Local Joint Executive Board, Etc.

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tofore rendered in connection with this comparably new part of the Act, I think, in whole part, it is intended to correct situations such as the one evidenced in this case. What other reason would impel the Union to picket Cartage at the Riss terminal except to induce the drivers of Cartage in the course of their employment "not to pick up, deliver or transport any goods or not to perform any services" except for organizational purposes? Cartage had offered recognition and accepted recogni- tion, which the Union refused. The facts here show that the picketing by the Respondents was for organizational and recognitional purposes only, and was not confined to the "purpose of truthfully advising the public (including consumers) that an employer does not employ mem- bers of, or have a contract with, a labor organization. . . I so find. N.L.R.B. v. Drivers, Chauffeurs, Helpers Local Union No. 639 (Curtis Brothers), 362 U.S. 274; Getreu v. Bartenders and Hotel and Restaurant Employees Union, Local 58, etc. (Fowler Hotel, Inc.), 181 F. Supp. 738 (D.C. N. Ind.); McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc. (Stork Restaurant ), 181 F. Supp. 742. Cf., Valley Knitting Mills, Inc., 126 NLRB 441. Upon the basis of the foregoing findings of fact , I make the following: CONCLUSIONS OF LAW 1. The Respondent, Local 705, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Louis Peick and Joseph Desmyter, Respondents herein, are agents of Local 705 within the meaning of Section 8(b) of the Act. 2. On and after September 21, 1959, the Respondents engaged in and are still engaging in picketing the premises of Cartage Terminal and Management Corpora- tion, the Charging Party herein, with the effect to induce employees of other em- ployers in the course of their employment not to pick up, deliver, or transport any goods or not to perform any services. 3. That such picketing has been conducted and is being conducted without a petition under Section 9 (c) (1) of the Act being filed within 30 days after the com- mencement of the picketing by the Respondent Union. 4. That by such picketing, the Respondents and each of them has engaged in and is engaging in unfair labor practices in violation of Section 8(b) (7) of the Act; and that 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.] Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County; Culinary Alliance Local No. 681 [Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a co- partnership] and Peter W. Irwin. Case No. 21-CP-4. Febru- ary 20, 1961 DECISION AND ORDER On April 6,1960, Trial Examiner James R. Hemingway issued and on April 18 amended his Intermediate Report in this proceeding, finding that the Respondent Unions 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 Coun- sel filed timely exceptions to the Intermediate Report and a brief. On September 8, 1960, oral argument was held before the Board in 130 NLRB No. 68. LOCAL JOINT EXECUTIVE BOARD, ETC. 571 Washington, D.C.; the General Counsel, the Respondents, and the Charging Party 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 brief, the oral argument,' and the entire record in the case, and hereby adopts the findings but not the conclusions or recommendations of the Trial Examiner, as indicated below. The Board Members unanimously agree on the facts as found by the Trial Examiner. Briefly, union representatives in April and May 1959 asked Crown to operate its cafeteria by hiring its employees through the union hiring hall and signing the standard union con- tract. Crown refused to do so, and employed nonunion employees instead. Beginning on May 5, 1959, the Respondents accordingly picketed the public entrance of Crown cafeteria, with signs addressed to "members of organized labor and their friends," stating that the cafeteria was nonunion, and asking them not to patronize the cafe- teria. This recognitional or organizational picketing continued with- out the filing of a petition for more than a reasonable period of time after November 13, 1959, the effective date of Section 8(b) (7) (C). On these facts the Trial Examiner concluded that the picketing, even though for an object of recognition or organization, fell within the protection of the publicity proviso to Section 8(b) (7) (C) be- cause it did not have the effect of inducing any stoppage of goods or services. We cannot agree with the Trial Examiner's unduly narrow con- struction of the Act. Congress in Section 8(b) (7) expressed the gen- eral objective of prohibiting picketing by uncertified labor organiza- tions where an object was recognition or organization, even though the picketing may also have had other objects as well. The subsec- tions then particularize the prohibition in various factual situations : for example, such picketing is wholly banned under subsection (A) where another labor organization is entitled to continued recognition; and under subsection (B) it is banned where within a year a valid election has been conducted. Under subsection (C) the ban against picketing exists where a reasonable period of time not to exceed 30 days has elapsed after the commencement of picketing, except where a representation petition is filed. However, none of these qualifica- tions applies to the facts of the present case, as the Trial Examiner and the parties all conceded. We regard the Trial Examiner's and our dissenting colleagues' construction of the Act as undermining the carefully worked out pro- 1 Members Rodgers and Kimball, although not present at the oral argument, have con- sidered the transcript thereof. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gram established by Congress in Section 8(b) (7). We cannot be- lieve that Congress meant to permit recognition picketing merely be- cause the picketing also takes the form of truthfully advising the public that the employer is nonunion, or does not have a union con- tract. Rather, we believe that Congress was careful to state that picketing will be permitted only if it is for "the" purpose of so advis- ing the public. Indeed the ban against picketing is particularly ap- plicable in the present situation, where the Union did not represent the majority of the employees, and the only lawful course for Crown to follow was to refuse to recognize the Union, as it did. See Stork Restaurant, Inc., 130 NLRB 543. We are satisfied that Congress added the proviso only to make clear that purely informational picketing, which publicizes the lack of a union contract or the lack of union organization, and which has no present object of recognition, should not be curtailed" . . . 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." But that is not the situation in this case. As the Trial Examiner found, apart from the picketing, the Union was in fact demanding present recog- nition from Crown. Indeed, under established doctrine, even if the Union had disclaimed any object of recognition-which, of course, it did not do-but had engaged in the picketing here present, the Board would clearly have entertained a representation petition filed by Crown, apart from the specific provisions of Section 8(b) (7) (C). For a demand for recognition accompanied by picketing would not be deemed, under the Board's normal representation procedures, to have been removed by a disclaimer, where, as here, the pick- eting continues and the picket signs refer only to the lack of union organization 2 Consideration of the result of the Trial Examiner's, and our dissent- ing colleagues', contrary construction of the proviso convinces us of their error. They would permit present recognition picketing when- ever the labor organization is careful to indicate by its picket signs only an ostensible purpose of advising the public. However, this would render meaningless, at the whim of a picketing union, the stated objective of Section 8(b) (7). The resulting nullification of the whole of Section 8(b) (7) (C) would most certainly result in an absurd situ- ation. Clearly, under the established rules of statutory construction,' the intention of the Congress to outlaw recognitional and organiza- tional picketing is best effectuated by confining the second proviso of 2 See, for example, Haskell C. Carter, et at, d/b/a Carter Manufacturing Company, 120 NLRB 1609 (Member Fanning dissenting) ; Francis Plating Co., 109 NLRB 35. 11 Sutherland, "Statutory Construction," 3d ed., sec. 4701 LOCAL JOINT EXECUTIVE BOARD, ETC. 573 8(b) (7) (C) to picketing where the sole object is dissemination of information divorced from a present object of recognition. Moreover, the legislative history, if it were needed to explain what seems to us to be clear statutory language, supports this construction of the Act. As Senator Kennedy stated in the significant item of legislative history referred to by the Trial Examiner, the proviso applies only to "purely" informational picketing .4 Accordingly, giving due weight to the terms of the proviso to Section 8(b) (7) (C), we find the instant picketing unlawful and not protected by the proviso because it was not for the sole purpose permitted in the proviso, namely, that of truthfully advising the public that Crown did not employ union members or have a union contract. We conclude, contrary to the Trial Examiner, that the Respondents' picketing for more than a reasonable period of time after November 13, 1959, violated Section 8(b) (7) (C) of the Act, as alleged. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents which we have found to constitute unfair labor practices, occurring in connection with the operations of Crown Cafeteria as described in the Intermediate Report, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes bur- dening 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 to take certain affirmative action, which the Board finds is neces- sary to effectuate the policies of the Act. Upon the basis of the foregoing and the entire record, we hereby reject the Trial Examiner's conclusion of law No. 3 and in its stead make the following : CONCLUSIONS OF LAw - 3. By picketing Crown after November 13, 1959, with an object of forcing or requiring Crown to recognize or bargain with the Respond- ents as the representative of Crown's employees without filing a peti- tion under Section 9(c) within a reasonable period of time, the Respondents have engaged in unfair labor practices within the mean- ing of Section 8(b) (7) (C) of the Act. 4 Daily Congressional Record, September 3, 1959, pp 16, 413, as reprinted in Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, published by the Board (U.S. Government Printing Office, 1959), p. 1431. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders Interna- tional Union of Long Beach and Orange County; Culinary Alliance Local No. 681; and their officers, representatives, agents, successors, and assigns, shall: 1. 'Cease and desist from picketing or causing to be picketed Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a co- partnership, where an object thereof is forcing or requiring said Employer to recognize or bargain with them as the representative of Crown's 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 at its business offices and meeting halls copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall be duly signed by the Respondents and posted by them immediately upon receipt thereof, and be maintained for 60 consecutive days there- after in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Twenty-first Region signed copies of said notice for posting by Crown Cafeteria, if will- ing, in places where notices to employees are customarily posted. The other provisions of the preceding paragraph shall apply insofar as applicable. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBERS JENKINS and FANNING, dissenting : We would-affirm the Trial Examiner and, in agreement with him, find that the picketing in this case falls squarely within the proviso to Section 8(b) (7) (C) which states that "nothing in this subpara- 6 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." LOCAL JOINT EXECUTIVE BOARD, ETC. 575 graph (C) shall be construed to prohibit any picketing or other pub- licity 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." We are of the opinion that this proviso should be interpreted as having vitality rather than as a merely meaningless adjunct of a statutory enactment. To the extend that the proviso carves out a significant exception to the general ban on recognition and organiza- tional picketing, it has a real meaning and effect in the statutory scheme. Our disagreement with our colleagues stems from the fact that their interpretation of the proviso renders it wholly ineffectual, as if indeed Congress had inserted mere language intended to serve as a useless appendage in an academic vacuum. Section 8(b) (7) (C), in its present form, was proposed in confer- ence as a compromise to the House version of the bill in this area of legislation. That version was substantially as enacted, but without the proviso. From the structure of the section as it emerged from conference, it seems clear that Congress intended to permit a kind of picketing which, but for the proviso, would have come within the prohibition of the section. It logically follows that the intent was to exclude from the ban picketing which, while it embraced the pro- scribed object of recognition or organization, was nonetheless per- mitted because it met two specific conditions. The first condition was, as already stated, "of truthfully advising the public (including con- sumers) that an employer does not employ members of, or have a contract with, a labor organization." The second condition was added immediately after the first, i.e., "unless an effect of such picket- ing 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." 6 In other words, Congress by way of compromise, excluded from its prohibition recognitional or organizational picketing that met these two conditions. This reading of the proviso, we submit, gives life to its language. The interpretation our colleagues give it makes it, for all practical purposes, ineffectual and superfluous. "A statute should be construed so that effect is given to all its parts, so that no part will be inoperative and superfluous, and so that one part will not destroy another unless the provision is the result of obvious mistake or error." I To read the proviso the way our colleagues do would, it seems to us, have the patent effect of creating a new unfair labor practice not 6 Our colleagues concede, and the record establishes, that Respondent's picketing did not have this "effect." 7 Sutherland, "Statutory Construction," 3d ed., see. 4705. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the contemplation of Congress. For, if it is an unfair labor practice when a union does not engage in recognitional or organiza- tional picketing if "an effect of such picketing is to induce any indi- vidual employed by any other person in the course of his employ- ment not to pick up, deliver or transport any goods or not to perform any services," the prohibition obviously embraces an area wholly outside the statutory intendment. Even a casual reading of Section 8(b) (7) and its legislative history makes it abundantly clear that Congress was dealing solely with recognitional and organizational picketing. It could have dealt with other forms of picketing in that section, but did not. To hold that a work stoppage would convert nonrecognitional and nonorganizational picketing into an unfair labor practice under Section 8(b) (7) (C) is to write into the 1959 amend- ments an additional unfair labor practice. This, we feel is evident, Congress clearly did not do. We do not believe it is for the Board to rewrite the 1959 amendments. Judge Swygert, in John C. Getreu v. Bartenders and Hotel and Restaurant Employees Union Local 58, etc. (Fowler Hotel, Inc.), 181 F. Supp. 738 (D.C. N. Ind.), accurately appraised the meaning of the proviso : It is difficult, if not impossible, to imagine any kind of infor- mational picketing pertaining to an employer's failure or refusal to employ union members or to have a collective bargaining agree- ment where another object of such picketing would not be ulti- mate union recognition or bargaining. In most instances certainly the aim of such informational picketing could only be to bring economic pressure upon the employer to recognize and bargain with the labor organization. To adopt petitioner's inter- pretation of subparagraph (C) would make the second proviso entirely meaningless. Thus, he concluded that- ... subparagraph (C) means that although "an object" of picketing may be bargaining, ... it is immunized from the statute if "the purpose" of such picketing is also truthfully to inform the public that the employer does not have a contract with the union and further if the picketing does not curtain picking up, delivery or transportation of goods or the performance of services. The legislative history fully supports our view. Immediately prior to the statement by Senator Kennedy that "purely informational picket- ing cannot be curtailed," to which our colleagues refer, he advised the Senate that the House bill had "unnecessarily restricted normal, legiti- LOCAL JOINT EXECUTIVE BOARD, ETC. 577 mate trade union activity"; that the Senate conferees had "secured important changes in the restrictive provisions" of the House bill; that the House bill would have applied to virtually all recognitional and organizational picketing "even though the pickets did not stop truck deliveries," and that the Senate conferees agreed to a ban on picketing which appealed to the public only if the picketing resulted in the "refusal of other employees to cross the picket line." It was in this context that Senator Kennedy went on to state that publicity picketing which did not result in the refusal of any other employees to cross the picket line-"purely informational picketing"-was not pro- hibited by Section 8(b) (7) (C).' Nor do we believe, as do our colleagues, that because Respondent may have sought recognition by conduct unrelated to its picketing which antedated passage of the amendment here under review, the effect of the proviso is destroyed notwithstanding that the picketing which occurred subsequent to its passage complied with its terms. The thrust of Section 8(b) (7) (C) is directed at picketing. If the picketing comes within the permissive ambit of that proviso, such picketing, in our opinion, is privileged. In brief, we subscribe to the opinion that Senator Kennedy and the other Senate conferees did not insert the proviso here under consider- ation without any real affirmative purpose, or to create an entirely new unfair labor practice provision even more restrictive than the original House bill. Rather, we are convinced that the proviso was intended to apply to recognitional or organizational picketing which truthfully advised the public (including consumers) that the employer did not have a contract with the union. Unless such picketing induced a stoppage of deliveries or services, Section 8(b) (7) (C) was not violated. As the picketing in this case satisfied the proviso, we would dismiss the complaint. 8 See Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (vol. 2, p. 1431). APPENDIX NOTICE TO MEMBERS AND TO EMPLOYEES OF CROWN CAFETERIA 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 picket or cause to be picketed Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a co-partnership, where an object thereof is forcing or requiring said employer to 597254-61-vol. 130-38 .578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognize or bargain with them as the representative of Crown's employees, in violation of Section 8(b) (7) (C) of the Act. LOCAL JOINT ExECITIivE BOARD OF HOTEL AND RESTAURANT EMPLOYEES AND BAR- TENDERS INTERNATIONAL UNION OF LONG BEACH AND ORANGE COUNTY, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) CULINARY ALLIANCE LOCAL No. 681, Labor Organization. Dated ---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding based on a charge of an alleged violation of Section '8(b) (7) (C) of the Labor Management Relations Act, 1947, 61 Stat. 136 (as amended by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519) herein called the Act, filed on January 5, 1960. The complaint alleges that about May 5, 1959, Respondents (as named in the caption hereof) commenced picketing the Crown Cafeteria in Long Beach, California, herein called Crown, and continued thereafter to picket and to cause Crown to be picketed, an object of such picketing being to force and require Crown to recognize or bargain with Respondents as the representative of the employees at Crown's Long Beach place of business or to force or require said employees of Crown to accept or select the Respondents as their collective-bargaining representative, although they were not, and are currently not, certified as the representative of such employees and although a valid petition under Section 9(c) of the Act had not, within a reasonable period of time from the commencement of such picketing, been filed. The Respondents' answer is a denial of the allegations of the complaint except that it admits the picketing from May 5 to December 12, 1959, except for a short period of time when Respondents were restrained, by a temporary restraining order issued by a State court, from picketing, and the answer alleges in substance that on about January 3, 1960, picketing at Crown was commenced at its Long Beach location pursuant to the authority of the Respond- ent Joint Board by the latter's determination to institute an advertising picket line which was not for the purposes alleged in the complaint and that the picket line did not interfere with Crown's receiving any goods, wares, or merchandise that were ordinarily delivered to Crown. Pursuant to notice, a hearing was conducted at Los Angeles on February 25 and 26, 1960, before the duly designated Trial Examiner. Near the opening of the hearing, the Respondent Local moved to dismiss the complaint as to it. The motion was denied as premature. At the close of the hearing this motion was renewed and was denied. The Respondents then moved to dismiss the complaint in its entirety. Ruling was reserved and is now granted for the reasons hereinafter set forth. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Leonard Smitley and Joseph W. Drown are partners doing business as Crown Cafe- teria, herein called Crown. Before May 5, 1959, they operated a cafeteria only in Pasadena, California. On the latter date, however, they opened a cafeteria in Long Beach, California, and since that date have operated both establishments. The gross LOCAL JOINT EXECUTIVE BOARD, ETC. 579 sales at the Pasadena cafeteria for the year 1959 amounted to $519,396. For the nearly 8 months in 1959 when the Long Beach cafeteria operated, the gross sales there totaled $364,303. During the same respective periods, Crown bought for its Pasadena cafeteria food items costing $61,481, and for its Long Beach cafeteria food items cost- ing $40,315. Before the opening, on May 5, 1959, of the latter cafeteria, Crown in 1959 bought therefor such equipment as dishwashers, pots, pans, counters, ranges, and ovens at a cost of $37,190. All purchases were made through supply houses located in the State of California. It was stipulated by the parties that Smitley, if questioned as a witness, would testify that all food items purchased were of a type not grown, or (in the case of beef) slaughtered, in the State of California. The Respondents ques- tioned the reliability of Smitley's knowledge of the source of food items because many of the items might have been grown or processed, or both, in California. However, even the Respondents would have to concede that cane sugar and coffee would not have originated within the State of California, and these two items alone, at the two cafe- terias, accounted for indirect inflow in the amount of $20,016, so in no less than that amount interstate commerce is affected in the legal sense and this, together with the total volume of business proved here, suffices to establish that the Board has juris- diction and, under its standards, would assert jurisdiction in this case.' The Respondents erroneously assume that indirect inflow must be shown in the amount of $50,000. Cafeterias are treated as retail establishments for jurisdictional standards. Under the current jurisdictional standards, it suffices for cafeterias if they do $500,000 gross volume of business a year and if their business affects inter- state commerce in the legal sense .2 The Respondents also appear to assume that Crown Cafeteria in Long Beach alone, without the cafeteria in Pasadena, would have to do an amount of business which would meet the Board's jurisdictional standards. In this, the Respondents are confused. For jurisdictional purposes the business is considered as a whole, regardless of how it might be considered for the purposes of an appropriate unit.3 II. THE LABOR ORGANIZATIONS INVOLVED The Respondent, Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County, herein called the Joint Board, is composed of three representatives each of the Respondent Culinary Alliance Local No. 681, herein called Local 681, and Bartenders Union Local No. 686, both of which Locals are affiliated with Hotel and Restaurant Employees and Bar- tenders International Union, herein called the International. The Joint Board, a required organization under the constitution of the International, is the spokesman for the two local unions mentioned, and any agreement entered into with any employer by such locals must, under the constitution, be entered into between the Joint Board and employer. Only the locals have individual employees as members. Local 681 accepts for membership employees of cafeterias (among others). I find that the Joint Board and Local 681 are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The evidence to be considered Counsel for the General Counsel requested that I take official notice of the tran- script and exhibits in an earlier case involving the same identical parties (except for the agent of the Employer who signed the charge) and, up to a point, the same identi- cal facts. The earlier case, however, involves alleged violation of a different section of the Act and covered only part of the period involved here.4 I agreed to take official notice of the earlier case and the testimony given therein upon condition that the Respondents should have the opportunity of further cross-examination of any of the witnesses who testified in the earlier hearing. As a result of my ruling, Respondents took the opportunity to cross-examine Smitley on matters to which he had previously testified, as well as on matters to which he testified at the hearing in the instant case, 1 Southern Cafeteria Operating Company, 45 LRRM 1039 (not published in NLRB volumes) ; Restaurant & Tavern Owners Association of Salem, 126 NLRB 671; Westside Market Owners Association, 126 NLRB 167 (advisory opinion). 2 James D. Jackson d/b/a Jackson's Party Service, 126 NLRB 875. 3 Milner Hotels, Inc, 124 NLRB 599; Carolina Supplies and Cement Co., 122 NLRB 88. 4 Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County; Culinary Alliance Local No. 681 (Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a co-partnership), 130 NLRB No. 160. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and of cross-examining Walter Kelting, who had testified in the earlier hearing and whom the General Counsel had recalled for further examination by the Respondents. Although I have examined the entire transcript of the earlier hearing, I find it unneces- sary to rely on the testimony of any witness who did not appear and give testimony in the instant case. With respect to the witnesses who testified at both hearings, I base the following findings on both records to the extent applicable to the issues herein. B. Background For a number of weeks before the opening of Crown in Long Beach, the building it was to occupy was being readied for the operation of the cafeteria. For con- venience, this site will be called the cafeteria even though operations did not start until May 5, 1959. Having heard that such cafeteria was to open, James Stevens, secretary-treasurer and business representative of Local 681, accompanied by a rep- resentative of Local 686, about April 14, 1959, called on Smitley at the cafeteria and invited him to have lunch with them to talk about "the Union." Smitley ex- cused himself as too busy. Stevens turned further contact with Smitley over to Clayton Smith, then director of organization for Local 681. About April 20, 1959,5 Smith went to the cafeteria. Smitley was not there at the time. Smith left with Martine Etchepare, the assistant manager of the cafeteria, for delivery to Smitley, a copy of the contract form used by the Joint Board in con- tracting with nonassociation employees, and a copy of Local 681's health and wel- fare plan. The contract form was entitled "Wage Scale and Working Agreement." About May 1,6 Smith returned to the cafeteria and had a conversation with Smit- ley. The accounts given of this conversation by Smith and Smitley varied consid- erably. Although parts of Smith's testimony appeared to be based on spontaneous recollection, other parts lacked this quality. Smitley's testimony appeared to come from an actual attempt to call up a memory of occurrences which had taken place many months before. In the main, Smitley's testimony is reliable and gives an account more nearly approaching what I conclude are the actual facts than Smith's. On this day, Smitley encountered Smith in the lobby of the cafeteria and Smith asked Smitley where he was getting his employees. Smitley answered that he was getting them locally. Smith said that he thought Smitley was bringing them down from Pasadena because Crown was not getting them from Local 681. Smitley then asked Smith who he was and Smith identified himself. Smith asked Smitley if he were going "to operate a union house." Smitley said that he never had done so, did not intend to, and, in any event, that the decision on that was to be made by an election in which the employees made the choice Smith replied, "That is not the way we do it nowadays." At some point during the conversation, the two moved to Smitley's office. There, Smith saw on Smitley's desk the copy of the "Wage Scale and Work- ing Conditions" such as he had previously left with Etchepare for Smitley, and he asked Smitley if he had read it. Smitley said that he had not yet had a chance to read it In this conversation, Smith did not expressly say that he wanted Smitley to sign the contract. He testified that he asked Smitley to hire through the hiring hall operated by Local 681. This was denied by Smitley. On May 4, 1959, Smith returned and again asked Smitley if he had read the material he had left.'' Smitley replied that he had not had time, was busy trying to get ready for opening, and did not wish to be bothered. Smith walked back into the kitchen where he spoke to an employee, then returned to the cafeteria where he saw Walter Kelting, the local manager for Crown, whom he had known for 10 or 12 years, and stopped to say a few words to him. He asked Kelting if he had any in- fluence with Smitley and said that, if he did have any influence , to use it to get Smitley to "go along with the union " because otherwise there would be a picket line the next day when the cafeteria opened. Smith testified that in his conversations with Smitley and Kelting on this occasion he did not ask that Crown sign a contract and did not claim to represent any employees but that he sought only to have Crown hire 5 None of the witnesses had a clear recollection of the date of this visit and I do not deem the exact date to be important. Hence, this date is merely an approximation based on all the evidence. 9 This date is fixed by reconciling the testimony of the several witnesses at the hearing in the instant case as corroborated by their testimony in Case No 21-CB-1384 (130 NLRB No 160). 7 Smith testified that his last visit had been on May 1 and that his previous visit had been a few days before that. Both Smitley and Kelting were quite sure that the last visit of Smith was made the day before the cafeteria opened. The dates found herein are consistent with other evidence. LOCAL JOINT EXECUTIVE BOARD, ETC. 581 employees through the hiring hall operated by Local 681 . Although such requested hiring might have been implicit in an arrangement to "go along with the union," 8 I find that Smith did not, on May 4, expressly put his request to Smitley or Kelting in the form of a direct proposal that they hire through Local 681, although at some time he probably referred to the fact that Local 681 could furnish competent em- ployees. By the time of Smith's last visit ( if not by the time of his next-to-the-last visit ), Crown had hired a fall complement of employees and there would have been no immediate purpose then in requesting use of the hiring hall operated by Local 681 unless Crown were at the same time, being requested to agree to operate as a union shop before the opening date. C. The picketing On the opening day of the cafeteria , May 5, 1959 , at 7 a.m ., pickets were patrolling the cafeteria premises 9 with signs reading (in several different type sizes) : NOTICE to Members of Organized Labor and their friends This Establishment is NON-UNION PLEASE DO NOT PATRONIZE Hotel and Restaurant Employees Joint Board AFL-CIO lone Backlin, Secretary On a few occasions beginning on May 13 another sign was carried. This con- tained the wording: "Notice to members of organized labor and their friends. This establishment is unfair . [The word "unfair" was in 21/2-inch boldface letters and hence this sign is referred to as the "unfair" sign.] We are picketing because this establishment is attempting to break down our standard of wages, vacations , health and welfare, work day, work week, contracts , as paid by over 600 union establish- ments. Please do not patronize. Hotel and Restaurant Employees Joint Board, AFL-CIO. lone Backlin, Secretary." The General Counsel's witnesses testified that this sign was not carried after May or June 1959. The Respondents sought to establish that it was carried either continually or at least in the fall of 1959 . No arguments are based on the respec- tive signs . Because I find that the evidence is not too convincing that this sign was carried after June 1959 and because I find, contrary to the presumed belief of the Respondents , that the latter will not be prejudiced by the finding, I accept the General Counsel's evidence that this sign was not carried after June 1959'. For the first few weeks after the cafeteria opened, its hours were 10:30 a m. to 8 p in. During this time, the picketing was commenced at 7 a.m. and continued until about 7 or 8 p.m. After this initial period, the cafeteria began serving breakfasts and was open from 7 a.m . to 8:30 p .m. every day of the week, and these hours continued until December 23, 1959, when the hours on Monday to Saturday were changed to 11 a.m. to 8:30 p.m. Until sometime in September , picketing was carried on for the 12 hours from 7 a.m. to 7 p in., except for a short period in the latter part of June 1959 , when a temporary restraining order, issued by a State court, was in effect, during which time picketing was temporarily halted. Before this restraining order, picketing had not been confined to the public entrance. Thereafter it was. Following May 13, when the "Unfair" sign was first carried, and for some months thereafter , Crown had difficulty getting supplies, and Smitley 8 Smith partially corroborated this testimony of Belting when he testified that he told Belting that he had just spoken with 'Smitley and that Smitley "was not going along with anything, as far as hiring through the hall." In the hearing in the CB case in November 1959 , Kelting testified that he began hiring about 10 days before May 5, the opening date, and that he had told applicants that the cafeteria was to be operated as a nonunion establishment. 9 This picketing was authorized by action of the Joint Board. The date of the meeting of the Joint Board at which this authorization was given is in dispute . If it was done at the last previous regular meeting of the Joint Board , the date was April 27, as the Respondents contend The General Counsel contends that it was authorized on May 4, 1959, and this appears not only to be supported by the unprompted portion of Stevens' testimony but also by the logic that picketing was not likely to have been authorized before Smith's first meeting with Smitley , May 1, 1959 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had to rent trucks and use his own station wagon to pick up his daily requirements and bring them to the cafeteria. However, starting in September 1959, the picket- ing hours were reduced to the 8 hours between 11 a.m. and 7 p.m. Following this time in September, Crown was able to get supplies from its suppliers by specifying that deliveries were to be made before 11 a.m. A few weeks after the picketing started in May 1959, Kelting encountered Smith in the parking lot near the cafeteria and asked Smith how long he expected the picketing to continue. Smith replied that it depended on Crown, that the Respond- ents could not drop it, as it was a matter of life and death to them because, if the Respondents backed down, union restaurants might refuse to sign further contracts. From this and other portions of Smith's testimony, it was made apparent that the Respondents were seeking to make Crown "go union." Picketing continued on an 8-hour basis daily (except that Sunday picketing was eliminated at some time before December) until December 12, 1959, at which time, by action of the Joint Board, the picketing was discontinued altogether for the holidays. Picketing was resumed on January 4, 1960, on a 5-day-week basis with hours from 11 a.m. to 7 p.m. and continued until January 13, 1960, when, pursuant to an arrangement made between the Respondents and the Regional Director for the Board's Twenty-first Region, it was discontinued. D. Issues, arguments, and conclusions The Respondents advance numerous arguments against the propriety of these proceedings, and they contend, on the merits, that they did not violate the Act be- cause the picket line was merely one for advertising purposes. With respect to procedure, the Respondents advance the argument that it is improper to proceed with this case because the prior case (the CB case previously mentioned, involving the same parties and the same conduct), is still pending before the Board. This argument proceeds either upon the doctrine of merger of causes or election of remedies. The conduct involved in that case (which proceeded on the doctrine of the Curtis Bros. decision, 119 NLRB 232) was picketing between May 5, 1959, the date of the opening of the cafeteria, and November 18, 1959, the date of the hearing. This period is not (at least exclusively) the one covered here. The Respondents at the hearing partially recognized this by taking the position that only the picket- ing occurring in January 1960, was in issue. The Respondents presumably figure that the period of picketing prior to December 12, 1959, did not exceed 30 days from the effective date of the Act and was therefore not banned. The charge, itself, did not limit itself to January 1960. The complaint covered the full period from May 5, 1959, to date of issuance; but because of the provisions of Section 10(b) of the Act, the period of alleged unfair labor practices may not, in any event, antedate July 5, 1959. It is not altogether clear as to whether or not the General Counsel contends that this case covers alleged unfair labor practices as far back as July 5, 1959. In one section of his brief, he argues that "the same conduct by a respondent may violate more than one section of the Act," that "laches cannot be raised against the Govern- ment," and concludes, "Thus, it would appear that the General Counsel's only restriction in such matters is Section 10(b)'s six-month statute of limitation." In another section of his brief he contends that "since May 5, 1959, under the Curtis Bros. doctrine-and since November 13 [the 60th day from the date of the Act and, therefore, the effective date thereof by its own provisions] under Section 8(b) (7) -Respondents have intransigently picketed Crown Cafeteria for the always unlawful object of securing recognition." From this latter quotation, I might con- clude that his theory is to give Section 8(b)(7) of the Act a prospective effect only from November 13, 1959. But the complaint does not make this clear. Because of the statement in the General Counsel's brief, intimating that the same conduct was an unfair labor practice before Section 8(b)(7) came into effect as well as after, and because of the language of Section 707 of the 1959 Act (the last para- graph of Section 8(b)(7)) that "no provision of this title shall be deemed to make an unfair labor practice, any act which is performed prior to such effective date (60 days after enactment) which did not constitute an unfair labor practice prior there- to," I could, perhaps, infer that the General Counsel seeks to give effect to the Act of 1959 as of September 14, if not back to July 5 (6 months prior to the filing of the charge) on the theory that the picketing was an unfair labor practice under the Curtis Bros. doctrine before the effective date of Section 8(b)(7). Whether or not the conduct antedating the 1959 amendment to the Act be treated as, in a sense, the same unfair labor practice as that created by Section 8(b)(7) of the Act, is immaterial here, because, under the complaint here, only a violation of Section 8(b)(7) of the Act is involved, and this section cannot be treated as in LOCAL JOINT EXECUTIVE BOARD, ETC. 583 effect in any event before September 14, 1959, the date of its enactment, even if the conduct involved was already an unfair labor practice before November 13, the effective date. Whatever be the contention of the General Counsel, then, I cannot find the acts committed by the Respondents before September 14, 1959, to be unfair labor practices. If it were necessary here to rely on the illegality of picketing which antedates the passage of the 1959 amendment to the Act in order to deter- mine whether or not an unfair labor practice had been committed under Section 8(b)(7) of the Act, I should have to give detailed consideration of this problem to the question of election of remedies. But inasmuch as a violation of Section 8(b)(7) cannot be based on acts committed before there was a Section 8(b)(7), and inasmuch as the case here may be grounded solely on picketing which occurred after November 13, 1959, the effective date of the 1959 amendment to the Act, the problem posed by the Respondent is one of academic interest only. On the facts here involved the prior case does not constitute a bar to the instant proceedings. The question for consideration here, then, is whether or not such picketing as occurred after November 13, 1959 (or even after September 14, 1959, if the picket- ing was already an unfair labor practice-I deem it unimportant which date be used) constituted an unfair labor practice under Section 8(b)(7)(C) of the Act. To the extent applicable here, this Section 8 reads: (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 repre- sentative, unless such labor organization is currently certified as the repre- sentative of such employees: (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: . . . Provided further, That nothing in this subparagraph (C) shall be construed to pro- hibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ mem- bers 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. Nothing in this paragraph (7) shall be construed to permit any act which would otherwise be an unfair labor practice under this section 8(b). Picketing with the aforementioned signs is admitted. No contention is made that a reasonable time has not elapsed without the filing of a petition under Section 9(c) of the Act. The main issues center on the object of the picketing and on the application of the quoted proviso. Surrounding the principal issues are certain incidental ones. For example, the Respondents contend that the picketing was conducted by the Joint Board and that if any contract were to be made covering Crown's employees it would have to be between Crown and the Joint Board. Thus, the Respondents reason, Local 681 could not have been attempting to force Crown to recognize or bargain with Local 681. The evidence amply justifies the conclusion that, although only the Joint Council negotiates and executes contracts, the Respondents work as a team toward the same ends. Although the picket signs bore the name of the secretary of the Joint Council, Smith, as organizer for Local 681, was the one who made contact with Smitley, and Smith was, by virtue of his position, the picket captain. I con- clude, therefore, that if the picketing constituted an unfair labor practice, both Re- spondents are responsible. Before considering the effect of the proviso to Section 8(b) (7) (C), it must be ascertained that the object of the picketing was a prohibited one under the main clause of Section 8(b)(7) The General Counsel asserts, and the Respondents deny, that the picketing from May 5, 1959, until January 13, 1960, was for the purpose of inducing Crown to recognize the Respondents as the collective-bargaining representative of its employees. The answer to this is dependent on what inferences may be justified from the evidence. The Respondents did not expressly claim to represent Crown's employees; they did not "demand" that Crown sign a union con- tract; they did not expressly tell Crown to hire union members. Yet the inference from all the evidence is inescapable that the Respondents sought to bring Crown 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into the fold of union-contract-signing restaurants and to do this by the pressure of a picket line. As Smith put it to Kelting, they wanted Crown to operate union." It would not have sufficed that Crown's wages and working conditions were sub- stantially those called for under the Respondent's agreement. Although the Re- spondents sought at the hearing to elicit information as to hours of work and rates of pay at Crown 10 they offered no evidence that they had ascertained the existence of substandard conditions before deciding to picket Crown, and when they first started picketing they did not so claim. So at the outset, raising Crown's standards does not appear to have been the Respondents' objective. The Respondents contend that their sole object was to have Crown hire through the union hiring hall. They admit that this would have resulted eventually in Crown's having union members in the majority with the result that the Respondents could then demand recognition and negotiations for a contract. Originally then, hiring through the hall was a means to an end and not the objective itself. Even if the Respondents did not seek an immediate contract signing but only an agreement to use the hiring hall, they sought to exact a promise from Crown that it would in the future operate union, a promise collaterally secured by Crown's agreement to hire through the union hiring hall, most of whose referrals would be of union members. Inasmuch as Crown had already hired its employees by the date of Smith's last visit, the Respondents' aim apparently, then, was either to require Crown to discharge all its employees and hire employees referred by Local 681 or else to require the existing employees to become members of Local 681 as a result of the execution of a union-shop contract. The General Counsel contends that, if Crown had chosen to hire through the hiring hall, it would have been obliged to pay the employees so hired on the union scale and would have been obliged to conform with all other conditions in the Joint Board's contract. He so concludes because the contract makes this obligatory on signatories thereto. The evidence does not support this argument. The testi- mony was that Local 681 will supply labor to noncontracting employers. If these employers are noncontracting when they hire, they obviously would not, at the time of hiring, be bound by the terms of the contract unless they orally agreed to do so. Perhaps evidence might have been adduced by the General Counsel to contradict the Respondents' testimony and to show that Local 681 would not supply employees to noncontracting employers unless the latter orally agreed to conform to the wages, hours, and working conditions in the contract, but this is not proved by the terms of the contract alone and the General Counsel refers to no other evidence in support of his argument. This argument by the General Counsel is, however, unnecessary to reach the conclusion, as I do, that at least "an object" of the picketing, to use the words of the 1959 amendment to the Act, was to gain recognition and a union-shop contract The Respondents contend that their object must be inferred to have changed when they changed their picketing hours in September 1959 so that deliveries could be made. I might infer that the change in picketing hours was effected as of the date of enactment of the 1959 amendment in order to avoid interference with deliveries and thus to meet the language of the proviso to Section 8(b)(7)(C), but I find no evidence which justifies an inference that at least one of the unions' objects was no longer to gain recognition or a union-shop contract. Although the Respondents argue the legality of their picketing of Crown from the outset, referring to it as an "advertising picket line," the fact that one of the objects of picketing might have been to inform the public that Crown did not employ members of Local 681 or have a contract with the Joint Board would not have prevented the picketing from being a violation of Section 8(b) (7) (C) of the Act if the effect of such picketing was "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." The Respondents anparently recognized the fact that their picketing, at least before mid-September 1959, was having such an effect, as indeed it was, for the Respondents contend that, whatever be the decision as to illegality of the picketing before mid-September, the picketing would not be a violation after that cite because of the change in hours of picketing. Smitley testified that there- after Crown had no difficulty in getting deliveries after this change in hours was effected provided it was specified that delivery was to be made before 11 a.m. He did not, however, testify to any attempted deliveries at any other time. The meaning of the proviso to Section 8(b) (7) (C) considered in the context of all language relating to Section 8(b) provides the only serious problem in this case. 10I stopped questioning along these lines because even the proviso to subsection (7) (C) regarding picketing does not require proof of actual working conditions as a prerequisite to permissible picketing and such evidence is not germane to the issues. LOCAL JOINT EXECUTIVE BOARD, ETC. 585• The truth or falsity of the signs was not put in issue by the General Counsel, and the latter does not argue that the sign proclaiming that Crown Cafeteria was non- union meant anything other than that Crown's employees were not members of Local 681 or that Crown had no contract with the Respondents, either of which representation is authorized by the proviso to Section 8(b) (7) (C). The General Counsel does not, in his brief, discuss the effect of the proviso upon what might otherwise constitute a violation of Section 8(b) (7) (C). As best I can determine, his position is that, if an object of the picketing was to require Crown to recognize the Respondents or one of them as the collective-bargaining representative of Crown's employees although neither of them was certified as such representative, then such picketing, regardless of truth or falsity of the picket signs and regardless of the effect of the picketing on deliveries, was illegal if it continued for 30 days or more without the filing of a petition under Section 9(c) of the Act This fails to give the proviso, heretofore quoted, any effect at all. His failure to advert to the proviso presumably stems from the theory that it is incumbent on the Respondent to bring itself within the proviso, the proviso constituting matter of defense only. Assum- ing that this is generally true, and that the Respondents must undertake to prove that they picketed to inform the public that Crown employs nonunion employees or does not have a contract with the Respondents, it might then be argued that the General Counsel should be obliged to show that, under the "unless" clause of the proviso, the Respondents were brought back under the terms of the prohibition contained in the principal clause by showing that deliveries were, nevertheless, disrupted." This is especially appropriate here because the fact of disrupted services or deliveries would be more likely to be within the knowledge of Crown and of the General Counsel than of the Respondents. However, regardless of the burden of proof, the evidence does show that the picketing falls within the literal language of the proviso to Section 8(b)(7)(C) in that the picket signs truthfully notified the public that Crown was nonunion, that is, that Crown had no contract with the Respondent and did not employ members of a labor organization. The evidence also shows that, after the picket hours were changed to begin at 11 a.m. (in September 1959), no em- ployee of any other employer was induced in the course of his employment not to deliver goods (it is not shown that Crown had any occasion for having anything picked up or for the performance of any other service). If, on these facts, the Respondents have violated Section 8(b) (7) (C) of the Act, it must be because the word "induce" is to be given the same meaning as "induce or encourage" as used in Section 8(b)(4) of the Act,12 that is to say, that employees of other employers were, by the Respondents' picket signs, potentially, if not actually, induced not to pick up or deliver or transport goods or perform any services. In this connection, the applicable language of the Senate Committee's Analysis of the Labor- Management Reporting and Disclosure Act of 1959 (printed September 10, 1959, for use of the Committee on Labor and Public Welfare) is of interest. With ref- erence to the paragraph of the Act with which this case is concerned, that analysis reads: The circumstances described in paragraph (C) are qualified in two respects: (1) There is no need for the union to demonstrate "a showing of a substantial interest" nor for there to have been a claim for recognition, and (2) picketing beyond the 30-day period or other publicity addressed to the public and con- sumers are permitted, providing the effect of the picketing is not to induce a disruption of services at the employer's place of business. As used here, the word "induce" sounds very much as though it were intended to mean "cause" or "produce" rather than intended to mean "to appeal to employees of another employer not to perform services " Webster's New International Dic- tionary (2d ed ) defines "induce" in the transitive sense as: "To lead on; to influence; to prevail on; to move by persuasion or influence " Following this definition, under synonyms, appears the following: `Induce, persuade agree in the idea of moving or influencing to a course of action . . . . As so defined, "induce" apparently in- cludes the concept of a result of an appeal to reason and is not limited to the appeal itself But even if the proviso is to be read as covering a potential, and not solely an actual, inducement, such inducement could hardly have any effect, even poten- tially, unless employees of other employers in the course of their duties were present 11 geese v. Bethlehem Steel Co, 74 F. Supp 412, 416, affd 168 F 2d 58 (CA. 4) ; Green v Grimes-Stassforth Stationery Co., 39 Cal App. 2d 52, 102 P. 2d 452; Rhymer V. Federal Life Insurance Co, 13 F. Supp. 181, affd 95 F. 2d 999 (C.A. 6). 11 See Dallas General Drivers, etc. (Associated Wholesale Grocery of Dallas, Inc ), 118 NLRB 1251. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to pick up, deliver, transport, or perform services for Crown when the pickets were carrying their signs. There is no evidence that such was the case during the time when picketing was carried on between 11 a.m. and 7 p.m., and these hours were observed during the whole time that Section 8(b)(7)(C) was in effect. The General Counsel appears to rely on the theory of the Board's Curtis Bros. doctrine (recently dealt with by the U.S. Supreme Court) in assuming that, so long as one purpose of the picketing was to induce Crown to recognize or enter into a contract, the picketing necessarily continued, throughout the whole period covered thereby, to be illegal and so was not excused by the terms of the proviso. To agree with this argument would be to read an extra word into the proviso, for the word "sole" or "exclusive" would have to be inserted before the word "purpose" so as to make it read "Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the sole (or exclusive) purpose of truthfully advising the public .... " It appears to me that if this had been intended, the Legislature would have inserted the addtional word. The Lan- drum-Griffin bill (H.R. 8400), apparently incorporating with minor changes the lan- guage of the administration bill (S. 748), contained a section similar to 8(b)(7) of the 1959 Act, but went beyond the amendment with respect to organizational picket- ing as covered by the Senate-passed bill (S. 1555), which did not contain at all the subsection being dealt with here, (7) (C). When the matter was referred to the conference committee, a compromise was effected and, although subsection (7) (C) was there agreed to be included, the provisos were added. In discussing this com- promise, Senator Kennedy, who had introduced S. 1555, had this to say: The Taft-Hartley amendments in the Griffin-Landrum substitute, however, went far beyond the provisions of the Senate-passed bill. However, in the 12 days during which the conference met the majority of the Senate conferees secured important changes in the restrictive provisions of the Landrum-Griffin bill, thereby protecting traditional and essential rights of work- ingmen seeking to improve conditions of employment. It is important that the Senate should note these changes: Second: Organizational picketing: The House bill would have forbidden virtually all organizational picketing, even though the pickets did not stop truck deliveries or exercise other economic coercion. The amendments adopted in the conference secure the right to engage in all forms of organizational picketing up to the time of an election in which the employees can freely express their desires with respect to the choice of a bargaining representative. When the picketing results in economic pressure through the refusal of other employees to cross the picket line, the bill would require a prompt election. Purely in- formational picketing cannot be curtailed under the conference report, although even this privilege would have been denied by the Landrum-Griffin measure. (Congressional Record, 16413, Sept. 3, 1959.) Senator Kennedy contrasted the treatment of the amendment to Section 8(b)(4) in which, unlike the case of 8(b) (7) (C), "We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing . . From the foregoing, I conclude that the aim of the Senate conferees in their com- promise was to except from the prohibited picketing under Section 8(b) (7) (C) that picketing which was for informing the public and which contained no direct ap- peal to employees of other employers to refrain from delivering or picking up goods or performing other services and which did not in fact produce that result. When Senator Kennedy spoke of "purely informational picketing" he was, in my opinion, speaking of picketing which did not, in words or conduct, attempt to appeal to or coerce such employees of other employers in the course of their employment to dis- continue the performance of their duties. As I see it, the conferees were more con- cerned here with preventing disruption of services than they were with the sub- jective purposes of the union in picketing. Realistically, informational picketing of a nonunion establishment seldom occurs without mixed motives. Whether a union pickets before or after an expressed attempt to get an employer to operate under union standards, that union hopes to bring the picketed employer into the fold of union-operated establishments. True, this attempts to "organize from the top," but even unqualified informational picketing tends to do this whether or not the union has ever spoken to the proprietor about signing a union contract, for employers often sign union-shop contracts to eliminate the adverse appeal to the public. The INTERNATIONAL HOD CARRIERS' ETC., LOCAL 840 587 legislature must have recognized this fact and yet felt that freedom of expression by picketing was more important than avoiding this result. It may be argued that, because of the language on the picket sign, "Notice to members of organized labor and their friends," the picketing was not intended to be notification to the public, including consumers, within the proviso, that Crown employed nonunion employees or had no contact with the Respondents. I am not satisfied that the Legislature, in restricting previously existing privileges, intended to make a violation of Section 8 (b) (7) (C) depend on such tenuous support. The signs were, during the period which the complaint may properly cover, being carried only in front of the entrance used by the public (which was not a delivery entrance) and were being carried only during the hours when the cafeteria was open to the public. Although employees used the same entrance, I infer that they would have arrived at work before the time of the arrival of the pickets. Under such circumstances, the appeal to members of organized labor and their friends could be taken to mean merely those members of organized labor and their friends who, as members of the public, including consumers, might otherwise have been disposed to patronize Crown by eating there. The sign was not an appeal to members of organized labor to cease doing business with Crown in their capacity as employees of other employers. Fur- thermore, the initial words of address in the sign were lightface and so small as hardly to be noticed from a distance or from casual inspection, especially in contrast with the words, "The Establishment is Non-Union, Please Do Not Patronize," which stood out in large boldface printing, the smallest letters of which were twice the size of those in the address, and the largest of which "Non-Union," were more than six times as large as those in the address. But even if members of the public read the whole sign, I believe they would consider it as an appeal to them if they were not antiunion. On all the evidence, therefore, I conclude that, from and after November 13, 1959, the effective date of the 1959 amendment, and even from September 14, 1959, the date of enactment thereof, the Respondents have not violated Section 8(b) (7) (C) of the Act. CONCLUSIONS OF LAW 1. Crown Cafeteria is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondents are labor organizations within the meaning of Sections 2(5) of the Act. 3. The Respondents have not violated Section 8(b) (7) (C) of the Act. [Recommendations omitted from publication.] International Hod Carriers' Building and Common Laborers' Union of America, Local 840, AFL-CIO and Charles A. Blinne, d/b/a C. A. Blinne Construction Company. Case No. 17-CP-2. February 20, 1961 DECISION AND ORDER On May 17, 1960, Trial Examiner John F. Funke issued his Inter- mediate Report in this proceeding, finding that the Respondent Union had engaged in unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act, as alleged in the complaint, and recommend- ing 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 Union filed exceptions to the Intermediate Report and a brief. On September 8, 1960, oral argument was heard before the Board in Washington, D.C.; although all parties were 130 NLRB No. 69.