Chefs, Cooks, Pastry Cooks & Assistants, Local 89

CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 543 affirmative action designed to effectuate the policies of the Act. Having found that the Respondent Badham discriminated against R . E. Griffin, Sr., George R. Hester, and B. F. Scovell with respect to their hire and tenure of employment , I will recom- mend that it be ordered to offer them immediate employment as journeymen as- bestos or insulation workers, displacing , if necessary, any persons so employed after September 2, 1958, in the case of R. E. Griffin, Sr., and George R. Hester, and after November 4, 1958, in the case of B. F. Scovell , and if no such employment is now available, as soon as it becomes available in the Pascagoula , Mississippi, shipyard. I shall also recommend that Respondent Badham be ordered to make them whole for any loss of earnings they may have suffered because of the discrimination against them, by payment of a sum of money equal to the amount they normally would have earned as wages from the date of the discrimination against them to the date of the offer of employment, less their net earnings during said period , with backpay com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Respondent Badham make available to the Board , upon request, payroll and other records to facilitate the determination of the amount due under this recommended remedy. In view of the nature of the unfair labor practices found in this proceeding, the commission of similar and other unfair labor practices reasonably may be antici- pated. I shall therefore recommend that the Respondent Badham be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent Badham Insulation Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to employ R. E. Griffin, Sr., on September 2 and November 4, 1958, B. F. Scovell on November 4, 1958, and George R. Hester on September 2, 1958, the Respondent Badham has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By the foregoing conduct the Respondent Badham has interfered with, re- strained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. 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.] Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union , AFL-CIO; and Waiters and Waitresses, Dining Room Employees Local 1 , Hotel and Res- taurant Employees Union, AFL-CIO and Stork Restaurant, Inc. Case No. 92-CP-12. February 20, 1961 DECISION AND ORDER On April 15, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party, Stork Restaurant, Inc., herein called Stork, filed exceptions to the Intermediate Report and supporting briefs; and the Respondents filed a brief in support of the Intermediate Report. On September 8, 1960, 130 NLRB No. 67. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board heard oral argument in Washington, D.C., in which all parties appeared and participated. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, the oral argument,' and the entire record in the case, and finds merit in the exceptions of the General Counsel and the Charging Party. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with the following : In the latter part of 1956 the Respondents started organizing Stork's employees. Early in 1957, Stork discharged several em- ployees. The Respondents thereupon demanded that the discharged employees be reinstated and that Stork negotiate with them as the collective-bargaining representative of the employees, claiming to represent 80 out of 100 such employees. Stork refused the requests. The employees then struck and began picketing. Stork filed a repre- sentation petition with the New York State Labor Relations Board and the Respondents filed unfair labor practice charges with the same agency.2 After a protracted hearing, the State board dismissed the petition and the complaint based on the unfair labor practice charges for lack of jurisdiction, without passing on the merits. During all the time from the start of the strike in 1957 to about January 15, 1960, the Respondents admittedly picketed for recognition as bargaining repre- sentative of Stork's employees. On January 11, 1960, Stork filed unfair labor practice charges against the Respondents alleging a violation of Section 8(b) (7) (C) of the present Act. About January 15, 1960, the Respondents, on ad- vice of their attorney, sent letters to the Board's Regional Office and to Stork stating that the Respondents were no longer picketing for recognition and withdrew their demand therefor; but that they would continue to picket to advise the public that Stork (a) did not employ members of or have a contract with the Respondents, (b) had dicta- torially discharged certain employees because of union membership, I Members Rodgers and Kimball, although not present at the oral argument , have con- sidered the transcript thereof. 2 Early in the course of the strike , Stork obtained a temporary injunction against the picketing from the New York State Supreme Court On appeal , the Appellate Division of the Supreme Court vacated the injunction upon the ground that Stork was not entitled to an injunction merely because a representation petition was pending before the State Labor Board, particularly where no other union was claiming to represent the employees and the affidavits submitted by the unions established prima facie that they represented a majority of employees . Stork Restaurant, Inc, 159 N.Y. S. 2d 921 ( 1957). Subsequently Stork secured another temporary injunction against the picketing. The Appellate Division again vacated the injunction , this time on the grounds that the State court was without power to issue an injunction because the Federal statute preempted the field and that as the court had previously recognized the right of the unions to picket because they had shown "prima facie that they are authorized to represent a majority of plaintiff's" employees, the picketing did not become illegal by the passage of time. Stork Restaurant, Inc. v. Fernandez, 185 N.Y.S. 2d 280 ( 1959). CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 545, and (c) did not provide for its employees standard union wages,, hours, and working conditions. About the same time the pickets began carrying signs addressed to the public which stated that Stork had discharged employees because they had joined Respondent Local 89, did not have a contract with that local, and did not maintain union wage and working conditions. The pickets also distributed leaflets addressed to the public which said that the employees had originally gone on strike because of discriminatory firings of employees, the failure of the employees to enjoy union wage and working conditions, and the refusal to recognize Respondents as bargaining representa- tives of employees. The leaflet further stated that since the passage of the Landrum-Griffin Act, the Respondents could no longer picket for recognition and had withdrawn their request therefor, but they would continue to picket to inform the public that Stork was anti- union, had no contract with any union representing its kitchen and dining room employees, and did not afford its employees the same wages, hours, and working conditions enjoyed by union members in comparable establishments in New York City. Between January 13 and 19, 1960, four truckdrivers were instructed by their employers to make liquor deliveries to Stork. The drivers approached the restaurant on five different occasions between those dates, including once on January 15 and once on January 19, saw the pickets and the signs they were carrying, and refused to cross the picket line to make the deliveries; there is no evidence that they were solicited by the pickets not to cross the picket line. The Respondents have never filed a representation petition with the Board and they have never been certified as bargaining representative of Stork's employees. The Statute Section 8(b) (7) (C) provides that: It shall be an unfair labor practice for a labor organization or its agents- (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining repre- sentative, unless such labor organization is currently certified as the representative of such employees : * * * * * * * (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable 597254-61-vol. 130--36 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period of time not to exceed thirty days from the commence- ment of such picketing: . . . Provided further, That noth- ing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Discussion 1. The Respondents have conceded that one of the objects of the picketing from the onset thereof in January 1957 to on or about Janu- ary 15, 1960, was for recognition. Thus, for approximately 2 months after the Landrum-Griffin Act became effective on November 13, 1959, the Respondents picketed for recognition without filing a representa- tion petition with the Board. This was a plain violation of Section 8(b) (7) (C). Assuming without deciding that the picketing by the Respondent after January 15, 1960, became informational, this would not excuse the previous unfair labor practices or make unnecessary the issuance of a remedial order. It is settled law that the discontinuance of unfair labor practices does not dissipate their effect and does not obviate the need for a remedial order.3 Accordingly, we find that by their picketing from November 13, 1959, to January 15, 1960, Respondents violated Section 8(b) (7) (C) of the Act 4 2. We assume without deciding that the picketing became informa- tional after January 15, 1960. The second proviso to Section 8(b) (7) (C) does not protect informational picketing if it has the "effect" 5 of inducing individuals employed by any other person not to pick up or deliver goods. As previously stated, during a 1-week period four drivers on five different occasions refused to deliver bottled goods to Stork because of the picket line. The Trial Examiner found that these "incidents are so isolated and minor as to fail in supporting General Counsel's claim of inducement." We do not agree with the Trial Examiner's characterization, even assuming arguendo that "isolated" interferences with deliveries do not make 3 Local 401, International Brotherhood of Boilermakers , etc (H A. Roberts & Com- pany ), 126 NLRB 832; Buitoni Foods Corp., 126 NLRB 767; International Hod Carriers' Building and Common Laborers Union ( Consolidated Construction Company, Inc), 124 NLRB 1131, 1132 4 Consistent with their holding in the Crown Restaurant case, 130 NLRB 570, issued this date, Chairman Leedom and Members Rodgers and Kimball find that in the circum- stances of this case recognition continued as an objective of the Respondents' picketing, not only from November 13, 1959, until January 15, 1960, but at all times thereafter. In Local 239, Teamsters ( Stan-Jay Auto Parts and Accessories Corporation), 127 NLRB 958, the Board held that the word "effect" means actual effect and not intended effect CHEFS, COOKS, PASTRY COOKS Sc ASSISTANTS, LOCAL 89 547 informational picketing unlawful. Five refusals to cross a picket line in a 7-day period can by no constriction of the imagination be called "isolated." Moreover, there is other evidence which indicates that the conduct of the drivers on and after January 15 was illustrative rather than "isolated." By January 1960, Stork had been picketed continuously for approximately 3 years. This picketing had seriously interfered with deliveries to the restaurant, for the manager testified without contradiction that as the result of the picketing "We had to buy two trucks and hire truckdrivers and pick things up all over town." 6 Accordingly, we find, contrary to the Trial Examiner, that by their picketing on and after January 15, 1960, the Respondents violated Section 8(b) (7) (C) of the Act.' 3. Respondents contend that Section 8(b) (7) was intended to outlaw a minority but not majority picketing, and further was not intended to make unlawful picketing against unfair labor practices. Section 8 (b) (7) contains no such limitations on the scope of its opera- tions. As stated by Judge Anderson : 8 While the main thrust of this new amendment to the Labor Man- agement Relations Act was to prevent recognition picketing by a union representing a minority of employees or none at all, 8 (b) (7) (C) simply sets up a procedure whereby the factual quali- fications of a union to act as the representative of a group of em- ployees is to be determined by the N.L.R.B. . . . Congress plainly felt that it was in the public interest to have the question of majority or minority representation determined at an early stage by a speedy election. The burden of going through the proceedings falls upon those who are in fact right as well as those who are in fact wrong-something Which is common to nearly all parties who appear before fact-finding tribunals. Moreover, Congress considered and rejected a proposal that an em- ployer violation of 8 (a) should be a defense to an 8 (b) (7) violation. Thus, certain of the Senate conferees, including Senator Kennedy, specifically proposed to the Senate that its conferees should be in- structed to insist, inter alia, that it should be a defense to an 8(b) (7) charge "to show that an unfair labor practice within the meaning of Section 8 (a) has been committed by the employer." 9 The proposal 8 The manager also testified : "We have had to send our trucks out to meet trucks on corners all over town to pick up deliveries. . . . We have sent trucks out to get [de- liveries]. We have sent busboys out to get them. We have picked them up all over town " In any event, we would find that the picketing with an object of forcing the re- instatement of former employees is not protected by the second proviso to 8(b) (7) (C) because it is not for the purpose of advising the public that "an employer does not employ members of, or have a contract with, a labor organization. . . . 8Robert E. Greene v. International Typographical Union, at al. ( Charlton Press, Inc.), 182 F. Supp 788 (D C. Conn ). 8 Legislative History of the Labor-Management Reporting Act of 1959, U.S. Government Printing Office, 1959, vol 2, pp. 1383, 1384. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was rejected. Further, in Section 10(1) Congress provided that if an 8(a) (2) charge has been filed against the employer, the Regional Director shall not apply for a restraining order under 8 (b) (7). The foregoing indicates clearly that Congress intended that employer unfair labor practices should not be deemed a defense to an 8(b) (7) charge. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in con- nection with the operations of Stork as set forth in section I of the Intermediate Report, 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. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and' take certain affirmative action which the Board finds is necessary to, effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Stork Restaurant, Inc., New York, New York, is engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union, AFL-CIO; and Waiters and Wait- resses, Dining Room Employees Local 1, Hotel and Restaurant Em- ployees Union, AFL-CIO, are labor organizations within the mean- ing of Section 2 (5) of the Act. 3. By picketing Stork from on and after November 13, 1959, Re- spondents engaged in unfair labor practices within the meaning of Section 8 (b) (7) (C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) 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, Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Em- ployees Union, AFL-CIO; and Waiters and Waitresses, Dining Room Employees Local 1, Hotel and Restaurant Employees Union, AFL- CIO, their officers, representatives, and agents, shall: 1. Cease and desist from picketing or causing to be picketed Stork Restaurant, Inc., New York, New York, where an object thereof is CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 549 forcing or requiring said employer to recognize or bargain with it as the representative of his employees in violation of Section 8(b) (7) (C) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in Respondents' business offices, meeting halls, and places where notices to their members are custom- arily posted, copies of the notice attached hereto marked "Appen- dix." 10 Copies of said notice, to be furnished by the Regional Direc- tor for the Second Region, shall, after being duly signed by official representatives of the Respondents, be posted by the Respondents im- mediately upon receipt thereof and be maintained by them for 60 consecutive days 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 Second Region signed copies of the aforementioned notice for posting by Stork Restaurant, Inc., the Company willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by the Respondents, as indicated, be forthwith returned to the Re- gional Director for disposition by him. (c) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. MEMBER FANNING, concurring in part : I agree with my colleagues that Respondents' picketing from No- vember 13, 1959, to January 15, 1960, violated Section 8(b) (7) (C), as Respondents concede. I also agree with the further finding that Respondents' picketing after January 15, 1960, was violative of that section. In making the latter finding, I rely solely on the ground that, while the Respondents' conduct after January 15 satisfied the "in- formational picketing" standards set forth in the second proviso to Section 8(b) (7) (C), the privilege to conduct such picketing was lost because it had the effect of inducing individuals employed by other employers not to make deliveries to Stork. I do not concur in my colleagues' further finding that majority unions may not lawfully picket under the second proviso of Section 8(b) (7) (C) without filing a timely petition. In my opinion, a labor organization, whether it represents a majority or a minority of an employer's employees, may lawfully picket without filing a petition if 10 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." 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its picketing satisfies the informational proviso in that section." Where, as here, a union's picketing fails to meet the standards of that proviso, its picketing comes within the proscriptive ambit of the sec- tion and the union's majority status becomes immaterial. Nor do I, in this decision, reach the additional issue decided by my colleagues that the commission of unfair labor practices by an em- ployer is no "defense" to picketing under Section 8(b) (7) (C). No such charges have been filed with this Board, nor has Stork been authoritatively found to have engaged in such practices. That issue is, as a matter of fact, not before us.ia In our dissenting opinion in Crown Cafeteria, 130 NLRB 570, issued this day, Member Jenkins and I reviewed the congressional purpose in inserting this proviso in Section 8 (b) (7) (C). In doing so, we voted to dismiss a complaint against a union whose picketing satisfied the proviso , notwithstanding the union was concededly a minority union. 12 My views on this issue are set forth in my dissenting opinion in C. A. Bicnne Con- struction Company, 130 NLRB No. 69, also issued this date APPENDIX NOTICE TO ALL MEMBERS OF CHEFS, COOKS, PASTRY COOKS AND ASSIST- ANTS, LOCAL 89, HOTEL AND RESTAURANT EMPLOYEES UNION, AFL- CIO; AND WAITERS AND WAITRESSES, DINING ROOM EMPLOYEES LOCAL 1, HOTEL AND RESTAURANT EMPLOYEES UNION, AFL-CIO Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT picket or cause to be picketed Stork Restaurant, Inc., New York, New York, where an object thereof is forcing or requiring said employer to recognize or bargain with us as the representative of its employees in violation of Section 8 (b) (7) (C) of the Act. CHEFS, COOKS, PASTRY COOKS AND ASSISTANTS, LOCAL 89, HOTEL AND RESTAURANT EMPLOYEES UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) WAITERS AND WAITRESSES, DINING ROOM EM- PLOYEES LOCAL 1, HOTEL AND RESTAURANT EMPLOYEES UNION, AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. CHEFS, COOKS , PASTRY COOKS & ASSISTANTS, LOCAL 89 551 INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed by Stork on January 11, 1960; a complaint and notice of hearing thereon having been issued and served on January 18, 1960, by the General Counsel of the National Labor Relations Board; and an answer on behalf of both Respondent Unions having been filed on February 5, 1960, a hearing involving allegations of unfair labor practices within the meaning of Section 8(b)(7)(C) of the National Labor Relations Act, as amended, was held in New York, New York, on February 23, 1960, before the duly designated Trial Examiner. All parties were represented by counsel. Three witnesses testified briefly, one each being called by the Respondent Unions, General Counsel, and the Charging Party. In lieu of other testimony, the parties stipulated- that the testimony adduced at the hearing before the Honorable Archie O. Dawson, District Judge of the United States District Court, Southern District of New York, in connection with a petition for an injunction under Section 10(1) of the National Labor Relations Act, as amended, in Ivan C. McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local 89 Hotel and Restaurant Employees Union, AFL-CIO et al., Civil No. 60-167, as evidenced by the stenographer's minutes of the Southern District Reporters, pages 1 through 117, shall constitute testimony before the Trial Examiner and the National Labor Relations Board in these proceedings, with the same force and effect as if the witnesses personally appeared and gave such testimony herein. Said testimony shall be understood to include also, all the letters, documents and papers introduced as exhibits, and the stipulations, admissions and concessions of fact made at said hearing and in the pleadings therein. All of the testimony and exhibits shall be deemed to be presented herein, subject to the same objections as to materiality, relevancy and competency, or other ground as were made at the said District Court hearing, and shall be subject to rulings thereon by the Trial Examiner with appropriate exceptions to the party whose objection has been overruled. Objections made by the General Counsel at the said District Court hearing shall be deemed, for the purposes of this proceeding, to have also been made by the attorneys for the Charging Party, and an exception to any adverse ruling shall be reserved to them. Having reviewed the record thus stipulated, the Trial Examiner discerns no reason to disturb the rulings made by Judge Dawson, and such rulings are hereby adopted as his own. At the hearing before the Trial Examiner oral argument was waived by all parties. Briefs have been received from General Counsel and the Respondents. From the entire record in the case, and from his observation of the witnesses who appeared before him, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY Charging Party Stork is a New York corporation, maintaining its principal office and place of business in the City and State of New York, where it is engaged in the operation of a restaurant. During the year ending November 30, 1959, the gross volume of Stork's business was valued at more than $1,000,000. During the same period it purchased and re- ceived from outside the State of New York food, liquor, and other products valued at more than $300,000. Stork is engaged in commerce within the meaning of the Act. II. THE RESPONDENT UNIONS Chefs, Cooks, Pastry Cooks and Assistants, Local 89, Hotel and Restaurant Employees Union, AFL-CIO, and Waiters and Waitresses, Dining Room Employees Local 1, Hotel and Restaurant Employees Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act, admitting to membership employees of Stork. HI. THE UNFAIR LABOR PRACTICES A. Setting and chief issues This proceeding involves a single section of the recently amended National Labor Relations Act: Section 8(b) (7) (C), 61 Stat. 136, 73 Stat. 519, which became effective November 13, 1959. That section, in relevant part, reads as follows: Z52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) It shall be an unfair labor practice for a labor organization or its agents- ( * * * * * (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an em- ployer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the representative of such employees : * * * * * * * (C) where such picketing has been conducted without a petition under sec- tion 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided . . . That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual em- ployed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. In a nutshell, General Counsel urges that: (1) The Respondent Unions have violated the above sections by maintaining pickets with an object of forcing recogni- tion, at Stork's premises, for a period of more than 30 days without being currently ,certified or having filed a certification petition, and (2) that any counterclaim by the Unions that the proviso permits "informational" picketing, no matter how truthful, is invalid because its effect has been to induce nondelivery of goods at Stork's premises. Review of the record leads the Trial Examiner to this prefatory conclusion: the historical facts established by evidence, concessions, and admissions have but limited relevance to the legal determination and remedy sought by General Counsel, if no more than the bare and restrictive language of the section of the Act invoked is to be considered. Because he believes that the Board, to exercise properly its powers to effectuate the broad policies of the Act, should have before it findings both com- prehensive and material, the Trial Examiner will set out such facts as are in the record before him and which he is of the opinion should be considered in order to reach an equitable conclusion. B. The facts Competent evidence established the following facts 1. The two "sister" locals involved as Respondents herein, 89 and 1, began or- ganizing Stork's employees in the latter part of 1956; cooks and kitchen workers joining the former and dining room employees the latter. It is undisputed that a majority of the employees in each unit "signed up." 2 A number of employees who had thus designated the locals as their bargaining agent were promptly fired by the employer. Officials of the locals met with Sherman Billingsley, managing director of Stork, and requested both reinstatement of the discharged employees and recognition of the Locals as the employees' bargaining agents. 3. Billingsley flatly refused both requests 4. Upon this refusal the Locals called a strike-about 80 percent of the employees going out-and at the same time filed charges of unfair labor practices with the State Labor Relations Board of the State of New York 5. In reversing an injunction against such picketing obtained by Stork in a lower court, the Appellate Division of the Supreme Couit of the State of New York said, in part, in February 1957: 1 . . . All of the pickets are employees of the plaintiff. . . . The affidavits submitted by the defendants establish prima facie their repre- sentation of the majority of plaintiff's employees. Nothing to the contrary has been submitted by the plaintiff. . . . * * * * * * * Here the Unions claim to represent 80 out of plaintiff's 98 employees and the employees themselves are picketing the plaintiff's premises. . . . The affi- davits submitted by the Unions show prima facie that they are authorized to represent a majority of plaintiff's employees. * * * * * * * 3159 N.Y.S. 2d 921. CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 553 In view of the representation claimed by the defendants, verification of which under the circumstances of this case was possible on the part of the employer plaintiff, and in the absence of any claim of representation on the part of any other union, it was possible foi the plaintiff to deal with the defendants without being exposed to the hazards of a charge of unlawful labor practice. . . . This case does not present an attempt to coerce the plaintiff; contrariwise, plaintiff seeks to ignore the cogent claims of representation made by defendants. .. . 6. In March 1957, the State board issued a complaint against Stork Among numerous other unfair labor practices the complaint alleged Stork had violated the State act by refusing to recognize and bargain with the Locals and by discharging five employees. 7. After hearing and on January 13, 1958, more than a year after the initial charge was filed, a trial examiner of the State board issued his intermediate report in which, without passing upon the merits of the case, he recommended dismissal on the ground that the National Board, and not the State board, had jurisdiction 8. On January 28, 1959, more than a year after issuance of the intermediate report, the State board issued its decision and order. 9. Among other things the chairman of the State board, in his separate but con- curring opinion, stated that at the hearing the board had adduced evidence to the effect that on January 8 and 10, 1957, some 72 of Stork's employees had gone on strike "in protest against and in consequence of" Stork's "unfair labor practices " 10. The chairman also noted that Stork "adduced on evidence at all on the merits either to rebut the evidence elicited by the Board or to support the affirmative de- fenses set forth" in its answers. 11. The chairman further noted that since 1937 the State board had asserted jurisdiction over Stork in a number of cases, had found that Stork had engaged in "numerous unfair labor practices," and that Stork itself, in the courts, had repeatedly urged that the State board, and not the National Board, had jurisdiction. 12. Not until September 30, 1957, the chairman pointed out, did Stork for the first time challenge the State board's jurisdiction. He added: By this date more than six months had elapsed since the commission of the alleged unfair labor practices, so that . any possible resort by the Unions to the National Board by then was barred by the six-months statute of limita- tions contained in Section 10(b) of the Labor-Management Relations Act, 1947. 13. From the text of his opinion it appears that while the board members were, in their divided state, considering whether or not to "assert jurisdiction in accordance with our concept of the police powers of this State" Two things have happened which persuade beyond doubt that at this particular time it would be both fruitless and futile for this agency further to assert juris- diction in this matter Those events are the change in the National Labor Relations Board's standards, under which it would now process a case of this type, and the United States Supreme Court's opinion, in the hotel case indicating that the National Board cannot refuse jurisdiction over an entire industry. And the State board dismissed the complaint. 14. In April 1959, the Appellate Division of the Supreme Court of the State of New York again reversed an order of a lower court granting a temporary injunction (8 A.D. 2d 38, 41) and said, in part: Moreover, this Court has recognized the rights of defendant Unions to picket, holding that the Unions had shown "prima facie that they are authorized to represent a majority of plaintiff's employees" . A strike legal in its in- ception does not ipso facto become illegal merely by the passage of time. Where it is established prima facie that a majority of the employees are members of a picketing union at the time such picketing begins, discharge of such employees because of union membership or for other alleged unfair labor practices by the employer will not alone suffice to change the nature of the picketing 15. From the beginning of the strike and continuing at the time of the hearing in these proceedings, the two Locals have picketed Stork's premises. 16 At the hearing General Counsel conceded, in effect, that at the very outset of the picketing the Locals- demanded that this employer reinstate workers that were discharged and that he cease the commission of unfair labor practices and remedy the effects of his unfair labor practices. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 17. Also at the hearing counsel for the Locals stated: . we concede very frankly that prior to the Landrum-Griffin Bill and even, unfortunately, for a short period thereafter we did continue to picket for recognition. 18. On January 11, 1960, Stork filed its charge with the Board's Regional Office in New York. A copy of the charge was received by Local 1 on January 12 and by Local 89 on January 13. 19. The Locals immediately consulted their attorneys, and on January 15 sent the following letter to the Regional Office of the Board, with a certified mail copy to Stork: At a joint meeting of the undersigned Unions held on January 12, 1960, the Unions took the following action: They decided to cease picketing the Stork Restaurant , Inc. for the pur- pose of obtaining recognition and to withdraw their demand therefore [sic]. They decided to continue picketing the Stork Restaurant, Inc. for the following lawful purpose: 1. To advise the public (including consumers ) that Stork Restau- rant, Inc. does not employ members of or have a contract with, the two Unions. 2. To advise the public (including the consumers ) that the Stork Restaurant, Inc. dictatorially discharged certain employees for their membership in the Unions and interfered with the right of its em- ployees freely to select collective bargaining representatives. 3. To advise the public (including the consumers ) that the standard union wages, hours and working conditions do not prevail in the Stork Restaurant, Inc. A copy of this letter is being sent to the charging party, Stork Restaurant, Inc. so that there can be no questions that it is aware of the only purposes for which the Unions are picketing. 20. On or about the same date the pickets began carrying signs bearing the fol- lowing legends: TO THE PUBLIC THE STORK CLUB DISCHARGED EMPLOYEES BECAUSE THEY JOINED CHEFS, COOKS, PASTRY COOKS & ASSTS UNION LOCAL 89 AFL-CIO TO THE PUBLIC THE STORK CLUB DOES NOT HAVE A CONTRACT WITH CHEFS, COOKS PASTRY COOKS & ASSTS UNION LOCAL 89 AFL-CIO TO THE PUBLIC STORK CLUB EMPLOYEES DO NOT ENJOY UNION WAGES & WORKING CONDITIONS 21. Coincident with the change in picket-sign legends and the letter above quoted, the pickets began distributing leaflets containing the following text: TO THE PUBLIC On January 8, 1957 , the overwhelming majority of the Dining Room and Kitchen Workers of the STORK CLUB went on strike because- 1. The Stork Club fired employees because they exercised their lawful right to join Unions of their own choosing. CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 555 2. Stork Club employees did not enjoy Union wages, hours and working conditions. 3. The Stork Club refused to recognize the Unions freely selected by its employees to act as their collective bargaining representatives despite its obligation under the law to do so. The strike and picketing commenced January 8, 1957, and has continued despite many attempts by the Stork Club to have it stopped by court injunctions. The highest courts of this State have ruled that this picketing is lawful. Since the passage of the Landrum-Griffin Bill, we may no longer picket for recognition, and we have withdrawn our demands therefore [sic]. We shall continue, however, to picket the Stork Club to inform the public that: The Stork Club is anti-union. The Stork Club has no contract with any Union representing its kitchen and dining room employees. The kitchen and dining room employees working in the Stork Club do not enjoy the same wages, hours and working conditions as the Union mem- bers working in comparable establishments in New York City. Chefs, Cooks, Pastry Cooks & Assistants Union, Local 89 760 Eighth Avenue New York 35, N.Y. 22. Also on or about the same date a number of liquor-truck drivers were in- structed to make such deliveries at Stork's premises. Observing the pickets as they approached, they did not make delivery. There is no evidence, however, that any picket spoke to any such driver. 23. The picketing has continued with no petition having been filed by the Locals under Section 9(c) of the Act. C. Conclusions The foregoing historical facts, the Trial Examiner believes, depict a situation wherein, if recent amendments to the Act are so narrowly to be construed as to bar continued peaceful protest against Stork's conduct, as noted by the State Labor Rela- tions Board and in part found by the Appellate Division of New York's Supreme Court, then employees have reason to voice the cynical conclusion that "the law giveth, and the law taketh away." That the Board and the Trial Examiner, as its agent, may properly appraise his- torical facts thus presented by "life in its fullness," in determining the issues, is implicitly recognized by General Counsel himself. In his speech before the Per- sonnel and Industrial Relations, Association, in Los Angeles, California, on February 18, 1960, he said, in part: It is not unfair to say . . . that meaning and scope of the new amendments to the law in all its ramifications will not and cannot be fully understood until we have faced up to the myriad day-to-day problems which life in its fullness will inevitably present. At the outset, and based upon the candid admission of counsel for the Locals, it may reasonably be concluded that for a limited period after the effective date of new amendments thereto, the picketing was in technical violation of the Federal Act. Promptly upon being served with the charge filed by Stork with this Board, however-the first notice to them so far as the record shows that the Board would assert jurisdiction-the Unions took action designed to dissipate the continuing claim of an illegal object of the picketing. Before determining whether or not this action reasonably remedied this defect, the Trial Examiner believes it proper to note that in the sequence of events there lurks a serious agency policy problem. Bear- ing in mind the fact that the Unions had been picketing with full approval of the Appellate Division of the Supreme Court of New York (the latest such approval having been issued in April 1959) may it not reasonably be held, if not that they were justified in continuing such picketing up to the time of their receipt of the Board's complaint, at least that effectuation of the policies of the Act requires no order based upon picketing conduct which preceded the serving of the charge? Turning now to the question-the most important one-as to whether or not the preponderance of credible evidence sustains General Counsel's contention that from mid-January 1960 up to the time of the hearing "an object" of the picketing has been to force Stork to recognize and bargain with the Locals. The Trial Examiner is of the opinion that it does not, for the following reasons: 1. General Counsel would have the Trial Examiner brush aside the Unions' letters of January 15 to the Board and the Employer as "self-serving." He urges that the 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD announcement of union action, taken 2 days earlier, "is an obvious attempt to cloak Respondent's continued violation." The language he refers to: They decided to cease picketing the Stork Restaurant, Inc., for the purpose of obtaining recognition and to withdraw their demand therefore [sic]. To the Trial Examiner the "cloak" seems altogether too threadbare to be character- ized as "obvious." The works are simple, their meaning is clear. In his time the Trial Examiner has attempted written expressions of a good many ideas, some his own, and he would be hard put to it to inform someone of withdrawal of a demand any more clearly than is done in the quotation above. The letter not only an- nounced a change in the purpose of the picketing but specifically withdrew the de- mand previously made. 2. Announcement of the withdrawal of demand recognition was formally made, by way of the above-quoted matter, both to the Board and the Employer. A similar announcement was made to the public, in leaflets distributed by pickets. The rele- vant statement is: Since the passage of the Landrum-Griffin Bill, we may no longer picket for recognition, and we have withdrawn our demands therefore [sic]. [Emphasis supplied.] To whom else might the Unions have appropriately addressed themselves with the announcement that they were withdrawing their demand for recognition? 3. No conduct of the Unions since the beginning of the picketing more than 3 years ago is revealed by the record which warrants a conclusion that at any time have they misinformed the public, the Employer, the State Labor Relations Board, or the courts of New York. Where there is not the slightest evidence of previous deception or doubletalk, the Trial Examiner declines to attribute such bad faith to the Unions as General Counsel now urges in this matter. 4. There is no direct or competent evidence in the record of any act, communica- tion, or admission on the part of the Unions to the effect that since January 15, 1960, they have demanded or have continued to demand from Stork recognition as the employees' bargaining agent. 5. It follows, in the opinion of the Trial Examiner, especially when all facts of this case are considered, that where there exists no demand for recognition, it may not reasonably be inferred that "an object" of picketing is to force or require recognition. Having concluded that the picketing after January 15 was not for an object pro- scribed by Section 8(b)(7), it appears that the first clause of Section 8(b)(7)(C)- relative to the filing of a petition-is inapplicable here. The subjective words "such picketing" plainly refer to the type of picketing described in the governing paragraph 7. As'to General Counsel's argument in his brief: even assuming arguendo that respondents' picketing after January 12 is for informational purposes, it is nevertheless not within the purview of the pro- viso to Section 8(b)(7)(C) since the evidence established that such picketing has induced individuals employed by Stork's suppliers in the course of their em- ployment not to deliver goods. .. . The Trial Examiner suspects that the proviso referred to is likely to cause corru- gations on many brows broader than his own, in reviewing courts, in the months to come, particularly as it may offend constitutional rights. Here, however, the Trial Examiner is not persuaded that there is convincing evidence in the record to support the finding of "inducement" sought by General Counsel, even if all picketing, for whatever purpose, is to be considered as embraced by the proviso. This conclusion rests upon the following factors: 1. Only five incidents involving "deliveries" were placed in issue. Two related to five cases of beer each, all others related apparently to a single case of brandy. 2. Although the Trial Examiner has not visited the Stork Club, and so may not himself bear witness as to liquid consumption there, deliveries of only 10 cases of beer and I case of brandy in a 10-day period seems hardly consistent with Billingsley's commerce claims. 3. There is no evidence of even an attempted delivery of any liquor at Stork's premises until January 13, 2 days after the charge was filed at the Regional Office. The charge itself alleges no refusal to deliver liquors or anything else at any time at Stork's premises. 4. Of the four truckdrivers testifying: (a) Dierlam said that although he had been delivering for Liebmann Breweries for 12 years, on January 13, 1960, for the first and last time he had instructions to CHEFS, COOKS, PASTRY COOKS & ASSISTANTS, LOCAL 89 557 deliver 5 cases of beer to the Stork Club. He went first to the Club's warehouse, on Morton Street, and was there told to go to the restaurant. He stopped his truck across the street from the club entrance on 53d Street, saw pickets, called his own company, was told to consult his union, called his union (a Teamster's local), decided not to make delivery, and returned the beer to his company. He was neither ap- proached by pickets, nor did he approach them. There is no evidence that any other driver for Liebmann Breweries, before or since January 13, 1960, has had occasion to deliver anything to the Stork Club, either at the warehouse or the restaurant premises. (b) Goetz, for 22 years a driver for Jacob Ruppert Brewery, said that so far as he knew Stork Club had ordered no beer from his company "during the last few years" until January 19, 1960. He drove by the club, saw pickets, called his com- pany, told someone there he would not cross a picket line, and took the beer back. He spoke to no pickets, and no picket spoke to him. There is no evidence that any other driver for this brewery, before or after January 19, even attempted to deliver anything at Stork. (c) Auter, for 13 years a driver for Peel Richards, Ltd., on various occasions before January 13, 1960, had made delivery of brandy at a warehouse. On Janu- ary 13, however, when he brought a case of brandy here, he was told to deliver it at the restaurant. Approaching the club, he saw pickets and passed by. Two days later, he said, he was sent out with "the same case of brandy" for Stork, saw the pickets and passed by. On neither occasion did he speak to pickets, or even approach them. (d) McCloskey, also a driver for Peel, for the first time in "six or eight years," on January 14 was asked to deliver a case of brandy at Stork. So far as the record shows, it may have been the same case Auter had failed to deliver the day before. From across the street, McCloskey said, he saw "two pickets and I went about my business." There is no evidence that he was thereafter dispatched on a delivery for Stork. 5. Both the nature and paucity of the evidence concerning these incidents raise questions which the record-not made before the Trial Examiner-fail to answer satisfactorily. Such questions include those which might reveal the circumstances of the sudden change in policy in the delivery of that case of brandy on January 13, 2 days after the charge had been filed at the Regional Office. And what were the circumstances, also, surrounding the one attempt at delivery of a lone case of beer each from Liebmann and Ruppert? Furthermore, who discovered that driver Goetz, for the first and only time since January 1957, was dispatched on January 19, 1960, to deliver a case of beer at Stork premises, drove by the premises without stopping on busy 53d Street, yet was conveniently under subpena and before the U.S. District Court 3 days later as a witness for General Counsel? 6 The Trial Examiner of course does not even suggest that possible efforts to entrap the Respondents would be revealed were such questions to be answered. On the other hand, from the evidence which is in the record, the Trial Examiner con- cludes that the incidents are so isolated and minor as to fail in supporting General Counsel's claim of inducement. In summary, to the Trial Examiner it appears that employees of Stork, through no fault or failure of their own, have been deprived of their rights under both the New York and Federal law by the Employer's conduct since January 1957, and that if General Counsel's complaint is to be substained then Stork will have succeeded in preventing the employees for submitting their case even to the public. The public, it seems, provides the one forum now available to these employees, since the State board finally declined jurisdiction, and the conduct in issue occurred beyond the 6-month period permitting recourse to the Federal jurisdiction. Nor could the em- ployees, through the Unions, reasonably file a petition under Section 9(c). Some 80 percent of them went on strike in 1957, and as the State board chairman noted, were deprived of an order requiring reinstatement upon demand when that agency declined jurisdiction. The Trial Examiner believes that the Board, in its broad experience and judgment, will be reluctant to agree that mere theory, evolved in a legalistic vacuum, outweighs the larger substance of historical facts. Where fundamental rights are involved, it is doubted that the Board will consider this case to be a sort of bingo game, to be won by General Counsel merely because an arbitrary selection of these facts happen to fill a card labeled 8(b) (7) (C). Counsel for the Unions appropriately cite in their brief Section 2(a) of the Labor- Management Reporting and Disclosure Act of 1959 as the congressional mandate regarding "employees' rights." The quotation: 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Congress finds that , in the public interest, it continues to be the respon- sibility of the Federal Government to protect employees' rights to organize, choose their own representatives , bargain collectively , and otherwise engage in concerted activities for their mutual aid or protection. . . . Turning back to a point noted early in these "Conclusions ": the Unions' con- cession that for a brief period before the filing of the charge the Unions were picketing for an object declared unlawful by the recent amendments . In view of the prompt action by the Unions to publicize its withdrawal of that object, the Trial Examiner perceives no reason to believe that a cease-and-desist recommendation would further effectuate the policies of the Act. Finally, it is concluded and found that the evidence does not sustain the allegation that the Respondents have violated Section 8(b) (7) (C) of the Act. Under all the circumstances described above, the Trial Examiner will recommend that the complaint be dismissed in its entirety. To hold otherwise, he believes, would be to lend applause to the spectacle of nimble employers thus playing juris- dictional hopscotch on the graves of employee rights. [Recommendations omitted from publication.] Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Louis Peick, its Sec- retary and Treasurer ; Joseph Desmyter, Business Agent and Cartage and Terminal Management Corporation . Case No. 13-CP-3. Febrwary 20, 1961 DECISION AND ORDER On May 20, 1960, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondents had not violated Section 8 (b) (1) (A) of the Act. There- after the Respondents and the General Counsel filed exceptions to the Intermediate Report and briefs. On September 8, 1960, oral argu- ment was held before the Board in Washington, D.C.; the General Counsel, the Respondents, and the Charging Party participated. 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 Inter- mediate report, the exceptions, the briefs, the oral argument,' and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the follow- ing modifications. The Board Members unanimously agree on the evidentiary facts found by the Trial Examiner : Particularly, that the Respondents 'Members Rodgers and Kimball, although not present at the oral argument , have con- sidered the transcript thereof. 130 NLRB No. 70.