
6 McLoughlin, Respondent Union's secretary-treasurer, testified in the Federal district
court as follows:
Q. Why did you pick [December 7] for starting your leaflet distribution?
A. The Board decision came down which destroyed the multi-employer unit We no
longer represent the employees . . . and we proceeded to advertise that [Martino's]
had terminated their contract and wanted to operate non-union . . . .
. . . we didn't represent anybody in the stores and we have leaflet distributors out
advising the general public that they want to be non-union, they no longer have a
contract with our organization.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership, such as union-negotiated medical and hospital benefits and the like.
We make no demands of any kind upon Martino's, but the sole purpose of
this leaflet is to inform you that because there is no union contract here, your
patronage of Martino's undermines the position of our members in other stores.
PLEASE DO NOT SHOP AT MARTINO'S
This store does not operate under AFL-CIO union conditions. Please do
not patronize.
RETAIL STORE EMPLOYEES UNION LOCAL 428
of Santa Clara County &
Menlo Park, AFL-CIO
347 Security Building 84 South First Street San Jose 13, Calif.
There were seven instances where truckdrivers for carriers refused to cross the
picket lines or to transport goods to Martino 's two stores which were being picketed.?
B. Contentions
The General Counsel contends that although Respondent Union is not currently
certified by the Board as the representative of any of Martino's employees ,8 it has
picketed Martino 's with the object that Martino recognize and bargain with the
Union and has been attempting to organize such employees by compelling them to
accept the Union as their collective -bargaining representative , notwithstanding that
the picketing has been engaged in for more than 30 days without a petition being filed
with the Board under Section 9(c) of the Act. Moreover , alleges the General
Counsel, this picketing has induced employees of trucking companies not to make
deliveries to the picketed premises.
The Respondent , in addition to contending Section 8(b)(7) is unconstitutional,
denies that the object of its picketing and handbilhng was recognitional and organiza-
tional, claiming it was informational and thus permissible under the second proviso
to subsection (C) of Section 8(b) (7). Furthermore , argues Respondent , not only
were the disruption of deliveries isolated instances , but it had exhausted all reasonable
efforts to make known that the picketing was not intended to induce employees of
truckers not to pick up or deliver goods at Martino's.
C. Discussion
Section 8(b)(7), a provision added to the Act by the 1959 amendments, bans
picketing for recognition or organizational purposes
(A) where the employer has lawfully recognized in accordance with this
Act any other labor organization and a question concerning representation may
not appropriately be raised under section 9(c) of the Act,
(B) where within the preceding twelve months a valid election under section
9(c) of this Act has been conducted, or
(C) where such picketing has been conducted without a petition under
section 9(c) being filed within a reasonable period of time not to exceed thirty
days from the commencement of such picketing ... .
Subparagraph (C) is subject to two provisos. The first reads:
Provided, That when such a petition 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 .. .
The second proviso reads:
Provided further, That nothing in this subparagraph (C) shall be construed to
prohibit any picketing or other publicity for the purpose of truthfully advising
the public (including consumers) that an employer does not employ members of,
8'The pickets were neither strikers nor former employees of Martino and McLoughlin
incredibly testified that he (lid not know whether they were members of the Union How-
ever, Shaw, one of the pickets, testified that she was not a member of Respondent Union
but a paid employee
7 Respondent's motion to strike the testimony of Thomas R Minor, on which ruling was
reserved at the hearing, is hereby denied
8Martino's has 14 employees of which 8 ( 5 salesmen and 3 office employees) were
formerly represented by the Respondent
RETAIL STORE EMPLOYEES' UNION, LOCAL 428, ETC. 509
or have a contract with, a labor organization, unless an effect of such picketing
is to induce any individual employed by any other person in the course of his
employment, not to pick up, deliver or transport any goods or not to perform any
services.
Section 8(b)(7)(A), supra, prohibits picketing by a union which is not the rep-
resentative of the employees where "an object" is recognition or organization, if an-
other union has been lawfully recognized and its bargaining status is not open to
challenge. Section 8(b) (7) (B) prohibits picketing if a valid election has been held
among the employees by the Board during the preceding 12 months; and under
subparagraph (C), picketing is proscribed if conducted for more than a reasonable
period, not to exceed 30 days, without the filing of a petition for an election under
Section 9(c) of the Act.
The Supreme Court has stated that Congress in enacting Section 8(b)(7) has
legislated "a comprehensive code governing organizational strikes and picketing
[which] draws no distinction between `organizational' and `recognitional' picketing." 9
Section 8(b)(7) is a component provision of the comprehensive plan established by
the Congress and incorporated in the Labor-Management Reporting and Disclosure
Act of 1959 as a new union unfair labor practice,10 added to the National Labor
Relations Act of 1935, § 8, 49 Stat. 449, as amended by the Labor-Management
Relations Act of 1947, 61 Stat. 141. Prior to the enactment of the 1959 Act, unions
were not expressly prevented from picketing premises to force an employer to
recognize it as the bargaining representative of his employees or to compel the em-
ployees to select it as such bargaining agent, with some exceptions not pertinent
here. This permitted unions which did not represent a majority of the employees to
picket for recognition, that is, picketing to obtain status as collective-bargaining
agent even though the union may not have represented a majority of the workers,
or organizational picketing which is intended to induce employees of the place
picketed to become union members.
Section 8(b) (7) was one of the amendments Congress adopted in 1959 to plug
what it deemed to be "loopholes" in the Act, namely, the prevalence of certain types
of recognizational and organizational picketing. When the three subparagraphs of
Section 8 (b) (7) supra, are considered in their entirety, it becomes evident that this
section is designed to obivate disputes (with its concomitant picketing), arising over
employee representation matters by prescribing that such questions should be ad-
judicated through orderly procedures of the National Labor Relations Board.
Its general thrust is to halt picketing or threats of picketing by unions which do
not represent a majority of the employees. Accordingly, Section 8(b)(7)(A)
forbids recognitional or organizational picketing of an employer where he has
lawfully recognized a union which represents a majority of his employees and a
question of representation cannot be raised.ii Section 8(b) (7) (B) bans such picket-
ing within 12 months following an election and Section 8(b)(7)(C) applies to the
remaining situations, namely, those in which the Board is free to determine, through
the orderly procedures of the Act, whether or not a union is the employees' designated
representative.
The legislative history of the 1959 amendments 12 and Board decisions 13 reveal
that the purpose of Section 8(b) (7) (C) is to permit a union to engage in peaceful
picketing for a reasonable period, not more than 30 days, in an attempt to secure
sufficient adherents to warrant recognition, or to secure recognition if it represents
the employees, but to prevent such picketing thereafter unless proceedings have been
initiated by the filing of a petition with the Board for an election to determine whether,
in fact, the union does represent the employees and is entitled to recognition. How-
ever, the second proviso to subsection (C) of Section 8(b)(7), supra, expresses the
adjuration that the right of labor organizations to publicize their grievances must re-
main inviolate. Consequently, in interpreting Section 8(b)(7)(C), effect must be
accorded these dual objectives which requires not only a reconciliation of employers
e N.L R B . v. Drivers, Chauffeurs and Helpers Local Union No. 639, International
Brotherhood of Teamsters, etc. (Curtis Brothers), 362 U.S. 274, 291.
io Section 704(c) of the Act, 73 Stat. 544, 29 U S.C. § 158(b) (7).
11 Section 9(c) (3) of the Act provides that "No election shall be directed in any bar-
gaining unit or subdivision within which, in the preceding 12-month period, a valid elec-
fion shall have been held."
12 Legislative History of the Labor -Management Reporting and Disclosure Act of 1959,
vol II, pp. 1523, 1858.
is International Hod Carriers ' Building and Common Laborers ' Union of America, Local
840, AFL-CIO (Charles A . Blinne, d/b/a C. A. Blinne Construction Company), 135
NLRB 1153
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be free from unlawful recognition picketing with the right of labor unions to in-
form the public of legitimate grievances but also a balancing of the equities to deter-
mine which right is paramount.
Rapid changes have occurred in the past 2 years with respect to the various
decisions interpreting Section 8(b)(7)(C). While the present law with respect to
this section of the Act is not free from doubt and the trier of these facts is acutely
aware that generalizations are most hazardous , a synthesized analysis of the most
recent cases appears to reveal the following principles : Picketing which is exclusively
informational is permissible regardless of whether an election petition was filed within
30 days unless the object is organizational or recognitional . If picketing is solely
informational , it is still permissible even though the effect of such picketing is to
induce carriers not to pick up or deliver goods . If, however, the picketing is
dichotomous in purpose , in that its objects are both informational and recognitional,
and it interferes with deliveries , it is proscribed.14
D. Conclusions
In the light of the foregoing facts and legal principles, and the record as a whole,
it is found, for the reasons hereinafter explicated, that Respondent Local Union No
428 has picketed Martino's for more than 30 days without filing a petition for an
election and that its object was to force Martino to recognize or bargain with the
Union as the representative of its employees and thereby coerce the employees to
accept the Union as their bargaining representative. It is further found that such
picketing had the effect of inducing individuals employed by carriers refusing to
pick up or deliver goods consigned to Martino's on seven occasions.15
That the object of Respondent's picketing is recognition, bargaining, and organiza-
tion is evidenced by the Union's petition of May 26, 1961, seeking certification as
collective-bargaining representative of the employees in the multiemployer group
which included Martino among them and by the Union's letters of May 25 and
June 23 (General Counsel's Exhibits Nos. 3 and 4) seeking a collective-bargaining
agreement from Martino individually.16 Furthermore, the picketing, following close
on the denial by the Board of Respondent's representation petition is a renewal of
such demand for recognition. This is also evidenced by the leaflets which disclose
that the reason for the picketing is that the Union does not have a contract with
Martino's and that the employees are nonunion. Corroborative of this finding is
the following testimony of McLoughlin, secretary-treasurer of the Respondent
Union:
Q. . . . in the event a contract is signed with Martino 's, the picket line . . .
will be removed . Isn't that a fact?
A. Yes, of course.
Although McLoughlin denied any effort was made by Respondent to recruit Mar-
tino's employees to reinstate their membership in the Union subsequent to their
filing a decertification petition on May 19, 1961, he admitted that Victor Lazaro,
business representative of the Union , "contacted" Martino's employees at the store
several days after the Board dismissed the Union 's representation petition on Novem-
ber 27, 1961.
"Local Joint Emecutive Board of Hotel and Restaurant Employees and Bartenders, etc ,
at al. (Leonard Smitley, et al. d /b/a Crown Cafeteria), 135 NLRB 1183; Chefs, Cooks,
Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union, AFL-CIO,
et al (Stork Restaurant , Inc.), 135 NLRB 1173; Blinne Construction Company, supra;
International Typographical Union and Ansonia Typographical Union, Local 285 (Charlton
Press, Inc ), 135 NLRB 1178; Retail Store Employees Union, Local 400, Retail Clerks
International Association, AFL-CIO; et al. (Jumbo Food Stores, Inc.), 136 NLRB 414;
Houston Building and Construction Trades Council (Claude Everett Construction Com-
pany), 136 NLRB 321, Hotel, Motel and Club Employees' Union Local 568, AFL-CIO
(Marriott Motor Hotels, Inc ), 136 NLRB 759: Automotive, Petroleum & Allied Industries
Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, etc.
(Charles Schmitt, et al. d/b /a Charlie's Car Wash and Service), 136 NLRB 934.
11 These seven known instances in over 6 months would appear to be illustrative rather
than "isolated" as contended by Respondent. See Local 239, International Brotherhood
of Teamsters, etc. (Stan-Jay Auto Parts and Accessories Corporation), 127 NLRB 958-
961, 962, enfd 289 F 2d 41 (.C.A 2).
16 The uncontradicted testimony of Joseph Martino, an officer of Martino's, discloses
that at no time subsequent to June 23, 1961, has Respondent withdrawn its request for
a contract
RETAIL STORE EMPLOYEES' UNION, LOCAL 428, ETC. 511
Even though Respondent contends that it exhausted all reasonable efforts and
precautions to make known that the picketing was not intended to induce employees
of carriers not to pick up or deliver merchandise at Martino's, McLoughlin, who was
in charge of the pickets, acknowledged that in publishing its "We do not patronize
list" (which included Martino's) and the contents of the leaflets supra, in the Union
Gazette once a month, which is in the official publication of labor organizations in
Santa Clara County, nothing was mentioned to the effect that the picketing was not
intended to interfere with deliveries. Nor was such notice given to the Labor Council
of Santa Clara County or the Teamsters who are not affiliated with the Council but
with whom liaison is maintained . Moreover, Shaw, one of the pickets, testified that
she saw truckdrivers drive up to Martino's premises, halt and then drive away, and
that she was not instructed to tell them anything. Nor was there anything on the
placards carried by the pickets indicating that deliveries were not to be interfered
with.i'i In this regard, what the Court of Appeals for the Ninth Circuit had to say
is particularly pertinent:
The reluctance of workers to cross a picket line is notorious . . . the picket
line is truly a formidable weapon, and one must be naive who assumes that its
effectiveness resides in its utility as a disseminator of information.18
To meet this, Congress imposed the responsibility upon the union to take all reason-
able measures to ensure that its picketing was solely informational and not to disrupt
duly designated deliveries.
Despite the contention of the Respondent Union that the only object of its picketing
was informational and thus legally justified under the second proviso of subpara-
graph (C) supra, all the circumstances detailed above support the conclusion that
its sole, true, and present object was to force Martino's to recognize or bargain with
it as the representative of Martino's employees and to force Martino's employees to
accept the Union as its collective-bargaining representative. The Respondent's ob.
jective conduct cannot be reconciled with its subjective disclaimer in its leaflet that
"We make no demands of any kind on Martino's" in either having Martino' s recog-
nize it or its representing Martino's employees. This self-serving disclaimer of a
recognitional or organizational purpose is transparently frivolous and ineffective
as Respondent's conduct patently reveals the Respondent' s real object was to obtain
recognition as representative of the employees involved. To accept Respondent's
self-serving assertion would require the trier of these facts to blind his eyes to a not
too subtle subterfuge of naively accepting what was done here as merely intentioned
to acquaint the public with the justness of the Respondent Union's cause and not
with the more realistic and continuing purpose of representing Martino's employees.19
Accordingly, it is found that the picketing at the premises of Martino's two stores by
Respondent since December 7, 1961, in the context of the circumstances delineated
above, violated Section 8(b) (7) (C) of the Act.
With regard to Respondent's contention that Section 8(b)(7)(C) is unconstitu-
tional, the Board has held that as an administrative agency of the Federal Govern-
ment, it would be inappropriate for it to pass upon the constitutionality of congres-
sional enactments.20
All authorities cited by Respondent have been carefully considered and it is not
believed that holdings in those cases require a finding contrary to the conclusions
reached herein. The Trial Examiner finds no occasion for lengthening this report
by citing or distinguishing them, because it is believed that the controlling reasons
for this decision have been sufficiently discussed. Moreover, the Respondent's con-
tentions and the cases cited are premised on an interpretation of the facts in this
proceeding which the Trial Examiner does not share and since the applicability of
precedent necessarily depends on one's views of the facts, no purpose would be
served by discussing all the cases cited by Respondent.
17 Cf Fruit & Vegetable Packers & Tl7arehousemen , Local 760, at al. (Tree Fruits Labor
Relations Committee, Inc.), 132 NLRB 1172.
18 Printing Specialties and Paper Converters Union Local 388, AFL (Seatright Pacific
Ltd) v. Le Baron, 171 F. 2d 331, 334.
19 See Local Joint Executive Board of San Diego, comprising Waiters and Bartenders
Local 500, et at (W. D Evans d/b/a The Evans Hotels operating the Bahia Motor Hotel),
132 NLRB 737, where the Board held that although the union had sought recognition in
the past but later disclaimed interest in representing the employees that such disclaimer
was ineffective.
20 Service Trade Chauffeurs, Salesmen , and Helpers , Local 145, etc. (The Howland Dry
Goods Company), 85 NLRB 1037, 1038, footnote 2.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
operations of the Employer Martino's as set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor proctices,
it is recommended that the Respondent cease and desist from engaging in such unlaw-
ful activities.
On the basis of the foregoing findings of fact, and upon the entire record in this
case , there are hereby made the following:
CONCLUSIONS OF LAW
1. Martino 's Complete Home Furnishings is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. The object of the picketing which occurred on and after December 7, 1961, was
to force recognition of Respondent as the bargaining representative of Martino's
employees.
4. By the acts described above, Respondent Union did engage in and is engaging
in unfair labor practices within the meaning of Section 8(b) (7) (C).
[Recommended Order omitted from publication.]
Local Union No . 18, International Union of Operating Engineers,
AFL-CIO and its Agent , George E . Miller (Earl D . Creager,
Inc.) and Paul Lewis. Case No. 9-CB-1044-1. March 15, 1963
DECISION AND ORDER
On December 3, 1962, Trial Examiner Samuel M. Singer 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 at-
tached Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
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 In-
termediate Report and the entire record in the case, including the
1 Respondent excepts to the Trial Examiner 's conduct of the proceedings , and alleges
bias and prejudice on the part of the Trial Examiner and denial of due process. We are
satisfied , on the basis of the entire record, that the Trial Examiner conducted the hearing
fairly and that his factual findings and ultimate conclusions are supported by the record.
See Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3) ;
A. O. Smith Corporation, Granite City Plant, 132 NLRB 339 ; Baker Hotel of Dallas,
Inc., 134 NLRB 524, enfd . 311 F. 2d 528 (C.A. 5).
141 NLRB No. 47.