Local 208, Int'l Brotherhood of Teamsters, Etc.

LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC 159 Upon the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Local 33 and Seine and Line are labor organizations within the meaning of Section 2(5) of the Act 2 The Respondent, Mike Trama, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 By threatening to discharge the crew of the Sandy Boy unless they became members of Seine and Line, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 4 By discharging the six named crew members on December 31 , 1957, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a),(1) and (3) 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 I Local 208, International Brotheihood of Teamsters , Chauffeurs, Warehousemen & Helpers of America ; and Local 123, Furni- ture Workers, Upholsterers & Woodworkers Union and Sierra Furniture Company. Case No 21-CB-1197 November 17, 1959 DECISION AND ORDER On April 22, 1959, Trial Examiner William E Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices as alleged in the complaint and recommended that these allega- tions of the complaint be dismissed Thereafter, the General Counsel and the Respondents filed exceptions and supporting briefs The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, only to the extent that they are consistent herewith This is the second of two related cases In the first case,' it was alleged that Sierra entered into a union-shop contract with Local 208 at a time when that union represented less than a ma)ority of Sierra's employees Therein, the Board found that Local 208, neither alone nor together with Local 123, the original organizer of the plant, represented a majority of Sierra's employees on August 6, 1958, the 2 123 NLRB 1198 125 NLRB No 20 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crucial date on which recognition was extended and the contract was signed. Sierra disavowed this contract approximately 1 month after its execution and the subject matter of this proceeding arose when the Respondents picketed for a new contract. The facts of this case are substantially undisputed. They are that, during July 1958, Local 123 conducted an organizational drive at Sierra's Los Angeles, California, plant. On July 16, it requested recognition, which request was not immediately granted. Sub- sequently, on July 21, demand was made for recognition of the two Respondents as joint representative. As of this date, a majority of the employees had signed cards designating Local 123. On July 22, Sierra filed an RM petition and the Respondents struck, picketing the Company through August 6, when Local 208 and Sierra entered into the union-shop contract involved in the prior proceeding. It was Local 208, alone, which entered into this contract because, on or about July 31, Local 123 disclaimed all interest in representing Sierra's employees and Local 208 asserted its individual claim for recognition. The Respondents contend that such action was necessitated by Sierra's refusal to bargain with Local 123. It should be noted that 8(a) (5) charges had been filed and were dismissed 2 On September 3, after an employee had initiated the earlier case, Sierra notified 208 that investigation by Board agents of the charge disclosed that it did not represent a majority of Sierra's employees and, therefore, "the agreement of August 6, 1958 [was] completely invalidated . ..." Also, on September 3, Local 123 withdrew its disclaimer. Thereafter, on September 22, Local 208 wrote Sierra de- manding a meeting to determine Sierra's position with regard to the August 6 contract and to. negotiate another agreement, if necessary. Local 208 threatened economic sanctions to insure such a meeting and any resultant negotiations. Sierra did not meet 208's deadline and, on September 24, Locals 208 and 123 jointly began picketing the Com- pany's plant.' That picketing continued until February 6 when it was halted pursuant to a temporary restraining order secured by the Board. The parties to the dispute met to settle it on September 25, 1958, and in January 1959. The Respondents insisted on the resump- tion of a contractual relationship. Sierra proposed an election, which proposal was rebuffed on the grounds that the employees' choice could not be tested fairly in view of Sierra's alleged unremedied unfair labor practices. The General Counsel contends that the Respondents' recognition picketing violated Section 8 (b) (1) (A) of the Act since, when it began on September 24, and at all material times thereafter, the Respondents 2 Some 8(a) (1) charges were also filed. These were settled informally. a In addition , the Respondents made certain appeals to customers not to do business with Sierra. LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 161 did not represent a majority of Sierra's employees. The record reveals that, on September 24, Sierra had 79 production and maintenance employees, as opposed to 60 on July 21 when the Respondents claim they represented a majority. The Respondents conceded at the Sep- tember 25th meeting and stipulated at the hearing that they did not represent a majority of the Company's employees on September 24 when they commenced their recognition picketing. Thus, the General Counsel established a prima facie case with respect to the alleged 8('b) (1) (A) violation. The burden then fell upon the Respondents to come forward with any evidence or arguments to rebut that case. In their defense, the Respondents contend that, as of July 21, they were jointly designated by a majority of Sierra's employees as col- lective-bargaining representative. For, although the cards designated only 123, the employees, in signing them, intended to designate Locals 123 and 208 as joint representative. The Respondents further contend that any loss of majority suffered subsequently is attributable to the Company's alleged unremedied4 unfair labor practices. Therefore, the picketing and related activities beginning September 24 were per- missible because they were engaged in by unions which, but for Sierra's unfair labor practices, would have been, and constructively were, the duly designated representative of the employees. Their entire defense hinges on constructive, not actual, majority during the time material herein. The Trial Examiner found, and we agree, that the demand for rec- ognition on July 21 was for the joint recognition of Locals 123 and 208 and that the refusal, if any,5 was a refusal to bargain with the Locals acting jointly. We further find, in agreement with the Trial Ex- aminer, that Sierra's employees were not apprised from the beginning of the 1958 organizational drive that Locals 123 and 208 were together seeking to represent them and that, by signing authorization cards for 123, they were designating 123 and 208 as joint representative. Moreover, the Unions, in our opinion, took no action prior to the July 21 demand which effectively converted 123's designations into joint designations of 123 and 208. Indeed, after the commencement of the July strike, the Teamsters, themselves, felt it necessary to distribute 208 cards for signature and Local 123 aided in circulating them among the employees. Thus, as Locals 123 and 208 were not desig- nated by a majority of Sierra's employees as their joint bargaining representative, Sierra's alleged refusal to bargain could not have un- dermined or contributed to the loss of majority. There was no actual majority on July 21 and, consequently, there could be no constructive majority as of September 24. ' Certain 8 ( a) (1) violations were remedied by an informal settlement agreement. 6As noted hereinabove, the General Counsel dismissed the Respondent 's 8(a ) (5) charges. Furthermore, in the earlier case, the Trial Examiner found, inter alia, that there had been no refusal to bargain and the Board adopted his Intermediate Report. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having determined that the Respondents lacked majority status when they picketed Sierra for recognition, we must find, under the Labor Management Relations Act, that they violated Section 8(b) (1) (A).' It has been established Board law for many years that an employer is under an obligation to recognize a majority representative and no other. Indeed, if he recognizes a minority union, he violates Section 8(a) (1) and (2) of the Act' Approximately 2 years ago, in Curtis Brothers,' the Board found that picketing by a minority union to obtain such employer recog- nition is also violative of the Act, specifically, of Section 8 (b) (1) (A) .' Under this section, it is an unfair labor practice for a union to restrain and coerce employees in the exercise of their Section 7 rights which include the right to bargain collectively through representatives of their own choosing and the right to refrain altogether from union representation. The economic pressure of minority recognition picketing, exerted on an employer and, through him, on his employees, falls literally within the plain meaning of 8(b) (1) (A)'s language. The obvious purpose and effect of such picketing is to coerce an employer into extending recognition as a preferred alternative to suffering economic distress or ruin. Inevitably the economic sanctions of such picketing must affect that employer's workers, since their livelihood depends upon the successful operation of his business. Thus, the employees necessarily are coerced by such union activity and that coercion is violative of Section 8 (b) (1) (A) of the Act. It has been argued that this construction of 8(b) (1) (A) is unten- able for it conflicts with certain other sections of the Labor Manage- ment Relations Act. In its decision rejecting the Curtis Brothers rationale,10 the Circuit Court for the District of Columbia expressed ° As the unfair labor practices herein were committed prior to the passage of the Labor-Management Reporting and Disclosure Act of 1959 (Public Law 86-275, 73 Stat. 519), we are perforce construing the Act as it existed prior thereto. Moreover, con- trary to our dissenting colleague, we believe that the new provisions concerning recogni- tion and/or organizational picketing merely amplify the National Labor Relations Act's Section 8(b) proscriptions. The pertinent section of the amendments, 704(c) of Title VII, specifically provides : "Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8(b)." We have already determined that Section 8(b) (1) (A) prohibits minority recognition picketing. 7 Fine Art Novelty Corporation, 54 NLRB 480; Fast Trucking, Inc., 56 NLRB 1826; Wakefaelds' Deep Sea Trawlers, Inc., et al., 112 NLRB 1357. 8 Drivers, Chauffeurs and Helpers, Local 689. International Brotherhood of Teamsters, Chauffeurs , Warehousemen, and Helpers of America, AFL-CIO ( Curtis Brothers, Inc.), 119 NLRB 232. 0 Curtis Brothers was the first case in which the Board was squarely confronted with this precise problem without any other issues being involved. 3°Drivers, Chauffeurs and Helpers, Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Curtis Brothers, Inc.) v. N.L.R.B., 43 LRRM 215, cert. granted 27 L.W. 3291. In N.L.R.B. v. International Association of Machinists, Lodge 942, AFL-CIO, 263 F. 2d 796, the Ninth Circuit had LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 163 the opinion that, by applying 8(b) (1) (A) to peaceful picketing, Section 13 which prohibits interference with the right to strike would be expunged. Thus, 8(b) (1) (A) was not intended to cover such activity. We respectfully disagree with the Circuit Court. Section 13 of the Act reads as follows : Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right. [Emphasis supplied.] Section 13 refers to the right to strike. It refers to limitations and qualifications on that right. The very language of the section leaves no doubt but that the right to strike is not absolute. A strike by a majority for a legal objective is clearly protected by the statute, pro- vided that it is carried out by lawful means. The use of picketing to implement a strike for a lawful objective, when the picketing is non- violent in nature, is clearly protected. However, when picketing, even though nonviolent in nature, is utilized to accomplish an objec- tive proscribed by the statute, then, that picketing does not fall within the purview of Section 13. In Drivers Local 639, the D.C. Circuit also opined that, if Section 8(b) (1) (A) is given so broad an interpretation as to cover coercive recognition picketing, Section 8(b) (4) (C) becomes entirely useless, since all the activities therein described are covered by the former section. Section 8(b) (4) (C) makes picketing for recognition illegal if a union has already been certified as collective-bargaining repre- sentative. It should be noted, here, that the preceding section, 8(b) (4) (B), expressly covers recognition picketing in a secondary boycott context. In our opinion, there is no basis for believing that the treatment given to recognition picketing by either Section 8(b) (4) (B) or (C) was intended to be exclusive. In the O'Sullivan Rubber case," which involved the precise issue discussed herein, the Fourth Circuit points out that Section 8(b) (1) (A) did not appear in the labor bill as reported out of the Senate committee. Rather, it was adopted as an amendment on the floor and, thus, must be viewed as an enlargement upon the original bill which included Section 8(b) (4) (B) and (C). Obviously, Sec- tion 8(b) (1) (A) was added to cover circumstances not provided for elsewhere, such as the situation here present, where a certified bar- gaining representative is not involved. The Labor Management Relations Act is a complex statute and the mere fact that there are certain overlappings and duplications within before it a companion case to Curtis Brothers. However, it indicated no opinion as to the picketing issue therein because the point had not been properly reserved below. n N.L.R.B. v. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, et al. (O'Sullivan Rubber Corporation), 269 F. 2d 694 (C.A. 4). 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it can afford no basis for ignoring the plain meaning of the language of Section 8(b) (1) (A). -Under that language, minority recognition picketing is clearly proscribed.12 Neither is it significant that the House and Senate conferees deleted Section 12 (a) of the House bill which prohibited a minority union from interfering with business operations in order to compel recognition.13 Legislative history reveals that the conferees did not intend, by this action, to eliminate the ban against the activities set forth in the House bill. Rather, they intended to avoid any implica- tion that the enumeration in Section 12 (a) was to have a limiting effect. 14 Section 12 (a) of the House bill was simply eliminated in deference to Section 8 (b) (1) (A)'s more comprehensive language. It should be emphasized that failure to find minority recognition picketing violative of the Act would result in a major inconsistency in the statute's framework. For, if an employer violates the Act by recognizing a minority union, surely, the union which forced him to do so must also have violated the Act. Any other interpretation of the statute would lead to an illogical and unjust result. Obviously, Congress did not intend to prohibit an employer from recognizing a minority union, on the one hand, and, on the other, to countenance that union's picketing for recognition. Furthermore, the fact that it is picketing which is involved herein affords the Respondents no special protection under the Constitution's free speech safeguards or Section 8(c) of the Act. The Supreme Court has declared that peaceful picketing receives no protection from the Constitution when, as here, its object is employer interference with Section 7 rights.15 And, in Building Service Employees Inter- national Union, Local 262, et al. v. Gazzam,ls the Court specifically held that : ... the union was using its economic power . . . to compel [the employer] to abide by union policy rather than by the declared policy of the State. That state policy guarantees workers free choice of representatives for bargaining purposes. If [the 12 The dissenting judge in O'Sullivan. who finds to the contrary, relies, in part, on the Senate debate of the Kennedy-Ervin bill, citing the Congressional Record, pages 5951 to 5978. He observes that both the proponents and -the opponents of that legislation predi- cated their discussion on the fact that the present law does not proscribe minority recog- nition picketing. However, it appears from the cited debate that the participants therein were not aware of the import of the Board 's decision in Curtis Brothers . Under such circumstances the debate can shed little light on the scope of 8 ( b) (1) (A). Moreover, the Supreme Court disapproves of the use of postlegislative debates as authoritative guides to statutory construction . U.S. v. United Mine Workers of America, 330 U.S. 258. 13 See H.R. 3020, sees. 12(a) (2 ) and (3 ) ( C), I Leg. Hist. 205-206; H. Conf. Rept. 510, 80th Cong., 1st sess., pp. 42-43 ; I Leg. Hist . 546-547. 14 H. Conf. Rept. 510, 80th Cong., 1st sess. , p. 39 ; I Leg. Hist. 543. See also, - Senator Taft's statement at 93 Cong . Rec. 6443, II Leg. Hist. 1539. 15 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America v. Vogt, 354 U.S. 284. 18339 U.S. 532. LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 165 employer] had complied with [the union's] demands and had signed one of the tendered contracts and lived up to its terms,, he would have thereby coerced his employees .... [A]buse by workers or organizations of workers of the declared public policy of such an Act is no more to be condoned than violation of prohibitions against judicial interference with certain activities of workers.17 Moreover, the Supreme Court's decision in Electrical Workers v. N.L.R.B.,18 is conclusive with regard to Section 8(c) protection."' In holding that this section did not provide a defense to peaceful induce- ment of secondary boycott pressures, the Court, on page 104, stated: The remedial function of Section 8(c) is to protect noncoercive speech by an employer and labor organization alike in furtherance of a lawful object. It serves that purpose adequately without extending its protection to speech or picketing in furtherance of unfair labor practices . . . . [Emphasis supplied.] It should be remembered that the picketing in the instant case was not only for an improper purpose but it, in fact, constituted coercion. Thus, neither the Constitution nor Section 8(c) of the Act protects it.. The Respondents, through their picketing for recognition, applied economic pressure designed to damage Sierra's business. As we have stated hereinabove, that economic pressure constituted restraint and coercion within the meaning of Section 8(b) (1) (A) and took the Respondents' activity beyond the protected realm of peaceful persua- sion. Accordingly, we find that the Respondents, by this conduct, violated Section 8(b) (1) (A). We further find, in agreement with the Trial Examiner, that the Respondents' appeals to customers not to do business with Sierra also 'violated Section 8 (b) (1) (A) of the Act 20 With regard to the issue of whether the Respondents, via their September-January picketing, sought not only recognition, but also a union-shop contract, we find, contrary to the Trial Examiner, that they did and, thereby, they violated Section 8(b) (2) of the Act. The Trial Examiner found, on a "predominance of the credible testimony," that the Respondents' picketing was intended merely to force Sierra into negotiating with them on all bargainable matters, including, inter alia, union security. Thus, their actions did not vio- 17 Ibid., at p. 541. '2International Brotherhood of Electrical Workers, Local 501, at al. v. N.L.R.B., 341 U. S. 694. is Section 8 (c) provides : "The expressing of any views , arguments , or opinions, or the dissemination thereof, whether in written , printed, graphic, or visual form, shall not con- stitute or be evidence of an unfair labor practice under any provision of this Act, if such expression contains no threat of reprisal or force or promise of benefit." 2° International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 119 NLRB 307. 535828-60-vol. 125-12 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD late 8 (b) (2). We believe that it is unnecessary, in reaching our con- trary conclusion , to disturb the Trial Examiner's implicit credibility findings. Following the commencement of the strike , there were three sched- uled meetings and one "off -the-cuff" conversation concerning settle- ment of the strike and negotiations for a new contract . On September 25, all parties to the dispute met to discuss the matter . The Company suggested that an election be held, which suggestion the Respondents rejected, claiming that an election would not reflect the employees' free choice in view of Sierra's unfair labor practices . There is un- controverted testimony that, at this meeting, the Respondents stated that they could not give up union security. More than 3 months elapsed before the parties met again-this time, on or about January 6, 1959, first, at the Board's Regional Office and, later, at the office of the Company's counsel . At the latter meeting, the Respondents expressed willingness to extend any union -security clauses 30-day period to 90 days. Testimony, which the Trial Ex- aminer apparently credits, indicates that the Respondents would nego- tiate on union security in general. Finally, Business Agent Brown of 123 and one of the Company's attorneys met on January 30 at the courthouse where the Board was seeking a temporary restraining order. Brown, according to his own testimony, then, stated : 21 Well, we were thinking of some modification of that, [the "union shop"] either a maintenance of membership or some such pro- vision, so that the company 's problem would be answered. .. . We may even consider an open shop . In other words, I would like to see some way to settle this thing, and preferably before this Court proceeding continues . If the injunction does not issue- if we can settle this before the injunction issues, or before the thing proceeds, it will save a lot of money and a lot of difficulty. If the thing goes on and on, I don't know what will happen after that or what our position will be. [Emphasis supplied.] According to the 'Company's attorney, the Respondents' dropping of the union-security demands was conditioned on Sierra 's discontinuing its various actions against them, particularly as affecting the Section 10(j) injunction proceeding. Without disturbing the Trial Examiner's implicit crediting of Brown, we find an 8(b ) (2) violation based on: ( 1) the Respondents' statement at the September 25 meeting that they could not give up union security; (2) their picketing of the Company for more than 3 months without any indication of a shift from that position which, under such circumstances, must be presumed to have persisted; and n At page 538 of the transcript. LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 167 (3) their failure to indicate until January 6 that they would negotiate the matter and might modify their union-security demands. We are persuaded by such facts and sequence of events and by Brown's statements in the courthouse on January 30 that the Respond- ents, by their picketing, sought to coerce Sierra into executing a union- shop contract. By so doing, while representing only a minority of Sierra's employees, they violated Section 8(b) (2) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Local 208, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America; and Local 123, Furniture Workers, Upholsterers & Woodworkers Union, and their officers, representatives, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Restraining or coercing the employees of Sierra Furniture Company in the exercise of their Section 7 rights by picketing Sierra with an object of obtaining recognition and a contract as exclusive bargaining representative at a time when the Respondents do not represent a majority of Sierra's employees in an appropriate unit. (b) Restraining or coercing the employees of Sierra in the exercise ,of their Section 7 rights by appealing to customers or potential cus- tomers of Sierra not to do business with that Company, by picketing or other like or related conduct, with an object of obtaining recogni- tion and a contract as exclusive bargaining representative at a time when the Respondents do not represent a majority of Sierra's em- ployees in an appropriate unit. (c) Attempting to cause Sierra to enter into a contract which requires, as a condition of employment, membership in either or both labor organizations, by picketing or other like or related conduct, at .a time when the Respondents do not represent a majority of Sierra's ,employees in an appropriate unit. 2. Take the following affirmative action which the Board finds will ,effectuate the policies of the Act : (a) Post in conspicuous places at their respective business offices -and meeting halls in Los Angeles, California, and at all places where notices to members are customarily posted, copies of the notice at- -tached hereto marked "Appendix." 22 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondents' representatives, be posted In 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." 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Respondents immediately upon receipt thereof and be main- tained by them for a period of 60 consecutive days thereafter. Rea- sonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Twenty-first Region signed copies of the notice attached hereto marked "Appendix," for posting, Sierra Furniture 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 Twenty-first Region, shall, after being duly signed by authorized representatives of the Respondents, be forthwith returned to the Regional Director for such posting. (c) Notify the Regional Director for the Twenty-first Region in writing, within 10 days from the date of this Order, as what steps- have been taken to comply herewith. MEMBER FANNING, dissenting : I cannot agree with the majority's conclusion that the Respondent Unions have violated Sections 8(b) (1) (A) and (2) in this case. My view, stated in my dissenting opinions in Andrew Brown Company, 120 NLRB 1425, and Machinery Overhaul Company, Inc., 121 NLRB 1176, that peaceful picketing by a minority union for recognition is not violative of Section 8(b) (1) (A) has now been affirmed by the Court of Appeals for the District of Columbia in Drivers, Chauffeurs and Helpers, etc. v. N.L.R.B. (Curtis Brothers, Inc.), 274 F. 2d 551, cert. granted 27 L.W. 3291. In a companion case, N.L.R.B. v. Inter- national Association of Machinists, Lodge 94 ,9, AFL-CIO (Alloy Manufacturing Company), 263 F. 2d 796, the Court of Appeals for the Ninth Circuit has held that publicity, other than picketing, for the same objective is within the protection of Section 8(c) of the Act and not a violation of Section 8(b) (1) (A). To date the sole support for the majority's contrary position derives from a decision of the Court of Appeals for the Fourth Circuit in the O'Sullivan Rubber case, 269 F. 2d 694. I note, however, that Chief Judge Sobeloff in a strong dissenting opinion concurred with my views. Since then Congress, has legislated specifically in the area of recognition and organiza- tional picketing. As Chief Judge Sobeloff pointed out, neither the proponents nor opponents of this provision of the new amendments were of the opinion that the then existing law proscribed such prac- tices. Nor has there been any suggestion that the new amendments are merely declaratory of existing law. Indeed, the prohibition, under carefully prescribed circumstances, of organizational and recog- nition picketing is included in the amended Act, not as an amplifica- tion of Section 8(b) (1) (A), but in an entirely new subsection,, 8(b) (7). LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 169 Accordingly, I am convinced that the majority's interpretation of :Section 8(b) (1) (A) with regard to recognition picketing and other publicity for the same objective is legally incorrect. Moreover, assum- ing arguendo the validity of the majority's position that a minority union is prohibited from picketing for recognition, I am not per- suaded that that rule should apply in the instant case. The record is perfectly clear that Local 123, one of the two unions seeking joint recognition did in fact represent a majority of these employees prior to the picketing activities of September 24, 1958. The record is also clear, as the Trial Examiner found, that this Employer embarked upon a campaign to destroy Local 123's majority. This campaign included solicitation of employees to abandon Local 123, threats that they would otherwise lose profit-sharing benefits, that the employees would have no chance with Local 123, and that Sierra would never sign a contract with that union. The latter fuiding is confirmed by uncontradicted testimony that the Employer's attorney informed a representative of Local 123 that the Company considered the Union" . .. a tough union, and they just don't want to do business with you." Faced with the prospect of no bargaining except after long protracted legal proc- esses, Local 123 yielded its representative interest to Local 208 with which the Employer apparently was willing to sign a contract. In this the Employer achieved its unlawful objective of refusing to do business with the union selected by a majority of its employees. But the Employer achieved more. Local 208 had not been selected by a majority of the employees and therefore could not lawfully execute a contract containing a union-security clause. A contract signed by the Employer and Local 208 on August 6 became the subject of unfair labor practice charges. The Employer promptly broke off recogni- tion of Local 208, abrogated the contract, and was then in the position of having to deal neither with Local 123, which by this time had lost its majority, or Local 208, which had never had a majority, or both unions jointly. The picketing which followed is alleged by the General Counsel and found by the majority to be violative of Section S(b) (1) (A) . I am not impressed with the majority's technical argu- ment that such picketing is no different from the picketing activities of a union that had never been selected by a, majority of employees as their bargaining representative. To hold, as the majority does, that the unions jointly must be treated as a minority union because only one of them had been designated by the employees to represent them seems to me a strained and unrealistic conclusion. Nor do I agree with the majority's apparent position that Sierra's unfair labor practices had nothing to do with the discouragement of union membership <among these employees. Whether or not Sierra violated Section 8 (a) (5) by refusing a joint request for recognition, the record is per- fectly clear that this Employer made it known that it would not under 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any circumstances do business with Local 123, the union selected by a majority of its employees. Its conduct in this respect, including the threats and promises set forth above, was made the subject of 8 (a) (1) charges, which were settled informally. It would seem to me fairly obvious that such serious unfair labor practices had a substantial impact upon Sierra's employees. Few, if any, employees would have the temerity to continue their relationship with Local 123 or, indeed, join Local 208 as long as that union was closely associated with the union condemned by their Employer. It does not seem reasonable to me to say that future employees would be unaffected by such unfair labor practices. I know of no doctrine in law or logic which limits the impact of an antiunion campaign solely to those employees on the Employer's payroll at the time the coercion occurred. In my opinion, these employees were coerced into abandoning Local 123 as their representative either separately or jointly with Local 208. Having unlawfully prevented Local 123 from maintaining, or both unions from achieving, majority status, Sierra is now rewarded by a holding that subsequent picketing for recognition is violative of Sec- tion 8(b) (1) (A). I ,am. also of the view that the Trial Examiner correctly recommends dismissal of the allegations of a violation of Section 8 (b) (2) for the reasons stated in his Intermediate Report. MEMBER BEAN took no part in the consideration of the above Deci- sion and Order. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 208, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA AND LOCAL 123, FURNITURE WORKERS, UPHOLSTERERS & WOOD- WORKERS UNION 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, as amended, we hereby notify you that : WE WILL NOT restrain or coerce the employees of Sierra Furni- ture Company in the exercise of their Section 7 rights by picketing Sierra with an object of obtaining recognition and a contract as exclusive representative at a time when we do not represent a majority of Sierra's employees in an appropriate unit. WE WILL NOT restrain or coerce the employees of Sierra in the exercise of their Section 7 rights by appealing to customers or potential customers of Sierra not to do business with that Com- pany, by picketing or other like or related conduct, with an object of obtaining recognition and a contract as exclusive bargaining LOCAL 208 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 171 representative at a time when we do not represent a majority of Sierra's employees in an appropriate unit. WE WILL NOT attempt to cause Sierra to enter into a contract which requires, as a condition of employment , membership in either or both of our labor organizations, by picketing or other like or related conduct, at a time when we do not represent a majority of Sierra's employees in an appropriate unit. LOCAL 208, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL 123, FURNITURE WORKERS, UPHOLSTERERS & WOODWORKERS UNION9 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 This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Los Angeles, California, on February 16, 17, 18, and 19, 1959, on complaint of the General Counsel of the National Labor Relations Board, here- inafter the Board, and answers, respectively, of the Respondents, Local 208, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica, hereinafter Local 208, and Local 123, Furniture Workers, Upholsterers & Wood- workers Union, hereinafter Local 123. The issues litigated were whether the Respondents violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, 61 Stat. 136, hereinafter the Act. The parties waived oral argument and filed briefs. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Sierra Furniture Company, hereinafter Sierra, is engaged in the manufacture of furniture at Los Angeles, California. During the operation of its business for the fiscal year commencing July 1, 1957, and ending June 30, 1958, it purchased prod- ucts from sources outside the State of California valued at $196,542. During the same fiscal year, it shipped products outside California valued at $67,831.65. II. THE LABOR ORGANIZATIONS INVOLVED Local 208 and Local 123 are, each of them, labor organizations within the mean- ing of the Act. III. THE UNFAIR LABOR PRACTICES A. Outline of leading facts and issues In July 1958, Local 123 was engaged in an organizational drive among Sierra employees and was joined by Local 208. As of July 21, a majority of Sierra em- ployees had signed cards designating 123 their bargaining representative. Later, an undisclosed number of those signing 123 cards signed, also, cards for 208. It is the 0 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention of the Respondents that employees signing cards for either Local 123 or 208 understood that they had designated the two locals jointly to represent them. On about July 16 or 17, Gus O. Brown, Local 123's business representative, had requested recognition and a contract on the basis of its claim of majority repre- sentation. Recognition was not immediately forthcoming and on July 21, and by letter dated July 22, demand was made on Sierra for recognition of the two locals as the joint bargaining representative of Sierra employees. On July 22, Sierra was struck and picketed by the Respondents acting jointly. Less than a majority of Sierra employees engaged in the strike and picketing. Also on July 22, Sierra filed an RM petition with the Board naming the two unions as having raised a question of representation. The strike and picketing continued through August 6. On August 6, Sierra executed a contract with Local 208. Pre- viously, on July 31, Local 123 had advised Sierra in writing that it disclaimed "any and all interest in representing the employees of the Sierra Furniture Company." On or about the same date Local 208 advised Sierra of 123's disclaimer and asserted its own individual claim of representation. Brown, however, participated in the negotiation of the August 6 agreement. His announced status in that meeting was that of a representative of 208. On August 25, a Sierra employee filed charges against Sierra and Local 208, and on September 4 and 5, amended charges, alleging in substance that Sierra and 208 had violated the Act by executing a union-shop contract at a time when 208 did not represent a majority of Sierra employees. By letter dated September 3, Sierra notified Local 208 that because of the filing of the charge and on the basis of an ensuing in- vesligation by Board agents disclosing that 208 did not represent a majority of Sierra employees in an appropriate unit, it was Sierra's position "that the agreement of August 6, 1958 is completely invalidated, both the purpose and consideration there- fore having been illegal." While Sierra may have continued in effect most of the substantive provisions of the August 6 contract, it is clear and found that on Sep- tember 3 it broke off recognition of Local 208 and at no time thereafter recognized the Respondents either jointly or individually as the bargaining representative of its employees. Also on September 3, Local 123 notified Sierra that it was withdrawing its July 31 "disclaimer." On September 4, Local 123 filed a charge against Sierra of 8(a)(1) violations of the Act. (Previously, on August 6, 208 had filed a charge of 8(a)(1) violations against Sierra but on August 14 following the execution of the contract, the charge had been withdrawn.) On November 19, Local 123 amended its charge to allege, also, that in violation of 8(a)(5), Sierra had unlawfully refused to bargain with the Respondents as joint representative of its employees. On January 15, 1959, a second amended charge added the name of Local 208 as a charging party, and an additional allegation that, in the alternative, Sierra on orlabout July 21, 1958, refused to bargain with Local 123. On September 8, 1958, 3 days after the filing of a second amended charge by an employee of Sierra, the General Counsel issued a consolidated complaint and notice of hearing, naming Local 208 and Sierra as respondents, and a hearing thereon, before a Trial Examiner, was held on October 13-16, inclusive (Cases Nos. 21-CA-3194 and 21-CB-1172). Prior to the hearing in that case, by letter dated September 22, executed by Local 208, a demand was made that Sierra meet with the Respondents: (1) To ascertain and definitely fix the position of Sierra Furniture with respect to the above-captioned agreement [August 6 contract] to the end that full compliance therewith may be had (Local 208 does, of course, insist that the labor contract in question is wholly valid and enforceable); and (2) To negotiate another and different bargaining agreement if such be necessary and desirable in the premises. The letter continued: Please take notice that Local 208 will resort to economic sanctions against Sierra Furniture on or after September 23, 1958 in event Sierra Furniture fails to meet with us as above requested prior to 5:00 P.M. Tuesday, September 23, 1958. Despite our position that the August 6, 1958 contract is valid and enforceable and that we are entitled to full compliance therewith, the purpose of the economic sanctions, if such become necessary, will not be to enforce the August 6, 1958 labor contract in question. What we do insist upon, however, is that the Company immediately meet and negotiate with us either concerning the 0 LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 173. matter of enforcement of the August 6th contract or to negotiate a new con- tract in its place and stead. The object of the imposition of economic sanction, if such become necessary, will be to insure that necessary bargaining takes place in the premises. We stand ready to meet with Sierra Furniture representatives at any time prior to 5:00 P.M. on Tuesday, September 23, 1958 and at any reasonable place on said date. Due to the nonavailability of its attorney, Sierra was unable to meet the September 23 deadline, and picketing of the Sierra plant by the Respondents acting jointly began on September 24. The picket signs said in substance and effect that Sierra was unfair to organized labor, and were signed by both 123 and 208. There was a meeting of representatives of the parties to the dispute on September 25, and further meetings in January 1959. At these meetings the Unions pressed for a resumption of con- tractual relationships, and Sierra resisted those demands. Sierra proposed an elec- tion to determine the question of representation and the Respondents opposed this. proposal, as they had consistently since the period of the July 22 strike, on the grounds that the choice of employees could not be fairly tested because of Sierra's umemedied unfair labor practices. Picketing continued until February 6, when it ceased pursuant to a temporary restraining order obtained by Sierra. By telegram the Respondents then advised Sierra that the strike had been terminated and requested the reemployment of the strikers. In January, while the strike was in progress, in addition to picketing Sierra premises, the Respondents distributed pamphlets and displayed signs at places where customers and potential customers of Sierra were assembled, appealing to the said customers and potential customers not to patronize Sierra while the strike was in progress. On September 26, Sierra filed the charges upon which the complaint in this proceeding is predicated. As previously noted, on September 4, on the same date that an amended charge was filed in Cases Nos. 21-CA-3194 and 21-CB-1172, Local 123 filed a charge alleging 8(a)(1) violations by Sierra. This charge had not been "processed" by the date set for the hearing in Cases Nos. 21-CA-3194 and 21-CB-1172, and the Respondents' motion of October 9 to defer a hearing in that case until investigation had been completed on 123's charge against Sierra, and that the various matters raised by the several charges be encompassed in one con- solid,ated hearing, was, on October 13, denied. Accordingly, as previously stated, Cases Nos. 21-CA-3194 and 21-CB-1172 was heard beginning October 13, and' the Trial Examiner presiding in that case subsequently issued his Intermediate Report. Over objections of the Respondents, the Board's Regional Director made a settle- ment agreement with Sierra with respect to 123's 8(a)(1) charge and declined to issue a complaint on the 8(a)(5) charge filed by the Respondents. The Respondents appealed this decision and the matter at the time of the hearing herein rested in the office of the General Counsel. B. Additional facts, analysis, and conclusions 1. The September 24 strike and customer appeals It is the General Counsel's contention that the picketing of Sierra premises, beginning September 24, and appeals to customers of Sierra not to do business with Sierra, had as an object the requiring of Sierra to execute a union-shop contract with the Respondents, and inasmuch as the Respondents neither individually nor jointly represented a majority of Sierra employees in an appropriate unit at the time these activities occurred, the picketing and customer appeals constituted viola- tions of 8(b)(1) (A) and (2) of the Act, under the decisions of the Board in Curtis Brothers, Inc., 119 NLRB 232, and Alloy Manufacturing Company, et al., 119 NLRB 307. I find that an object of the picketing and customer appeals was to require Sierra to recognize and bargain with -the Unions as the joint representative of its employees. There is also conclusive evidence that Locals 123 and 208 neither separately nor jointly represented a majority of Sierra employees on September 24, or at any material times thereafter. Admittedly, a majority had not signed cards with either, and a substantial majority continued to work throughout the period of the strike. On these findings, it is clear that the General Counsel has made a prima facie case with respect to the alleged 8(b) (1) (A) violations. Whether the Respondents struck and picketed for a compulsory membership agreement will require more extended discussion. 2. Nature and scope of defense Turning now to the Respondents' defense, it is, as I understand it, that Locals 123 and 208 were jointly designated by a majority of Sierra employees in an 0 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit as their bargaining representative, were refused recognition as the said joint bargaining representative, and any loss of majority thereafter is attributable to Sierrd's unfair labor practices. The strike, picketing, and related conduct begin- ning September 24, was therefore permissible because engaged in by unions which except for Sierra's unfair labor practices would have been, and constructively were, the duly designated representative of a majority of Sierra employees in an appropriate unit. At the hearing, Sierra and the General Counsel respectively objected to the receipt of evidence on matters occurring prior to September 22, partly on the grounds that such matters were litigated in Cases Nos. 21-CA-3194 and 21-CB-1172. The objections were overruled and the evidence taken. At the outset, then, we are met with two problems. Would the matters alleged as defense, if proven, constitute a legal defense? Are we precluded from considering evidence in support of the said defense because it constituted, at least in part, the subject matter of a prior proceeding? It is elementary that the findings made and the conclusions drawn herein rest exclusively on evidence taken in this proceeding. No part of the transcript of the prior proceeding is before me and the Trial Examiner's Intermediate Report issued in that case lacks the decisional finality that would enable me to take official notice of it. It is immaterial whether or not there is some overlapping and duplication of evidence in the two cases. The Respondents' motion for a consolidation of that proceeding with the proceeding upon which these findings are based, was denied, and the said denial represents an exercise of administrative judgment and discretion which is not our proper concern here. The Trial Examiner has no authority in such matters as the issuance or refusal of issuance of complaints, and the General Counsel has no authority by his determination of when and in what sequence to issue or not to issue complaints, to limit or in any way restrict the receipt of evidence relevant and material to the issues as defined in the pleadings of a given case. In short, the General Counsel's informal settlement of Local 123's 8 (a) (1) charge against Sierra, and its determination that the Respondents' charge of 8(a)(5) violations does not merit the issuance of a complaint-if such should ultimately be that determination- has no bearing on my findings in matters properly raised here as a defense. In my opinion there is enough substance in the Respondents' position to merit close and thorough consideration. A long line of cases involving unfair labor practice strikes establishes that unions may still resort to self-help in an appropriate situation as an alternative to seeking remedial action through the Board and the Board, through statutory construction and not because of the literal language of that sec- tion, has found that the notice requirements of 8(d) of the Act have no application to unfair labor practice strikes. "To interpret section 8(d) as outlawing unfair labor practice strikes during the statutory waiting period, according to the Court, would produce the anomalous result of penalizing employees for exercising their right to strike and depriving them `of their most effective weapon at a time when their need for it is obvious. Although the employees' request to modify the contract would demonstrate their need for the services of their freely chosen representative, petitioners' interpretation would have the incongruous effect of cutting off the employees' freedom to strike against unfair labor practices aimed at that representa- tive. This would relegate the employees to filing charges under a procedure too slow to he effective. The result would unduly favor the employers and handicap the employees during negotiation periods contrary to the purpose of the Act. There also is inherent inequity in any interpretation that penalizes one party to a contract for conduct induced solely by the unlawful conduct of the other, thus giving advantage to the wrongdoer.' " [Emphasis supplied.] Twenty-first Annual Report of the National Labor Relations Board, p. 123, quoting from the Supreme Court's decision affirming the Board in Mastro Plastics Corp., 350 U.S. 270. It is equally well established that where a majority representative of an appropriate unit is refused recognition, and the employer contemporaneously with the refusal or thereafter, while still refusing recognition, engages in unfair labor practices under- mining and destroying the union's majority, the union constructively retains its mainrity status and the employer's duty to recognize and bargain with it is the same as if it continued to represent an actual majority. In my opinion, the rationale supporting these lines of cases applies to the situation here and we should adhere to "the rule generally applied to labor relationships in determining whether there have been unfair labor practices, of looking to the entire transaction, including all of the actions of the parties as well as all the words they employed." N.L.R.B. v. Associated Wholesale Grocery of Dallas, Inc., 262 F. 2d 281 (C.A. 5). LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 175 3. Local 123's majority; efforts to obtain recognition; disclaimer of interest Turning now to Respondents' defense I find that as of July 21, a majority of Sierra employees in an appropriate unit had signed cards designating Local 123 their bargaining representative. The majority was a slight one, 33 of a total of 60 em- ployees. I further find on the basis of undisputed and credible testimony, that pre- ceding the July 22 strike and during it, Sierra through Foreman Alex Alviso, stated to employees, singly and in groups, that Local 123 was a weak and ineffectual union, and solicited them to abandon 123 and to join another union, with national affiliation, or to form a company union. On at least one occasion Alviso addressed a group of employees engaged in picketing and urged them to get the key people engaged in the strike and, without informing Local 123, to form a committee of their own for meeting with management. On another occasion, date uncertain, he stated to an employee that Sierra employees would lose profit-sharing benefits then enjoyed if they joined Local 123. Respondents' superintendent, Lloyd Seese, asked an employee why she did not join a union which he named and which he said was stronger than Local 123, and, during the strike, Seese told an employee, or employees engaged in picketing, that the employees had no chance with Local 123; that 123 did not have enough power and Sierra would never sign a contract with it. Fore- man Laity also advocated to employees abandonment of Local 123 for another union which he advised was stronger. The foregoing statements were obviously designed and had the reasonable effect of undermining the prestige of Local 123 and of destroying its majority, and together with other factors presently to be considered, contribute credence of the Respondents' position that 123 abandoned its efforts to gain recognition either individually or jointly with 208, and withdrew, nominally at least, in favor of the latter, on becom- ing convinced that it could gain recognition and a contract with Sierra only after prolonged legal procedures. Gus O. Brown, business agent of 123,' testified without contradiction that in 1956 Local 123 signed up a majority of Sierra employees but was unable to obtain recognition; that at that time Sierra's operations did not bring it under the Board's jurisdiction and therefore a Board-conducted election could not be had; that Sierra refused to participate in a State conducted election. Local 123 accordingly aban- doned its organizational attempts at that time. By letter dated July 16, 1958, Brown advised Sierra that Local 123 represented a majority of Sierra employees and requested negotiations. Also, according to Brown's undisputed testimony, on July 16 or 17, he phoned Lewis, Sierra's president, stated that Local 123 represented a majority of Sierra employees, and requested recognition and a contract. Lewis referred him to Superintendent Seese to whom he repeated his demands, and Seese referred him to Eddie Feldman, an attorney and labor relations consultant who represented a group of furniture manufacturers and with whom -Brown had had dealings with respect to Sierra in 1956. Pursuant to his conversation with Seese, Brown called Feldman, repeated his demand for recog- nition, and was told by Feldman "that he would have to check with the company and find out what the situation was." Brown again called Feldman on July 21. Of this conversation, Brown testified, "Well, I told him that we were making the demand on behalf of Local 123, and Local 208, jointly." Feldman asked Brown how many authorization cards he had signed up, and then talked to Sierra's Lewis on the phone. Resuming his conversation with Brown, Feldman, according to Brown, conceded the validity of Brown's claim of a majority but said, in substance, "I am afraid the company doesn't want to recognize or deal with you." By letter, dated July 22, Brown advised Feldman re Sierra: This will confirm the telephone conversation made to you yesterday, wherein I advised you that we have revised our request for recognition to the above-named Company, in that . . . Local 208, and our Local, are jointly requesting recog- nition on behalf of all maintenance and production workers excluding office employees, salesmen, guards and supervisors. As previously stated on July 22 the Respondents, acting jointly, struck Sierra. During the first few days of the strike Brown, representing 123, and Chavez, representing 208, met with Feldman, representing Sierra. It was Brown's uncon- tradicted testimony that at this meeting of the parties he told Feldman that he had authorization cards showing that the Unions represented a majority of employees and would agree to a card check, and asked Feldman why Sierra refused recognition. i The question, put to Brown on cross-examination by Sierra's attorney, "Are you a. member of the Communist Party?", was disallowed by the Trial Examiner. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To this Feldman replied, "You know how it is, there are some companies that feel you are a pretty tough union, tough guy and a tough union, and they just don't want to do business with you." Brown subsequently had telephone conversations with Feldman in which the latter reported that with respect to recognition by Sierra "there was no change in the situation." By letter dated July 31, Brown advised Sierra: "that of this date our Union disclaims any and all interest in representing the employees of the Sierra Furniture Company." At about the same time, 208 advised Sierra of 123's action and demanded recognition of 208. Thereafter, on August 6, as previously stated, Sierra signed a contract with 208. Referring back to 123's initial effort, on or about July 16 or 17, to obtain recog- nition, it must be found that as of those dates 123 did not represent a majority of Sierra employees. Local 123's majority status was not established until July 21. And there is no evidence that any Sierra employees had designated 208 as of the earlier date, or that 208 had as yet participated jointly with 123 in the latter's organizational campaign. I think it is evident that it had not, for I am convinced that Brown's ini- tial demand for recognition did not include 208. Had it been a demand for recogni- tion of the two locals acting as joint bargaining representative, there would have been no occasion for the letter dated July 22 in which Brown advised Feldman that "we have revised our request for recognition" to include Local 208. Brown is an intelli- gent, literate man and when he used the word "revised" he meant just that. Further, there is no evidence that Sierra refused to recognize 123 at any time prior to July 21. In Brown's conversation with Feldman on July 16 or 17, in response to the former's demand, Feldman merely said that he would have to check with Sierra before answer- ing the demand. This was no refusal. The earliest date on which it can be claimed, with justification, that Sierra refused 123 recognition, is July 21, when, according to Brown, Feldman conceded 123's majority but stated that Sierra "doesn't want to recognize or deal with you." That the Respondents recognize that July 21 is the crucial date, is indicated by the charge filed by 123 against Sierra alleging July 21 as the date on which Sierra unlawfully refused to bargain with it. I am convinced that Sierra did in fact indicate on July 21 its unwillingness, or refusal, to deal with Local 123, and that that refusal was not based on a bona fide doubt of 123's majority. True, on July 22, after the strike was in progress, Sierra filed an RM petition, and it may very well have had a doubt that 123 could establish its majority at that time because less than,a majority of Sierra employees engaged in the strike. But in the conference with Brown on July 21, Feldman expressed no such doubts and had not Brown been testifying truthfully about this conference, there appears to be no reason why Feldman could not have been called to testify. Further, except for Sierra's continuing refusal to deal with Local 123, the latter's disclaimer dated July 31 would be inexplicable. Because of Brown's experience with Sierra in 1956, Sierra's refusal through Feldman to deal with 123 on and after July 21, and the antiunion statements of Sierra officials and foremen before and during the strike, I am convinced that Local 123 entered its disclaimer of recognition primarily for the reasons stated by Brown; i.e., that it could hope to establish its claims only after a prolonged legal and economic contest with Sierra? Nevertheless, the fact remains that 123, as of July 31, withdrew its demand for recognition, and that the contract executed on August 6 was executed solely by Sierra and 208. That 123 later, when Sierra broke off recognition of 208, countermanded its disclaimer, does not alter this fact. I do not doubt that despite its disclaimer of July 31, 123 expected to participate in the negotiation and administration of the contract and had a sub rosa agreement with 208 to that effect. As stated in Respondents' brief, the two letters relative to 123's disclaimer of interest "were part of a single course of action designed to circumvent the employer's illegal objections to 123, and to secure recognition for the. union with which the employer was apparently willing to deal, in order to permit the two unions to effectuate their joint representation of the employees." This is borne out by the fact that the August 6 contract incorporated by reference Local' 2 A factor contributing to 123's disclaimer may have been the refusal of the "Council" to sanction the strike as long as 123 was a participant in it jointly with 208. Lewis testified without contradiction that Annand, a Teamsters' official, stated that as far as be was concerned, the strike was not going to. be sanctioned by the Council as long as: 208 was associated with 123. It is hardly logical to suppose, however, that had 123 any hope of obtaining recognition without an economic and legal battle, it would have withdrawn its representational claims merely and solely because otherwise the Council's strike sanction could not be obtained. It is further interesting to note that the strike of September 24 in which 123 and 208 were joint participants , at least from the second week of its duration , was sanctioned by the Council. LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 177 208's standard contract with respect to employees over whom it asserted jurisdiction, but with respect to all other employees the terms and conditions of Local 123's stand- ard contract were incorporated. We also have Brown's continuing participation both in the negotiation of the contract and its administration, and while nominally his participation was as a representative of 208, there can be little doubt that actually he was acting primarily to advance 123's interests. The situation is an unusual one and it must be granted, I think, that there are considerable equitable considerations of a practical nature supporting Respondents' position. Nevertheless, in view of 123's formal disclaimer of interest in the repre- sentation of Sierra employees, the contract executed solely by Sierra and 208, a union which does not claim that it independently was authorized by a majority of Sierra employees to represent them, was violative of employee rights to name their bargaining representative, and Sierra's renunciation of that contract after a charge of unfair labor practices had been filed against it, cannot be said, of itself, to consti- tute a refusal to bargain. Employees are entitled to something more than "back door" representation by their duly designated bargaining agent, and could not of course be bound by any sub rosa agreement made between Locals 123 and 208 by which 123's disclaimer of interest was nominal and merely for the purpose of cir- cumventing Sierra's refusal to deal with 123. This sort of thing, once countenanced, would inevitably lead to abuse and the destruction of employee rights under the Act. That the Respondents recognized the vulnerability of their position on the contract, is indicated by their conferences with Sierra following the September 24 strike when their primary or alternate position was that Sierra negotiate a contract with them as the joint bargaining representative of its employees. It is in fact on the "jointness" of their. representational status that the Respondents' defense to the present action against them must stand or fall. It must be recalled that Brown's demand for recognition of July 21 was for joint recognition of 123 and 208. This superseded his prior demand for recognition of 123 alone. His prior demand for recognition of 123 having been made at a time when 123 did not represent a majority, and his demand on July 21 and thereafter being for joint recognition, it cannot be said, on this record, that there is established a refusal by Sierra to recognize and bargain with Local 123 within the meaning of the Act. The refusal, if any, was a refusal on July 21 and thereafter to recognize and bargain with Locals 123 and 208 acting jointly as the representative of Sierra employees. Had 123 persisted in its initial claim of representation independently of 208, with its majority established as of July 21 and Sierra's expressed refusal to deal with it on that date and afterwards, together with the 8(a)(1) statements of Sierra officials having the reasonable effect to undermining and destroying its majority, we would be met with a different situation, but while we may well appreciate the factors which caused 123 to "revise" its representational claims and, later, to enter its dis- claimer of interest, these factors cannot either singly or in combination change the legal aspects of the situation that actually existed on July 21 and thereafter. 4. The issue of joint designation Assuming arguendo that as of July 21, Locals 123 and 208 had been designated jointly to act as bargaining representative of Sierra employees, there is in my opinion substantial evidence to support Respondents' claim that the demand for joint recog- nition was refused. This is true because where two labor organizations have been designated by a majority of employees in an appropriate unit to act jointly as bargaining representative, a refusal to recognize and bargain with one is a refusal to recognize and bargain with both, because the employees' designation is not separable at the will, convenience, and pleasure of their employer. Therefore, when on July 21 and thereafter Sierra refused to deal with 123 and engaged in conduct having the reasonable effect of undermining 123's majority, it refused the demand for joint recognition of 123 and 208, and conduct undermining 123's majority undermined the majority of the joint designee-providing, of course, 123 and 208 were in fact jointly designated by a majority. Here, however, I think the Respondents fail, for I cannot find on this record that as of July 21 or at any time thereafter, a majority of Sierra employees designated 123 and 208 jointly to represent them. Precisely when 208 joined hands with 123 in the latter's organizational drive is not established. I am convinced that it was sometime after July 16 or 17 when Brown requested recognition solely of 123 and July 21 when he requested joint recognition. It is possible that earlier than July 21, 123 was supported by 208 in its organizational drive but if 208 were actually seeking joint representation with 123 in the earlier period of 123's efforts, obviously, I think, Sierra employees would not have been solicited to sign only 123's authorization cards, and Brown's 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition demand of July 16 or 17 would have specifically spelled out the fact that joint recognition was being sought. Had this been done there would have. been, and could have been, no occasion for his letter to Feldman dated July 22. 1 must therefore reject Respondents' contention that Sierra employees were informed from the start of the 1958 organizational drive that 123 and 208 were jointly seeking to represent them and that their signatures to the authorization cards of 123 would be construed as their assent to joint representation. I am convinced and find that this information was conveyed to them no earlier than Friday, July 18, on or about which date it is established to my satisfaction that a majority of those who had signed 123 authorization cards, but not a majority of Sierra employees, were present at a meeting attended by representatives of both 123 and 208, where they were informed in substance and effect, that in view of 123's inability to exert sufficient economic pressure on Sierra to obtain recognition, 123 had made arrangements with 208 for joint organization of the Sierra and other plants in the area, and that a strike for joint recognition was contemplated. The employees were also told that authorization cards signed for 123 would be construed as designating both 123 and 208. Obviously, if Sierra employees had been informed from the start of 123's organ- izational drive that it was a joint campaign and their designation of 123 would be construed as a joint designation of 123 and 208, there would have been no occasion for these speeches by Brown, representing 123, and Chavez, representing 208, at the July 18 meeting. And it is important to note that while Sierra employees attending this meeting were informed by Brown and Chavez that their prior designa- tion of 123 would thereafter be construed as a joint designation of 123 and 208, there was, so far as this record discloses, no vote taken by the employees to deter- mine whether they approved the construction the union representatives proposed to give their prior authorizations of 123. A simple announcement by union repre- sentatives that 123's organization campaign had now become a joint campaign participated in by 208, and that employees who had designated 123 their bargaining representative would be understood thereafter to have designated both unions, hardly meets the Act's requirements with respect to the designation of bargaining agents. It being clear that less than a majority of Sierra employees attended the July 18 meeting, and that those attending the meeting took no formal action, such as a vote of ratification or the signing of new authorization cards, to evidence their intention to change their prior designation of 123 to a joint designation of 123 and 208, this meeting, and the remarks made at it, fall short of establishing that 123 and 208 were jointly designated bargaining representative of Sierra employees. Much the same must be said of the testimony of various organizers and employees who testified for the Respondents to the effect that all or nearly all of those signing 123 authorization cards were informed that their authorization of 123 meant authorization of 208 also. Prior to the meeting of July 18, 28 of the total of 33 authorizations for 123 had already been signed, and '1 am convinced that none of these 28 were told, or understood, at the time they signed 123 cards that they were thereby authorizing both 123 and 208 to represent them. Any testimony to the contrary is discredited. Certainly, as to these 28, in order to count them as con- tributing to a majority for the two unions acting jointly, we would have to have evidence that they affirmatively assented to the change in their prior designations. Except for those testifying to that effect in this proceeding we have no such evidence, and they do not constitute a majority. Still another way in which joint representation might have been "ratified," would have been support of the July 22 strike which was, I am convinced, to the knowledge of all Sierra employees, for the purpose of obtaining joint recognition of the two striking unions. The strike was not, however, supported by a majority of Sierra employees, a majority, on the contrary, remaining at work throughout the strike. While, in my opinion, this is no proof that a majority of Sierra employees had not, prior to the strike, designated 123 their bargaining representative-as already found, a majority had made that designation-had a majority participated in the strike we might very well take this as establishing ratification of a change in 123 authorizations to a joint designation of 123 and 208. Lacking such evidence of ratification, and without an affirmative showing that a majority of Sierra employees designated both 123 and 208 their bargaining repre- sentative, we must find that the Respondents have failed to establish the cornerstone of their defense: namely, that 123 and 208 were jointly designated bargaining representative by a majority of Sierra employees. Lacking such joint majority designation, it cannot be said that Sierra undermined or contributed to a loss of such majority by its unfair labor practices. What has never existed cannot be destroyed. LOCAL 208, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 179- 5. Conclusions with respect to 8(b) (1) (A) It may still be argued, with considerable persuasiveness, I think, that this is not a situation which calls for the strict application of the Curtis and Alloy doctrines. Absent Sierra's persistent refusal to deal with Local 123 and its efforts to undermine and destroy 123's majority, who can say just what would have been the posture of Sierra employees on September 24 with respect to representation? But such arguments , if made, are more properly addressed to the Board, or to the courts, for as a Trial Examiner I am bound by the Curtis and Alloy decisions and I cannot find in those decisions such limitations or qualifications as would accommodate to a dismissal here.3 Accordingly, I find that the Respondents violated Section 8(b)(1)(A) by their strike and picketing of Sierra beginning September 24, 1958, and by their appeals to Sierra customers . nd potential customers not to do business with Sierra. 6. Additional facts and conclusions with respect to 8(b) (2) If it be found that an object of the September 24 strike and picketing was to require Sierra to make a compulsory membership contract with the Respondents, under Board doctrine this would constitute a violation of Section 8(b)(2). I think there is no doubt on this record that the Respondents wanted, and hoped to obtain, a union-shop contract. A mere proposal of a union-shop provision is not, however, causing or attempting to cause an employer to discriminate in violation of Section 8(a) (3) of the Act. That the proposal is made in a context of economic pressure, without more, might well justify an inference of persuasion plus force such as to amount to a violation. Where the proposal is couched in terms of collec- tive bargaining, with an expressed willingness to compromise, even though it occurs in a context of economic pressure, it is not necessarily to be equated with causing or attempting to cause discrimination within the meaning of the Act. And in my opinion all that is established by a predominance of the credible testimony in this case, is that the Respondents sought, through economic pressure, to require Sierra to bargain with them on a contract which would include, inter alia, bargaining on a union-security provision. In their September 22 letter to Sierra, the Respondents specifically stated that their proposed economic sanctions against Sierra if the latter refused negotiations, would not be imposed for the purpose of enforcing the August 6 contract. That contract contained a union-shop clause. This statement, standing alone, might be discounted as self-serving, but it is actually consistent with Respondents' position throughout the strike period. Admittedly, in conferences held during the September 24 strike period, the Respondents sought to induce Sierra to bargain on the terms of a contract which would be executed if and when the Respondents established their majority representation, with the understanding that Sierra would inform its em- ployees that it had no objection to their affiliation with Local 123. No agreement was reached on the proposal but the matter of compulsory membership entered into the discussions. Sierra's president, Lewis, admitted that in a conference in the offices of Sierra's attorneys, occurring in January 1959, the Respondents expressed a willingness to extend the period for compulsory membership to 90 days, but testi- fied that the Respondents said they would not yield with respect to a union- security clause; on the other hand, he admitted that the Respondents at no time stated that they would not sign a contract which did not contain a union-shop provision. "It never got [to] that," he testified. When asked on cross-examination, "What the unions were demanding was that you negotiate on this issue [union shop], wasn't that what they were asking?", he became evasive, avoiding a responsive answer. Sierra's attorney, Frank Simpson, testified that the Respondents offered 9I am aware, of course, that both doctrines have been disapproved by the courts, but unless and until the Board has reversed its position or has been reversed by the Supreme Court, I, as Trial Examiner, must follow Board precedent. See, Drivers, Chauffeurs and Helpers Local 639, etc. (Curtis Brothers, Inc.), 119 NLRB 232, enforcement denied 274 P. 2d 551 (C.A., D.C.) ; International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 119 NLRB 307, enforcement denied in part 263 F. 2d 796 (C.A. 9). See also, United Hatters, Cap & Millinery Workers International Union, AFL-CIO, et at., 123 NLRB 572, footnote 2, in which the Board states : "We do not acquiesce in the opinion of the court of appeals in the Curtis Brothers case respecting the legality of recog- nitional picketing and of that of the court of appeals in Alloy Manufacturing Company case respecting the legality of a consumer appeals and a product boycott . . . . With all due respect for the opinions of the courts in those cases, we do not adopt their conclusions until the Supreme Court has had an opportunity to rule on these issues." ISO DECISIONS OF NATIONAL LABOR RELATIONS BOARD only "to negotiate the specific terminology of the union shop clause," but testified further on cross-examination by Local 123's attorney: Q. Isn't it a fact that he [Brown ] said he was not willing to give up all the union security, but this was something which he thought could be worked out? A. I think that that is a fair representation of what he said. Q. Isn't it a fact that when a proposal was made that the union, that there be a union shop clause, but that its enforcement or its effectiveness be delayed for a period of time, and that was suggested, somebody on the employer's side of the table said that they didn't think that would be satisfactory? A. Yes. Q. Or would solve the problem? A. Yes. Q. Isn't it a fact that I then said if we really want to negotiate about this there should be some way of working out this problem of union security? A. Yes. Simpson further testified to a conversation he had with Brown in a courtroom -where certain actions of Sierra against the Respondents were under consideration. In this conversation , according to Simpson, Brown asked him what the possibilities were of further "settlement" talks, and in response to Simpson's question about the Respondents' union-shop proposals, said that a maintenance-of-membership clause might be substituted for the union -shop proposal but only upon condition that Sierra withdrew its actions , including a 10(j) injunction proceeding, against the Respondents. Simpson admitted .on cross-examination that Brown may have made other alternate proposals, including the complete elimination of a union-shop clause, but only with the attached condition . Brown's version of the conversation was .that he told Simpson the Respondents were "thinking of some modification" of a union-shop provision , "either a maintenance of membership or some such provision, so that the company's problem would be answered ," and might "even consider an open shop." Continuing, according to Brown , he said "In other words , I would like to see some way to settle this thing, and preferably before this Court proceeding continues. . . . If the injunction does not issue-if we can settle this before the in- junction issues, or before the thing proceeds , it will save a lot of money and a lot of difficulty. If the thing goes on and on, I don't know what will happen after that or what our position will be ." This may very well have been construed by Simpson as a conditional qualification of the Respondents' union-shop proposal, but it is equally reasonable to construe it as consistent with other testimony showing a disposition generally to negotiate the issue of union security . With respect to conferences held during the September 24 strike period, Brown testified that it was the expressed position of the Respondents that "if there were any problems that the company had with respect to the contract, we would be glad to work them out and discuss them, any problems . There was no limitation, no exclusion of any portion of the contract." On the entire evidence in the matter, I am convinced that the Respondents were not unaware that their strike for recognition was vulnerable to legal attack, and were eager to reach an informal settlement of the issue with Sierra which would include recognition and a contract but not necessarily a union -shop contract. I do not believe that we have here the exertion of economic pressure to require capitula- tion on the union-shop issue but, on the contrary , a disposition on the part of the Respondents to settle for some form of union security short of compulsory member- ship, or at least to bargain with respect to the form of union security to be incorpo- rated in a contract . This did not, in my opinion, amount to causing or attempting to cause discrimination within the meaning of Section 8(b)(2) of the Act, and, accordingly, I shall recommend dismissal of this allegation of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above , occurring in -connection with the operations of the Employer set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in activities violative of Section $(b) (1) (A) of the Act, I shall recommend that they cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. R. L. POLE & COMPANY 181 Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Sierra Furniture Company is engaged in commerce within the meaning of the Act. Local 208 and Local 123 are, each of them, labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing the premises of Sierra with an object of obtaining recognition and a contract as the bargaining representative of Sierra employees when they did not represent a majority of the said employees, Respondents restrained and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (b)(1) (A) of the Act. 4. By appeals to customers and potential customers of Sierra not to do business with the latter while the strike against Sierra was in progress, with an objective of requiring Sierra to recognize Respondents as exclusive representative of Sierra employees and to make a contract with Respondents when they did not represent a majority of the said employees , Respondents restrained and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8 (b)(1)(A) 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. 6. Respondents did not cause or attempt to cause Sierra to discriminate against its employees in violation of Section 8(a) (3) of the Act, and therefore did not engage in conduct violative of Section 8(b)(2) of the Act. [Recommendations omitted from publication.] R. L. Polk & Company and Office Employees International Union, AFL-CIO, Petitioner. Case No. 9-RC-3561. Novem- ber 17, 1959 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Direction of Election issued by the Board on May 14, 1959,1 an election by secret ballot was conducted on June 12, 1959, under the direction and supervision of the Regional Director for the Ninth Region, among the employees in the unit here- tofore found appropriate. Following the election, the parties were furnished a tally of ballots which showed that of approximately 800 eligible voters, 639 voted, of which 333 valid ballots were cast for, and 297 were cast against, the Petitioner, 5 ballots were void, and 9 ballots were challenged. Thereafter, the Employer filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations the Regional Director conducted an investigation and on September 10, 1959, issued and served upon the parties his report on objections in which he recom- mended that one objection be sustained, that the election be set aside, 1123 NLRB 1171. 125 NLRB No. 21. 5 3 5' 8 2 8-60-vol. 125-13