United Food & Commerical Workers, Local 1063

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Food and Commercial Workers International Union, Local No. 1063, AFL-CIO' and Heath- man Enterprises Limited and Heathman Em- ployees Independent Union, Party in Interest. Case 10-CP-174 May 7, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On February 1, 1980, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, Respondent and the Em- ployer filed exceptions and supporting briefs, and Respondent filed a brief in reply to the Employer's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, 2 find- ings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, United Food and Commercial Workers International Union, Local No. 1063, AFL-CIO, Jonesboro, Georgia, its officers, agents, and representatives, shall take the action set forth in the said recommended I The name of the Union, formerly Retail Clerks Union Local No. 1063, AFL-CIO, is amended to reflect the change resulting from the merging of Retail Clerks International Union and the Amalgamated Meatcutters and Butcher Workmen of North America on June 7, 1979. 2 For the reasons stated in Service Employees' International Union, Local No. 227, AFL-CIO (Children's Rehabilitation Center, Inc.), 211 NLRB 982 (1974), Member Penello would find that the Administrative Law Judge erred by permitting Respondent to introduce evidence relating to the Employer's alleged assistance to and/or domination of the recognized union. For the reasons stated in his dissenting opinion in Children's Reha- bilitation Center, Chairman Fanning would affirm the Administrative Law Judge's ruling. Member Jenkins did not participate in that case, and finds it unnecessary to rule on the issue in view of his agreement with the result in the instant case. 3 We note that in sec. II,C,(2), of his Decision the Administrative Law Judge inadvertently erred by stating that Respondent contended that its picketing was protected by the publicity proviso contained in Sec. 8(bX7XC) of the Act. We correct that statement to reflect that Respond- ent's contention was that its picketing was for informational purposes only and did not have a recognitional or organizational object. Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 249 NLRB No. 52 Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT picket or threaten to picket Heathman Enterprises Limited, with an object of forcing or requiring that Employer to rec- ognize or bargain with us as the representative of its employees, or forcing any of you to accept us as your collective-bargaining repre- sentative, at a time when Heathman Enter- prises Limited has lawfully recognized Heath- man Employees Independent Union, or any other labor organization, as your collective- bargaining representative, and a question con- cerning representation cannot be raised under the National Labor Relations Act, as amended. UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 1063, AFL-CIO DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: This case was heard before me on June 27, 1979, in Atlanta, Georgia. On May 14, 1979,' Heathman Enterprises, Limited (hereinafter called the Employer), filed the unfair labor practice charge against Retail Clerks Union Local No. 1063, AFL-CIO (hereinafter called Respondent), alleg- L All dates are in 1979, unless otherwise stated. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1063 373 ing that Respondent violated Section 8(b)(7)(A) 2 of the National Labor Relations Act, as amended (hereinafter called the Act). On May 31, the Regional Director for Region 10 of the National Labor Relations Board (hereinafter called the Board) issued a complaint and notice of hearing. Service of the charge and the complaint and notice of hearing was duly made upon the parties Respondent filed a timely answer to the complaint by which it admitted certain allegations but denied the sub- stantive allegations and that it had committed any unfair labor practices. All parties appeared at the hearing before me. Each was represented by counsel and was afforded full oppor- tunity to be heard, to introduce and to meet material evi- dence, to examine and cross-examine witnesses,3 to pres- ent oral arguments, and to file briefs. Post-hearing briefs were received from counsel for the Board's General Counsel, counsel for Respondent, and from the Employ- er's counsel. The contents of those briefs have been fully considered. Upon consideration of the entire record and the briefs, and my observation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION The Employer, a Georgia corporation, maintains its office and place of business in Stone Mountain, Georgia, where it is engaged in the operation of retail grocery stores located in Stone Mountain and Jonesboro, Geor- gia. During the calendar year immediately preceding issu- ance of the complaint, the Employer received gross rev- enue in excess of $500,000 and in the same period of time purchased and received products valued in excess of $50,000 directly from suppliers located outside Georgia. The parties agree, the record reflects, and I find that at all material times the Employer has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties agree, the record reflects, and I find that Respondent has been a labor organization within the meaning of Section 2(5) of the Act at all times material herein. Respondent denied that Heathman Employees Inde- pendent Union (hereinafter called Independent) is a labor organization within the meaning of the Act. 2 Sec. 8(b)(7)(A) provides it is an unfair labor practice for a labor orga- nization: to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requir- ing an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the em- ployees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organiza- tion is currently certified as the representative of such employees: (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 this Act. a All witn-sses were sequestered upon Respondent's motion. The Board has long held that an organization in which employees participate, and which exists, in whole or in part, for the purpose of dealing with employers concern- ing wages, hours, and other terms and conditions of em- ployment meets the criteria of statutory definition of a labor organization contained within Section 2(5) of the Act. Alto Plastics Manufacturing Corporation, 136 NLRB 850, 851-852 (1962); Underwriters Adjusting Company, 227 NLRB 453 (1976). The evidence herein establishes that the Independent exists by virtue of bylaws adopted by the employees of the Employer. In salient part, those bylaws provide that the Independent exists "to establish equitable working conditions and wage scales, to protect . . . (employee) .. . .interest...." Further, those bylaws provide that membership in the organization shall consist of present and future employees of the Employer. Additionally, the Independent operates with elected officers who are Heathman's employees. Finally, the evi- dence shows that representatives of the Independent ne- gotiated the terms of a collective-bargaining agreement with the Employer and that agreement was ratified by Independent's membership. Upon all the foregoing facts, I find that the Independ- ent is, and at all times material herein has been, a labor organization within the meaning of the Act. Accordingly, I conclude that the evidence confers ju- risdiction in the Board and it will effectuate the purposes of the Act for the Board to assert such jurisdiction over the parties and the subject matter herein. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues I. Did the Employer lawfully grant recognition to the Independent to be the exclusive representative for collec- tive bargaining on behalf of all full-time and regular part- time employees at its stores in Stone Mountain and Jonesboro, Georgia, excluding office clerical employees, professional employees, guards, and supervisors as de- fined in the Act?4 2. Did Respondent's picketing have an object pro- scribed by Section 8(b)(7)(A) of the Act? B. The Facts The following recitation of facts and scenario of events is based on stipulations of the parties, admissions, and uncontradicted testimony upon matters deemed rele- vant. Although only the facts considered relevant to the issues are recited for the sake of brevity, I have consid- ered all matters litigated and arguments of counsel made upon them. Omitted matter is deemed irrelevant, super- fluous, or not credible. As indicated, the Employer operates two retail gro- cery stores-one in Stone Mountain, Georgia, and the other in Jonesboro. The Stone Mountain facility opened in December 1975. Jonesboro was opened in December 1978. The initial complement of Jonesboro employees in- cluded some supervisory and rank-and-file employees from Stone Mountain who were transferred to Jonesboro 4 The appropriateness of the stated bargaining unit is not disputed 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to assist in a smooth opening operation. The labor rela- tions policy of both locations is directed by Donald Heathman, Jr. The important events herein may be chronologically outlined as follows: March 12: The Jonesboro store was picketed by Re- spondent. Picket signs bore the legend "Notice to Public. Please do not Patronize. Heathman does not Employ Members of Retail Clerks Local 1063, AFL-CIO." Also, handbills were distributed by Respondent at the Jonesboro location. In addition to a message similar to that contained on the picket signs, the handbills solicited public patronage of four other named grocery stores in the Jonesboro area, the employees of which "work under a union contract." April 13: The employer filed a charge alleging Re- spondent violated Section 8(b)(7)(C) of the Act. That case was docketed as Case 10-CP-173. Also, the Em- ployer filed a representation petition docketed as Case 10-RM-689. April 20: The 8(b)(7)(C) charge (Case 10-CP-173) was withdrawn. April 23: The Employer's representation petition (Case 10-RM-689) was withdrawn. May 2: The Independent filed a petition for certifica- tion of representative (Case 10-RC-11760) for the com- bined unit of Jonesboro and Stone Mountain employees. May 3: Region 10 advised Respondent that the Inde- pendent had filed the petition in Case 10-RC-1 1760 and provided Respondent 48 hours in which to intervene in that proceeding. May 8: The Regional Office conducted a preelection conference upon the petition of the Independent. No rep- resentative of Respondent appeared although Respondent was aware the conference had been scheduled. During the conference authorization cards provided by the Independent were checked against the Employer's payroll signatures. Of approximately 124 employees on the list of potential unit employees, the card check re- vealed 92 apparently authentic signatures. Based upon this showing of majority, the Employer granted recogni- tion to the Independent. May 8: The Employer advised Respondent, in writing, that the Independent had been recognized as collective- bargaining representative of the subject employees. May 9: The Independent withdrew its representation petition, Case 10-RC-11760. Respondent's picketing of the Jonesboro facility was continuous from March 12 through this date. May 14: The Independent conducted an election of of- ficers. May 14: The Employer filed the instant charge. Re- spondent's picketing continued. May 17: Collective-bargaining negotiations began be- tween the Employer and the Independent. May 21: A second negotiating session was held be- tween the Employer and the Independent. May 24: The Board's Regional Office representatives advised Respondent that a complaint had been author- ized upon the instant charge. Respondent's picketing stopped. May 30: Respondent resumed its picketing with sub- stantially identical legends upon its picket signs as ap- peared originally. May 31: The Board initiated an injunction proceeding based upon the instant charge and the administrative de- termination that it had merit. The injunction proceeding, entitled "Curtis L. Mack v. Retail Clerks Union Local No. 1063, AFL-CIO," was filed in the United States District Court for the Northern District, Georgia, Atlanta Divi- sion, and was docketed as Civil Action No. C79-940 A. June 6: Respondent filed a charge (Case 10-CA-14728) alleging the Employer violated Section 8(a)(1) and (2) of the Act. The gravamen of that charge was an asserted unlawful assistance or domination by the Employer toward the Independent. June 11: The Regional Director, after investigation, dismissed Respondent's 8(a)(2) charge, Case 10-CA- 14728. Respondent requested an extension of time to file an appeal to the Board's General Counsel. On this date, also, United States District Judge Harold L. Murphy began hearings in the injunction proceeding. Those proceedings continued on June 12, 14, 18, and 20. June 14: The Employer and Independent signed a col- lective-bargaining agreement. July 2: Respondent filed its appeal to the Board's Gen- eral Counsel from the regional dismissal of its 8(a)(2) charge. July 10: U. S. District Court Judge Murphy issued an order granting the Board's request for a temporary in- junction. August 31: the Board's General Counsel denied Re- spondent's appeal from the Regional Director's dismissal of the 8(a)(2) charge, Case 10-CA-14728. The events of July 2 and 10, and August 31, set forth above, occurred subsequent to the close of the instant hearing. All parties have alluded to them in their post- hearing briefs. In view of this, and because they are either part of the formal judicial injunction proceedings and/or part of the official action upon the charge in Case 10-CA-14728, I take official notice of their existence. C. Analysis 1. The grant of recognition An essential element of the General Counsel's prima facie case is that the grant of recognition had been lawful. Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Darby Electric Corporation), 153 NLRB 717, 723 (1965), enfd. 362 F.2d 232 (2d cir. 1966). Respondent urges that the recognition accorded the In- dependent was tainted by virtue of participation of statu- tory supervisors and/or the Employer's agents. In support of this defense, Respondent proffered evi- dence purporting to show that such supervisors and/or agents rendered assistance to and/or dominated the Inde- pendent. The General Counsel and Employer objected to the introduction of the evidence offered to demonstrate the impropriety of the grant of recognition. The objections to such evidence were predicated upon the fact that the pending 8(a)(2) charge (Case 10-CA-14728) had been dismissed by the Regional Director. - ------- UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1063 375 At the hearing, I first declared that I considered myself bound by the General Counsel's disposition of that charge. Thus, initially the General Counsel's objec- tion was sustained. Upon reconsideration, I later permitted Respondent to offer its evidence of assistance and/or domination. Thereafter, Respondent adduced certair evidence (to be discussed more fully below) which it argues demon- strates that the recognition of the Independent was not lawful. Additionally, considerable evidence of similar import had been earlier adduced in the injunction pro- ceeding. That evidence has been incorporated by stipula- tion into the instant record.5 I have reviewed the applicable decisional precedent and all post-hearing arguments on this issue. These per- suade me that it is indeed appropriate for the instant record to contain Respondent's defense evidence relating to assistance and/or domination. A brief review of the applicable authority is in order. Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Woodward Motors, Inc.), 135 NLRB 851 (1962), an 8(b)(7)(B) proceeding, contained as an issue the preemp- tive character of the General Counsel's dismissal of an 8(a)(2) allegation. In that case, the validity of the election which formed the basis of the 8(b)(7)(B) complaint de- pended on the effectiveness of that dismissal. The Board adopted, pro forma, Administrative Law Judge Maher's observation that the final authority con- ferred by the Act upon the General Counsel, with re- spect to issuance of complaints, precludes the Board from review of the General Counsel's refusal to issue a complaint. (135 NLRB 851, 858, fn. 9.) International Hod Carriers' Building & Common Labor- ers' Union of America, Road & Heavy Construction, Local 1298, AFL-CIO (Roman Stone Construction Company, and Kindred Concrete Products, Inc.), 153 NLRB 659 (1965), involved allegations of violation of Section 8(b)(7)(A). A major issue in that case is identical to the instant issue; namely, the existence of a question concern- ing representation. Patently, resolution of this question depends on the validity of the recognition of the Inde- pendent. Thus, if an 8(a)(2) violation exists, then a ques- tion concerning representation may be found to be pres- ent. This formulation brings into focus whether 8(a)(2) evidence appropriately may be considered in the pending proceeding. The Board, in Roman Stone (fn. 3), held that the respondent was not entitled to attack the validity of the recognition. In so holding, the Board observed, "It is apparent that . . . [the] . . . representative status could not be challenged directly." The Board's ruling, however, was based on factors which may be distinguished from the instant case. Thus, the recognition sought to be challenged in Roman Stone had been granted far beyond (approximately 15 years) 5 Accordingly, the entire transcript in the case of Curtis L. Mack v Retail Clerks Union Local No. 1063. AFL-CIO, is incorporated into and forms part of the official record in the instant proceedings Despite the stipulation by which the judicial proceedings are incorporated herein, the Employer has maintained its objection to the relevancy of the so-called 8(a)(2) evidence produced before the U S. District Court as %well as to the evidence of lIke character adduced before me the Act's 6-month statute of limitations. The Board noted that in those circumstances the attempted challenge was improper. The instant situation is dissimilar. As noted, recogni- tion was granted to the Independent on May 8. Respond- ent formally began its challenge by filing its 8(a)(2) charge on June 6, somewhat less than I month from the alleged illegality. In another 8(b)(7)(A) case, Local No. 7463, United Mine Workers of America (Harlan Fuel Company), 160 NLRB 1589, fn. 1 (1966), the Board once again declared that the status of an incumbent bargaining representative "may not be placed in issue or litigated in this proceed- ing." (Emphasis supplied.) The Board relied on its Roman Stone Decision, and the added factor that the Harlan Fuel hearing began more than 6 months after execution of the subsisting collec- tive-bargaining agreement. I conclude that the position of the General Counsel and Employer is misconceived. Their contentions are based on a too literal and narrow interpretation of the cited cases. Such an application dictates a conclusion herein that evidence of Respondent's assistance and/or domination should be excluded from consideration. This is so because the rule of those cases prevents me from making a separate finding that Section 8(a)(2) had been violated. To that issue, it is clear that I must defer to the finality of the General Counsel's action which sustained the Regional Director's dismissal of the 8(a)(2) charge. Nonetheless, I perceive Respondent's evidence of as- sistance and/or domination is not designed to establish the existence of an 8(a)(2) violation, or to obtain a find- ing that the Employer was actually guilty of such mis- conduct. Instead, Respondnt's evidence was proffered merely to defend against the General Counsel's assertion that the Independent was lawfully recognized. Finally, in International Brotherhood of Electrical Work- ers, Local 453, AFL-CIO (Southern Sun Electric Corpora- tion), 242 NLRB No. 160 (1979), another 8(b)(7)(A) case, the Board had a more recent opportunity to express its views on the finality of the General Counsel's authority to issue complaints. The Board impliedly acknowledged that dismissal of 8(aX2) charges constitutes a final resolu- tion of that issue. No authority has been cited or independently uncov- ered by me which directly addresses the issue as I per- ceive it. Query: What would General Counsel's and Employ- er's position be to the offer of evidence tending to show supervisory participation in solicitation of a card major- ity for the Independent if no 8(aX2) charge ever had been filed? Would those parties remain adamant in their objection to such evidence in that posture? If objections to such evidence were sustained within that context would not the Respondent then have a legitimate claim that it had been denied a fair hearing? (See Russell- Newman Manufacturing, Company, Inc. v. N.L.R.B., 370 F.2d 980 (5th Cir. 1966).) I conclude that, Harlan Fuel, Roman Stone, and Southern Sun cases are distinguishable from the instant situation because the issue under consid- eration in those cases was the very existence of an 8(a)(2) violation. Herein the issue is whether Respondent may 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be estopped from producing part of its defense. More- over, in Roman Stone and Harlan Fuel there appeared statute of limitations problems which do not exist in the instant case. It is illogical and fundamentally inequitable (Russell- Newman, supra) and oppressive to conclude that Re- spondent is to be precluded from litigating a legitimate defense (see, for example, Carpenters District Council of Detroit, Wayne and Oakland Counties and Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL- CIO (Shepard Marine Construction Company), 195 NLRB 530 (1972)). For emphasis, I find that Respondent's evidence of as- sistance and/or domination herein is directly addressed to the very words of the Act which place the burden upon the General Counsel to prove an 8(b)(7)(A) viola- tion by a showing that "lawful recognition" was granted to the subject incumbent labor organization. Accordingly, I conclude that Respondent is not pre- cluded from adducing its evidence specifically designed to challenge the General Counsel's case that the recogni- tion of the Independent was lawful. It follows that Re- spondent is entitled to have all such evidence considered herein. I turn now to the question whether the General Coun- sel has sustained his burden of proving that the Inde- pendent was lawfully recognized. The record reveals that recognition was granted (as in- dicated above) on May 8 during the preelection confer- ence at the Board's office. Employer representatives Donald Heathman, Jr., and Attorney Walter Phillips were present. Representing the Independent were Attor- ney Jim Howard and employees Tom Bishop and Mike Smith. 6 As previously indicated, no representative of Re- spondent was present, although an invitation to it had been issued. Those present verified the existence of 92 apparently valid authorization cards of an approximate unit of 124 employees. The Employer immediately rec- ognized the Independent. The numerical majority has not been challenged in this proceeding. Rather, as indicated, Respondent's defense attacks only its uncoerced character. At the time the Employer recognized the Independent, no representation petition had been filed asserting that Respondent, or any other labor organization, was seeking representation rights for any of the unit employees. Also, Respondent had not moved to intervene in the represen- tation proceeding (Case 10-RC-11760) initiated by the Independent. Based on the foregoing, I find the evidence shows that the Independent had been granted recognition at a time when there existed no conflicting claim for representa- tional rights of the subject employees and such evidence establishes the General Counsel's prima facie case that the Independent had been lawfully recognized. Has the General Counsel's prima facie case been effec- tively refuted? I conclude the evidence is insufficient to have done so. Respondent adduced impressive evidence tending to show that the Independent's majority may have been 6 The status of these employees is further explicated infra. tainted and not uncoerced. Superficially, Respondent's evidence and arguments are appealing. Thus, the totality of evidence shows: (1) That persons whose status as statutory supervisors is disputed solicited employee signatures on Indepen- dent's authorization cards. For example, employees Tom Bishop, a grocery clerk, and Mike Smith, an "overseer," later elected president and vice President, respectively, of the Independent, initiated the Independent's organiza- tional drive. There is evidence that Bishop sporadically substituted for management officials at the Employer's Stone Mountain facility. There is scant evidence that either Bishop's or Smith's duties include the authority to responsibly direct the activities of other personnel or ex- ercise any independent judgment in that connection. (2) Jeff Bagwell, a grocery clerk and head of receiv- ing, also sporadically filled in for management. Though there is some evidence he directed work activities of other employees, there is little evidence to show the extent to which he engaged in that function using inde- pendent judgment. Employee Gina Neister testified, during direct examination, that she viewed Bagwell as a managerial official. However, on cross-examination, Neister conceded Bagwell mostly works in the rear of the store while persons admittedly managers work at the front of the store. In this posture, I cannot rely on Neis- ter's testimony to find (as urged by Respondent) that em- ployees perceive Bagwell as a statutory supervisor. Bagwell solicited employee signatures on authorization cards for the Independent when undisputed management officials were on the premises and in violation of the Employer's written and distributed no-solicitation rule. This element implies a management imprimatur on the solicitation activities. However, there is no evidence of the extent to which the no-solicitation rule had been en- forced in general. In the absence of a showing that Bag- well's solicitation was permitted in a disparate manner, I do not consider his breach of the no-solicitation rule suf- ficiently probative to support Respondent's defense. (3) Judy Aukes, head cashier at the Stone Mountain fa- cility, was elected secretary of the Independent. She is responsible for opening the safe, distributing cash to cashiers, and performing a variety of other financial transactions, including computing employee work hours for payroll purposes. She performs the work mentioned above in an office located next to the store manager's office. Her duties also include working as a checker. She testified, without contradiction, that she spends one-half to as much as an entire day working as a checker. There is no evidence that Judy Aukes solicited signatures on any authorization cards. (4) Vernon Aukes, Judy's husband, is in charge of maintenance at both of the Employer's facilities. Origi- nally, he had been elected treasurer of the Independent but resigned that post. 7 Vernon's resignation was on Judy's recommendation. Respondent suggests that rec- ommendation is tantamount to a request of management. Inasmuch as I find the evidence does not support the su- pervisory contention as to Judy, I reject Respondent's argument. Even assuming Judy were part of manage- Employee Harry Berry, receiving clerk, succeeded to the treasurer's position. UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1063 377 ment, I consider this incident has little probative value in aid of Respondent's contentions. The request of Vernon to resign his post with the Independent is equally suscep- tible to the interpretation that the Employer sought to maintain an arm's-length relationship with the Independ- ent, especially where the evidence shows he submitted his letter of resignation on May 21, only I week after his election. (5) It is uncontradicted that dues to the Independent had been checked off by the Employer before the mem- bership ratified the collective-bargaining agreement, and before the contract was signed. While this suggests im- proper assistance by the Employer to the Independent, there is no evidence to show whether or not the employ- ees whose dues had been checked off had, indeed, au- thorized such payroll deductions. Thus, standing alone, I do not consider the apparent acceleration of dues-check- off of probative value in support of a conclusion of un- lawful assistance. (6) Finally, and in the absence of direct evidence of collusion, I place no significance upon the evidence which shows the contract negotiations were rapidly con- cluded. Similarly, I will not encroach upon the character of the terms negotiated, in view of the evidence that the membership of Independent ratified them, again, without apparent Employer intervention. In this connection, it is noted that the brief nature of negotiations can be attrib- uted to the fact that many of the terms negotiated were derived from various clauses found in Respondent's own contracts. Upon all the foregoing, I find the record as a whole sustains the General Counsel's burden of proving that the Independent had been lawfully recognized. 8 For this reason, I also find that, after the grant of recognition to the Independent, a question concerning representation could not appropriately have been raised under Section 9(c) of the Act. The suspicious circumstances raised by Respondent's evidence is insufficient to effectively rebut these conclusions. 2. The object of Respondent's picketing As indicated, Respondent picketed the Employer's Jonesboro facility continuously from March 12 to July 10, except between May 20 and May 24. The legend on the picket signs remained substantially unchanged from that quoted in section II,B, supra. The General Counsel and Employer contend that rec- ognition of Respondent, or organization, was an object of its picketing and that the so-called publicity proviso contained in Section 8(b(7)(C)9 does not apply to allega- tions of an 8(b)(7)(A) violation. Respondent contends its picketing was solely for infor- mational purposes and that, as such, was permissible under the terms of the aforesaid publicity proviso. 8 I find sparse direct evidence that any of the employees, whose activi- ties on behalf of the Independent have been discussed, were agents of the Employer. In the circumstances herein, I will not infer such agency from the fact that statutory supervisors may have been on the premises during any of Bagwell's union activity. i In relevant part the proviso declares: "Nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity fior the purpose of truthfully advising the public (including consumers) that an employer does not employ members of . a labor organization . Resolution of the parties' contentions depends upon resolution of two threshold matters. They are: (1) wheth- er there is probative evidence showing that recognition formed some part of the reason for the picketing, and (2) whether the picketing could be immunized by the public- ity proviso. No extensive analysis or discussion is necessary to re- solve the present issue. If the publicity proviso does not apply to 8(b)(7)(A) allegations, a finding of violation may be made upon proof of a recognitional or organizational object. It is appropriate to examine the legend on the picket signs to determine whether the proscribed object exists. In Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Colony Liquor Distributors, Inc., Colonial Carriers, Inc.), 145 NLRB 263 (1963), a union picketed with signs bear- ing a legend strikingly similar to that on Respondent's signs. In relevant part, the union's signs in the Colony Liquor case bore the legend: ". . . (the named employ- ers) . . . did not employ union members here-please do not patronize-thank you .... " The Board acknowl- edged that an object of the picketing was to persuade the public to withdraw its patronage from Colony. However, the Board stated: . . this is not inconsistent with the broader organi- zational or ultimate recognitional objectives that the language of the picketing signs imply. The picket signs themselves reflect that Respondent's specific reason for appealing to the public to withhold pa- tronage from Colony was that Colony did not employ union members and did not have a contract with it. From this, it is apparent that Respondent itself considered that its quarrel with Colony was one that would cease when that reason for picketing was no longer valid-in short, when Colony again employed union members or entered into a contract with it. [145 NLRB at 265, 267.] The Colony Liquor case also relates to the applicability of the publicity proviso. Colony Liquor involved allega- tions of an 8(b)(7)(B) violation. On this issue the Board declared that "it cannot be a defense to a charge of vio- lation of Section 8(b)(7)(B) that the picketing is truthful or is merely to seek public support for a nonpatronage campaign if the information which the union is commu- nicating to the public through its signs itself establishes a proscribed object."(145 NLRB at 266.) In Local Union 429, International Brotherhood of Elec- trical Workers, AFL-CIO (Sam M. Melson d/b/a Sam Melson. General Contractor), 138 NLRB 460 (1962), an 8(b)(7)(C) proceeding, the respondent union picketed with a placard advising that the employer "does not employ members of or have a contract with . . . the union ... ." The Board in Melson gave meaning to the sign's lan- guage by stating "we have held that a statement of a picket sign that an employer does not employ members of a labor organization clearly imports an object of orga- nization.... We accordingly find the picketing ... 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was for proscribed objects of recognition and organiza- tion." (138 NLRB at 462, and cases cited at fn. 4.) Finally, in Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County; Culinary Alliance Local No. 681 (Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a Co-partnership, 135 NLRB 1183 (1962), supplementing 130 NLRB 570 (1961), the Board interpreted the phrase "does not employ members of," stating that language "clearly imports a present object of organization" (135 NLRB at 1185). Even the dissenting Board members in the Crown Cafeteria case were of a similar opinion as to the effect of the sign language (135 NLRB at 1187). It is true, as Respondent claims, that the language on picket signs is not dispositive of the picketing objective (Alton-Wood River Building and Construction Trades Council, et al. (Jerseyville Retail Merchants Association), 144 NLRB 526, 529 (1963); also American Federation of Grain Millers, Local Union No. 16, AFL-CIO (Bartlett and Company, Grain), 141 NLRB 974, 978-979 (1963)). Herein, there are factors which favor a finding that Re- spondent's picketing was not for a proscribed objective. Thus, the picketing was conducted at only one of the Employer's two facilities encompassed in the appropriate bargaining unit. Hence, the picketing was not coexten- sive with the unit scope. Also, Respondent neither inter- vened nor participated in any way in the proceedings attendant to the Independent's representation petition; the parties stipulated that Respondent had made no claim for recognition prior to or concurrent with its picketing; Respondent made no effort to solicit any of the subject employees as members; and, finally, the record shows that picketing is not normally a method employed by Re- spondent in pursuit of recognitional or organizational ob- jectives. The immediately foregoing elements have been consid- ered in light of the picket sign language, and of the words in the statute itself. Clearly, the Act contemplates that the General Counsel need demonstrate only that recognition or organization is an object (N.L.R.B. v. Local Union No. 103, International Association of Bridge, Structural & Ornamental Iron workers. AFL-CIO, et al. (Higdon Construction Co.), 434 U.S. 335 (1978); Building Service Employees Union Local No. 87. AFL-CIO (Liberty House/Rhodes), 223 NLRB 30, 33 (1976)). Moreover, three officials of Respondent provided testimony relating to the object of the picketing. Thus, Respondent's secre- tary-treasurer, Clyde Owens, stated the picketing was in- formational in nature. When pressed, Owens candidly ac- knowledged "if we represented the people, I don't think we would picket...." Also, Respondent's executive as- sistant, Buddy Adams, maintained that the picketing was purely informational. However, during his cross-exami- nation, he conceded that, if the Jonesboro employees were represented by Respondent, there would be no picketing. Similarly, Respondent's executive officer, Wil- liam Jenkins, testified during the injunction proceedings to a similar effect. Such admissions have been the basis of finding a proscribed object (Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, District Local 340 (PFA-Farmers Market Association). 232 NLRB 111, 117 (1977)). Even assuming I were to accept the protestations of these three union officials, such self- serving disclaimers are not determinative (General Service Employees Union Local No 73 affiliated with Service Em- ployees International Union, AFL-CIO v. N.L.R.B., 578 F.2d 361 (D.C. Cir. 1978)). Upon all the foregoing facts, I conclude that the record sufficiently establishes that recognition was at least an objective of Respondent's picketing and that the record as a whole supports the conclusion, which I make, that the General Counsel has sustained his burden of proving a proscribed object by a preponderance of the evidence. Accordingly, I find that Respondent has vio- lated Section 8(b)(7)(A) of the Act, as alleged. Upon the basis of the foregoing findings of fact, and the entire record in this proceeding, I make the follow- ing: CONCLUSIONS OF LAW 1. Heathman Enterprises, Limited, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local No. 1063, AFL-CIO, and Heathman Employees Independent Union are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing the Jonesboro, Georgia, facility of Heathman Enterprises, Limited, on March 12-May 24, and May 30-July 10, 1979, with an organizational and/or recognitional object, at a time when that employer had lawfully recognized Heathman Employees Independent Union, and a question concerning representation could not be raised under Section 9(c) of the Act, Respondent violated Section 8(b)(7)(A) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(b)(7) of the Act, I shall recommend that it be required to cease and desist therefrom, and to take certain affirma- tive action designed to effectuate the policies of the Act. The Employer requests that the remedy include an order for reimbursement to the Board and all investiga- tive and litigation expenses incurred by each of them in the investigation, processing, and the litigation of the in- stant proceedings and in the processing of the 8(a)(2) charges filed by Respondent against the Employer. The Employer implies that Respondent prolonged the various proceedings as a subterfuge which permitted it to contin- ue its conduct, which I have found unlawful, for an ex- tended period of time. The Employer's request is not adopted. The test for imposition of such extraordinary remedies, as I under- stand the authorities, is whether the litigation is frivolous and unnecessary, or the issues not debatable. Oxford Structures, Ltd., Debtor-In-Possession, 245 NLRB No. 151 (1979); Heck's Inc, 215 NLRB 765 (1974); Tiidee Products, Inc., 196 NLRB 158 (1979). However one might regard Respondent's persistence in its conduct and the various litigation, I conclude that Administrative Law Judge Murphy's Order and Statement of the Case in the injunc- UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1063 379 tion proceedings, the General Counsel's disposition of the 8(a)(2) appeal, and the issues as I have framed and discussed them herein convincingly establish that serious and legitimate issues which are debatable are present herein. Accordingly, I find the litigation not frivolous and the requested extraordinary remedy unwarranted. On the basis of the foregoing findings of fact and con- clusions, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recom- mended: ORDER' 0 Retail Clerks Union Local No. 1063, AFL-CIO, Jonesboro, Georgia, its officers, agents, and representa- tives, shall: I. Cease and desist from picketing Heathman Enter- prises, Limited, where an object is to force or require that Employer to recognize or bargain with it as the rep- resentative of its employees or to force its employees to accept it as their representative, where the Employer has 'O In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. lawfully recognized another labor organization and a question concerning representation cannot be raised. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at its principal office and place of business, and any other location from which it services the com- munities of Jonesboro and Stone Mountain, Georgia, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 10 signed copies of said notice in sufficient number to be posted by the Employer and the Independent, if they be willing. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."