International Association of Machinists

INTERNATIONAL ASSOCIATION OF MACHINISTS 307 when he may be transferred back to his former position, we find' no merit in this contention. Accordingly, we find that Hogan is a super- visor as defined in the Act„ The record shows that employee Robinson was advised that : Hogan had a petition which was being signed by the employees to support :a decertification petition; thereafter Robinson went to Hogan's home for the purpose of signing such petition; Hogan gave Robinson the petition to sign, which Robinson did; all of this occurred in July 1957, at which -time Hogan had been a supervisory foreman for 2 months; and thereafter on- July 25, 1957, the petition in question was sub- mitted to the -Board by the Petitioner as evidence of his, slowing-;9f interest, in support of the instant petition filed on that date. It thus appears that the Employer, by ,and through Foreman Ho- gan, a supervisor, procured signatures for'the required showing of interest in support -of the instant petition. In view of this direct participation by the Employer in the -filing of -this decertification petition, we find that the Employer improperly assisted the Petitioner in filing- such, a petition, and that the rights of the employees to file such petitions under Section 9 (c) (1) (A) have been thereby abridged.' Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] 1 See Consolidated Blenders, Inc., 118 NLRB 515; Bond Stores, Inc., 116 NLRB 1929; Gold Bond, Inc., 107 NLRB 1059. - International Association - of Machinists, Lodge 942, AFL-CIO and Alloy Manufacturing Company, a partnership composed of John A. Novell and Henry L. Peirone. Case No. 19-CB-430. November 4,1957 DECISION AND ORDER On January 15, 1957, Trial Examiner Wallace E. Royster 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 copy of the Intermediate Report attached hereto. Thereafter, the-Charging Party filed excep- tions to the Intermediate Report and a supporting brief, and the Gen- 'eral Counsel filed a brief supporting the Intermediate Report.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was I committed. The 1 The Respondent Union filed no exceptions , but requested oral argument. This request is hereby denied. 119 NLRB No. 38. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, recommendations, and conclu- sions of the Trial Examiner, with the following additions and modifications. 1. The Trial Examiner found that by its conduct in picketing the premises of the Alloy Manufacturing Company with an object of obtaining exclusive recognition at a time when it did not represent a majority of Alloy's employees, the Respondent Union violated Section 8 (b) (1) (A) of the statute. No exceptions have been filed to this conclusion. The Trial Examiner's findings of fact, preliminary to his conclusion of law, are amply supported by the record. Moreover, his conclusion comports with our decision in Curtis Brothers, 119 NLRB 232. Accordingly we find, as did the Trial Examiner, that the Respondent violated Section 8 (b) (1) (A) by picketing Alloy for exclusive recognition when it represented no more than a minority of employees.' 2. The Trial Examiner also found, as alleged in the complaint, that the Respondent's picketing activity, aimed at winning a union shop from the Alloy Company despite the Union's minority status, consti- tuted a violation of Section 8 (b) (2) of the Act. No exceptions were filed to this finding. For the reason stated by the Trial Examiner in his Intermediate Report, we agree with his conclusion on this Section 8 (b) (2) element of the complaint. The complaint also alleges that the Respondent's picketing for a union shop in the circumstances of this case violated Section 8 (b) (1) (A). The Trial Examiner found no merit in this allegation. We dis- agree. Concession by an employer of a union-shop agreement to a union necessarily presupposes recognition of that union as the exclu- sive representative of all the employees, and we have already ruled in the companion Curtis Brothers case that minority picketing for exclusive recognition is unlawful. Those same underlying considera- tions explicated in the Curtis Brothers decision leading to the conclu- sion that picketing for exclusive recognition restrains and coerces within the meaning of Section 8 (b) (1) (A) apply with equal force to picketing by a minority union for purposes of obtaining a union- shop agreement. Without repeating the explicit rationale, therefore, we find, as alleged in the complaint, that the Respondent Union's picketing for a union shop constituted a violation of Section 8 (b) (1) (A).' a Member Jenkins, who concurred specially in the Curtis decision, limited his concurrence therein to the unlawful picketing after a decertification election, which he believed to be the issue raised by the complaint in Curtis. As the complaint in the. instant case is broader in that it covers all picketing for an illegal objective regardless of whether there has been an election, he therefore subscribes fully to the opinion herein. 3 To the extent that the Board's decision in National Maritime Union of America (The Texas Company ), 78 NLRB 971 , is inconsistent herewith , that decision is hereby overruled. INTERNATIONAL ASSOCIATION OF MACHINISTS 309 - 3. In addition to picketing Alloy's premises for exclusive recog- nition, the Respondent Union made appeals to the Company's cus- tomers not to do business with Alloy, and placed Alloy's name on the Respondent's "We Do Not Patronize" list. The Trial Examiner refused to find that by this further conduct the Respondent also vio- lated Section 8 (b) (1) (A). Alloy, the Charging Party, excepts to this conclusion of the Trial Examiner and argues essentially that both.the appeals to customers and the unfair listing of the Alloy Company were "merely a part of the master plan of coercion, identical in intent to picketing. . . ." This particular aspect of the General Counsel's case must now be evaluated in the light of our concurrent finding that picketing for exclusive recognition by a minor- ity union restrains and coerces within the meaning of Section 8 (b) (1) (A). As stated in the Curtis Brothers decision, "coercion" exists in the fact that "the union seeks to cause economic loss to the business during the period that the employer refuses to comply with the union's demands. And the employees who choose to continue working, while the union is applying this economic hurt to the employer, cannot escape a share of the damage caused to the business on which their livelihood depends." As the restraint and coercion brought to play upon employees is an economic one through curtailment or extinction of their employer's business, it is not really material whether the pressure is applied through the act of picketing, and thereby hurting the business, or by other equally direct and effective techniques. Thus, appeals to consumers and "we do not patronize" lists contain the same threats to the employees' livelihood as does picketing. Like picketing, they are concededly aimed at hurting the employer economically by black- listing him in the estimation of those persons among whom he earns his living, and whose dealings support his business operations. And, as in the case of picketing, to the extent that the employer suffers the economic loss that the union seeks to inflict, the employees' earnings are threatened with diminution, and their very jobs en- dangered. We see no basis for distinguishing appeals made orally to consumers or away from an employer's premises from the selfsame appeals addressed to consumers by way of a picket line. The intended and necessary effect of each type of appeal is the same-to threaten the employer's business and necessarily the employees' job security. In these circumstances, we find, contrary to the Trial Examiner, that these customer appeals and the publication of the "WE DO NOT Patronize" list were not expressions of "views, argument, or opinion" which Section 8 (c) protects. It is clear to us that, by resorting to these techniques to achieve the same unlawful objective that the picketing sought to attain, the Respondent was doing more than exercising a right of free speech. As with the picketing, it was 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD actually utilizing its economic power to force the Company to recog- nize it as the exclusive bargaining representative of the Company's employees in utter disregard of the employees' statutory right to select their own bargaining representative. As the Supreme Court observed in Giboney v. Empire Storage and Ice Company,' Nor can we say that the publication here should not have been restrained because of the possibility of separating the picket- ing conduct into illegal and legal parts. [Citation] For the placards were to effectuate the purposes of an unlawful com- bination, and their sole, unlawful immediate objective was to induce . . . [the Company] to violate the Missouri law by acquiescing in unlawful demands. . . . It is true that the agree- ments and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. [Emphasis supplied.] In the present case, the Respondent, intent on securing exclusive recognition from the Company, despite the fact that the Respondent did not represent a majority of the employees, engaged in a course of conduct consisting of customer appeals and the publication of a "WE DO NOT Patronize" list, as well as picketing.. Accordingly, and for the same reasons that we have found the picketing in Curtis Brothers and here to be in violation of Section 8 kb) (1) (A), we find that the customer appeals and the publication of the "WE DO NOT Patronize" list also violated that section of the Act.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , International Association of Machinists , Lodge 942, AFL-CIO, and its oflilcers, representatives, agents, successors, and assigns, shall: A 336 U. S. 490, 502. B See Capital Service, Inc., d/b/a Danish Maid Bakery v. N. L. R. B., 204 F. 2d 848, 853 (C. A. 9, 1953), where the Court of Appeals for the Ninth Circuit said : "Nothing could more strongly restrain Service 's employees from retaining their non-union status or coerce them into joining the Bakery Union than stopping or making intermittent their employ- ment by picketing with appeals to persuade the public to boycott the products of their work. . . . Here is more than an appeal to the employees to persuade their action. Here is successful economic coercion tending to prevent them from exercising their right to work, by diminishing the public consumption of the product of their work." INTERNATIONAL ASSOCIATION OF MACHINISTS 311 1. Cease and desist from : (a) Restraining or coercing employees of Alloy Manufacturing Company in the exercise of the rights guaranteed in Section 7 of the Act. (b) Attempting to cause Alloy, by means of picketing or by threatening;. to divert business from Alloy, to discriminate against Alloy's employees in violation of Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in the Respondent Union's business offices, meeting halls, and all places where notices to its members are customarily posted, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by official representatives of the Respondent Union, be posted by the Respondent immediately upon receipt thereof and be maintained by it for sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice attached hereto marked "Ap- pendix" to the Regional Director for the Nineteenth Region for post- ing, Alloy Manufacturing Company willing, at all locations where notices to the Company's employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by authorized rep- resentatives of the Respondent, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, as to the steps the Respondent has taken to comply herewith. MEMBER MURDOCK, dissenting : This is another case in which a majority of the Board applies and extends the novel theory that peaceful picketing constitutes coercion within the meaning of Section 8 (b) (1) (A) because the majority finds its object to be improper. It is a further illustration of the serious and far-reaching consequences of that theory. I dissented from the adoption of the theory in the Curtis Brothers case, and I dissent from its extension in this one. Here the majority finds, as did the Trial Examiner in the case, that picketing and threats against an employer of other economic pressure 6In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by a minority union for the purpose of obtaining a union shop violates Section 8 (b) (2) of the Act, and that picketing, though peaceful, by a minority union for the purpose of obtaining recognition violates Section 8 (b) (1) (A) of the Act. The majority further finds, al- though the Trial Examiner failed to make such a finding, that peace- ful picketing by a minority union for the purpose of obtaining a union shop violates Section 8 (b) (1) (A). Inasmuch as no excep- tions were filed to the Trial Examiner 's findings with respect to the 8 (b) (2) and 8 (b) (1) (A) violation or to his failure to find an 8 (b) (1) (A ) violation on the basis of picketing for a union shop, I see no reason to pass upon these issues.' However, as the majority's 8 (b) (1) (A ) findings are based upon the theory of coercion adopted in the Curtis case-that peaceful picketing for recognition by a union constitutes coercion under Section 8 (b) (1) (A)-I do not agree with the rationale of the findings. I have already set forth the reasons for my opposition to this theory in a dissenting opinion, in Curtis. As there stated , I would adhere to the decision of the Board in the National Maritime Union case 8 which the majority now expressly overrules insofar as it bears on this issue as it did by implication in the Curtis case. The majority also, by an extension of the Curtis theory of coercion, reverses the Trial Examiner to find that appealing to customers not to do business with an employer and placing an employer on a "We Do Not Patronize" list coerces employees within the meaning of Sec- tion 8 (b) (1) (A). This is an even more extreme position than that the majority takes in Curtis. Repeating the view that coercion exists in the possibility of eco- nomic loss to employees through curtailment of their employer's business, the majority leaps to the further conclusion that the type of pressure exerted or against whom is immaterial . No matter how remote the pressure , no matter whether by speech or otherwise, my colleagues reason, the inherent threat to the employees ' livelihood remains the same. So they state, "We see no basis for distinguish- ing appeals made orally to consumers or away from an employer's premises from the selfsame appeals addressed to consumers by way of a picket line." The extremity of such a position is obvious. Apart from the indirectness of this type pressure on employees and the possibility that employees may not even know of its application, oral appeals and listing of an employer on an unfair list merely constitute arguments to consumers that they should not patronize the employer because of his methods of doing business. They are clearly expres- sions of "views, argument, or opinion" which are specifically protected 7 See Section 10 (c) of the Act. 6 78 NLRB 971. INTERNATIONAL ASSOCIATION OF MACHINISTS 313 by Section 8 (c) of the Act unless they contain threats of reprisal or force or promise of benefit. My colleagues cite and quote from the Supreme Court's decision in the Giboney case to support their disregard of Section 8 (c) in finding that the oral and printed appeals to consumers constitute a violation of Section 8 (b) (1) (A) of the Act. The Giboney case is distinguish- able from the instant case. There the union, wholly apart from the picketing involved, was engaged in a "course of conduct" which violated the Missouri anti-trade-restraint law because it "set about to obtain from all Kansas City wholesale ice distributors agreements that they would not sell ice to nonunion peddlers." It successfully brought all the wholesalers into this illegal combination in restraint of trade except Empire. When Empire refused to become a party the union picketed it. The issue of the case, as phrased by the Court, was the constitutional power of the State "to enjoin union members from peaceful picketing carried on as an essential and inseparable part of a course of conduct which is in violation of the State law." [Emphasis supplied.] By contrast in the instant case, the union was not engaged in any acts or "course of conduct" violative of law of which the picketing or unfair lists at issue here could be found an "essential and inseparable part." It is also to be noted that the majority has omitted the very im- portant key sentence which precedes the portion of the Giboney de- cision quoted in the majority draft. That sentence reads : But placards used as an essential and inseparable part of a grave offense against an important public law cannot immunize that unlawful conduct from State control. [Emphasis supplied.] It is plain that the "grave offense" to which the Court was referring was the general conspiracy in restraint of trade promoted by the union with wholesale ice distributors, which preceded the picketing of Empire. In content and in context, it is plain that the portion of the Giboney decision quoted in the majority draft was intended to do no more than reject the position that because placards are a form of speech, and the pickets carried placards, the picketing was immune from being enjoined. Rather than being separable from the "grave offense," the Court pointed out that all of the union's activi- ties, including the picketing, "constituted a single and integrated course of conduct, which was in violation of Missouri's valid law. In this situation, the injunction did no more than enjoin an offense against Missouri law, a felony." Not only was the picketing in the instant case carried on in a context free of any violation of the Act, but the "Do Not Patronize" 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD list distributed generally as part of a consumer boycott was itself geographically and otherwise separate from the picketing. Giboney did not involve such separable conduct. Although the Supreme Court in more recent times seems to hold that picketing has aspects tran- scending mere speech, which make it subject to regulation, an unfair or "Do Not Patronize" list is only pure speech, and grave constitu- tional questions would exist on the issue of power to prohibit its use. However, the immediate issue here is not one of power to enjoin them, but of statutory interpretation-Did Congress intend by Section 8 (b) (1) (A) to proscribe the use of consumer appeals "away from an employer's premises" by such means as "Do Not Patronize" lists, as "restraint and coercion" of employees? In my Curtis dissent I have detailed the legislative history and precedents which support the view that Section 8 (b) (1) (A) does not even encompass peaceful picketing. A fortiori, and inescapably in view of the presence of Section 8 (c), which precludes finding the expression of "views, agreements, or opinion" to constitute an unfair labor practice, Sec- tion 8 (b) (1) (A) cannot be utilized to proscribe such consumer appeals. I would further direct attention to the ramifications and serious con- sequences of the majority decision. As in Curtis, where the theory of coercion utilized to find picketing there to be restraint and coercion violative of Section 8 (b) (1) (A) is no less applicable to all picket- ing regardless of object, the application of the same theory of coercion to the use of a "Do Not Patronize" list in this case similarly places in jeopardy all union unfair lists, whatever the object of the boycott. I can only assume that my colleagues in this situation, as in the Curtis situation, are so concerned with the Union's attempt to secure recognition under the similar circumstances of this case, that they feel compelled to find some method of labeling the conduct an unfair labor practice and have accordingly extended the meaning of "coercion". as used in Section 8 (b) (1) (A) to encompass it. Thus they continue to amend the Act. Having in Curtis adopted a theory of coercion which logically operates to abolish the traditional right of employees to picket peacefully, they now amend Section 8 (c) by refusing to ap- ply it to expressions of views which they consider directed toward im- proper objects. The Board has no authority thus to legislate. As the Trial Examiner states in his Intermediate Report : "Sympathy for the plight of Alloy and its employees may be engendered by a recitation of the facts of this case but in order to take remedial action some vio- lation of the Act must be shown." Like the Trial Examiner, I can find no violation of the Act as written by Congress. INTERNATIONAL ASSOCIATION OF MACHINISTS 315 APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 942, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT restrain or coerce the employees of Alloy Manu- facturing Company in the exercise of rights guaranteed in Sec- tion 7 of the Act, including specifically the right to refrain from engaging in any or all of the activities guaranteed thereunder. WE WILL NOT, by means of picketing or by threatening Alloy with a loss of business, attempt to cause Alloy to enter into an agreement with us containing union-shop provisions, until such time as we are the lawfully constituted bargaining representa- tive of Alloy's employees. INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 942, AFL-CIO, Labor Organization. Dated----- ----------- By------------------------------------- (Representative )' ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Alloy Manufacturing Company, herein Alloy, the Gen- eral Counsel of the National Labor Relations Board, herein the Board, issued his complaint against International Association of Machinists, Lodge 942, AFL-CIO, herein the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein the Act. In respect to unfair labor practices , the complaint as amended at the hearing alleges that at times when it was not the statutory bargaining representative of Alloy's employees, the Respondent by picketing, by publicizing an "unfair" list, and by urging others not to do business with Alloy, has attempted to cause Alloy to discriminate against Alloy employees in violation of Section 8 (a) (3) of the Act; by such actions and by publicly embarrassing, harassing, and disparaging employees of Alloy, the Respondent has restrained and coerced the employees in the exercise of rights guaranteed in Section 7 of the Act. Respondent's answer admits the fact of picketing but denies that it had at any time a purpose to force Alloy to sign any collective-bargaining agreement. Pursuant to notice a hearing was held before the duly designated Trial Ex- aminer in Spokane, Washington , on November 19, 1956 . All parties were repre- sented and were afforded opportunity to examine and cross -examine witnesses and to offer evidence pertinent to the issues. Briefs have been received from counsel for Alloy and counsel for the General Counsel. Upon the basis of the entire record in the case and from my observation of the witnesses, I make the following: 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF ALLOY AND THE FUNCTION OF THE RESPONDENT The complaint alleges, the answer admits, and I find that Alloy is the trade name of a partnership composed of John A. Novell and Henry L. Peirone with a place of business near Spokane, Washington, where Alloy is engaged in the manufacture, sale, and distribution of truck bodies, semi-trailers, and other similar products. Alloy's annual sales shipped to points outside the State of Washington exceeds $50,000 in value. It normally employs 8 or 10 persons in production and main- tenance work. Alloy is an employer within the meaning of Section 2 (2) of the Act whose operations affect commerce within the meaning of Section 2 (6) and (7) of the Act. The Respondent is organized for the purpose, in part, of serving as a collective- bargaining representative of employees working at the trade of machinist and of those doing related work. It is a labor organization within the meaning of Section 2 (5) of the Act. II. THE UNFAIR LABOR PRACTICES In late May or early June 1955, A. K. Schultz and Mel Lunde, representatives of the Respondent, visited the office of Alloy and met with the partners. Schultz said that he desired to enter into a bargaining relation with Alloy and presented a contract for signature. The proposed contract contained clauses acknowledging the representative status of the Respondent and provided for union-shop conditions of employment. To the partners' protests that their employees must be given opportunity to designate who should represent them, Schultz answered, "We are doing things different this year" and said that he was leaving the contract for Alloy's consideration. At the time of this occurrence the Respondent had been designated as bargaining representative by no more than 2 of Alloy's approximately 12 employees. A few weeks later Schultz told the partners that if they did not extend recognition and sign the contract a picket line would be established and steps taken to put Alloy on the "We do not patronize" list of the Spokane Central Labor Council. On June 20, 1955, the Respondent wrote to the Spokane Central Labor Council requesting that Alloy be placed on the "We do not patronize" list and, continuing, "To date this firm has refused to negotiate the wages, hours and conditions of employment of their employees who are represented by this union." It is the fact that on the date of this letter the Respondent did not represent more than two of Alloy's employees. On June 23 following, Alloy petitioned the Board for an election. On July 12, the Respondent wrote to the Board's Regional Office in Seattle saying that it did not claim to represent any of Alloy's employees but expressing an "intent to use every means possible to inform the public that the Alloy Manufacturing Company do not employ union help and that the existing conditions governing employment are unfair to organized- labor." .On July 27, upon representations of the Respondent and after hearing repre- sentatives of Alloy, Spokane Central Labor Council placed the name of Alloy on its "We do not patronize" list where it remains. The list is carried in the periodic publications of the Council. According to Schultz, on July 27 or 28, six of Alloy's employees signed cards designating the Respondent as their bargaining representative. This circumstance was never brought to the attention of Alloy and, indeed, during the hearing on Alloy's petition before a hearing officer of the Board on August 11, Schultz testified that the Respondent represented none of Alloy's employees. Schultz explained in the course of his testimony at the hearing on the complaint here being considered that he placed little reliance upon the designations and was unsure that they truly reflected the desires of the signers. I find it unnecessary to resolve this apparent conflict for the following reasons. On August 16 a picket was established by the Respondent before Alloy's premises and five of those signing designations have not since appeared for work. The sixth had ceased to be an employee of Alloy a few days earlier.1 The five have since been replaced and did not attempt to vote in the Board election on October 28. The Respondent argues that a strike for recog- nition began on August 16 when the picket took his station. If this contention be ' Eight employees passed the picket and reported for work. One of these had just been hired and had not worked the previous clay ; another, the son of one of the partners, was by statutory definition not an employee. It is apparent, nonetheless, that a majority of employees did not strike. INTERNATIONAL ASSOCIATION OF MACHINISTS 317 accepted it remains the fact that the Respondent has never demanded recognition by means of picketing or otherwise at a time when it was demonstrably the majority representative of Alloy's employees. It received no votes in the October election. The.single picket who was stationed before Alloy's premises on August 16 wore a banner reading "This Firm Is Non-Union." Immediately following the election it was changed to convey the message that it was Alloy's employees who were "Non-Union" or "Unfair." This picketing continued except for an interval of 4 to 6 weeks until about July 13, 1956. In urging Alloy to recognize it and to sign the contract, the Respondent threatened that failure to do so would result in action to persuade suppliers, customers, and transporters no. longer to do business with Alloy. The threat was not idle. Schultz testified that he protested to the office of the Governor of the State of Washington. when he learned that Alloy had performed some work on State-owned trucks, and advised Rainier Brewing Company of the fact that Alloy's employees. were not members of a union on an occasion when he learned that Alloy was apparently doing some work on a Rainier truck. The first incident occurred more than . 6 months before the charge was filed and thus may not be evidence of an unfair labor practice; the second took place within the allowed period. It is the Re- 'spondent's admitted, indeed avowed, purpose to persuade the public generally to withhold patronage from Alloy until such time as Alloy employees choose the Respondent as their bargaining representative. Schultz warned Alloy that another employer in the area faced with the same dilemma found it wise after enduring some months of picketing with attendant financial loss to capitulate and grant Respondent's demands. So a situation has developed, intolerable from the viewpoint of Alloy, offering a choice between suffering protracted, unrelenting interference with its desire to obtain business' wherever it can upon the basis of its ability to compete in the market, or unlawfully imposing upon its employees a bargaining representative which none of them want and which they have formally, and, presumably, thought- fully rejected in an election. The Respondent views it differently. It is a law- fully constituted labor organization with large membership widely engaged in the function of representing employees in matters commonly the subject of collec- tive bargaining. Due in part, at least, to its efforts the earnings of its members have increased and their working conditions improved. To the extent that workers in the fields cultivated by the Respondent remain unorganized the standards of employment achieved and sought to be achieved are threatened. So the Respondent reasons such picketing as has occurred here to be a defensive gambit in a struggle only partially won and still subject to reversal. The Respondent has genuine interests to advance or protect and impliedly argues that peaceful picketing is a device that should not be denied it. The problems thus engendered are not often simple and have vexed the Board and the courts in the past. No doubt they will continue to do so. Picketing is obviously a means of communication and it was thought for some time after the decision of the Supreme Court in Thornhill v. Alabama.2 that peace- ful picketing was in contemplation of law no more than that. Later decisions,3 however, laid down the rule that peaceful picketing could be enjoined if the object sought thus to be attained was one contrary to public policy or forbidden by statute. The Supreme Court has not, of course, told us what the public policy is in relation to any situation but has merely recognized the competence of State courts to decide that question. No Federal tribunal, judicial or administrative, is empowered to establish public policy, that being the prerogative of the legislature. A court of general jurisdiction may look to the whole field of legislation to discover what the legislative branch of government has proclaimed in that connection. An administrative agency such as the Board must find policy expressed in the statute entrusted to its administration. Thus the Board, for example, may not find that the Act has been violated merely because the conduct of an employer or a union in a given situation is contrary to the policy expressed in the wording of the-Clay- ton Act, or because it fails to satisfy some ethical or moral standard. Sympathy for the plight of Alloy and its employees may be engendered by a. recitation of the facts of this case but in order. to take remedial action some violation of the Act must be shown. 21310 U. S. 83. Giboney v. Empire Storage and Ice Company, 330 U. S. 490; Building Service Employees International Union, Local 262 v. Gazza,n, 339 U. S. 532 ; Hughes, et al., v. Superior Court, 339 U. S.-46.0:; and International Brotherhood of Teamsters v. Hanke, et at., 339 U. S. 470. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel is confident that he has done this and to the extent that the picketing was an attempt to force Alloy to sign a union-shop contract he can cite Board decisions to support him. In a case 4 in which the operative facts closely approximate those presented here, the Board found a violation of Sec- tion 8 (b) (2) to have occurred. There the union placed pickets about a con- struction project on which both union and nonunion workers were employed. Finding that the object of the picketing was to cause the employer to discriminate against the nonunion men, the Board issued its usual cease-and-desist order. In granting enforcement the Court of Appeals for the Tenth Circuit, noting that the picketing was peaceful, nonetheless agreed that a violation had been spelled out.5 That decision is apt enough, in my opinion, to govern this case. Here, too, the picketing was peaceful but it had an unlawful objective: to force by means of economic coercion the signing of a union-shop contract. Had the picketing suc- ceeded in its purpose, Alloy would have imposed upon its employees a require- ment that they join the Respondent as a condition of employment, thus discriminat- ing against them in violation of Section 8 (a) (3) of the Act. Such a condition may not be the subject of a contract between an employer and a union which is not the representative of the employees. The General Counsel's contention that the picketing was unlawful in still another aspect is considered below. Section 7 of the Act guarantees to employees the right to select their bargaining representative and to choose not to have such representation. Clearly, Alloy's employees had selected the latter alternative. Respondent had attempted to gain their support in 1954 and, after losing an election that year and without obtaining any more members among the employees, unabashedly demanded recognition in 1955. Respondent concedes that when the demand was made it was not in truth the representative of the employees. The demand was refused but had it been granted Alloy would have interfered with the right of its employees to make their own choice and would have violated Section 8 (a) (1) of the Act. Because it rejected Respondent's demand its premises were picketed. The powers of the Board which the complaint seeks to invoke are narrowly restricted. Alone here to be considered is the question whether Respondent by picketing, by causing Alloy to be included in the "We do not patronize" list, and by urging others not to do business with Alloy, has restrained and coerced Alloy's employees in the exercise of rights guaranteed by the Act. When invited or urged to join a union an employee may pause to reflect upon the advantages or disadvantages inherent in his choice. Alloy's employees have considered the question and have decided that they prefer not to have representa- tion. As in all such decisions self-interest has its play. Workers sometimes, at least, join unions because they hope to gain some economic benefit and sometimes are deterred from doing so by comparable considerations. It is true that busi- ness operations employing union labor will be preferred by some customers and avoided by others solely upon the basis of that factor. This circumstance operates to benefit employees or not, depending upon the choice made in relation to the predilections of their employer's clientele. Because their employer's business may be affected by such a choice it follows that the employees themselves have an economic stake in the reaction of customers to their designation of a bargain- ing representative or refusal to do so. So it may well be said that the selection of a union representative is often or perhaps always made in a climate not entirely free from elements which have a coercive quality. These elements are a part of the very fabric of industrial and commercial life quite beyond the reach of any conceivable statutory remedy. I do not doubt the right of the Respondent to publicize by appropriate means the fact that Alloy's employees are not represented by a union and even to persuade others by peaceful and truthful propaganda not to patronize Alloy for that reason if the persuasion is attempted to be accomplished by no more than the expression of "views, argument, or opinion." 6 I do not understand that publication of the "We do not patronize" list is more than the expression of an opinion and I would place the requests of business organiza- 4 Denver Building and Construction Trades Council, et al. (Henry Shore), 90 NLRB 1768. 192 F. 2d 577 (C. A. 10). 6 Section 8 (c) of the Act reads : The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evi- dence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. INTERNATIONAL ASSOCIATION OF MACHINISTS 319 tions that they not patronize Alloy in the same category. The picketing, I find, does not enjoy the same protection. It is true that it was conducted in a peaceful manner and constituted no physical hindrance to those who desired to enter Alloy's plant. However, in upholding an injunction against peaceful picketing in the Gazzam case cited above, the Supreme Court said, ". . picketing is more than speech Viand establishes a locus in quo that has far more potential for inducing action or nonaction than the message the pickets convey, this Court has not hesitated to uphold a State's restraint of acts and conduct which are an abuse of the right to picket rather than a means of peaceful and truthful publicity." It seems apparent that the entire course of Respondent's conduct in picketing and otherwise attempting adversely to affect Alloy's business had for its principal purpose the gaining of recog- nition in derogation of the rights of Alloy's employees under the Act. To the extent that such conduct is immunized from an unfair labor practice finding by Section 8 (c) no remedy may be afforded. But as has been seen, picketing may not be equated with the expression of "views, argument, or opinion" and thus falls out- side the scope of that section. Because the picketing was a device and technique designed to accomplish a restraint and coercion of Alloy's employees, I find that the Respondent by picketing Alloy's premises in the circumstances described and for that purpose restrained and coerced employees of Alloy in the exercise of rights guaranteed in Section 7 of the Act and that the Respondent thereby has violated Section 8 (b) (1) (A) of the Act. For the reasons stated earlier in this report, and upon the basis of the facts there found, I conclude and find that by picketing Alloy and by threatening to bring eco- nomic pressures to bear upon it unless an unlawful union-security agreement was signed, the Respondent attempted to cause Alloy to discriminate against its employees in violation of Section 8 (a) (3) of the Act and has thereby violated Section 8 (b) (2) of the Act. . Because that section is qualified by Section 8 (c) I do not consider the appeals to Alloy's customers and suppliers otherwise made or the publication of the "We do not patronize" list to constitute evidence of a violation. The Board has held an attempt to cause an employer to discriminate against employees in violation of Section 8 (a) (3) not to amount to restraint and coercion within the meaning of Section 8 (b) (1) (A) if no actual discrimination occurs and that decisional rule is followed here.? III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in con- nection with the operations of Alloy set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and such of them as have been found to constitute unfair labor practices tend to lead, to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Respondent has violated Section 8 (b) (1) (A) and (2) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Association of Machinists, Lodge 942, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. Alloy Manufacturing Company, a partnership composed of John A. , Novell and Henry L. Peirone, is an employer within the meaning of Section 2 (2) of the Act. 3. By picketing the premises of Alloy for the purpose of restraining and coercing the employees of Alloy, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. By picketing the premises of Alloy and by threatening to divert business from Alloy in an attempt to cause Alloy to discriminate against its employees in violation of Section 8 (a) (3) of the Act, the Respondent has violated Section 8 (b) (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. - [Recommendations omitted from publication.] v Medford Building and Construction Trades Council of the American Federation of Labor, et at., 96 NLRB 165,166.