Teamsters "General" Local No. 200, Etc.

670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would hold is that where the contract might tend to interfere, the- Board should not withhold from employees the right to determine their representation in a Board-conducted election. Our colleagues here are doing precisely the opposite. For it is clear, from the broad sweep which our colleagues are giving to their revised rules, as evi- denced by their application of these revised rules to the facts in this case, that they have held that no union-security provision will remove a contract as a bar unless, its nonconformity with the Act is so blatant that even the blind must see it. Applying the Keystone rules to this case it is clear, apart from any other considerations, that the contract in issue does not give incumbent nonmember employees any grace period. We would find, accordingly, that the contract is not a bar- and the petition was timely.''' As there are no other issues in the case, we would therefore direct an election in the stipulated unit. 14 National Brassiere Products Corp, 122 NLRB 965 Teamsters "General" Local No. 200 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Howard Bachman, Joseph B. Bachman and Myron J. Coplan, a Partnership d/b/a Bachman Furniture Company. Case No. 13-CP-15. November 24, 1961 DECISION AND ORDER On November 14, 1960, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as modified herein.' Com- pare Retail Store Employees' Union, Local No. 692, Retail Clerks 'Although we find, in agreement with the Trial Examiner, that the Respondent's picket- ing was not conducted for an object proscribed by Section 8(b) (7) (B) of the Act we do not adopt or rely upon that portion of the Intermediate Report relating to the distinction, sometimes made , between the so-called ultimate and immediate objects which are alleged to underlie all picketing 134 NLRB No. 54. TEAMSTERS "GENERAL'' LOCAL NO. 200, ETC. 671 International Association, AFL-CIO (Irvin, Inc.), 134 NLRB 686. [The Board dismissed the complaint.] MEMBERS RODGERS and LEEDOM dissenting : Section 8(b) (7) (B) of 'the Act is violated where a labor organiza- tion, which is not currently certified, pickets for either a recognitional or organizational object "where within the preceding twelve months a valid election under section 9(c) . . . has been conducted." There is no dispute that the Respondent, at all times material herein, was not the currently certified bargaining representative,2 or that its picketing occurred within the 12-month period following the conduct of a valid election. Thus, the only remaining element required under Section 8(b) (7) (B) to make out a violation-and the issue as to which we disagree with our colleagues-is the factual determination whether the Respondent's postelection picketing was conducted for either a "recognitional" or "organizational" object 3 The facts, as found by the Trial Examiner, are not in dispute and, in our opinion, clearly disclose that Respondent's picketing was un- lawful. It is beyond doubt that the Respondent demanded recog- nition from the Employer when initial contact was made on March 24, 1960. At that time the Respondent had in its possession authorization cards signed by five employees (out of a unit of seven). Apparently confident of its chances for success in a Board-conducted election,' the Respondent filed a representation petition less than 1 week after it made its demand for recognition. Thereafter it vigor- ously prosecuted its interest in the election process through the filing of objections and challenges. It is obvious that all of this activity was directed toward the achievement of but one goal-recognition. The Respondent initially sought to gain representative status through the Employer's acquiescence to its demands, and later, by invok- ing the Board's election processes, sought a Board certification by 2 Indeed , as disclosed by the record herein, the Respondent commenced its picketing activities 15 days after the Regional Director issued the certification of results indicating that the Respondent failed to receive a majority of the valid votes cast in the election in which it participated 3 As stated by the Supreme Court in Drivers, Chauffeurs and Helpers Local Union No 639, International Brotherhood of Teamsters , etc (Curtis Brothers ), 362 U S 274• '.'[The Landrum-Griffin Act of 1959] goes beyond the Taft-Hartley Act to legislate a com- prehensive code governing organizational strikes and picketing and draws no distinction between 'organizational' and 'recognitional' picketing " 4 At the hearing before the Trial Examiner, Hammer, Respondent's business iepre "na- tive, testified that five of the seven employees had visited the Respondent's office ill the early pact of ,March, had signed authorization cards, and had each paid a $50 initiation fee That the Respondent indeed felt confident of its ability to win an election is further evidenced by the fact that it was willing to go to the polls on April 15, notwithstanding the fact that the Employer's alleged unfair labor piactices occurred, at least in part, prior to the execution of the consent-election agreement between the Employer and Respondent Such misconduct on the part of the Employer certainly would have afforded the Respondent a proper basis for having the election postponed 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD means of which the Respondent could lawfully compel the Employer's recognition. It is true that before the Respondent lost the election, it limited itself to pursuit of recognition through lawful procedures. ' It was only after the issuance of the certification of results, when it became clear to the Respondent that it had irrevocably lost the election and could not otherwise compel recognition, that the Respondent decided to picket the employer.5 The Respondent would have the Board believe that notwithstand- ing the clear evidence of recognition inherent in the prepicketing activities, any such object disappeared when it decided to picket. By some sort of supposed transmutation, the Board is asked to disre- gard-and the majority apparently does disregard-all the events that preceded the picketing. The Board is also asked to accept-and the majority does accept as true-the Respondent's assertion that, even "though it wouldn't further the local's end," it engaged in picketing solely for the object of protesting the Employer's unfair labor practices.6 To thus disregard the significant events, and to accept Respondent's assertions in the face of those events, is highly unrealistic, and ignores what is obviously the Local's real objective. S During the hearing before the Trial Examiner , Respondent's business representative testified as follows. Q. Now I believe that Local 200 attributes the loss of the election to Bachman's unfair labor practice , is that correct; A. That's right Q And the object of the picketing, in whole or part, was in a sense to teach Bachman ' a lesson, is that more or less correct, colloquial [ sic] speaking? A. To advertise to the public that he was in an unfair labor practice. Q Now what did you hope to achieve by this advertising; A. Just to let the people-satisfaction , I imagine, of letting the people know. Q. What kind of satisfaction would this give to the Local; A 'Well, Bachman is located in a neighborhood where there is a lot of laboring people They are labor-conscious people up there . . . . Well, they would know that be committed an unfair labor practice and act accordingly. Q Now what sort of satisfaction would the Local get out of Bachman's loss of business , how would it further the Local's end; A It wouldn't further the Local's end "Respondent's business representative testified that the decision to protest against the Employer was made during a conversation among several of Respondent's representatives, and that the conversation "came up because we were-talking about elections , and we had lost another one about the same time and we got to talking about losing elections." It would appear that little weight should be given to the Respondent 's defense that it was solely concerned with protesting unfair labor practices when the Respondent 's business representative testified that the decision to picket developed from the Respondent's con- cern over the loss of an election and therefore the loss of a legal basis for compelling recognition. Moreover , the unfair labor practices which the Employer Is alleged to have committed were settled on June 1, 1960 , prior to the date when the Respondent commenced picketing. Significantly , this settlement agreement, which was approved by the Regional Director as providing a full remedy for the alleged violations, was executed not only by the Employer, but by the Respondent Union as well Thus, it may further be questioned how much weight to accord Respondent 's argument that it was seeking to protest unfair labor practices when the facts demonstrate that Respondent was satisfied that an adequate and appropriate remedy was being provided by the Board's processes TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 673 Congress could not, and in our opinion did not, intend to have Sec- tion 8(b) (7) (B) construed in a manner which would permit a union to subject an employer and its employees to the pressures of picketing immediately after these same employees have rejected the union in a Board-conducted election. Indeed, by specifically abolishing in Sec- tion 8(b) (7), the Board-created distinction between "organizational" and "recognitional" objectives' Congress unequivocally expressed its intention to free an employer and his employees from picketing fol- lowing an election when it has been determined that the Union is not the representative of the Employees. Our colleagues, however, are ignoring this congressional concern over postelection picketing, just as they are ignoring the preelection evidence and the inferences compelled thereby as to the Respondent's postelection objectives. The effect of our colleagues' decision is to allow a union to pop up with a picket line 5 minutes after it has lost an election, and to extinguish the existence of a recognition objective through the device of a self- serving picket sign. We cannot accept the Respondent's defense-that its sole objective in picketing the Employer was to protest his alleged unfair labor practices. Nowhere does it appear that the Respondent communicated to the Employer or to anyone, a disclaimer of its intention to continue to press for recognition. Moreover, it is revealing that Respondent engaged in no picketing to protest the Employer's alleged unfair labor practices, prior to the election, when it would have appeared that a protest was imperative. The Respondent might have been expected to picket for this purpose when the misconduct occurred (prior to April 8, 1960), or when it filed its objections and 8(a) (1) charges (on April 20, 1960), or even when the Regional Director overruled the objections and refused to set aside the election (on June 1, 1960). The Respondent chose none of these times. Instead, on the very day the Regional Director overruled its objections, it entered into a settlement agreement with the Employer with respect to its pending 8 (a) (1) charges. Only thereafter did it begin to picket : After its charges had been settled and after the Employer had commenced posting the notice which the Respondent, by executing the settlement, had agreed was sufficient to remedy the Employer's alleged unfair labor practices. To say that its picketing in these circumstances was in protest of the unfair labor practices strains credulity to the breaking point. There is thus no evidence in the record, other than the Respondent's self-serving assertions, which are belied by its own conduct, that the Respondent was picketing for an object other than those proscribed by Section 8(b) (7), and no evidence from which 7 For example, compare Hamilton's Ltd., 93 NLRB 1076, with 3 Beall Brothers 3, et at., 110 NLRB 685. 630849-62-vol. 134-44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it might be inferred that its picketing was not in furtherance of its original recognitional objective. Accordingly, 'we would find that the recognition object which the Respondent initially sought and failed to obtain through the election route, continued to exist as at least "an object" when it resorted to picketing after the election." 8 As stated by the Federal district court in the injunction proceeding herein, Cavers v Teamsters "General" Local No 200, IBT, 188 F. Supp 184 (D C .E Wis ) : "We are satis- fied that the recognition demand [made March 24, 1960 ] did not go into orbit in the cosmos but remained on a very down to earth plane , amid employees, employer and union " INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case, with all parties represented, was heard before A. Norman Somers, the duly designated Trial Examiner , in Milwaukee, Wisconsin, on August 16, 1960, on complaint of the General Counsel and answer of Respondent . The issue was whether the picketing of the Employer's premises by Respondent Union was in violation of Section 8(b)(7)(B ) of the Act, as modified by the Labor -Management Reporting and Disclosure Act of 1959 . (Public Law 86-257, 86th Cong., 1st sess.) 1 The parties waived oral argument, and have submitted briefs, which have been duly considered. On the entire record,2 and from my observation of the testimony as given, there are hereby made the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Bachman Furniture Company, the Charging Party, sometimes referred to as Bachman or the Employer, is a three -man partnership operating a retail furniture business in Milwaukee, where it has a store and warehouse . It does an annual business exceeding $500,000, and receives merchandise and materials from ' out,of the State in excess of $50,000 a year. Jurisdiction is undisputed. II. THE LABOR ORGANIZATION INVOLVED The Respondent, Teamsters "General" Local No. 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Introduction: The basic issue Respondent is charged with violating Section 8 (b)(7)(B) of the Act as modified by the 1959 statute, which forbids a union from picketing for 1 year after a 'valid Board election, where an object is to compel the employer to recognize or the employees to select it .3 Respondent admits picketing the Employer 's store within less than a year after a Board election, but denies that this was done with either of the proscribed objects. B. The evidence The essential facts of the case are formally stipulated , and were the basis of the decision in the district court proceeding (supra, footnote 1). At the hearing before i Prior to the hearing before me, the matter was heard in the U S. district court on a petition for a restraining order under Section 10 (1) of the Act On August 18, 1960, Chief Judge Tehan of the Eastern District of Wisconsin rendered his opinion and issued a restraining order , which is still in force Cavers v Teamsters "General" Local No 200, IBT, 188 F Supp 184 (D C E «-is ) ' As corrected on notice to the parties on September 8, 1960. Section 8(b) (7) is quoted in full infra, at footnote 6. TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 675 me, the stipulated facts were supplemented to some extent by the testimony of Fred Hammer, business representative of Respondent Union, who was put on the stand by the General Counsel as an adverse witness. The question of its binding character apart, a proper exercise of our decisional function would call for a careful considera- tion of the district court's opinion in the 10(1) proceeding. It would therefore seem appropriate to summarize the facts as stipulated here and in the court proceeding, before turning to such additions thereto as were supplied by the testimony. The stipulated facts are these: On March 24, 1960 (the year embracing all events here considered), the Union made a bargaining demand on the Employer on behalf of a unit of seven employees, consisting of its truckdrivers, warehousemen, and helpers. At the time of such demand, a majority of the employees in that unit had signed cards applying for membership in the Union and designating it as their bargaining agent. On March 30, the Union filed a representation petition under Section 9(c) of the Act. On April 8, a consent-election agreement was signed. The election was con- ducted on April 15, and at that time a tally showed two votes for the Union, three against, and three ballots challenged. On April 20, before the challenges were ruled upon, the Union filed objections to the election based upon the alleged misconduct of the Employer. On the basis of it, the Union, the 'same day, also filed charges of unfair labor practices against the Employer under Section 10 of the Act. The mis- conduct alleged was to the effect that sometime after the consent-election 'agreement, the Employer individually interviewed a majority of the eligible employees in its office, in the course of which it "discussed [its] opposition to the Union and prom- ised the employees a 30-cent per hour increase, if they voted against the Union." On June 1, the Regional Director issued his report overruling the objections because according to his investigation, the alleged misconduct, with one exception, occurred before April 8, the date of the election agreement, and hence "may not be considered as a basis for setting aside an election." The exception in question con- sisted of an unsworn statement by an employee to the effect that he had a "discussion" with Myron J. Coplan, one of the employer partners "some time around April 8," concerning a contemplated wage increase for the force. The Regional Director considered this last too "indefinite as to time," to constitute standing alone a basis for upsetting the election.4 In the same report, the Regional Director upheld one of the three challenges, and directed that the other two ballots be opened. These were evenly split, and so a revised tally of the ballots signed by the parties on June 7 showed three votes for the Union and four against. Accordingly, on June 13 the Regional Director issued his certification, attesting to the Respondent's defeat in the election. The foregoing terminated the Section 9(c) representation proceeding. In the Section 10 unfair labor practice proceeding, the Union and the Employer, on June 1 (the day on which the Regional Director issued his report on the objections to the election), signed on the Board's standard form, an informal "Settlement Agreement," which was approved by the Regional Director on June 3. Under it, the Employer agreed to post a notice for 60 days to the effect that it would not interrogate em- ployees regarding their or any other employees' union activities, affiliations, or sympathies, or "in any other manner" invade their rights under the Act. On June 9, the Employer commenced the posting of the notice. On June 28, the Union, for the first time, commenced picketing the Employer's premises The picketing occurred solely at the store and not at the warehouse, 5 miles away, where the majority of the employees in the unit work. The picket sign read, on one side: Bachman admits unfair labor practices 0 4 The employee in question related that the "discussion" with Coplan occurred in the company office and on the selling floor of the store, in the course of which Coplan said "the Company was contemplating raising the wage rates " Coplan, the report stated, admitted this last, but estimated the date of the talk as preceding March 24. Similar statements were attributed by other employees to Howard Bachman, another partner, but the time fixed was around March 20 The report recites that no employees were called into the office for individual interviews, and further that at the end of April, after the election, but while the objections were yet'under investigation, the Employer granted an increase of 30 cents an hour 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And on the other: Unfair labor practices violate Federal law The only discussion concerning the picketing took place in a telephone call made by the attorney for the Employer to union counsel shortly after the picketing began.5 The Employer's attorney read the language of the picket sign. Union counsel replied that it "sounded like the truth to him," that the Company "had tried to cover up [its] activities" and "knew or should have known when it engaged in these activities that Local 200 would try to take some retaliatory action," and that "it would be a fight." There was no mention of recognition. This completes the facts as formally stipulated. The additional evidence supplied by the testimony of Business Representative Hammer at the hearing was substantially to the effect that the Union's majority designation at the time of the bargaining demand on March 24 consisted of applications of five persons who had come to. the union office requesting to be represented by it, and who, at the time they signed the application, paid a $50 initiation fee. In regard to the activities which were the basis of the Union's objections to the election and the charge against the Employer, Hammer testified the Union learned about them the night before the election. The decision to picket, he testified, was made about 10 days before June 28, when the picketing began. The occasion, as Hammer testified, was the Union's losing still another election in the local area among a unit of employees comparable to and under circumstances similar to this one. Hammer testified that he and Frank Ramney, the secretary-treasurer of the Union, who "usually makes the decision" concerning these matters, then got to talking "about unfair labor practices" and "losing elections," that they felt that "the public wouldn't be able to see the signs that were posted [pursuant to the Settlement Agreement]," so they "figured we ought to do something about it," whereupon, with no mention of picketing at that time, they decided to, "check with the [Union's] attorneys and see just what we can do." After a con- ference with the Union's attorney, it was decided to picket this Employer and not the other company, because, he testified, this was the Union's second experience with this Employer, the latter having 2 years earlier, according to Hammer, discharged two men for "signing up with the Union." The language of the picket sign was prepared by Union's counsel, and the Union is paying for the picketing activity. The conversation between the respective attorneys came after the Employer's counsel made a direct call to Hammer, and the latter without discussing the matter, referred him to union counsel. Hammer testified that while he foresaw that the Employer might approach the Union about removing the pickets, he did not, in view of Bachman's past history, envision any prospect of its recognizing the Union, nor was that the Union's purpose; and that the purpose was merely to achieve "the satisfaction" in a "labor-conscious community," of "letting people know" about Bachman's activities, even though "it wouldn't further the Local's end to do so." C. Conclusion concerning object of the picketing The only issue, as previously stated, is whether the picketing, admittedly occur- ring within the 1-year postelection period mentioned in (B) of 8(b) (7), had a recog- nitional or organizational object, as proscribed in the body of that provision .6 5Its contents are recited in a memorandum prepared by a Board field examiner on the basis of separate inquiries from each attorney, and which each accepts as correct. There is no agreement as to the precise date of the conversation, but the inference is that it occurred in the interval between the commencement of the picketing on June 28 and the filing of the charge by the Employer on July 1. This is based on the sense of the talk The call was aimed at ascertaining the Union's stated purpose in picketing-a step which a lawyer would normally take before deciding whether to file a charge. 9 Because of the interdependency of the various parts of Section 8(b)(7), we quote the relevant portions of all its subdivisions, as follows: Svc 8(b). It shall be an unfair labor practice for a labor organization or its agents- s s • r • (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 0 TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 677 The Union claims that the General Counsel has not met his affirmative burden of establishing that the picketing had either of those forbidden objects, and that such evidence in the record as is rationally indicative of purpose not only does not sup- port the accusation of a forbidden objective but affirmatively refutes it. The Gen- eral Counsel, on the other hand, reminds us, as did the court in its decision in the 10(1) proceeding , that we must look beyond the Union's "self-serving" assertions concerning purpose and determine objective "through inferences to be drawn from the actions of the parties." ( 188 F. Supp. 184.) Invoking this standard, the Gen- eral Counsel contends that "the sequence of events compels the inference that the picketing was for an unlawful object." The only elements in the sequence relied on would seem to be, first, the election and then the picketing , and as I read his brief, his argument is not that this sequence constitutes positive evidence which affirma- tively demonstrates the existence of the unlawful object , but rather that it subjects the Union to "the presumptions that inevitably arise in post-election picketing," in accordance with Board authority developed under the Curtis Brothers doctrine,1 which we discuss later . The district court, on the other hand, found the Union's' object was to compel the Employer to recognize it, and in doing so it explicitly dis- claimed that its conclusion was based upon presumptions relating to the inherent intentions underlying picketing as such. It stated (supra, footnote 1) : We have not been influenced in our judgment by what is invariably the ultimate or long-term goal of every Union, to enlist all eligible workers within the Union jurisdiction. It would not only be unfair, but would make meaningless certain other sections of the statute. The test we applied was that of an inquiry into a reasonably immediate objective of the Union, and have found that to be recognition . [Emphasis supplied.] The conclusion that recognition was a "reasonably immediate objective" was expressed by the court in rather positive terms, as follows (ibid.) : We can form no other conclusion from the totality of the Union's acts within the relevant period of March 24, 1960 to the present but that it has had for an objective and its objective the recognition of the Union . All of the facts found definitely point towards the objective of recognition and there is a total absence of any persuasive facts that there is an objective other than recognition. A conclusion thus emphatically expressed by a court , quite apart from whether it is formally binding upon us, is entitled to respectful and serious consideration. I have therefore considered carefully the totality of acts which impelled the court to the conclusion it reached . As I see it, the elements in the totality on which the court relied as positive support for an inference of recognitional intent are not essentially different from that relied on by the General Counsel in invoking the presumption concerning inherent purpose of picketing itself. These are the facts that the picket- ing, which began on June 28, was preceded by a bargaining demand made by the Union on March 24, after which it instituted a representation proceeding before the Board and participated in it to ultimate conclusion. The court would seem to have been impressed with each successive step pursued by the Union within the representa- tion proceeding as progressively strengthening evidence of the intent which underlay the later picketing. Indeed, it is this series of steps, which constituted , as far as I as their collective bargaining representative , unless such labor organization is cur- rently certified as the representative of such employees: (A) where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act, (13) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted, or (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 further, 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 con- sumers ) 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 ° Drivers, Chauffeurs, and Helpers Local 639 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , AFL-CIO ( Curtis Brothers, Inc ), 119 NLRB 232 , set aside in 274 F. 2d 551 (C .A.D.C.) and ( affirming the C .A.) 362 U.S. 274. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD can see, the totality of acts impelling the court to its conclusion . As appears in the extract from the court's opinion quoted in the footnote below , each step in the pro- ceeding is cited as a' separate "act" in proof of the recognitional objective of the picketing, the cumulative force of which, in the court's opinion overpowered such evidence as was relied upon to show that the picketing was otherwise motivated .8 With utmost deference to the court , I would initially observe that an election pro- ceeding, with all successive steps laid down by law for an authoritative determination of the question of representation involved in it, is a unitary matter, and even if we were to assume that participation therein is validly citable to a participant 's detriment, I would be rather hard put to it to see how that detriment is compounded by the par- ticipant's following successive steps specifically prescribed therein by the legal au- thority. Nor am I quite able to attach the same significance as does the court to two of the culminating steps followed by the Union, namely, the filing of objections on April 20, based on the Employer's alleged unfair labor practices and the signing of the revised tally of June 7, both of which the court, in the quoted extract (supra, footnote 8), characterizes as further pursuit of the recognitional objective . The signing of the revised tally, in which the Union acknowledged its defeat, would hardly seem to me to lend itself to that description, but the filing on April 20 of the objections based upon the Employer's alleged misconduct does. However, it was a pursuit of that objective of recognition within the channels of orderly procedure as laid down by the Board, completely unaccompanied by resort to economic pressures, the motivation for the later use of which is now the subject at issue. And this brings us to the difficulty with the assumption underlying the inference drawn by the court and the "presumption" sought to be invoked by the General Counsel. The assumption is that because the purpose of the proceeding was to obtain recog- nition, that too was a purpose of the picketing after the election. It would seem to me that there is an unbridged gap between these two propositions . The election pro- ceeding provided a legal framework within which the Union could seek to establish through an ultimate certification a legally inescapable right to recognition. Would it follow that after pursuing the statutory procedure to its ultimate step and acknowl- edging its defeat in the revised tally, the picketing, however else it was explained, had the purpose of obtaining by economic force what had been sought to be obtained by legal process ? In support of an affirmative answer to this question , the General Coun- sel seeks to bridge the gap between mere participation in the proceeding and the later picketing by invoking, as previously indicated, "the presumptions that inevitably arise in post-election proceedings ." On that point, the General Counsel 's brief is silent about a matter concerning which the district court was at pains to be specific It draws no distinction between a "reasonably immediate objective " of recognition, to which the district court expressly directed its inquiry and the "long-term goal of every Union," which the district court disclaimed as a factor entering into its decision. As to a "reasonably immediate objective," the General Counsel does not spell out how such an objective is to be presumed in the case of a union which elected to support its rejected bargaining demand by resort to established statutory channels, and in making this choice had avoided picketing at a time when it could legally have done so under Section 8 (b)(7)9 and which , if successful , could have achieved for it (in view of the majority designation at the time ) a recognition which was legally invul- nerable. Nor do I see any effort to support the proposed presumption that a union, even though it has not resorted to economic force for a recognitional objective when 8The court stated (188 F Supp 184): The evidence is overwhelmingly clear that recognition was the Union' s objective on March 30, 1960 when the Union petitioned for representation election , on April 8, 1960 when it was a party to a consent election agreement on April 15, 1960 when it participated in the election and exercised its right of making challenges. It is likewise abundantly clear that on April 20, 1960 the object of recognition was still being pressed by the Union, although at this very time the record shows that it then had knowledge of the acts of Bachman which it now asserts is the aggravation which justifies the picketing which began two months later, on June 28, 19601 It also appears that later, on June 7 1960, a representative of the Union participated further in the recognition attempt by signing the Revised Tally of Ballots. We are satisfied that the recognition demand [made March 241 did not go into orbit in the cosmos but remained on a very down to earth plane, amid employees, employer and the Union 1 On April 20, 1960, the unfair labor practice charge against Bachman was filed by Local 200 e I e , for a reasonable period, not exceeding 30 days without filing a 9 ( c) petition, and, provided it did file one within such period , for the duration of the representation proceeding. TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 679 it could lawfully have done so with legally invulnerable results will thereafter resort to economic coercion for the same objective when it is unlawful to do so and where, if successful, the prize obtained would be vulnerable to nullification by Board process. The General Counsel relies on the Board's decisions in Curtis Biotheis, supra, footnote 7, and also on the J. C. Penney case.10 It should here be explained that although these cases arose before the enactment of 8(b),(7) and involved the doc- trine, ultimately rejected by the Supreme Court (supra, footnote 7), that picketing by a minority union to force recognition by an employer invaded the protected rights of employees, in violation of 8(b) (1) (A), the cases, as the General Counsel contends, still present applicable criteria for determining whether picketing in a given situation is for a recognitional object despite a union's disclaimer of such object. It happens that in those cases the nonrecognitional motive asserted by the unions was to organize the employees, which Section 8(.b)(7) has since outlawed no less than a recogni- tional motive (supra, footnote 6), and the language of the picket signs used in each case to promote organization was construed by the Board as having a recogni- tional purpose implicit in them (namely, that the picketed plant is nonunion). But what is even more significant is that there the postelection picketing found by the Board to be recognitional in its purpose was the continuation of a preelection course of conduct affirmatively shown to have had a recognitional motivation. The unions had thereby manifested a preexisting disposition to resort to that economically coercive device in order to force recognition. Highlighting this last is that in both these cases, the election proceedings were not voluntarily initiated by the unions, as was done by the Union here in an effort to demonstrate its legal right to recognition. They were initiated by the employers, and the unions sought to avoid participation in them by disclaiming an interest in recognition, at the same time that they continued a preexisting course of picketing, demonstrated to have had recognition as its object This brings us to another vital distinction between those cases which is this: There the asserted reason for the picket- ing other than the then forbidden one was found to fail not only because of a pre- existing course of conduct demonstrating the contrary but also because of concur- rent conduct (in the form of signs branding the plants as nonunion in a manner implying a demand for recognition) which discredited the asserted reason. Addi- tionally, the asserted reason did not have the circumstantial support to lend it the kind of credence which could offset the inference flowing from the illicit preexisting course of conduct. We discuss this in the next paragraph. As stated, the Board in those cases was passing upon whether the unions, each lacking a majority designation, were, after a Board election, picketing to force recog- nition by the employer-conduct which the Board then, under the doctrine enunci- ated in Curtis Brothers, deemed to be a violation of 8(b) (1) (A) if engaged in by a minority union. The unions in each case disclaimed that recognition was their purpose and asserted the object of their picketing was only to organize the employ- ees. The Board refrained from passing upon whether the minority picketing for this asserted purpose of organization would also be an 8(b) (1) (A) violation (see Curtis, supra, at 239) because it was satisfied from the evidence that despite the absence of mention of recognition in the picket signs used, recognition was indeed the pur- pose. In so concluding, the Board, as previously noted, took note of the fact that the picketing under consideration was a continuation of a course of picketing for recognition long preceding and continuing during the election, and also of the absence of circumstantial details to lend the credence to the asserted purpose. Thus in Curtis, until the employer challenged the union's majority by filing the representa- tion petition, the union had for a year picketed to force concessions from the em- ployer refused by the latter at the bargaining table (the union having been the certi- fied agent at the time of impasse) which is a purpose inseparable from recognition, and although after the petition was filed, the union in Curtis changed its picket sign so as to avoid mention of recognition, the Board, in the representation proceeding in Curtis, ordered an election and rejected the union's disclaimer of interest in repre- senting the employees, saying (114 NLRB 116, 117) In the light of all the material facts of this case, including the certification of the Petitioner," the circumstances preceding the strike, the nature of the first signs carried by the pickets, the brief discontinuance of picketing, and its early resumption, we are convinced that the current picketing is not for the sole purpose of getting employees to join the Union, as the more recent picket signs 1ORetail Store Employees Union, Local 1595, Retail Clerks International Ascociatton, AFL-CIO (J. C Penney Company, Store No 509), 120 NLRB 1535 "Sic. This is an inadvertence The petition there was filed not by the union, but the employer,-as the docket designation (Case No 5-RDi-281) indicates 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indicate, but is tantamount to a present demand that the Employer enter into a contract with the Union without regard to the question of is majoriy status among the employees concerned . [Emphasis supplied.] In concluding, in the later unfair labor practice proceeding in Curtis, that the picketing after the election was still for recognition , the Board adverted to the fact that "the picketing persisted without significant interruption from its inception . . and it persisted beyond the employees' almost unanimous rejection [of it] in a secret election." Concerning the change in the picket sign adopted at the time of the disclaimer in the representation proceeding, the Board referred to its prior comment in the representation proceeding, and noted further that the signs "continued to publicize the fact that the Company employed nonunion workmen and called the Company `unfair to Teamsters ' for that reason," and finally noted ( 119 NLRB at 234): Such expressed dissatisfaction with the Company 's position, however, harkens back to the Union's original dispute in the postcertification bargaining, for the record also shows that the strike resulted from the Union 's failure to win its union-security contract demands. Similar bases for the Board's conclusion existed in the Penney case (supra, foot- note 10). There too the union's disclaimer of a recognitional purpose in its picketing was discredited against a background of prior use of that economic weapon for that very purpose. As the Board there said ( 120 NLRB at 1536) : Moreover, when a union has expended funds in an organizing campaign and in picketing for recognition , when it subsequently participates in an election which it loses 6 to 0, and continues to picket but announces that it is not picketing for the purpose of compelling recognition in the face of the Board's finding that it does not represent a majority of the employees involved, there is not a conclu- sive, but a strong presumption , that the announced motive for , and objective of, the picketing are mere pretexts, and that the real intent of the picketing is to obtain recognition despite the lack of majority status . [Emphasis supplied.] That is the context for the statement of the Board, relied on here by the General Counsel, concerning the quantum of proof required to overcome the "not conclusive but strong" presumption of a recognitional purpose. It said (ibid.) : There may be circumstances under which a union may show that its motives and objectives are not those originally announced , but in our opinion it will require strong and conclusive evidence to show affirmatively that it is not continuing to picket for recognition. [Emphasis supplied.] Even then the Board indicated that it would deem the presumption of the continu- ance of the recognitional purpose overcome if there are circumstantial details present which lend credence to the asserted purpose. So, in respect to the union 's claim in Penney that its purpose was merely to organize the employees , the Board noted the absence of corroborative details, there being no evidence that the Union "resorted to such traditional organizational methods as the distribution of circulars , personal solicitation of employees or the use of picket signs addressed to the employees" (p. 1536). The basis for the presumptions invoked in the cases relied by the General Counsel 'bears interesting comparison with the facts of this case . Here not only is there no showing of a prior resort by the Respondent to economic force to exact recognition, but the background on that score would seem rather exculpatory. As previously indicated, the Union avoided the force -laden alternative of picketing , at a time when it was legally available to it and the result securable thereby would have been legally unassailable . Instead, it chose to initiate and it pursued to final conclusion the orderly process laid down by statute. Rendering the proposed presumption further inappli- cable, it would seem fair to note, is the fact that the election apart , such factors as here exist rather tend affirmatively to support and to lend credence to the purpose asserted by the Union as being the motivant for the picketing begun on June 28. The Union asserts, as did its counsel in the telephone conversation initiated by Respond ent's attorney, that the picketing, which was newly commenced on June 28, was in retaliation for the Employer's asserted unfair labor practices. On that score, the question is not whether the Employer in fact engaged in them ; or whether the Union's protest over them was sufficiently timely under Board rules to warrant upsetting the election. The relevant subject of inquiry , it should be noted, is whether the Union honestly and reasonably believed that the Employer had engaged in the kind of misconduct to which it attributed the change in attitude originally manifested when a majority of the employees came to it on their own initiative, so as to lend credence to its assertion that it was sufficiently angered thereby to want to discredit the TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 681 Employer in the public's mind without regard to whether this would result in recog- nition or not. In the light of the data in the Regional Director's report confirming that the Employer had given assurances to employees of a raise (albeit not at a time when the Union under Board rules could avail itself thereof as a basis for in- validating the election), the Union could reasonably and honestly feel that the Employer had by allurements of a raise corrupted the choice of the group as originally manifested when they requested the Union to organize them. Tending to fortify it in that belief would be the portion of the Regional Director's report to the effect that one of the partners of the Employer had admitted giving such an assurance to an employee. Of course, the Union's learning of this too late to try to postpone the election by reason of it hardly wins it the laurel for alertness, and for aught that appears, its resentment of the Employer may well have been compounded by a modicum of self-reproach over its own slackness. That, taken with the fact, as developed at the hearing before me, that the Union had in the interim lost still another election under circumstances deemed by it to be similar to this one, could well drive it to resort to measures calculated to shield employees against similar conduct by employers in the area in the future. The Union could understandably believe that while a notice by the Employer assuring that it will not in the future invade the employees' rights was good as far as it went, such assurance could be made doubly sure by a demonstration that the price of such conduct is loss of patronage in a labor conscious community. It is in the light of the latter that we consider the passage in the Board's opinion in Penney on which the General Counsel places his greatest emphasis, as follows (p. 1537) : Experience in the affairs of man teaches that unions, as well as other types of organizations, do not go to the expense, time, and effort necessary to maintain a picket line without some hope of recouping the expense they have thus put themselves to. It is difficult to believe that unions engage in picketing for the sole purpose of malicious harassment or the incidental annoyance such picketing may cause the public. The "expense, time, and effort" of picketing undergone by the Union under the circumstances here disclosed would seem to be free of the imputation of irrational aimlessness which the Board indicated would normally inhere unless tied in with a recognitional objective. To ascribe such objective to the picketing would, in the circumstances here disclosed, stamp it with even greater irrationality, since union counsel, who guided the action, would be well aware that any recognition gained thereby, in view of the results of the election, as subscribed to by the Union in the revised tally of June 7, would not hold up. On the other hand, if publicizing the fact of the Employer's misconduct would result, as it was intended, in a loss of public patronage, then the Union could reasonably feel that its expenditure would be justified because of the lesson learned thereby by this and other employers in the area in the future. Indeed, if recognition were the objective, there would be as much motivation for picketing the other firm at which the Union had recently lost an election as this Employer. The fact that the Union was limiting the expense of picketing to this Employer would tend to lend credence to its assertion that it was saving its fire for the employer against whom it felt the greater resentment. Here, again, one should not, as he need not, take at face value the Union's assertion that 2 years earlier this Employer discharged two men because they joined the Union. Whether this last occurred for the reason assigned by Business Representative Hammer is not here in issue. The only significance of his testimony on that score is that-it points to a background which, taken with what the Union reasonably deemed to have happened in 1960, would impel it to make this Employer its retaliatory target The effect of the above, it would seem to me, would be that the General Counsel's presentation lacks both the evidence to warrant an inference or the basis to raise a presumption that the Union's purpose in picketing was other than the one avowed in the picket sign, as confirmed in its counsel's explanation thereof to the Employer's, attorney, and in its business agent's testimony at the hearing-which was to publicize the fact, as it reasonably saw it, that the Employer was not respecting the rights of self-organization of employees as guaranteed by the Act. It is difficult to see how, in the state of the evidence here presented, a contrary result would be legally recon- cilable with the affirmative burden, here borne by the Government, of estab- lishing a proscribed motive. This applies as well to the question of whether a purpose of the picketing was to organize the employees. It is to be noted that the district court in the 10(1) proceeding, on the record before it, saw no basis for attributing that motive to the picketing. This view receives added support in the further facts developed in the hearing before me, for, as already appears, the organiza- tion of the employees, which constituted the basis of the bargaining demand on 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 24, took place with no solicitation by the Union: The five persons in the seven-man unit came to the Union on their own initiative asking to be organized and paid a rather steep initiation fee to demonstrate their interest. Further, there is no evidence that the Union at any time since the picketing began approached or solicited any of the employees; and it confined the picketing to the retail store area away from the warehouse, where the bulk of the employees in the unit worked. Of course, to the extent that any loss of consumer patronage caused by the picketing would help deter the Employer from invading the employees' free choice should the employees acquire a renewed interest in the Union, it is an aid to organization in that sense. But I would not see that a motive to insure a climate free of employer interference with the employees' voluntary choice in the future is the kind of organi- zational purpose which Section 8(b)(7) was intended to outlaw, and I would not understand the General Counsel so to contend. The result, then, is that the General Counsel has failed to establish that the picketing had, to use the district court's term, a "reasonably immediate objective" of forcing recognition from the Employer or forcing the employees to select it as their bargaining agent. This brings us to what I would conceive to be the predominant issue in this case, which is whether assuming that recognition or organization were only a long-term or ultimate objective of the Union, it would nevertheless still be forbidden within the 1-year postelection period prescribed by Section 8(b) (7) (B). If that question were to be answered in the affirmative, the result, for all practical purposes, would be to ban all picketing, even of a purely informational character, during the 1-year period of (B) (and by parity of reasoning ) "the contract bar" period of (A) of 8(b) (7), since, as the district court here, like other courts too have observed,12 "invariably the ultimate or long-term goal of every union [is] to enlist all eligible workers within the union jurisdiction." So while the district court was at pains to make explicit its rejection of such long-term goal as basis for its decision, I am not so sure, from a careful reading of the Government's briefs before the district court and myself, but that that is not the basic pitch of the Government's claim of the Union's liability here under 8(b)(7)(B). This impression is derived from what the briefs omit as well as from what they say. Thus in neither brief does the Govern- ment specify, as the district court was careful to do in its opinion, whether the proscribed motive claimed to exist was "reasonably immediate" or the long-range one, which the district court indicated is normally attributable to all picketing. In the brief before the district court, the Government seemed to lay stress on portions of the legislative history lending surface plausibility to the view that all picketing, even purely informational, was to be outlawed during the "contract bar" and 1-year postelection period of (A) and (B), respectively, of 8(b)(7), to which we shall advert shortly (infra, footnote 14). And in the brief before me, the Government cites as evidence to support an inference that the Union had a proscribed object in picketing, a portion of the record which it claims to be an admission by Business Representative Hammer that "the Union was naturally interested in getting a con- tract from the Employer if it was possible." The documentation therefor happens to be a statement from the chair, in cutting off a question by the General Counsel's representative as to whether the Union would "have any objection to signing a con- tract with the Employer if [it] got a majority," to the effect that we may assume that the Union would not object. It would seem clear from the nature of the interro- gation that its premise was that even a long-term goal of recognition, such as is assumed in here to all picketing, would be sufficient to condemn the picketing here.13 19 See Getieu v Bartenders and Hotel and Restaurant Employees Union, Local 58, et al (Fowler Hotel), 181 F Supp. 738 (D C N Ind ) ; Penello v. Retail Store Employees Local Union No 692, et al (Irvsns, Inc ), 188 F. Supp 192 (D,C. Md.) ; cf NLRB v. Local 50, Bakery & Confectionery Workers International Union, AFL-CIO (Arnold Bakers, Inc ), 245 F. 2d 542, 547 (CA 2) is The interrogation was as follows Q (By Mr. WYNNE ) Now did you or the Local have any philosophical objections to signing the contract with Bachman, if you had a majority of the employees- Mr UELMAN: Now, I object- TRIAL EXAMINER. Sustained, proceed. Q (By Mr WYNNE) Do you have any objections to signing a contract with Bachman, if you get a majority of the employees) TRIAL EXAMINER: We'll assume the answer is "yes," that he has no objection, if lie represents the majority of the employees Proceed from there We'll assume the answer is yes Proceed I'll assume the answer is "yes," in favor of ha'ing a contract, and "no" on the question of opposition to having a contract. TEAMSTERS "GENERAL"' LOCAL NO. 200, ETC. 683 As stated, some portions of the legislative history of 8(b) (7) do lend surface plausibility to a view that because all picketing normally has at least a long-term goal of organizing the employees and obtaining recognition from the employer, Congress, during the periods of "contract bar" as specified in (A) and of 1-year following an election as in (B) of 8(b)(7), wanted to insure a complete period of repose by putting a stop to all picketing. This inheres in extracts appearing to say that for some reasonable period following an employee election, there should be a ban on picketing, without qualification of the latter term.14 But it would seem rather clear that the ostensibly unqualified use of that expression was in a context of its employment for one of the proscribed objects.15 Even as thus qualified, however, we are still faced with the question of whether Congress, intended that the reach of the ban on recognitional or organizational picketing during the "con- tract bar" and postelection periods of (A) and (B), extends to all picketing, how- soever motivated, because of certain residual organizational or recognitional pres- sures inhering in all picketing. This problem did not go unnoticed during debate and was the subject of concern expressed by persons with as diverse views as Senators Goldwater and Morse. Senator Goldwater adverted to the problem in discussing that portion of the House Bill as passed in August 14, 1959 (II LH 1691), which enacted a ban on picketing after an election (and during a period of "contract 14 Thus, there is the statement of Senator Kennedy on April 24, 1959, during the debate on his and Senator Ervin's bill as ultimately passed by the Senate (S 1555) agreeing that it would be pioper "to provide that for a certain period of time following a legitimate election, there could not be picketing " II Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (GPO, 1959), hereafter cited as "LH," at 1182-1183 Also, there are the statements of Representatives Thompson and Udall, members of the House Labor Committee, on August 11, 1959, in their "Analysis of the Landrum-Griffin Labor Reform Bill" (II LH 1576) - When the Labor Board conducted an election, all the employees have a free oppor- tunity to Indicate their choice of bargaining representative If they vote not to be represented by a union, their choice should be respected For a union to picket their employer after an election is to attempt to coerce the employees in supporting the union against their express desire Therefore, the committee bill forbids such picketing The ensuing paragraph makes a similar argument to justify a ban on picketing during the "contract-bar" period as embodied in subsection (A) of 8(b)(7) Senator Morse, in his speech on the conference bill on September 3, 1959, said (II LH 1427) : Suppose there has been an election, and the union has lost overnhelmingly. The day after the election is over, bingo, there is another picket line I think both the em- ployer and the public are entitled to some protection in such a case It is perfectly fair to have a rule that under such circumstances a picket line cannot be stretched in that kind of labor dispute, for a reasonable period of time. [Emphasis supplied ] 15 Secretary of Labor Mitchell, in explaining the equivalent in the "Administration" bill (S. 748) to present 8(b)(7), stated (II LH 1568): Under the present law, the employer and the employees may be subjected to organi- zational picketing, even though the employees have rejected representation by the picketing union The administration's proposal would eliminate this possibility by barring repre- sentation picketing If within the preceding 12 months a valid election has been held After the employees have indicated their rejection of union representation they should be left free for a reasonable period of time from organizational efforts by picketing. The total effect of these proposals would be to regulate picketing so that employers and their employees will not be subject to the continuous coercion of an organizational picket line [Emphasis supplied ] Senator Kennedy, in reporting on the conference bill on September 3, 1959, said (II LH 1433) Subdivision (B) [of 8(b)(7)1 bars picketing for organizational or union recognition for 12 months after an election in order to secure the expressed desire of the em- ployees In both cases [I e, the "contract bar" situation of (A) and the post- election period of (B) ] the prohibitions relate only to picketing in an effort to organize employees or secure recognition in a bargaining unit covered by the existing contract or prior election To similar effect Is the statement of Senator Goldwater the same day (II LH 1437) 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bar") substantially as proposed on the Administration Bi l,16 and also extended the liability to private damage suits to which unions were already subject, under Section 303, for violations of 8(b ) (4), to violations of 8(b ) (7) as well. Concern- ing this Senator Goldwater observed (II LH 1361) : Few instances of picketing will be found where at least a remote objective of the union cannot be found to be related to recognition . The result of the departure from existing labor policy could well be upsetting to the balance between the rights of employees and the rights of employers . In addition, in the absence of clear legislative history showing a contrary intention, this pro- vision might make it an unfair labor practice to picket against an employer's unfair labor practices in many instances, since frequently it may be found that organization is also an object. Similar apprehension that 8 (b) (7) might be construed to ban what is only "protest picketing" was earlier expressed by Senator Morse ( II LH 1320 ). And in his speech on the Conference bill on September 3, 1959, quoting Senator Goldwater's comment above , he stated (II LH 1429) : The House conferees insisted that a picket line protesting unfair labor practices would not be a violation of the antipicketing provisions of their bill . But why did they steadfastly refuse to say so in their bill? Everyone knows that protest picketing when the union has not gained recognition contains at least a sub- stantial objective of promoting organization. The paradox is that Senator Morse, in giving vent to these forebodings , supplied the legislative history which Senator Goldwater recommended to insure against interpreting 8(b) (7) in the manner they both thought should be avoided , for no time anywhere was issue taken with the statement that the House conferees insisted that "a picket line protesting unfair labor practices would not be a violation of [8(b )(7)1." But there would be still another answer to Senator Morse 's question of why the House conferees did not embody their assurance that protest picketing would not violate 8(b)(7): It was unnecessary . To have forbidden even such picketing would have been, in effect, to bar all picketing . And so, the Senator's question could be countered with another: Why, in putting a ban on postelection ( and "contract bar" period ) picketing, did Congress expressly qualify it in the manner it did, if it thought that all picketing during such periods was for an object as stated in the qualification? The fair conclusion then would be that Congress in enacting the prohibition of 8(b) (7) was not concerned with residual or long-range goal inhering in even protest picketing, but intended to reach picketing during such periods, which had recognition as a "reasonably immediate goal." There is a strong suggestion in the General Counsel 's statement of his legal posi- tion that Congress , by specially legislating upon informational picketing in the proviso to subparagraph (C) impliedly set the limit for all informational picketing under 8 (b)(7), thereby barring it during periods embraced by (A) and (B). In essence, the argument is that in order to make "informational " picketing permissible at all under 8(b)(7), Congress provided a special proviso to subsection (C), per- mitting such picketing only during periods other than those covered by (A) and (B), and then only under certain conditions. See supra, footnote 6. The contention fails to take account of the particular kind of informational picket- ing which is the subject of the proviso of (C). The proviso states that nothing in it is to be construed as prohibiting "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 is to induce stranger employees to refuse to make pickups or deliveries or perform services). Picketing conveying such a message had been construed by the Board in cases exemplified by Curtis and Penney , previously discussed, as evidence of an intention or the basis of a presumption that it was intended to force recognition, which had to be overcome by contrary evidence . (Cf. WKRG-TV Inc.. 123 NLRB 507, 538.) The proviso , consistently with its manifest purpose of carving out a special exemption for picketing truthfully conveying such information , immunizes it during periods encompassed by (C), as long as it does not cause disruption in pickups or deliveries, in either of two ways-either, as interpreted by some Trial Examiners 17 by rendering it altogether immune without regard to whether it has a recognitional or 16 Compare Section 504(a) of S 748 (1 LH 144-145) with Section 705(b)(1) of the House bill (II LH 1700) 14 Leonard Smitley and Joseph W Drown d/b/a Crown Cafeteria a copartnership, 130 NLRB 570; Stan-Jay Auto Parts and Accessories Corporation, 127 NLRB 958 TEAMSTERS "GENERAL" LOCAL NO. 200, ETC. 685 organizational object, or as interpreted by the Trial Examiner,18 endowing it prima facie with a presumption of innocence of purpose, to replace the presumption, applied in prior Board precedents, that it is for a prohibited purpose, with the result that any claim that such picketing was for an illegal purpose would have to be estab- lished by evidence extrinsic to the contents of the picket sign. The toregoing, however, is peculiar to the kind of informational picketing de- scribed in the proviso to subparagraph (C). It is manifestly no basis for interring the congressional intent in respect to informational picketing of another character. (Penello v. Retail Store Employees, etc., supra, and does not rationally warrant attributing to Congress an intention, to render proscript informational picketing of whatever kind during the periods embraced by (A) and (B), or make the fact that it occurs during such periods the basis, without more, for a presumption or inference that it was for a purpose forbidden in the body of 8(b) (7). Penello v. Retail Store Employees, etc., supra. Graham v. Retail Clerks International Association, Local No. 57, AFL-CIO (Hested Stores Co.), 188 F. Supp. 847 (D. C. Mont.). Either of the two restrictive interpretations would place the kind of stricture upon peaceful communication which would raise a constitutional issue (see Graham v. Retail Clerks, etc., supra), thereby making applicable the presumption that such was not the congressional purpose.19 This presumption is fortified by the portions of the legis- lative history, previously cited, negating a purpose to construe 8(b) (7) as forbidding picketing in protest against unfair labor practices. In concluding that Congress did not intend to ban protest picketing during the periods embraced by (A) or (B) of 8(b) (7), I do not wish to be understood as im- plying that all "protest" picketing is to be taken at face value. Implicit in our juris- prudence is the good faith of its use, but the burden is on the one who asserts the absence of good faith to establish it. The conclusion would depend upon all the circumstances. We might find a service- able guideline in the more familiar area of criteria for determining motive in 8(a) (3) discharge cases. An employer who, after learning that an employee has joined a union, discharges him on a ground having no rational factual basis, has rendered his motive suspect; and, by parity of reasoning, a union which, immediately after losing an election, places picket signs containing accusations having no rhyme, reason, or basis in reality, may well be said to have laid itself open to the inference that the picketing is a pretext to mask a purpose to wrest by economic pressure what it has been unable to attain by orderly legal process. Applying the 8(a)(3) analogy one step further, if an employer discharges an employee on a ground having a reasonable basis in reality and which would normally move an employer to dispense with an employee's services, then that ground cannot be brushed aside as a pretext to mask an antiunion motive, in the absence of affirmative evidence to that effect, apart from the mere fact that the discharge occurred after the employer learned the employee had joined a union. A corresponding application of the principle that "an unlawful purpose is not lightly to be inferred" 20 would indicate that picketing in purported protest against unfair labor practices which a union reasonably believes to have been committed by an employer is not to be taken as a pretext to hide an illegal motive in the absence of affirmative evidence demonstrating it to be so, apart from its having occurred after an election-and more especial" so where attendant circumstances confirm the presumption of innocence, to which every accused person is entitled from the outset. These include, as previously mentioned, the absence of a background of prior resort to picketing by the Union in order to force recognition from the em- ployer, its prior avoidance of that recourse even when legally available to it, and its electing instead to seek to demonstrate its right to recognition through established statutory channels, and the absence of any overture on its part either to the employer or to the employees, which would tend to impugn the purported purpose of the picketing. The fair conclusion in the light of the above is that the General Counsel has not met the burden of establishing by a preponderance of the evidence that the picket- ing had a "reasonably immediate" recognitional or organizational object, or (except to the extent that such long-range objective is commonly attributed to picketing of any character) even an ultimate one. On the basis of the foregoing, and upon the entire record, I hereby make the following: 1s International Ladies' Garment Workers' Union, AFL-CIO (Saturn & Sedran, Inc ) 136 NLRB No 44 19 Cf U.S v CIO., 335 U.S 106, 120, and cases cited. 20 N.L R.B v. T A. MoGahey, Sr., et al, d/b/a Columbus Marble Works, 233 F 2d 406, 413 (C.A 5). 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Employer is engaged in interstate commerce within the meaning of the Act. 2. The Respondent is a labor organization within the meaning of the Act. 3. The General Counsel has not established by a preponderance of the evidence that the picketing of the Union had as an object to force the employer to recognize it or the employees to select it as their bargaining representative within the meaning of Section 8(b) (7) (B ) of the Act. [Recommendations omitted from publication.] Retail Store Employees' Union, Local No. 692, Retail Clerks International Association, AFL-CIO and Irvins, Inc. Case No. 5-CP-10. November 21, 1961 DECISION AND ORDER On November 29, 1960, Trial Examiner James F. Foley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudical error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and finds merit in the exceptions of the General Counsel. Accordingly, the Board adopts the findings,2 conclusions, and recom- ' The Respondent's request for oral argument is hereby denied as, in our opinion, the record, exceptions, and briefs adequately present the positions of the parties. 2 We agree with the Trial Examiner 's findings that the Respondent engaged in picketing- for an object of forcing or requiring Irvins to recognize, or its employees to select, the Respondent as the bargaining representative, In violation of Section 8(b)(7)(B) of the Act. In reaching this conclusion we rely, inter alia, upon the testimony of Buckner, Respondent's business representative, which was given in the Section 10(1) injunction proceeding in the U.S. District Court for the District of Maryland. The parties stipulated before the Trial Examiner that this testimony of Buckner be considered as evidence in the instant proceeding. In substance, Buckner's testimony was that the picketing would be discontinued if Irvins would assemble the employees, would give them certain assurances as to their free choice in the selection of a bargaining representative, and would invite the Respondent's representatives to also address the employees. Although admitting the parties' stipulation into evidence, the Trial Examiner refused to consider this testimony in the belief that it was not "probative evidence for or against Respondent." (See Intermediate Report, footnote 17.) We disagree. In determining the objective of a union's picketing, the testimony of a principal actor (here, the Respondent's business representative) as to the conditions required before such action will be discontinued is quite probative and entirely relevant as to the issue of object. Cf. Wigmore, Treatise on Evidence, vol. 1, sec. 28, et seq.; ef. vol. II, sec. 475. Accordingly, in addition to the evidence relied upon by the Trial Examiner, we find that Buckner's testimony, particularly in the light of Respondent's earlier communication to Irvins that it disclaimed recogni- tion "until a majority [of the employees] indicate their desire to be represented by our 134 NLRB No. 53.