Waiters & Bartenders Local 500, Etc.

National Labor Relations Board - Board Decisions

Jan 2, 1963

140 N.L.R.B. 433 (N.L.R.B. 1963)

WAITERS & BARTENDERS LOCAL 500, ETC. 433
organization , to bargain collectively through representatives of their own
choosing ; to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection; or to refrain from any or all such
activities.
DURA ELECTRIC LAMP Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614 Na-
tional Newark Building, 744 Broad Street, Newark, New Jersey, Telephone No.
Market 4-6151, if they have any question concerning this notice or compliance with
its provisions.
Waiters & Bartenders Local 500, Cooks & Waitresses Local 402,
Local Joint Executive Board of San Diego Comprising Waiters
& Bartenders Local 500 and Cooks & Waitresses Local 402
and Mission Valley Inn. Case No . 21-CP-13. January 2, 1963
DECISION AND ORDER
Upon charges duly filed by Mission Valley Inn, herein called Mis-
sion or MVI, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Twenty-first Region, on
April 5, 1960, issued a complaint alleging that Waiters & Bartenders
Local 500, Cooks & Waitresses Local 402, Local Joint Executive
Board of San Diego Comprising Waiters & Bartenders Local 500 and
Cooks & Waitresses Local 402, herein collectively called the Union,
had engaged in and were engaging in unfair labor practices within
the meaning of Section 8(b) (7) (B) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices, the complaint alleges in
substance that on and after March 11, 1960, although within 12 months
of a valid election under Section 9(c) of the Act which did not re-
sult in certification of the Union, the Union picketed Mission, an
object thereof being to force and require Mission to recognize and
bargain with the Union as the collective-bargaining representative
of its employees, and to force and require the employees to accept and
select the Union as their collective-bargaining representative.
On May 5, 1960, all parties to this proceeding filed a stipulation
of facts, and a motion to transfer this proceeding directly to the
Board for issuance of a Decision and Order after the filing of briefs
and without further hearing. The stipulation states in substance
that the parties waived their rights to a hearing before a Trial Ex-
aminer, and to the issuance of an Intermediate Report, and that
the charges, complaint, and stipulation of facts should constitute the
140 NLRB No. 38.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in the case. On May 9, 1960, the Board approved
the stipulation, ordered the transferral of the proceeding to the Board,
and granted permission to the parties to file briefs. Briefs have ac-
cordingly been filed by the Union, Mission, and the General Counsel.
Upon the entire record in the case and the briefs of the parties,
the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF MISSION
Mission operates a motel in San Diego, California, consisting of
112 motel units, a restaurant, and a bar. During the 12-month period
ending September 30, 1959, Mission received gross revenues in ex-
cess of $900,000. Of this amount, in excess of $300,000 was received
from the rental of rooms; about $390,000 was received from the sale
of food; and about $225,000 was received from the sale of beverages.
Approximately 50 percent of Mission's beverage sales were of prod-
ucts which originated outside the State of California. During this
period approximately 10 percent of Mission's guests were nonresidents
of the State of California, and more than 75 percent of all guests
remained at the motel for stays of less than 1 month.
The parties agree, and we find, that at all times material herein
Mission was engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section
2 (5) of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
For several years prior to November 30, 1958, Mission and the
Union, as the exclusive representative of certain of Mission's em-
ployees, were parties to a collective-bargaining agreement, which in-
cluded a lawful union-security provision.
On or about September 3, 1958, the Union sent Mission a letter,
requesting termination of the existing agreement pursuant to its terms
and the negotiation of a new agreement. On or about October 28,
1958, Mission sent the Union a letter agreeing to the requested
termination.
On December 1, 1958, the Union filed a petition for representation
(Case No. 21-RC-5540, not published in NLRB volumes). On
February 13, 1959, following a hearing before a hearing officer, the
Board issued an order dismissing petition on the ground that the
WAITERS & BARTENDERS LOCAL 500, ETC. 435
Union was not in full compliance with Section 9(f) and (h) of the
Taft-Hartley Act when it filed the petition.
In the meantime the Union had brought itself into full compliance
with Section 9(f) and (h). Thereafter, on February 9, 1959, the
Union filed a new petition for representation (Case No. 21-RC-5653,
not published in NLRB volumes), and on February 27, 1959, an
amended petition. On March 9, 1959, a hearing was held before a
hearing officer.
On or about May 27, 1959, members of the Union who were Mis-
sion's employees held a meeting in which they discussed certain ac-
tivities of Mission. At this meeting, the employees voted to go on
strike in protest against these activities, and to file an unfair labor
practice charge against Mission.
On May 28, 1959, 22 employees went on strike and began picketing
Mission with 3 picket signs reading as follows: "WE PROTEST UN-
FAIR LABOR PRACTICES OF MISSION VALLEY INN"-
"WE PROTEST EMPLOYER'S INTERROGATION OF EM-
PLOYEES"-"MVI SAYS IT WILL REFUSE TO BARGAIN
IN GOOD FAITH IF UNION WINS ELECTION."
On the same day the Union filed an unfair labor practice charge
against Mission, alleging violations of Section 8(a) (1), (2), and
(3) of the Act. (Case No. 21-CA-3584, not published in NLRB vol-
umes.) Upon investigation of the charge, the Regional Director
concluded that Mission had engaged in unfair labor practices and
subsequently, on July 22,1959, approved a unilateral settlement agree-
ment entered into by Mission in which the latter undertook, among
other things, to reinstate certain of its striking employees and to place
others on a preferential hiring list. In view of the settlement the
Regional Director declined to issue a complaint.
The Union, however, dissatisfied with the informal settlement, to
which it was not a party, appealed to the General Counsel from the
Regional Director's approval thereof and from his refusal to issue
a complaint. This appeal, filed on July 30, 1959, was based in part
on the ground that the settlement would "seriously affect Fits] elec-
tion rights" in the pending representation proceeding. Neverthe-
less, on August 27, 1959, the General Counsel denied the Union's
appeal on the ground that "under the circumstances here disclosed
the settlement agreement adequately disposes of the charges in this
case." i
Upon denial of its appeal, the Union forthwith, on August 27, 1959,
changed its picket signs to read on one side:
1 The determination whether to issue a complaint , and hence the approval of settlements
prior to su(h Issuance , rests solely with the General Counsel under the statutory scheme.
The Board has no authority in that regard
681-492-63-vol. 140-29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE PROTEST
MISSION VALLEY INN'S REFUSAL TO REHIRE:
ALL UNFAIR LABOR PRACTICE STRIKERS
and on the other side :
22 EMPLOYEES STRtT('K BECAUSE
MISSION VALLEY INN
ENGAGED IN UNFAIR LABOR PRACTICES
MITI NOW WILL T.,KE BACK ONLY
PART OF EMPLOYEES
MITI IS REAPING BENEFIT OF UNFAIR LABOR
PRACTICE WITHOUT RECTIFYING SITUATION
No reference was inade in the new picket signs to Mission's refusal to
bargain in good faith.
On September 17, 1959, the Board issued its Decision and Direction
of Election in the pending representation case (124 NLRB 963). The
Union's request, 8 days later, to withdraw the representation petition
was administratively denied by the Board on December 11, 1959, on
the groiuid that the Union "by its picketing, is engaging in conduct
inconsistent with its withdrawal request."
Several days earlier on December 7, the Regional Director advised
the Uinon and Mission that the unfair labor practice case which
had culminated in the settlement agreement was being closed on
compliance.
The election pursuant to the Decision and Direction above-described
was conducted on December 28, 1959. The tally of ballots revealed that
of approximately 70 eligible voters, 4 cast ballots for and 44 against
the Union. Nine voters were challenged. Tlieieafter the Union filed
timely objections to conduct affecting the election results. The
Regional Director recommended dismissal of the objections on J anuary
13, 1960, stating that the objections raised no material or substantial
issues, and further recommended that a certification of results issue.
The Union filed timely exceptions to the Regional Director's find-
ings and recommendations whereupon the Board oil March 11, 1960,
issued a Supplemental Decision and Certification of Results of Elec-
tion (not published in NLRB volumes) sustaining the Regional
Director's findings and recommendations, and certifying that her fuse
of the Union's failure to receive a majority of the valid votes cast, "the
said organization is not the exclusive representative of Mission's em-
ployees m the appropriate unit, within the meaning of Section 9(a)
of the Act."
From March 11 to April 29, 1960, the Union continued, as thereto-
fore, to picket Mission with signs identical or substantially similar to
WAITERS & BARTENDERS LOCAL 500, ETC. 437
those it had adopted on August 27, 1959.1 The picketing occurred at
Mission's main entrance which was used by Mission's employees as well
as by guests and deliverymen.3
Discussion
The sole issue here presented is whether the Union engaged in con-
duct violative of Section 8(b) (7) (B) of the Act. That section pro-
vides, so far as here relevant, that it is an unfair labor practice for
an uncertified labor organization to picket for an object of recognition,
bargaining, or organization where, within the preceding 12 months,
a valid election under Section 9(c) of the Act has been conducted.
The complaint alleges, in substance, that on and after March 11, 1960
(the date on which the validity of the election was established),' the
Union, notwithstanding its defeat in the election, picketed Mission
for an object of recognition, bargaining, or organization, thereby
violating Section 8(b) (7) (B).5 The Union, for its part, denies that
it engaged in picketing for any of these proscribed objects, and asserts
that its picketing was, at all times here relevant, solely in protest
against Mission's unfair labor practices, and devoid of as recognition,
bargaining, or organizational objective. Such activity, the Union
argues, is protected by Sections 7 and 13 of the Act and is not pro-
scribed by Section 8 (b) (7).
Preliminarily, it may be noted that the prohibitory provisions of
Section 8(b) (7) do not encompass picketing which is solely in protest
against unfair labor practices. As we pointed out in our decision in
International Hod Carriers' Building and Common Laborers' Union
of America, Local 840, AFL-CIO (Charles A. Blinn, d/b/a C. A.
Blinn Construction Company), 135 NLRB 1153, the thrust of all the
Section 8(b) (7) provisions, both structurally and grammatically, is
directed only against picketing for recognition, bargaining, or organi-
zation and not against picketing for other objects. Insofar as picket-
ing is directed against unfair labor practices not involving an object of
recognition, bargaining, or organization, it falls plainly outside the
area proscribed by Section 8 (b) (7) 6
2 Picketing ceased on April 29, 1960, pursuant to a stipulation filed in the Federal
district court (Civil No 2392-SC-C; S D Calif )
3 While not germane to the disposition of the issue here presented , it appears that the
picketing did not have the effect of inducing any employee to refuse to pick up , transport,
deliver goods , or perform services
' See Retail Store Employees ' Union Local No 692, Retail Cletl.s International Associa-
tion, AFL-CIO ( Irvins, Inc.), 134 NLRB 53, in which the Board unanimously held that
in Section 8(b) (7) (B) cases the decisive date for determining when a valid election has
been conducted is the date on which the Board issued a certification of a bargaining repre-
sentative or a certification of results.
s Although the complaint alleges organization , as well as recognition and bargaining, as
an object of the picketing , the record does not furnish evidence supporting a finding of an
organizational object, and none of the parties presses for such a finding
"The legislative history of the Act confirms this conclusion as exemplified by statements
from both proponents and opponents of the several bills which culminated in the Sec-
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although our dissenting colleagues seem to assume this to be the
basis of our decision in the instant case, we need not and do not reach
this issue. We note that the Union, contemporaneously with its picket-
ing, filed unfair labor practice charges against Mission with the Gen-
eral Counsel ; that the Regional Director and Mission entered into all
informal settlement agreement with respect to these charges, thus
obviating the necessity for issuing a complaint; that -Mission complied
with the terms of this settlement agreement; and that the Regional
Director thereupon closed the case. Granted that the Union was not a
party to the informal settlement agreement, that at all times it resisted
the settlement, and that, particularly, it protested the failure to re-
instate all the strikers encompassed in the unfair labor practice
charges, the fact remains that under established and regular adminis-
trative procedures, any unfair labor practices embraced in the charges
must be deemed to have been remedied, and the case has been closed.
For the Board to accord recognition to a continued protest against
unfair labor practices thereafter would be inconsistent with its obliga-
tion to respect established administrative practice and would impinge
upon the statutory authority of the General Counsel (see footnote 1,
supra).
However, a refusal to accord recognition to the Union's claim that
it was at all times engaged in unfair labor practice picketing does not
resolve the issue. It does not follow that, because the picketing after
settlement and compliance was not-or, more accurately, may not be
considered to have been-for the object of protesting unfair labor
practices, it was, therefore, for a proscribed object, namely, recogni-
tion, bargaining, or organization. The existence of the proscribed
object still remains an element of affirmative proof which is pr?-
requisite to a finding of the violation here alleged, and cannot be sup-
plied by merely disproving the existence of a different object.
The General Counsel does not argue to the contrary. Rather, his
sole contention is that the Union's picketing at all times, including of
course the period on and after March 11, 1960, had an object of recogni-
tion. The predicate for this contention is summed up succinctly in
the General Counsel's brief which we set forth in relevant part (refer-
ences and footnotes omitted) :
tion 8 ( b) (7) provisions See statements by Senator Prouty ( 105 Cong. Rec. 6657 ; II Legis-
lative History of the Labor-Management Reporting and Disclosure Act of 1959 (GPO,
1959 ), p. 1184, hereinafter referred to as "Leg. list " ) ; by Senators Goldwater and
Dirksen in a Statement of Minority Views included in S Rept. 187 on S 1555, 86th Cong,
1st sess, April 14, 1959, p 466 , at p 177 ( I Leg Hist 473) ; by Representative Barden
(105 Cong Rec 18127-18128 , II Leg Hist . 1714 ) See also a statement by the then
Secretary of Labor Mitchell before a Senate committee ( Senate hearings before the Sub-
committee on Labor on S. 505, et al, 86 Cong , 1st sess , p. 409 ) For further discussion
of this issue, see Teamsters "General" Local No. 200, International Brotherhood of Team-
sters, etc. (Howard Bachman , Joseph B. Bachman and Myron J . Co plan, a partnership
d/b/a Bachman Furniture Company ), 134 NLRB 670 A compendious law review note in
69 Yale Law Journal, 1393 , 1400, reaches the same result
WAITERS & BARTENDERS LOCAL 500, ETC. 439
Respondent's picketing had a "recognition" object at all times.
This is demonstrated by Respondent's request to bargain on
September 3, 1958; the representation petitions; Respondent's
charge alleging as an unfair labor practice Mission Valley's state-
ment, inter alia, that it "would never sign a contract with the
Union;" the early picket sign complaining that "MVI says it will
refuse to bargain in good faith if Union wins election;" Respond-
ent's July 30 appeal to the General Counsel ; and the absence of a
hiatus in the picketing since May 28, 1959. These factors consti-
tute compelling evidence that the picketing had a recognition ob-
ject at all times. Indeed, the Board so found in its Order Denying
Request dated December 11, 1959.
The mere fact that Respondent changed the wording on its
picket signs is, of course, not sufficient to establish a change in ob-
jective where, as here, the picketing was continuous and Respond-
ent failed to inform Mission Valley that it was no longer seeking a
contract. [Emphasis supplied.]
We do not find the argument persuasive. Except for the circum-
stance that the picketing continued without a hiatus in point of time,
all the evidence cited by the General Counsel relates to a period sub-
stantially in advance of March 11, 1960, when the validity of the elec-
tion was established, and even in advance of December 28, 1959, when
the balloting took place. Moreover, the conduct here also predates by
a considerable period the effective date of the Section 8(b) (7) provi-
sions (November 13, 1959) upon which the alleged violation here is
predicated.
Analytically, therefore, the General Counsel's argument rests on
the premise that because the picketing at the outset had an objective
of recognition or bargaining (or, presumably, any other objective),
the continuation of that picketing without a break compels the con-
clusion that the identical objective continued to be operative at all
times thereafter. We have in prior decisions, and for reasons there
stated, indicated the shortcomings of such a categorical rule of con-
struction. See also Local 344, Retail Clerks International Association,
AFL-CIO; et al. (Alton Myers Brothers, Inc.), 136 NLRB 1270;
Bachman Furniture Company, supra, footnote 6; Local 259, Interna-
tional Union United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, UAW, AFL-CIO (Fanelli Ford Sales,
Inc.), 133 NLRB 1468.
Moreover, the premise of the General Counsel's argument is itself
faulty. That premise is that the picketing at the outset had an objec-
tive of recognition as demonstrated by the fact that the Union had
made a request to bargain in September 1958 and that it had filed rep-
resentation petitions in December 1958 and February 1959. In added
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
support for this premise the General Counsel adverts to the protest
picketing and filing of charges in May 1959 against Mission's state-
ment of its intention to refuse to bargain even if the Union won the
'election.
The nub of the matter is, however, that the picketing-and picket-
ing is the sole activity proscribed by Section 8(b) (7) -was not timed
or otherwise related to the filing of the representation petitions. The
evidence is uncontroverted that the picketing began 3 months later
in protest against Mission's unfair labor practices including a refusal
to reinstate employees and a refusal to bargain. At this stage the
picketing was clearly a protected concerted activity. When in August
1959 the General Counsel rejected the Union's appeal from his refusal
to issue a complaint, and rejected also the Union's objection to the in-
formal settlement agreement which provided for reinstatement of
only part of the employees, the Union forthwith changed its picket
signs to eliminate all reference to Mission's refusal to bargain and con-
fined its protest to Mission's refusal to reinstate all the strikers.
Hence, some 21/2 months before the provisions of Section 8(b) (7)
against picketing for recognition, bargaining or organization even
became effective, the Union voluntarily discontinued the only aspect
of its picketing which could be regarded as violative of the proscrip-
tions of that section, namely, the protest against Mission's statement
that it would not bargain even if the Union won an election. More-
over, this voluntary action on the part of the Union, not compelled
by any then existing legislative enactment, antedated by 4 months the
representation election itself. Indeed, the only action taken by the
Union throughout this whole period which had any bearing on the
pending representation petition was its unsuccessful attempt in Sep-
tember 1959 to withdraw that petition. We do not believe, in this con-
text, that the picketing must nonetheless be appraised against the
background of the subsisting representation petition and hence be re-
garded as having a recognition or bargaining objective.'
The only remaining basis, therefore, to support a claim that the
picketing at any time after August 27, 1959, was for an object of
recognition, bargaining, or organization is the fact that the picket
signs were directed to Mission's refusal to reinstate all the strikers and
that the signs characterized this action as the product of an unreme-
died unfair labor practice. For reasons already delineated, we will not
7 We are cognizant, of course , of the argument that our December 1959 administrative
denial of the Union's request for withdrawal of its representation petition suggests that
the Union was still in our view making an active claim for representation Indeed, our
Order in that respect recites that the Union 's continued picketing was inconsistent with
its withdrawal request However , that Order was based on administrative advice and,
unlike the instant situation , was not based on a record which has been stipulated by the
parties and has been fully briefed. In the present posture of the case, we cannot and do
not regard our prior administrative ruling as controlling.
WAITERS & BARTENDERS LOCAL 500, ETC. 441
predicate our resolution of the issue here presented on the ground that
the Union was engaged in an unfair labor practice strike. Nor, as we
have also previously indicated, do we regard such a resolution as neces-
sary for purposes of this case. For, unfair labor practice considera-
tions aside, it is clear that from August 27, 1959, long before the effec-
tive date of Section 8(b) (7) and at all times thereafter including the
period beginning March 11, 1960, to which the complaint is directed,
the picketing in which the Union engaged had as its sole object the lnn-
mediate reinstatement of those employees who had been denied such
reinstatement and, instead, had been placed on a preferential hiring
list with only putative or speculative prospects of actual reemployment.
This object cannot reasonably be regarded as in the nature of a
pretext to mask a covert demand for recognition or bargaining. The
existence of strikers was a fact. The refusal to reinstate them was a
fact. Even if they are to be regarded as economic strikers, the demand
to reinstate them was a proper and permissible objective and was the
sole and exclusive objective of the picketing, not only after the critical
date of March 11, 1960, but as far back as August 27, 1959, long be-
fore the effective date of the Act on November 13, 1959, and even
longer before the date of election herein on December 28, 1959.6 The
only basis, therefore, upon which to posit a claim of recognition or
bargaining after August 27, 1959, is to embrace the now-repudiated
doctrine of Meat ce' Provision Drivers Union, Local No. 626, I91tei-
national Brotherhood of Teamsters, etc. (Lewis Food Company), 115
NLRB 890, that implicit in any picketing demand, whether it be, as
here, for reinstatement of strikers or discharged employees, or for
area standards, or in protest against unfair labor practices, is per se a
demand for recognition or bargaining. We reaffirm our earlier objec-
tions to this sweeping proposition. See Fanelli Ford Sales, Inc., supra;
Miratti's, Inc., 132 NLRB 699; Andes Candies, Inc., 133 NLRB 758;
Cox : The Landruita,-Griffin Amendments to the National Labor Rela-
tions Act, 44 Minn. Law Rev. 257, 266 (December 1959).
It follows, therefore, that the presumption of continuity upon which
the General Counsel seeks to rely in this case is for his purposes in-
8 The instant case is therefore plainly distinguishable from Local Joint Executive Board
of San Diego , comprising Waiters and Bartenders Local 500 and Cooks and Waitresses
Local 402 , etc. (TV. D . Evans d/b/a The Evans Hotels operating The Bahia Motor Hotel),
132 NLRB 737 In that case the union conceded that at all times prior to the date of the
election, an object of the picketing , inter alia , was to obtain a collective -bargaining con-
tract from the employer and to induce his employees to become union members. The
union contended that after that date the picketing was solely to protest the employer's
unfair labor practices . There was no outward manifestation of that change , however,
until 15 days later when a letter was written disavowing any claim of representative
rights In the meantime the Regional Director, with the acquiescence of the union, had
determined that the employer had remedied the unfair labor practices and the union did
not make clear what further employer remedial action, short of recognition , it sought
Under these circumstances we concluded that the asserted change in object was a pretext
and that the union 's picketing continued for the proscribed objective of recognition, bar-
gaining, and organization.
442 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
apposite. On the contrary, it would seem to militate against hint.
Had an object of recognition, bargaining, or organization existed prior
to March 11, 19603 the beginning date of the period here in issue or even
prior to the date of the election on December 28, 1959, we might have
regarded with some skepticism an asserted change in objective there-
after (compare The Evans Hotels operating The Bahia Motor hotel,
supra, footnote 8), especially where there was no break or hiatus in the
picketing activity in point of time. But here a break, in the most
literal sense, occurred in August 1959, when the Union renounced any
bargaining objective and confined its efforts to obtaining reinstatement
for the unreinstated employees. Nothing in the Union's conduct in
the months thereafter was inconsistent with that change. Quite the
opposite, the Union's effort in September 1959 to withdraw its rep-
resentation petition confirmed its public renunciation of a recognition
or bargaining objective. Accordingly, if the presumption of con-
tinunity is to be applied, it follows that the picketing after March 11,
1960, like the picketing before that date, was devoid of a proscribed
object.'
For all the reasons set forth above, we conclude that the Union's
picketing on and after March 11, 1960, did not have an object of recog-
nition, bargaining, or organization and hence was not encompassed
within the strictures of Section 8(b) (7).
On the basis of the foregoing findings of fact, and upon the entire
record, the Board hereby makes the following :
CONCLUSIONS OF LAW
1. Mission is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section
2(5) of the Act.
9It is enlightening to note that the conclusion which we reach in the instant case would
seem to follow as an a fortiori proposition from the example cited by Senators Dirksen and
Goldwater In the legislative history to which reference has already been made (footnote 6,
supra). The Senators cite a situation where a union obtains a membership card majority
and files a petition for an election ; the employer then discharges several union adherents ;
the union waives the charges it has made of discriminatory discharge so that the election
may proceed ; and then the union loses the election Defending the provisions of S 748,
the predecessor provision upon which Section 8(b)(7) was modeled, against attack by
opponents on the ground that in the above-described situation the union would be deprived
of the right to picket, Senators Goldwater and Dirksen said (see I Leg. Hest 473) :
Opponents, using these facts, say that S 748 would prevent use of a picket line.
This Is simply not so. The Union could picket to force an employer to remedy the
unfair labor practice by reinstating and providing back pay to the dischargees.
The Dirksen-Goldwater conclusion necessarily assumes that In the example cited the
picketing directly after the election had no proscribed object within the meaning of the
proposed legislation even though obviously the union activities up to the election had such
an object. In the Instant case where any proscribed object had been abandoned long
before the election, the conclusion that the picketing did not fall within the ambit of
Section 8(b) (7) is even more obvious
WAITERS & BARTENDERS LOCAL 500, ETC. 443
3. The General Counsel has not established by a preponderance of
the evidence that the Union violated Section 8 (b) (7) (B) of the Act
by its picketing of Mission on and after March 11, 1960.
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEI EDOM, dissenting :
We disagree with our colleagues' conclusion that the Union's picket-
ing on and after March 11, 1960 (the date on which the validity of
an election lost by the Union was established)," was solely in protest
against Mission's unfair labor practices, and was devoid of an object
of recognition, bargaining, or organization. Events occurring before
the amendments to the Act in 1959, although not unfair labor practices
in themselves, show that the Union commenced the picketing to gain
recognition as one of its objects. The Board so determined on Decem-
ber 11, 1959, when it denied the Union's request to withdraw its then
pending representation petition on the ground that the Union "by
its picketing, is engaging in conduct inconsistent with an unequivocal
request for withdrawal." 11 No adequate reason appears why this
determination should be overturned for there is no showing of any
change in the factual situation upon which the determination was
made. Thereafter, the picketing continued without any interruption
and without any material change in the legends on the Union's picket-
ing signs beyond March 11, 1960.
Based on the entire record, including the Board's previous deter-
mination in the representation case referred to above, we would find
that the Union's picketing prior to November 13, 1959, had an object
of forcing or requiring Mission to recognize and bargain with the
Union, and also had an object of forcing or requiring Mission's em-
ployees to select the Union as their collective-bargaining representa-
tive. Because the object of a continuing act, such as the picketing here,
is presumed to continue as long as the act continues, we would find
that the picketing, on and after November 13, 1959, continued to have
such objects. See our dissenting opinion in Alton Myers Brothers,
Inc., supra. Moreover, Respondent's contention that it was picketing
in protest of Mission's unfair labor practices relating to the refusal
to reinstate, which our colleagues accept, does not withstand scrutiny
in the light of the informal settlement agreement of charges relating
to these unfair labor practices, the compliance with such agreement
by Mission, and the closing of this case by the Regional Director, all
in advance of the election which Respondent lost.
10 On March 11, 1960, the Board overruled the Union 's objections filed in Case No.
21-RC-5653 ( 124 NLRB 963), and certified that the Union had lost the election held in
that case
11 Case No 21-RC-5653 ( not published in NLRB volumes).
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our colleagues assert that picketing directed against unfair labor
practices falls outside the area proscribed by Section 8(b) (7). That
statement is too sweeping as a proposition of law. In our view, the
fact that picketing is directed against employer unfair labor practices
is no defense to what is otherwise a violation of Section 8 (b) (7). See
our separate opinion in C. A. Blinne Construction Company, supra.
And, even in the view of our colleagues in Blinne , the union has no
defense in such a situation except where a meritorious 8(a) (5) charge
is filed.
Nor do we agree with our colleagues that the picketing was unrelated
to the filing of the representation petitions , or that the picket signs
were so changed in August 1959 or thereabouts as to eliminate recog-
nition as an object of the picketing. With respect to the first assertion,
we note that all the picket signs in question were introduced during
the pendency of the February 1959 petition and that the picket signs
originally protested that "MVI Says It Will Refuse To Bargain in
Good Faith If the Union Wins Election." *Moreover, our colleagues
concede that the picketing began , in part, as a protest against "a re-
fusal to bargain." Thus, the petitions and the picketing had in com-
mon recognition as an object. As to the changes that were made, it is
apparent that the picket signs continued to say that the employees had
struck because of "unfair labor practices," a reference which included
the refusal to bargain. Indeed, even as changed, the picket signs did
not express any intention to abandon recognition as an object of the
picketing.
Nor is there warrant for our colleagues ' conclusion that the only
basis upon which to posit a continuing claim for recognition here is
the Lewis Foods case. While we adhere to the doctrine of Lewis Foods
in principle , we do not apply it here as we have found specifically
that the Union did not continue picketing to protest unfair labor
practices relating to the refsual to reinstate covered by the settlement
agreement . But even if, contrary to fact and despite the settlement
agreement and the closing of the case involving the refusal to reinstate,
the Union continued to picket to protest any such unfair labor prac-
tices, the evidence establishes , as hereinbefore indicated , that the
Union also continued to seek recognition independently of that im-
plicit in any demand for rectification of unfair labor practices.
Accordingly , as the picketing occurred within 12 months of a valid
election under Section 9 (c) of the Act, we would find that the Respond-
ent Union thereby violated Section 8(b) (7) (B) as alleged in the
complaint.