Auto Trades Council of Seattle, King County, Etc.

AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC. 729 Auto Trades Council of Seattle, King County and Vicinity, and Its Constituent Members, Drivers' and Demonstrators' Local 882, Garage Employees Local 44, Auto Sheet Metal Workers Local 387, International Association of Sheet Metal Workers, AFL-CIO, Automotive Machinists Local 289, and Auto Paint- ers Local 518 and West Seattle Dodge, Inc. Case No. 19-CB- 563. December 15, 1959 DECISION AND ORDER On June 2, 1959, Trial Examiner Howard Myers issued his Inter- mediate 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 there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondents, by picketing the Company's premises for recognition as the exclusive representatives of the employees at a time when they concededly did not represent a majority of the employees, restrained and coerced the employees in violation of Section 8(b) (1) (A) of the Act. We further find that the Respondents similarly violated Section 8(b) (1) (A) by distributing handbills appealing to consumers to cease dealing with the Company as part of their activity to secure recognition. As is more fully set forth in the Intermediate Report, the Board has previously found' that the Respondents, by handbill distribution, appealed to customers not to patronize the Company in order to force the Company to adopt certain conditions of employment which are customarily bargained for by the employees' bargaining representa- tive. This objective was found to constitute a current demand for recognition. In addition, the Board noted that, in support of this 1 We8t Seattle Dodge, Inc., 19-RM-230, decided August 18, 1958 ( unpublished). 125 NLRB No. 82. 730 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD objective, the Respondents also sought to place the Company on their "we do not patronize" list, and the present record shows it was so listed. Before August 28, 1958, the date of the election in that case which was lost by the Respondents, the Respondents began picketing the Company's place of business. While so engaged, the pickets also distributed handbills to the public 2 The Respondents persisted in these activities until the Company ceased its new car business. It is clear from the record that, despite the fact that the employees had rejected the Respondents at the polls as their bargaining repre- sentative, the Respondents continued to picket the Company's prem- ises and to distribute handbills to customers with the same object they sought to achieve when they first began their activities, namely, to obtain concessions from the Company with respect to wages, rates of pay, and hours of work of its employees. Thus, not only did their picket signs describe the Company as nonunion, but the Respondents admitted in a letter to the Company's counsel on September 16, 1958, that "The distribution of handbills and . . . picketing will continue until . . . West Seattle Dodge voluntarily adopts the wages and hours generally prevailing in this industry." It is well settled that a union which exerts economic pressure to compel an employer to accede to its demands affecting terms and conditions of employment is, in effect, attempting to foist itself on the employees as their bargaining repre- sentative.' Such conduct, the Board has held, amounts to restraint and coercion of employees in the exercise of their statutory rights within the meaning of Section 8(b) (1) (A). of the Act where, as here, the union does not represent a majority of the employees in an ap- propriate unit. The Respondents, however, contend that the sole purpose of their activities was to publicize the fact that the Company was a nonunion shop in order to protect the working conditions of their members in other shops in the community. This position is clearly without merit in view of our findings above. Moreover, even if it be assumed that the Respondents did intend to protect the working conditions of their members at other shops, that was plainly not their sole purpose. As indicated previously, recognition was also at least an object and, under 2 The complaint alleged as unlawful only the post -election conduct of the Respondents. Accordingly , we do not pass upon the activities prior to August 29, 1958 . However, we note the facts as background evidence for purposes of evaluating the subsequent conduct. Cf. Paint, Varnish & Lacquer Makers Union, Local 1232, AFL-CIO, et al. ( Andrew Brown Company), 120 NLRB 1425, 1428. 9 District Lodge No. 24, International Association of Machinists, AFL-CIO (Industrial Chrome Plating Co.), 121 NLRB 1298, 1300 ; Retail Store Employees Union, Local 1595, etc. (J, C. Penney Company, Store No. 309 ), 120 NLRB 1535, 1536; cf. Petrie'a, an Op- erating Division of Red Robin Stores, Inc., 108 NLRB 1318; Francis Plating Co., 109 NLRB 35. AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC. 731 established law, such an object is sufficient to warrant finding an 8(b) (1) (A) violation.' Accordingly, we find, for the reasons set forth in the Board's de- cisions in Curtis Brothers and Alloy Manufacturing 5 that Respond- ents restrained and coerced employees in violation of Section 8(b) (1) (A) of theAct.6 2. The Trial Examiner denied the Respondents' motion to dismiss the complaint with respect to the Respondents other than the Re- spondent, Auto Trades Council of Seattle, King County and Vicinity, hereafter referred to as the Trades Council. The Respondents ex- cept to both this ruling and the Trial Examiner's failure to discuss the underlying issue. The picketing herein found a violation of Section 8(b) (1) (A) was part of a continuous course of conduct which preceded and followed the representation proceeding. At the representation hearing, the record of which was incorporated herein by stipulation, there was uncontroverted testimony that the Trades Council is composed of several local unions including all of the other Respondents; that each Respondent local union selects delegates to represent it at meetings of the Trades Council; that the Trades Council voted that the cost of the campaign against the Employer would be prorated among the Respondent local unions after the Trades Council depleted its treas- ury; that the Trades Council voted.that each Respondent local union would contribute "volunteers" to aid in the handbill distribution; that at least some of the Respondent local unions actually did so; and that the campaign was a "joint venture" of all the organizations in- See United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and its Local 511 (O'Sullivan Rubber Corporation), 121 NLRB 1439, footnote 5, enfd. 269 F. 2d 694 (C.A. 4), petition for cert. filed August 17, 1959. The instant case is clearly dis- tinguishable from Radio Broadcast Technicians, etc. (WKRG-!TV, Inc.), 123 NLRB 507, upon which Respondents rely. There, unlike here, the evidence disclosed that the union was not seeking to impose terms and conditions of employment upon WKRG-TV or its employees ; on the contrary, the union's activities there were solely designed to support WKRG-TV's business competitors, who were operating under a union contract. In view of our determination herein, we find that the Trial Examiner did not commit prejudicial error in excluding evidence offered by the Respondent to show that it was moti- vated in its activities by a desire to preserve union conditions of employment in other shops, since such evidence, if admitted, would not alter our conclusion herein. 5Drivers, Chauffeurs and Helpers Local 639, etc. (Curtis Brothers, Inc.), 119 NLRB 232, set aside 274 F. 2d 551 (C.A., D.C.), cert, granted 359 U.S. 965; Intl. Assn. of Ma- chinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 119 NLRB 307, enfd. in part and set aside in part 263 F. 2d 796 (C.A. 9), petition for cert. filed April 24, 1959. 6 The Intermediate Report states that the Respondents, soon after beginning the cain- pagn against the Company, completely abstained from utilizing traditional organizing tech- niques. We do not adopt this inadvertent erroneous statement, which does not affect the Trial Examiner's conclusion or our concurrence therein. However, in view of our finding with respect to the recognitional activities herein, we consider it unnecessary to decide whether minority picketing for organizational purposes is also proscribed under Section 8(b) (1) (A) of the Act. See Jimmy Ray Rush, etc. (Cosper Manufacturing Company, Inc.), 123 NLRB 216. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD volved. At the complaint hearing, there was uncontroverted testimony of active participation in the campaign by at least some of the constit- uent locals in the Trades Council. In light of the foregoing, we find that all the Respondents were jointly engaged in the campaign against the Company, and that each is responsible for the violation of Section 8(b) (1) (A).' 3. In their brief, the Respondents point out that the Respondents terminated the picketing, which is found herein to be unlawful, when the Company closed down part of its business prior to the hearing. As the record provides no assurance that the Respondents will not, in the future, again engage in similar conduct, we find that the policies of the Act can best be effectuated by a Board order requiring appro- priate remedial action." 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, Auto Trades Council of Seattle, King County and Vicinity, and its constituent members, Drivers' and Demonstrators' Local 882, Garage Employees Local 44, Auto Sheet Metal Workers Local 387, International Asso- ciation of Sheet Metal Workers, AFL-CIO, Automotive Machinists Local 289, and Auto Painters Local 518, their officers, representatives, agents, successors, and assigns, shall : 1. Cease and desist from restraining or coercing the employees of West Seattle Dodge, Inc., in the exercise of the rights guaranteed by Section 7 of the Act, by picketing the Company, distributing hand- bills, or engaging in any other conduct, for the purpose of forcing the said Company to recognize the Respondents as the exclusive repre- sentatives of its employees when the Respondents do not represent a majority of such 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 business offices, meeting halls, and all places where notices to their members are customarily posted, copies of the notice attached hereto marked "Appendix." e Copies of said notice, to be furnishedby the Regional Director for the Nineteenth Region, shall, after being duly signed by the Respondents' representatives, be posted by the Respondents immediately upon re- ceipt thereof and be maintained by them for 60 consecutive days T New Furniture & Appliance Drivers, etc., (Biltmore Furniture Manufacturing Corpora- tion and John Russo d/b/a Modern Frame ), 120 NLRB 1728, 1737-1738. 8 See General Teamsters, Packers, Food Processors, etc. (H. A. Rider & Sons ), 120 NLRB 1577, 1578. 8In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC . 733 thereafter. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Nineteenth Region signed copies of the Appendix, for posting by West Seattle Dodge, Inc., said Company willing, for 60 consecutive days, at all places where notices to the said Company's employees are customarily posted. Copies of the notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after they have been signed by the official representa- tives of the Respondents for said posting, be returned forthwith to the Regional Director. (c) Notify the Regional Director for the Nineteenth Region in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. MEMBER FANNING, dissenting : I dissent from the majority's conclusion that the Respondents violated Section 8(b) (1) (A) for the reasons stated in my dissenting opinions in the Andrew Brown Company, Machinery Overhaul Com- pany, and Sierra Furniture Company cases,10 and for the reasons stated by the United States courts of appeal in the Curtis Brothers, Inc., Alloy Manufacturing Company, and Ailing & Cory Co. cases.'1 30 Paint, Varnish & Lacquer Makers Union, Local 1232, AFL-CIO, et at. (Andrew Brown Company), 120 NLRB 1425; International Association of Machinists , Local Lodge No. 311, AFL-CIO; et at. (Machinery Overhaul Company, Inc.), 121 NLRB 1176; Local 208, International Brotherhood of Teamsters , etc. (Sierra Furniture Company ), 125 NLRB 159. "Drivers, Chauffeurs and Helpers, Local 639, etc , v. N:L.R.B. ( Curtis Brothers, Inc.), 274 F. 2d 551 (C.A., D.C. ) ; N.L.R.B. v. International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing Company), 263 F. 2d 796 ( C.A. 9) ; N.L.R.B. V. International Brotherhood of Teamsters, etc. (Ailing & Cory Co. ), 272 F. 2d 85 (C.A. 2). APPENDIX NOTICE TO ALL MEMBERS OF AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY AND VICINITY, AND ITS CONSTITUENT MEMBERS, DRIVERS' AND DEMONSTRATORS' LOCAL 882, GARAGE EMPLOYEES LOCAL 44, AUTO SHEET METAL WORKERS LOCAL 387, INTERNATIONAL ASSOCIA- TION OF SHEET METAL WORKERS, AFL-CIO, AUTOMOTIVE MACHIN- ISTS LOCAL 289, AND AUTO PAINTERS LOCAL 518 AND TO ALL EM- PLOYEES OF WEST SEATTLE DODGE, INC. 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 notify you that : WE WILL NOT restrain or coerce the employees of West Seattle Dodge, Inc., in the exercise of the rights guaranteed by Section 7 of the Act, by picketing West Seattle Dodge, Inc., distributing 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handbills, or engaging in any other conduct, for the purpose of forcing West Seattle Dodge, Inc., to recognize us as the exclusive representatives of its employees when we do not represent a majority of such employees in an appropriate unit. AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY AND VICINITY, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) DRIVERS' AND DEMONSTRATORS' LOCAL 882, Labor Organization. Dated------------------ By------------------------ (Representative ) (Title) GARAGE EMPLOYEES LOCAL 44, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) AUTO SHEET METAL WORKERS LOCAL 387, Labor Organization. Dated----------------- By------------------------------------- (Representative ) ( Title) AUTOMOTIVE MACHINISTS LOCAL 289, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) AUTO PAINTERS LOCAL 518, 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 duly filed on October 16, 1958, by West Seattle Dodge, Inc., herein called Dodge, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel ' and the Board, through the Regional Director for the Nineteenth Region (Seattle, Washington ), issued a com- plaint, dated March 10, 1959 , against Auto Trades Council of Seattle, King County and Vicinity, herein called the Trades Council, and its constituent members, Drivers' and Demonstrators' Local 882, herein called Local 882, Garage Employees Local 1 This term specifically includes counsel for the General Counsel appearing at the hearing. AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC. 735 44, herein called Local 44, Auto Sheet Metal Workers Local 387, herein called Local 387, International Association of Sheet Metal Workers, AFL-CIO, herein called Local 387, Automotive Machinists Local 289, herein called Local 289, and Auto Painters Local 518, herein called Local 518,2 alleging that Respondents had engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (1) (A) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge and complaint, together with notice of hearing thereon, were duly served upon each respondent and upon Dodge. Specifically, the complaint alleged that (1) commencing in December 1957 and continuing up to September 8, 1958, Respondents distributed handbills to the public at the Dodge premises urging the public not to patronize Dodge because Dodge's employees did not enjoy the same wages and working conditions as union members did; (2) since on or about August 29, 1958, Respondents have picketed Dodge's place of business, an object of which was to obtain from Dodge recognition as the exclusive collective-bargaining representative of Dodge's employees; and (3) said picketing, for an illegal object, has been, and is now, restraining and coercing Dodge's employees in the exercise of the rights guaranteed in Section 7 of the Act, and hence such conduct is violative of Section 8 (b) (1) (A) of the Act. On March 30, 1959, Respondents duly filed a joint answer denying the unfair labor practices alleged. Pursuant to due notice, a hearing was held on April 14 and 15, 1959, at Seattle, Washington, before the duly designated Trial Examiner. All parties were repre- sented by counsel who were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before April 30, 1959.3 Briefs have been received from the General Counsel and from Respondents which have been carefully considered.4 Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF DODGE West Seattle Dodge, Inc., a Washington corporation, has its principal offices and place of business in Seattle, Washington, where it is engaged in selling and servicing new and used automobiles.5 During 1958, Dodge's new car sales aggregated $627,- 442.66. Dodge holds a franchise dealership from Chrysler Corporation and pur- chases most of its new cars from Chrysler. The cars purchased from Chrysler are shipped to Dodge from points located outside the State of Washington. Upon the above undisputed facts, the Trial Examiner finds that during all times material herein Dodge has been engaged in and now is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act for the Board to assert jurisdiction in this proceeding. H. THE LABOR ORGANIZATIONS INVOLVED Respondents are labor organizations admitting to membership employees of Dodge. f Conjointly, the above-named labor organizations are herein called Respondents. $ At request of Respondents' counsel the time to file briefs was extended to May 18, 1959. 4 After the close of the hearing the General Counsel filed a motion to correct certain errors appearing in the stenographic transcript of the hearing. The motion Is granted and the motion papers, copies of which were duly served upon counsel for Respondents and upon counsel for Dodge, are received in evidence and marked Trial Examiner's Exhibit No. 1. During the course of the hearing, Respondents' counsel made numerous and sundry motions to dismiss the complaint in Its entirety, or, in the alternative, portions thereof. Decisions were reserved on some motions and others were disposed of at the hearing. In the cases where decisions were reserved those motions are disposed of in accordance with findings, conclusions , and recommendations hereinafter set forth. 6 At the time of the hearing Dodge was no longer in the new car business. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Prefatory statement On August 18, 1958,6 the Board issued its Decision and Direction of Election in Case No. 19-RM-230 (unpublished) involving Dodge. In its Decision, the Board rejected a contention of Respondents that they were not seeking recognition from the Employer. In part, the Board's conclusion was based upon the fact that Respond- ents "distributed handbills to the public, urging it not to patronize the Em- ployer. . This conduct was viewed by the Board "as an effort to obtain conditions of the type customarily resolved in bargaining negotiations" and was equated by the Board "to a current demand for recognition." The conduct in which Respondents were engaged was clearly picketing inasmuch as the handbills being passed out by persons posted at Dodge's premises urged prospective customers to do business elsewhere. The Board also noted that Respondents sought to place Dodge on their "unfair list" but pointed out that the record did not indicate whether this was done. This matter was cleared up in the instant hearing by evidence demonstrating that Respondents in December 1957 had successfully caused Dodge to be placed on the "We Do Not Patronize List" (as distinguished from the "Unfair List") of the King County Labor Council. The reasons given for the listing were that Dodge was nonunion, that Local 882 had agreements in the Seattle area fixing opening hours which Dodge was not observing, that Dodge was paying wages below the union scale, and that Dodge would not hire union salesmen. At some time after the hearing was completed in the representation case (May 2, 1958), but before the Board's Decision therein issued, Respondents changed their method of picketing by adding the traditional picket garb of sandwich signs which proclaimed, inter alia, that Dodge was nonunion and urged their friends to patronize "Union" dealers. As modfied thusly, the picketing continued until Dodge went out of the new car business and ceased to do business at its principal location on West Alaska Street in Seattle. B. The pertinent facts For years the employees working for new car dealers in the Seattle area have belonged to labor organizations. The automobile salesmen are members of Local 882, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America; the mechanics are members of Local 289, affiliated with the International Association of Machinists; the garage employees are members of Local 44, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; the automobile painters are members of Local 518, affiliated with the Brotherhood of Painters, Paper Hangers and Decorators of America; and the body repair employees are members of Local 387, affiliated with the Sheet Metal Workers International Association. For the purpose of dealing with these unions, the new car dealers organized the Metropolitan Automobile Dealers Association. Through this Association the new car dealers have engaged in collective bargaining with the various unions representing their employees over a period of more than 20 years. The first contract covering automobile salesmen was signed in April or May of 1937. In April 1957, Dodge, after securing a franchise to sell Dodge automobiles from the Chrysler corporation, undertook to engage in the new and used car business in the Seattle area. Dodge started its operation at 9443 Delridge Way, and then, on or about December 1, 1957, moved its principal showroom to 4314 West Alaska Street. It also operated a used car lot for a time at 35th Street and Avalon Way. During the time it operated a new car business, Dodge employed a staff of about 20-approximately 10 salesmen; approximately 4 or 5 mechanics and garage em- ployees; and approximately 3 office employees. The wages and working conditions provided by Dodge were lower than those provided for in the existing collective-bargaining contracts between the dealers' asso- ciation and Respondents. After it began operating, the activities of Dodge came to the attention of Gene Hauck, then a business representative of Local 882, and to the attention of the Automotive Trades Council, herein called the Trades Council.7 e Unless otherwise noted, all dates hereinafter mentioned refer to 1958. 7 The Trades Council is a voluntary labor organization made up of the various local unions which contract with the Metropolitan Automobile Dealers Association. Each affiliated local union pays a monthly fee, or sometimes a per capita tax, for the privilege AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC. 737 It came to Hauck's attention that Dodge was open in the evenings and on Sundays and also that unemployed union salesmen, who had been sent to the Company to apply for work, had not been employed. Hauck then reported this information at a meeting of the Trades Council in November 1957, and asked that a letter be written to John Mountain, the then president of Dodge, asking him to appear and show cause why Dodge should not be placed on its "We Do Not Patronize" list. Such a letter was written, but Mountain did not appear. The Trades Council then requested the King County Labor Council, an organization of unions in the Seattle, King County, area, to place Dodge on the Labor Council's "We Do Not Patronize" list. The Labor Council then requested Mountain to appear and show cause why Dodge should not be so listed. No one appeared and Dodge was then placed on the Labor Council's "We Do Not Patronize" list. This was publicized by means of a bulletin distributed among the delegates to the Labor Council. Also at Hauck's request, the Trades Council undertook to distribute handbills to the customers of Dodge on or about December 7, 1957. The handbills, which were used during most of the period in question, stated that the conditions at Dodge "tend to undermine" the good conditions provided by the other new car dealers and urged the public to "please patronize other dealers." At this time, the Trades Council was not actively engaged in organizational work among the employees, although agents of some of its affiliates had made efforts to contact the employees. There existed certain handicaps as far as an organizational campaign was concerned, including the fact that the Trades Council had no list of the employees. In December 1957, Dodge petitioned the Board for an election. On January 6, the Trades Council disclaimed any interest in representing the employees and, on January 28, the Regional Director dismissed the petition. This dismissal was appealed to the Board and it was reversed and a hearing ordered. At the ensuing hearing, the Trades Council again disclaimed any interest in representing the em- ployees but, in spite of such disclaimer, the Board directed the holding of an election, which was then held on August 28. The employees voted in two units and voted unanimously against representation by the Trades Council, or its affiliated members. Prior to the Board election, the Trades Council distributed sandwich boards to the men who had been distributing handbills and they then wore these boards while walking up and down in front of the company showroom. This sandwich board read as follows: AUTO MACHINISTS AND SALES PERSONNEL West Seattle Dodge NON-UNION Join Auto Trades Council of Seattle, AFL-CIO, for Union Wages, Hours and Working Conditions We ask our Friends to Patronize Union Auto Dealers The men wearing the sandwich signs continued to distribute the handbills. The decision to use the sandwich signs was made by a group of Trades Council delegates and officers, including Hauck and the Trades Council president, Tom Fullerton. This decision came about because the handbilling alone was not as effective as the Trades Council had anticipated. Some of the customers would take the handbills and throw them away without reading them. Also, Dodge devised a method of using the handbills against the Trades Council. For a time Dodge an- nounced, over a loudspeaker, that it would give a $50 discount on the price of a new car to any customer bringing in a handbill. This proved so effective that Dodge had to limit its offer to two handbills per customer. It was thus decided to use the sandwich signs and to make an attempt to organize the employees. A part of the language on the sandwich sign was directed to the employees, soliciting them to join the Trades Council. The Trades Council, as such, does not solicit memberships, and this language was intended to invite the employees to join the local unions affiliated with the Trades Council. The men who carried the sandwich boards were instructed to contact the employees about joining one of maintaining its affiliation and each local is entitled to send three delegates to the meetings of the Council. The present officers of the Council are Tom Fullerton, a delegate from Local 51.8; the vice president is Adolph Beckman, a delegate from Local 387 ; and the secretary-treasurer is Howard Hein, a delegate from Local 289. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the affiliated unions and this was done. In addition , the Trades Council, by letter of September 16, asked Dodge for a list of the employees so that it could contact them at their homes , but this request was never granted. The picketing and distribution of handbills was carried out by one man, and sometimes two, who would walk back and forth in front of Dodge's premises. The picketing and patrolling was peacefully conducted. Under date of September 10, Dodge's counsel wrote the Trades Council as follows: We now have on had [sic] a copy of the certification by the National Labor Relations Board concerning the election of the employees of the above named employer, wherein it has been officially certified "that a majority of the valid ballots has not been cast for any labor organization appearing on the ballot, and that no such organization is the exclusive representative of all the employees. . We are advised that you are still maintaining your pickets at the place of business and that the pickets have remained there notwithstanding your in- formal knowledge of the unanimous non-union vote of August 28, 1958. In connection with this, we refer you to the cases of Garmon vs. San Diego Building Trades Council in 33 Labor Cases, paragraph 71-213 decided in January of 1958 and Seven-Up Bottling Co. vs. Grocery Drivers in 33 Labor Cases, paragraph 71-214, in both of which actions plaintiff employer was held entitled to damages under factual patterns identical to the situation here involved. You and your counsel are also familiar with the Curtis Bros. cases wherein activity of the nature now conducted by you and in the past conducted is violative of the Taft-Hartley Act. Under the foregoing circumstances we hereby make demand upon you to cease and desist forthwith all picketing or dissemination of literature of any nature at the place of business of the employer and otherwise ask compliance by you of the decisions and the law above referred to. In the alternative, we would appreciate your advising us, so that we may in turn advise our client of what action, if any, the employer may take in order to have a voluntary withdrawal of the present unlawful picketing. Under date of September 16, the Trades Council replied as follows: In reply to your letter of September 10, 1958 please be advised as follows: (1) The Auto Trades Council of Seattle and King County is not now, and never has been, engaged in the distribution of handbills and peaceful picketing at West Seattle Dodge for the purpose of persuading West Seattle Dodge to recognize the Council as the bargaining agent for the employees . As we made clear at the hearing held by the National Labor Relations Board, the Council does not represent , or claim to represent, any of the employees and the Council has no present desire or intention of securing recognition from West Seattle Dodge. The Board was obviously in error in holding an election but, as we have been advised by counsel, we are unable to secure judicial review of the Board's action, as the National Labor Relations Act does not provide for appeals in election cases. In the true spirit of trade unionism, we will only seek recognition from West Seattle Dodge when a majority of the employees voluntarily designate the Council as bargaining agent. (2) The Auto Trades Council of Seattle is not now, and never has been, engaged in the distribution of handbills and peaceful picketing at West Seattle Dodge for the purpose of persuading the company to force its employees to join the Council. Under both state and Federal law the employees of West Seattle Dodge have the right to join a union, or not to join, as they see fit, and West Seattle Dodge must refrain from interfering with that right. We are hopeful, in spite of the election results, that the employees can be persuaded to become members. But if they do not so choose voluntarily, we do not intend or desire that West Seattle Dodge interfere and require them to join. Indeed, if we are ever informed that West Seattle Dodge is forcing its employees to join the Auto Trades Council, or any union, we shall report the matter to the National Labor Relations Board. (3) We are advised by counsel that we have a lawful and constitutional right to engage in the distribution of handbills and peaceful picketing at West Seattle Dodge. First of all, we are engaged in an organizing campaign and we are attempt- ing to persuade the non-union employees to join the Council. In this respect, we now ask if your client would furnish us with a current list of the names and AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC. 739 addresses of the employees . Such a list will enable us to engage more actively in personal solicitation and will avoid the inconvenience incident to making personal contacts on the company premises. Secondly, we are informing the general public that West Seattle Dodge does not afford its employees the wages and hours generally enjoyed in this area by the employees working for dealers under union contract . We are attempting to persuade the public to purchase new and used cars from dealers who provide good conditions and who are competing with West Seattle Dodge. The operation of West Seattle Dodge in this community has been of great concern to the union members belonging to the Auto Trades Council. As you well know, when the other dealers observe West Seattle Dodge capturing sales which they might have had, they seek to have the unions reduce the wages and hours now prevailing. This was a factor in the recent and lengthy strike of the auto salesmen, and it is easy to understand . As an example, West Seattle Dodge notoriously operates on Sunday , in violation of state law , and even has the gall to advertise to the public that they should stop at the showrooms "after church". On the other hand, union contracts in this industry prohibit Sunday openings, and the employees enjoy Sunday as a day of worship and family relaxation. Every time West Seattle Dodge stays open on a Sunday the other dealers, who compete with West Seattle Dodge, demand the privilege of requiring their em- ployees to work on Sunday. This is typical of the many ways in which the poor employment conditions at West Seattle Dodge tend to undermine the good working conditions prevailing in this industry and which the labor unions have struggled for years to attain. We have no interest in West Seattle Dodge other than to protect the working conditions of our members employed in this community. We shall continue to enlist the support of West Seattle Dodge employees, our friends and the general public. The distribution of handbills and peaceful picketing will continue until a majority of the employees voluntarily join the Auto Trades Council, at which time we will seek recognition and a collective bargaining contract, or until such time as West Seattle Dodge voluntarily adopts the wages and hours generally prevailing in this industry. Any attempt on your client's part to interfere with our lawful rights to engage in peaceful picketing or other activities designed for the mutual aid and pro- tection of our members will be -strenuously resisted. In this connection, we wish to call to your attention that recently a salesman employed by West Seattle Dodge maliciously attacked one of the pickets, knocking him to the ground and breaking his glasses. This conduct was completely unjustifiable. Our pickets have, at all times, conducted their activities peacefully and courteously. They have not interfered with ingress or egress and they have even assisted in keeping the premises in an orderly condition by picking up handbills discarded by the public. We shall expect the same treatment from West Seattle Dodge, and hope you will use your influence to see that there is no repetition of the violence that recently took place. C. Concluding findings Section 8(b) (1) (A) of the Act makes it an unfair labor practice for a labor organization to "restrain or coerce employees in the exercise of the rights guaranteed in Section 7" and comparably, Section 8(a)(1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guarantted in Section 7." Section 7, in relevant part, provides that: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . . The evidence clearly establishes that not only did all the employees of Dodge demonstrate in August 1958, their desire "to refrain" from "form[ing]," "join[ing]," or "assist[ing]" Respondents, or any of them, but it affirmatively shows that at no time material herein did Respondents, or any of them, represent a majority of the Dodge employees. But despite complete rejection of Respondents in August 1958, and at all time material the lack of representative status as required by Section 9(a) of the Act, Respondents, nonetheless, sought to bring economic pressure directly upon the employees to force them to join Respondents, or one of them, in order to protect their jobs. Such conduct constitutes coercing the employees in the exercise 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their guaranteed right to refrain from joining a union . Such a finding becomes inescapable when consideration is given to the fact that the picketing had the pur- poses of ( a) coercing Dodge into recognizing Respondents as the exclusive col- lective-bargaining representatives of its employees and signing a contract with them, thus forcing the employees to join , even though the employees had declined to be represented by Respondents, and (b) forcing Dodge to coerce its employees to do that which in the exercise of their Section 7 rights they had decided not to do, to wit: select Respondents, or one of them , as their collective-bargaining representative. The picketing then, no matter how viewed, had an unlawful purpose, i.e., either to compel the employer to violate the law or to restrain and coerce employees with respect to joining or not joining Respondents. And since the picketing had an un- lawful purpose, it was not within the free speech guarantee of Section 8(c) of the Act nor that of the Constitution of the United States. The Supreme Court of the United States, within recent years, in cases involving facts similar to those now before us, has condemned the unlawful use of economic power by unions to compel employers to violate the law. For example, in Giboney, et at. V. Empire Storage and Ice Co., 336 U.S. 490,8 the Court held that picketing is something more than free speech and upheld , as constitutional , State injunctions of peaceful picketing which had been undertaken, as here, for unlawful objectives. In Gihoney, the Court upheld a State injunction against peaceful picketing which, as the Court had found, had as its purpose the forcing of a company to violate a State statute. In so holding, the Court said (at page 503) ". . . it is clear that ap- pellants were doing more than exercising a right of free speech or press. . . They were exercising their economic power together with that of their allies to compel Empire to abide by union rather than by state regulation of trade." In the GaZZam case, the employer had been asked by the union to sign a contract. None of the employees were members of the union. The employer answered that it was a matter for his employees to decide and gave the union permission to visit and solicit his employees. After meeting and polling the employees, the union was still unsuccessful in getting a majority of adherents. The union then started to picket the employer's premises and the picketeers carried signs "Unfair to organized labor." A second contract was offered by the union which provided that present employees not be required to join the union. This was refused by the employer for similar reasons. The picketing was enjoined by the Washington State courts as a violation of public policy against employer coercion of employees' choice of a bargaining representative as embodied in a State statute very , similar in wording to Sections 7 and 8 (a)(1) of the Act. The United States Supreme Court, relying on Giboney, upheld the injunction, stating at p. 540: . Here, as in Giboney, the union was using its economic power with that of its allies to compel respondent to abide by union policy rather than by the de- clared policy of the state. That state policy guarantees workers free choice of representatives for bargaining purpose. If Respondent had complied with petitioners' demands and had signed one of the tendered contracts and lived up to its terms, he would have thereby coerced his employees. The employees would have had no free choice as to whether they wished to organize or what union would be their representative. [ Emphasis supplied.] The Court with reference to free speech said at p. 537: But since picketing is more than speech and establishes a locus in quo that has far more potential than inducing action or nonaction than the message pickets can 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 peace- ful and truthful publicity. In Vogt V, International Brotherhood of Teamsters, 270 Wis. 321, 74 N.W. •(2d) 749,9 a case much like the one here presented, the court had before it a statute which forbade unions to (a) coerce or intimidate an employee in the enjoyment of his legal rights, including the right to refrain from joining the union, or (b) to coerce, intimidate, or induce an employer to interfere with any of his employees in the enjoyment of their legal rights, including the right to refrain from joining 8 See also Building Service Employees International Union, Local 262, et at. v. Gazzam, 339 U.S. 532; Hughes et at. v. Superior Court of California for Contra Costa County, 339 U.S. 460; International Brotherhood of Teamsters, etc. Union, Local 309 , et at. v. Hanke, et at., d/b/a Atlas Auto Rebuild, 339 U.S. 470 ; Local Union No. 10, United Association of Journeymen & Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada v. Graham, et at. 345 U.S. 192. 0 Affirmed sub nom. Teamsters v. Vogt, 354 U.S. 354. AUTO TRADES COUNCIL OF SEATTLE, KING COUNTY, ETC. 741 the labor organization. The union in the case picketed for organizational or recog- nition purposes, even though the employees had previously indicated to the union that they did not desire to join it. The court held that the picketing was coercive and hence unlawful, stating: Picketing may be more than free speech. . One would be credulous indeed to believe under the circumstances that the Union had no thought of coercing the employer to interfere with its employees in the right to join or refuse to join defendant Union. We have not the slightest doubt that it was the hope of the Union that the presence of pickets at plaintiff's place of business would inter- fere with its operations and deprive it of delivery services, thus bringing pressure upon it to coerce its employees to join the Union. In Pappas v. Stacey (151 Me. 36, 116 A. 2d 497, appeal dismissed by the Supreme Court for lack of a substantial federal question 350 U.S. 870), the court, construing a Maine statute that guaranteed the right of employees to organize into unions and bargain collectively "free from interference, restraint or coercion by their employers or other persons," held that peaceful picketing for organizational purposes was coercive. The court said: A coercive force is generated by the picketing to secure new members for the union. It is apparent that this force is applied to the employer to urge his employees to join the union to save his business, and to the employees to join to save their livelihood. In reaching for the employees, there is a steady and exacting pressure upon the employer to interfere with the free choice of the employees in the matter of organization. To say that the picketing is not designed to bring about such action is to forget an obvious purpose of picketing-to cause economic loss to the business during noncompliance by the employers with the requests of the union.io The contention advanced by Respondents at the hearing that the letter of Septem- ber 16, directed to Dodge's counsel, wherein they maintained that their activities, at Dodge were solely for the purpose of organizing the employees and were not to be: construed as an attempt to secure recognition as the representative of the employees. involved or for a collective-bargaining agreement covering such employees, suc- cessfully refutes any intent of unlawful conduct on their part, is wholly without. substance or merit. Uncontroverted credible evidence establishes that Respondents' demands for recog- nition and for a contract were accompanied by threats to impair Dodge's normal, business operations, and that Respondents, on the other hand, completely abstained, commencing from the early stages of the handbilling, from making any effort to• reach the employees involved through any of the ordinary methods traditionally resorted to by unions to organize workers. Upon consideration of all the evidence, the Trial Examiner is convinced, and finds, that an object of Respondents' picketing was intended to force or require Dodge to recognize Respondents as the exclusive collective-bargaining representa- tive of Dodge employees and to enter into a contract with it, without regard to the desires of the employees involved. Such action is clearly violative of Section 8(b) (1) (A) of the Act and the Trial Examiner so finds. Upon the record as a whole, the Trial Examiner finds that the activities and con- duct of Respondents, as epitomized above, even though they were in the form of peaceful picketing, were illegal restraint and coercion and hence violative of Sec- tion 8 (b) (1) (A) of the Act. 11 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 Dodge as set forth in section I, 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 100f course, under the Act coercion which derives from picketing is not proscribed where it is employed in the exercise of rights guaranteed in Section 7 ; however, it is proscribed where, as in the instant case, it is used in derogation or circumvention of the employees' rights under said section. 11 E. J. Lipchutz, et at., d./b/a Louisville Cap Company, 123 NLRB .372 ; Jimmy Ray Rush, an Agent of Local Union 5367, etc. (Cosper .Manufacturing Company, Inc.) 123 NLRB 216. 535828-60-vol. 1° 5-48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have violated Section 8 (b) (1) (A) of the Act, it will be recommended that they be ordered to cease and desist therefrom and that they 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, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. West Seattle Dodge, Inc., Seattle, Washington, is an employer within the mean- ing of Section 2(2) of the Act. 2. Auto Trades Council of Seattle, King County and Vicinity, and its constituent members, Drivers' and Demonstrators' Local 882, Garage Employees Local 44, Auto Sheet Metal Workers Local 387, International Association of Sheet Metal Workers, AFL-CIO, Automotive Machinists Local 289, and Auto Painters Local 518 are labor organizations within the meaning of Section 2(5) of the Act. 3. By picketing the premises of Dodge for the purposes of coercing and restrain- ing Dodge's employees, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1) (A) of the Act. 4. The unfair labor practices found herein are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Peabody Coal Company and Lester Phillips, Clell Price, Clair Schisler, Raymond Joe King, James D. Briney, Randall Wayne Brown, Randall Derry, Ronald R. Olson, Dewey Shaffer, Dwayne W. Danner, Robert Lindsey, John T. Britz, Wilfred S. Bulmer, Richard Stambaugh, and J. Clark Breeden. Cases Nos. 13-CA-2715, 13-CA-2716, 13-C, A-2754,13-CA-2755, 13-CA- 2756,13-CA-2757,13-CA-2758,13-CA-2759,13-CA-2760,13-CA- 2761, 13-CA-2762, 13-CA-2763, 13-CA-2764, 13-CA-2775, and 13-CA-2778. December 15, 1959 DECISION AND ORDER On July 8, 1959, Trial Examiner Albert P. Wheatley 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 Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in these 125 NLRB No. 88.