Meat Cutters, District Local 340 (PFA-Farmers Market Assn.)

MEAT CUTTERS, DISTRICT LOCAL 340 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Local 340 and PFA-Farmers Market Association. Case 17-CP- 181 September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On May 16, 1977, Administrative Law Judge William F. Jacobs issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the Charging Party filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record in the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Local 340, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I Respondent has objected to the briefs filed by the General Counsel and the Charging Party on the ground that they include a copy of the Eighth Circuit Court of Appeals' decision in the 10(l) injunction case (Hendrix v. Amalgamated Meat Cutters and Butcher Workmen of North America. AFL- CIO. District Local 304, 555 F.2d 175 (C.A. 8. 1977)). Since we have limited our consideration of such case to the time limit of the temporary injunction and do not interpret the decision of the Administrative Law Judge to indicate he relied on such case in any other manner, we hereby overrule such objection and hereby deny Respondent's motion for a new hearing and admonishment of counsel. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge: This case was heard before me on April 5, 1977, at Springfield, Missouri. The charge was filed on February 16, 1977, by I Respondent's counsel filed objections to bnefs filed by General Counsel and Charging Party because each had attached copies of the Eighth Circuit's decision. Inasmuch as the decision herein is based solely on the record of the hearing held before me on Apnl 5, 1977, Respondent's application for a new heanng is denied. Inasmuch as the stated purpose of 232 NLRB No. 35 PFA-Farmers Market Association, herein called PFA, and complaint issued on February 28, 1977. The complaint alleges that Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Local 340, herein called Respondent, violated Section 8(b)(7)(B) of the Act by engaging in recognitional picketing of four PFA stores in the Springfield, Missouri, metropolitan area, within 12 months after the employees of PFA had rejected representation by Respondent in a valid Board election. Respondent admits engaging in the picketing so alleged, but denies that it was recognitional in nature or that it was in violation of the Act. Upon the entire record in this case and from my observation of the witnesses and after due consideration of the briefs filed by General Counsel, Charging Party, and Respondent, I hereby make the following: FINDINGS OF FACT . JIURISDICTION PFA, a Missouri cooperative, with its main office and retail outlets in the metropolitan area of Springfield, Missouri, is engaged in the retail sale of groceries and related products, general merchandise, and pharmaceuti- cals. In the course and conduct of its operations in the Springfield area, PFA's gross volume of business annually exceeds $500,000 and its direct purchases and receipt of goods and materials from sources located outside the State of Missouri annually exceed $50,000. Respondent admits, and I conclude, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES Respondent is a labor organization representing approxi- mately 4,000 meatcutters, butcher workmen, and related tradesmen employed throughout Northern Oklahoma. certain portions of Kansas, and Southwest Missouri. In the Springfield area, Respondent has for several years repre- sented all of the meatcutters employed in supermarkets and major stores with meat departments except the PFA stores. Small independent stores have not been the object of organizational activity. On December 11, 1975, Bob Mann, Respondent's president, filed a petition to represent certain of PFA's employees in the Springfield area. This petition was subsequently withdrawn but a second petition 2 filed jointly with certain other labor organizations was file,_J on March 3, 1976. Pursuant to the second petition, an election was conducted by the Board on Spetember 16, 1976, in the following unit: the attachment was solely to advise me of the limited nature of the injunction granted and the concomitant need for exiedition. I see no basis for admonishing counsel as requested. 2 Representation heanngs were conducted involving the emplosees of PFA's six stores in the Springfield area. 111 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time meat department employees including meat cutters, apprentice meat cutters, meat wrappers and meat stockers employed by PFA-Farmers Market Association at its stores located in the metropolitan area of Sringfield, Missouri. When Respondent lost the election, Mann visited the office of PFA's president, Carl Bledsoe. He told Bledsoe and PFA's attorney, Paul King, who was present at the time, that he was surprised that he had not won the election, that he was unhappy about some of PFA's campaign tactics, and that he intended to file objections to the election. According to Bledsoe, Mann admitted that the basis for his objections was weak, but stated that he felt that he nevertheless had to file them. He requested that PFA not fight the objections thus enabling Respondent to get a second election, and promised Bledsoe that if a second election were held and Respondent lost again, he would leave PFA alone. Bledsoe replied that the election had been properly run, from the Company's side, that the employees had made their decision, and that he did not feel that he should agree to a second election. Subsequently Mann filed objections though, even at the time, he felt that they were weak. He testified that he filed the objections partly in support of objections filed by the Retail Store Employees Association 3 and, in truth, did not feel that he could win a second election. Mann stated that, in effect, he had quit trying to organize the PFA at the time the ballots were counted. But the objections were filed and a hearing was held on the objections which resulted in the issuance of a hearing officer's report recommending that all objections be overruled. In January, Mann filed exceptions to the Hearing Officer's report despite the fact, according to his testimony, that he seriously doubted that they would result in getting the Hearing Officer's recommendations reversed. Respondent, I find, filed the exceptions for the purpose of obtaining a second election through which it hoped to become the recognized representative of PFA's employees. On February 18, following the withdrawal of Respondent's exceptions, results of the election were certified by the Board. Meanwhile, about the time of the election, PFA under- took an advertising campaign, the terms of which were to the effect that it would meet all of its competitors' newspaper coupons such as those of Consumer's, Safeway and Milgram, and other organized supermarket chains. According to the testimony of Mann, the direct result of this advertising campaign was a reduction in the hours worked by union members employed at the union supermarkets due to the loss of customers seeking to take advantage of the PFA offers by shopping at PFA. The full effect of the success of the PFA advertising campaign was not felt for 3 or 4 weeks after it was first initiated, at which time Respondent's members started to suffer reductions in hours in the union supermarkets, and concluded that action would have to be taken to keep their jobs in tact. The membership, according to Mann, made these feelings known to the union leadership, and demanded to know what was going to be done to protect their jobs. Nothing :' I find, however. that the pnmary reason that Mann filed the objections was to obtain a second election through which he hoped to gain was done at the time for a number of reasons; namely, that the union leadership was busy preparing for areawide negotiating in Springfield; there were management labor problems with other companies in other geographical areas such as Wichita which required attention; there were still objections to the election at PFA still outstanding and Respondent was still engaged in determining why it had lost the PFA election; and finally, union leadership still had to confer with counsel before undertaking action against PFA. Nevertheless, union officials began, at this time, to make plans for their own advertising campaign against PFA, both in the newspapers and by means of picketing. In November, Respondent undertook negotiations toward a new contract with the organized supermarkets in the Springfield area. Negotiations continued through mid- January and were concluded on January 22 or 23, January 23 being the expiration date of the previous contract. On January 23 a memorandum of agreement was signed which encompassed the terms of the contract which had been agreed upon. The terms of the agreement, according to the memorandum, were to go into effect immediately, with the signatures to be affixed to the final contract 3 or 4 weeks hence, after printing. On January 23, 1977, when actual agreement was reached, there were only two major supermarket chains actively involved, though 26 employers were actually concerned with the negotiations. This reflected the procedure of previous years when one or two of the larger chains would actually do the negotiating, with the smaller chains and independents awaiting the outcome in order to negotiate minor language changes and to sign later. It took several more days past the date of agreement, January 23, to schedule meetings with the various employ- ers, who were expected to sign the agreement, and weeks thereafter to actually meet with and execute the contracts individually agreed upon by the remaining employers. Some had not been executed, even at the time of the hearing in the instant case, because the Union had to go, seriatim, from one employer to another to obtain each agent's signature to the contract basically agreed upon on January 23 as reflected in the memorandum of agreement which had, in the meantime, been distributed to all potential signers of the contract. As each party to the contract received its copy of the memorandum of agree- ment, it was signed and its provisions implemented, signing of the actual contract to await subsequent printing of same. According to Mann's testimony, signing of the memoran- dum of agreement was the equivalent of the signing of the contracts, for the latter merely was to place in printed form the changes reflected in the former. All of the major markets had agreed to or were expected to agree to the provisions of the new contract, as reflected in the memorandum of agreement, except, of course, PFA. The significance of this fact, according to Mann, was that it gave PFA an enormous competitive advantage over the employers who were parties to the agreement since even at the time that Respondent was initially trying to organize PFA, its employees were receiving $1 per hour less than the journeymen meatcutters in the union supermarkets. With representational status for the employees of PFA, Mann's testimony to the contrary notwithstanding. 112 MEAT CUTTERS, DISTRICT LOCAL 340 the new contract, the difference would amount to approxi- mately $1.65 per hour, assuming that PFA had not raised its wage rate, an assumption which Mann freely admitted might not be firmly based in fact since he did not thoroughly investigate the matter. When the memorandum of agreement was brought up for ratification by the union membership, the proposed wage increases in the new contract and the resultant differences between the wage rates of PFA employees vis-a-vis union meatcutters were seriously considered by the members. The effect of the PFA advertising which by January had resulted in the loss of hours and income for the membership, according to Mann, when considered in light of the differential in wage rates which would probably result from the ratification of the newly proposed contract, instilled in the membership a fear that further losses of hours and pay would be forthcoming. As a result of the expressed concern of the membership with regard to these matters, according to Mann, union advertising through the use of newspaper advertisements and picketing were considered as possible countermeasures. On February 4, Respondent placed in the "Union Labor Record," a newspaper distributed in the Springfield area, the following advertisement which appeared weekly up until the time of the hearing: WE NEED YOUR HELP -- PLEASE DON'T SHOP PFA-FMA SUPERMARKETS THE PFA COMPANY IS ANTI-UNION PFA does not have a union contract with Retail Store Employees Union Local 322 and the Amalgamated Meatcutter and Butcher Workers Local 340, AFL- CIO. PFA-FMA actively opposed its employees efforts to join the Amalgamated Meatcutter and Butcher Work- ers Local 340 and the Retail Store Employees Union Local 322, AFL-CIO. Thank you for your and your family's support. RETAIL STORE EMPLOYEES LOCAL 322, AFL-CIO AMALGAMATED MEATCUTTER AND BUTCHER WORKERS LOCAL 340, AFL-CIO According to Mann, the city of Springfield was accus- tomed to all of the markets being union, until PFA moved in. Respondent therefore felt that an extensive advertising campaign was necessary to let the people of Springfield with union sympathies know which of the markets were union, and which were not, so that if they preferred to shop 4 This same advertisement was placed in the "Union Labor Record" on February 25. at a union store, they would, once properly advised, be able to do so. Therefore, in conjunction with Retail Store Employees Union, Respondent placed the above-described ad in the newspaper. By February 9, rumors had circulated concerning Respondent's planned picketing of the PFA stores and on that day Bledsoe called Mann and told him that he had heard that Respondent planned to picket PFA within the next few days and asked if the rumor was true. Mann replied that it was, and that he planned to picket PFA the following Saturday. Bledsoe advised Mann that he was tied up, that he was making plans to leave town over the weekend and implied that picketing over the weekend would cause a great deal of inconvenience. Mann replied that if it would help, he would put off the picketing until the following Monday. Bledsoe then asked Mann why Respondent was going to picket the PFA stores and advised him that if the picketing resulted in a decline in PFA's volume of business, it could cause a financial crisis for the Company. He offered to prove his statement by showing Respondent the Compa- ny's financial records. Mann declined the offer, however, inasmuch as he was aware of PFA's financial condition through other sources. At this point, according to Bledsoe, Bledsoe asked Mann if there was some way that PFA could avoid being picketed. Mann replied that Bledsoe should speak with the Company's attorney, that he, Mann. could not discuss the matter with Bledsoe. Bledsoe then asked Mann whether he meant that if PFA had a contract with Respondent, there would be no picketing. Mann replied, "Obviously if I had a contract I wouldn't be picketing you. However, I'm not picketing you for that reason." Mann testified, in confirming the conversation, "I think it's only obvious [that] if we'd won the election, had a contract. there wouldn't be any reason for picketing. It would be a union market like all the rest of them." Bledsoe asked Mann if he was picketing PFA to get a contract and whether Respondent would stop picketing if Bledsoe were to sign a contract. Mann refused to respond directly to this question. He told Bledsoe that he could not answer that question, and advised him to discuss the matter with the Company's attorney. Mann further commented that since they had just had an election it would be illegal for Respondent to sign a contract with PFA for another year. He added that the sole purpose of the picketing was to inform the public that the PFA was not union. Mann testified at the hearing, consistent with his description of his February 9 conversation with Bledsoe, that the picketing was not for the purpose of obtaining a contract with PFA since it was Mann's understanding of the law that, after losing an election, it would have been illegal for Respondent to enter into a contract with PFA for another year. About the same time, Mann concluded that the adver- tisement placed in the union newspaper on February 4 was not getting sufficient circulation so on February 12 or 13 he placed a second advertisements this time in the "Spring- field News and Leader." The object of this advertisement, like the earlier one, was, according to Mann, to advise the 113 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people that PFA did not have a union contract and to urge the consumer to patronize union supermarkets rather than PFA. The advertisement reads as follows: NOTICE TO CONSUMERS: Sometime back a National Labor Relations Board election was held for the employees in the Meat Depts. of the P.F.A. Stores in Springfield. Amalgamated Meat Cutters District Local 340 respects the freedom of choice of secret ballot election and the union respects these employees' right not to choose to be represented by Meat Cutters District Local 340. The union also acknowledges that it cannot represent the employees of P.F.A. until and unless there is another NLRB election and the vote is favorable to Local 340. A new election cannot be held until the expiration of one year from the last election. The union has an obligation to its members working in CONSUMERS, SAFEWAY, VENTURE, RA- MEYS' and other meat markets in Retail Stores in the Springfield area. The wages, hours, and working conditions in Union Meat Markets exceed the wages, hours, and working conditions prevailing in P.F.A. Meat Markets. THE UNION FEELS IT NECESSARY to publicize to the patrons and prospective patrons of P.F.A.'s Meat Markets the fact that they are NON-UNION. This publication is not done with an objective to eventually represent the employees in P.F.A.'s Meat Markets. The sole objective is to make known to the general public the fact that P.F.A. Meat Markets are NON- UNION. Consumers, please trade at union markets. BOB C. MANN, PRES. PIILI.IP IMMESOTE, SEC.- TREAS. AMALGAMATED MEAT CUTTERS LOCAL 340 In accordance with authorization from Respondent's executive board granted in October or November 1976, Mann, on February 16, stationed pickets at four of PFA's six stores. All picketing was peaceful and in accordance with management's requests that it be performed where it would not interfere with the proper conduct of business. The number of pickets at the four stores numbered between 12 and 14 and none were employees or former employees of PFA. They were, rather, picked up by Mann from Manpower, Inc., or elsewhere, friends of friends, for example, to perform the picket duty required. These "pick- up" pickets were not knowledgeable insofar as the prevailing wage rates in the area were concerned, nor were they schooled with regard to the contents of the relevant collective-bargaining agreements, past or present, to which the litigants, herein, were parties. Neither Mann himself nor anyone else representing Respondent discussed such matters with the pickets before posting them at their various stations, for, as Mann testified, it was not necessary for the pickets to perform their appointed tasks to have this I No evidence was offered to support or negate this contention. I Though counsel for Respondent sought through cross-examination to information. Their duties, on the contrary, were, according to Mann, "to walk picket," keep their mouths shut, walk in the area which they were instructed to walk, and to be courteous to the customers with whom Respondent was trying to communicate. Each picket received written instructions concerning these duties, Mann testified, though no exhibits were offered to prove this point. The instructions, according to Mann, contained directions not to block driveways, to be courteous, not to engage in conversation, not to threaten anybody in any respect, and to call union headquarters if there were questions concern- ing where the pickets should walk or what they should be doing. The decision to picket was based, at least in part, on the heavy cost of advertising in commercial newspapers5 which had not proven as effective as had been hoped, and was undertaken for the same purposes as was the newspaper advertising. Picket signs carried by the pickets read as follows: Notice to Public-Meat Cutters Union, District Local 340 does not have a contract with PFA-Farmer's Market Association retail meat markets. Union stores in this area are: Consumers, Safeway, Venture, Ra- mey's and others. Please patronize those meat markets and not PFA. We are not on strike. We are not asking anyone to quit their employment or cease doing business with anyone else. One of the four stores picketed was managed by Terry L. Maples. Two pickets, personal friends of Mann's son who were not members of Respondent, were hired by Respon- dent to "walk picket" at $4 per hour. The first day of the strike Maples engaged one of the pickets in conversation. During this conversation, the picket to whom Maples was talking told him to go back into the store, get him a cup of coffee, then join him. The picket told Maples that he, too, could get $6.80 per hour. Maples did not reply. The conversation continued for a while, then the picket reiterated that he could get Maples $6.80 per hour and could get others in the store $6.80 per hour just as Consumer Market employees were receiving. The picket also pointed out that Maples had no security and that he could be demoted the following day to a stocker.6 According to Mann, at the time of this conversation between Maples and the picket, there was no scale under the meatcutters contract equal to $6.80 per hour. Mann also denied that the pickets had been given any authority to engage Maples in conversation. Mann testified that the immediate purpose of the picketing was, through advertising, to advise the public that PFA was not union and that there was no contract between PFA and Respondent, and to convince prospec- tive consumers to do their shopping at union markets rather than at PFA. The ultimate object behind trying to convince consumers to shop at union markets rather than at PFA was to protect the members' jobs at the union markets. Mann freely admits that had he been successful in organizing PFA, there would have been no purpose in discredit Maples, I find, with respect to this conversation. that he was a credible witness and testified in a straightforward and truthful manner. 114 MEAT CUTTERS, DISTRICT LOCAL 340 picketing since PFA would be under contract, and its employees would be holding down union jobs. Since he failed to organize PFA, Mann felt the necessity to protect those jobs which remained within Respondent's jurisdic- tion at the unionized markets. Closely linked to the ultimate object of protecting the union members' jobs was the maintenance of area standards. Though Mann denied that maintenance of area standards was the primary object of the picketing, implicit in his testimony is the fact that Respondent considered the matter of particular consequence, not only to Respondent itself, as an entity, but also to the individual members and to the unionized markets, for although the picket signs did not mention area standards, wages, hours, or working conditions, Respondent's newspaper advertisement of February 12 or 13 did. Concerning the subject of area standards, Mann testified that Respondent is obligated to strive for comparative parity in the industry in a given area, and attempts to obtain in its labor agreements with each union employer comparative parity, so as not to give one union employer unfair advantage over another. Similarly, when a nonunionized market in the area, such as PFA, enjoys a competitive advantage over the union markets because of a wage differential and can cut into the business of union markets through price-cutting advertising, this not only adversely affects the business of the union markets, but also the hours of work available to Respondent's members who are employed at the union markets. At one point, Mann admitted that the PFA advertising and the wage differential were factors considered in Respondent's decision to picket PFA. Later, however, Mann denied that wage differential was a consideration in Respondent's decision to picket or, at least, that it weighed heavily in that decision. In later testifying to the effect that he did not think that wage differential had weighed heavily in Respondent's decision to picket, Mann explained that Respondent was not fully aware at the time of the picketing what PFA was paying its meatcutters, for PFA may well have raised the wages of its employees between the time of the election and the date picketing was undertaken. He stated, however, that if Respondent knew for certain that PFA's wages were lower than those paid at the union markets, then this information would have been included on the picket signs. I credit Mann's testimony with regard to this matter to the extent that the picketing could not have been pure area standards picketing inasmuch as Respondent did not know PFA's wage scale. However, Mann also admitted that the contract negotiations which took place earlier in the year did enter into the decision to picket PFA to the extent that Respondent felt obligated to do everything possible to strengthen the business of the supermarkets from whom it received the new contract, and to protect the jobs of members working under the new contract. Hopefully, according to Mann, the picketing would result in customers of PFA taking their business to union markets, which in turn would help maintain union jobs. Mann adamantly denied, however, that any agree- ment had been reached during negotiations, whereby the I It is not clear whether the pickets had actually been posted at the time of this conversation. Mann testified that Bledsoe requested that he not post pickets at PFA. thus indicating only that picketing was being contemplated. employers would agree to the proposed contract in return for Respondent's agreement to picket PFA. Thus, it appears certain, as admitted by Mann, that if Respondent had sufficient information to conclude that PFA's wages were substandard, it would have picketed for that reason as well. Since he did not have any accurate figures on the subject, and had made no effort to obtain that information, I conclude that the picketing was not intended to be area standards in nature. Moreover, since Mann freely conced- ed that the primary purpose of the picketing was to draw customers from nonunion PFA to the union markets, and he would picket PFA even if it did meet all area standards, there was really no reason why Mann should expend time and energy in obtaining this information except as it might perhaps have made the advertising somewhat more convincing and therefore possibly more successful. In summary, Respondent maintains that its picketing of PFA on February 16 and thereafter did not have recognition as its object but was conducted solely for the purpose of convincing PFA customers to do their shopping at union markets, in order to increase the business of union supermarkets and thereby protect the jobs of union employees. General Counsel contends that the purpose of the picketing was recognitional. On February 16, the first day of the picketing, Bledsoe contacted Mann who then visited Bledsoe at his motel room. During the conversation which ensued, Bledsoe once again advised Mann that PFA was in financial difficulty and offered to show the Company's books to Respondent or its accountants in order to show how a decline in the volume of sales at PFA would put it out of business. Mann told Bledsoe that he believed him and did not need proof. Inasmuch as both Bledsoe and Mann were going to be in Kansas City that evening, Bledsoe invited Mann to join him for dinner during which they could discuss the situation further. Bledsoe requested that Mann, in the meantime, consider pulling the pickets.7 Mann told Bledsoe that he would consider Bledsoe's request and furnished Bledsoe with the address of the place he would be staying in Kansas City. There was no mention during this conversation of a contract either by Bledsoe or Mann. Later, when Bledsoe contacted Mann, the latter in- formed him that he was too busy to accept his invitation to dinner. During the conversation which followed, Bledsoe asked if the fact that Mann was negotiating a new contract that week with PFA's competitors had anything to do with the initiation of picketing at PFA, particularly since several months had passed since the election, without any picketing during the intervening period. Mann refused to discuss the matter with Bledsoe, stating that his attorney had advised him to stop talking to Bledsoe and other PFA personnel about the picketing. Bledsoe then asked Mann what the status was of the contracts between Respondent and PFA's competitors. According to Bledsoe, Mann replied that all of them had been signed except for one,8 and that one would be signed in the next day or so. 8 Probably Mann was refemng to the memorandum of agreement rather than to copies of the actual final agreement since Mann testified that as of the day of the heanng, months later, only one contract had been signed. 115 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 19, the day after the certification of the results was issued by the Board, the picket signs were changed to read as follows: NOTICE TO PUBLIC MEAT CUTTERS UNION DISTRICT LOCAL 340, THESE ARE NON-UNION 9 PFA - FARMERS MKT. ASSOC. RETAIL MEAT MKTS. UNION STORES IN THE AREA ARE: CONSUMERS, SAFEWAY, VENTURE, RAMEY'S AND OTHERS. PLEASE PATRONIZE THESE MEAT MARKETS AND NOT PFA. WE ARE NOT ON STRIKE. WE ARE NOT ASKING ANYONE TO QUIT THEIR EMPLOYMENT OR CEASE DOING BUSINESS WITH ANYONE ELSE. Picketing with the new signs continued through February 24 at which time it was enjoined by the District Court. On March 12 picketing resumed and continued through March 26 at PFA's five remaining stores, one having gone out of business. The language on the picket sign remained as it was as of February 19. Positions of the Parties General Counsel contends that the picketing undertaken by Respondent beginning on February 16 had as its object, since February 18, the date of certification, forcing or requiring PFA to recognize or bargain with Respondent as the collective-bargaining representative of PFA's employ- ees, or to force or require said employees to accept or select Respondent as their collective-bargaining representative. Further, inasmuch as there had been a valid representation election held by the Board under Section 9(c) of the Act within the preceding 12-month period, said picketing was in violation of Section 8(b)(7)(B) of the Act. Respondent contends that the picketing had no recogni- tional objective but was purely informational in nature and was instituted for the purpose of advising the public that PFA was a nonunion market which did not have a contract with Respondent and to persuade potential customers to trade not with PFA but with the various union supermar- kets doing business in the Springfield area. Analysis and Conclusion The above-described events reflect that Respondent first overtly undertook the organization of PFA's employees in late 1975, filed a petition in December of that year, and continued its organizational efforts through the election of September 16, 1976. Following Respondent's defeat at the polls, evidence of the overt Persistence of its organizational and recognitional intent was clearly indicated by Mann's request of Bledsoe, shortly after the election, that PFA refrain from fighting the objections which he intended to file, by the objections themselves, and by the filing in January 1977 of exceptions to the adverse ruling contained in the Hearing Officer's Report on Objections. Respon- dent's overt attempts at organizing through Board pro- cesses ceased on February 18 when the Regional Director for Region 17 approved Respondent's request for the I The substitution of the words "These are non-union" for the words "Does not have a contract with" in no way indicates a genuine change in withdrawal of its appeal which had been filed a few days before, and issued the certification of the results of the election. Meanwhile, however, on February 4, while Respondent was still actively pursuing its recognitional objectives through Board processes, it simultaneously initiated a publicity campaign which it had been considering for several months, by placing the advertisement in the "Union Labor Record" which ran throughout the entire period up to the date of the hearing and which advised its readers that PFA did not have a union contract, and had opposed its employees' efforts to join Respondent. It urged prospective consumers not to shop at PFA. On February 9, during the conversation between Bledsoe and Mann concerning rumors of impending picketing, Mann stated, "Obviously, if I had a contract, I wouldn't be picketing you." On February 12 or 13, Mann, observing that the February 4 advertisement was not getting sufficient circulation, placed a second advertisement in the "Spring- field News and Leader," and on February 25 placed the same advertisement in the "Union Labor Record" to advise the people that PFA did not have a contract with Respondent and to urge consumers to patronize union supermarkets rather than PFA. Then, on February 16, 2 days before the Regional Director issued his certification of the results of the election, at a time when Respondent's organizational and recognitional efforts were still technically being pursued through the Board, Respondent stationed pickets at four of PFA's six stores. The pickets were admittedly set up to accomplish the same results as Respondent had hoped would be achieved by the newspaper advertisements, but with less cost to Respondent. The picket signs were similar to the newspaper advertisements of February 4 and 12 or 13 and advised the public that PFA did not have a contract with Respondent. These signs urged the public to patronize union markets, some of which were listed, rather than PFA. Analysis of the wording of the various advertisements and that which was contained on the picket signs, when considered in light of Mann's statement to Bledsoe on February 9, indicates that the purpose behind Respon- dent's entire campaign, which was pursued while Board proceedings of an admittedly organizational and recogni- tional nature were being conducted, was to advise the public that PFA had no contract with Respondent, that PFA's employees were nonunion, and that potential shoppers should refrain from patronizing nonunion PFA in favor of the union supermarkets in the area. On the basis of the timing of the publicity campaign, which occurred while representational proceedings were still being pursued through the Board, and on the basis of the considerations discussed below, I find that the organizational campaign, representational procedures, advertising campaign, and picketing were inextricably interwoven and that the object of the picketing, herein alleged as violative, was recogni- tional and organizational in nature and in objective. Thus, granting that one of the objectives of the so-called publicity campaign conducted through newspaper adver- tisements on February 4 and 12 or 13 and thereafter and purpose since clearly, if PFA is identified as nonunion, it is, by virtue of that definition, without a contract. 116 MEAT CUTTERS, DISTRICT LOCAL 340 through picketing on February 16 and thereafter was to persuade the public to withdraw its patronage from PFA, such an objective is not inconsistent with a finding that the advertising campaign and picketing were also for recogni- tional and organizational objectives.' 0 The presence of additional recognitional and organizational objectives is indicated by the fact that even while the advertising campaign and picketing were being conducted, Respon- dent was still engaged in pursuing its organizational and recognitional objectives through the utilization of the representational processes of the Board. Respondent can hardly be heard to say that during its advertising campaign and its picketing of PFA it was not interested in recognition when simultaneously it was still involved in representational procedures for the purpose of obtaining recognitional status. Moreover, the language contained in the advertisements and on the picket signs in the instant case indicates, in and of itself, a recognitional or organiza- tional objective. For the Board considered similar language in Colony Liquor Distributors and concluded that the wording of the picket signs utilized by respondent in that case, namely, that the employer did not have a contract with the union or did not employ union employees, indicated that respondent's specific reason for appealing to the public to withhold patronage from the employer involved therein was that it did not employ union members and did not have a contract with it, and from this it was apparent that respondent itself considered that its quarrel with the employer was one that would cease when that reason for picketing was no longer valid-in short, when the employer permitted its employees to be represented by respondent or when respondent entered into a contract with it." The historical interpretation of such language by the Board is fully supported in the instant case by Mann's admission during the discussion of February 9 that, "Obviously, if I had a contract, I wouldn't be picketing you."l2 Although at first blush, the tactics of Respondent may initially seem inconsistent when, on the one hand, it seeks recognition from PFA and organization of its employees and, on the other hand, simultaneously attempts to undermine PFA's business and the income of its employees, the ultimate strategy is quite sound if not quite legal. For, if through advertising Respondent convinces customers to withdraw patronage from PFA because it does not have a union contract, and granting, arguendo, Respondent succeeds in its objective, with a consequent loss in working hours and income to the PFA employees who had within the previous few months rejected Respon- dent, the effect on these employees could very well be to convince them to rethink their decision. Thus, while Respondent was busily utilizing the appeal processes of the Board to obtain recognitional status, following its loss at the polls, it was also simultaneously flexing its muscles by means of its dual-purpose advertising and picketing campaign. The dual purpose of the advertising and picketing campaign was lawfully to draw patronage to its own unionized supermarkets while unlawfully attacking the economic well-being of PFA and its employees for the io Local 445, International Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of America (Colonr' Liquor Distributors Inc., Colonial Carriers. Inc.), 145 NLRB 263 (1963). stated reason that the latter were not yet organized. This is not, of course, to say that Respondent was not completely within its rights in advertising as it did, through newspa- pers, the fact that PFA was nonunion. Rather, the significance of the February 4 and 12 advertising lies in the way it serves to bridge, through time, the objectives indicated in the newspaper articles and the organizational and recognitional objectives pursued simultaneously at the Board, with the subsequent events, in particular, the picketing, which Respondent denies is organizational or recognitional in purpose. The Board in Colony Liquor. in finding a recognitional object, relied in part on a statement by a union official, following the union's loss in the election, to the effect that Colony may have won the election but the respondent would beat it yet, if necessary, by putting it out of business. The Board stated: We think this further discloses that a target of the picketing was to impose economic pressure on Colony in order to "beat" Colony into a choice of either again recognizing the Union or facing the destruction of its business. In the instant case, it appears certain that the advertising campaign and the picketing that followed were similarly designed to impose economic pressure on PFA and its employees in order to force a choice between recognizing the Union or forcing a severe undermining of PFA's business and of its employees' economic situation. The picketing, as herein described, I find to be for recognitional and organizational purposes and therefore violative of the Act. General Counsel relied, in part, on an incident which occurred on February 16, the first day of the picketing at the store operated by Terry L. Maples, to support his case. The incident, more fully described above, indicates a discussion between a single picket and Maples during which the picket invited Maples to join the Union, thus evidencing an organizational intent. Though I have credited Maples with regard to the content of this conversation, and find that it occurred just as he described in his testimony, I give it no probative weight in reaching my conclusion. There were, at the time of this incident and thereafter, between 12 and 14 pickets picketing at four locations. This picketing continued from February 16 through February 24. Following the hiatus which resulted from the issuance of the injunction, picketing was resumed at five locations on or about March 19. Though the record does not definitely indicate, it may safely be presumed that approximately the same number of pickets were utilized. This picketing continued through March 26. Considering the relatively large number of pickets, the number of sites, and the number of days the picketing was conducted, I find the single incident at Maples' store, wherein the inexperi- enced picket, a nonmember of the Union, friend of the business agent's son, with some misplaced enthusiasm, told Maples that he could make $6.80 per hour if he joined the Union, an isolated incident, not indicative of the type of campaign which Respondent intended to wage. It does not, II Id. Board language quoted in part., paraphrased in part. 12 Mann's self-serving verbal addendum, "However, I'm not picketing you for that reason," is not given any weight. 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in my opinion, reflect an overt, willful attempt on the part of Respondent to organize the PFA employees. I do not rely on this incident in reaching my decision. As noted above, I have found that Respondent at no time abandoned its recognitional and organizational objectives, starting with its very first attempts at organizing in late 1975, through its continuous utilization of the Board's representational and appeal processes in 1976 and early 1977, through its newspaper advertising campaign undertaken even while those Board processes were still being utilized, and even through the picketing which overlapped the period of newspaper advertising and which reflected through the language contained on the picket signs the same objectives indicated by the use of similar language utilized in the newspaper advertisements. I find that the activity of Respondent throughout the period from its initial attempts at organizing in late 1975 through the period of picketing in February and March 1977 was one single organizational campaign, and since the picketing in February and March 1977 was conducted within 12 months of the Regional Director's certification of results of the valid election conducted on September 16, 1976, under Section 9(c) of the Act, said picketing is violative of Section 8(b)(7)(B.) 13 THE REMEDY Having found, as set forth above, that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action, set forth below, designed to effectuate the policies of the Act. CONCLUSIONS OF LAW i. PFA is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing PFA since February 16, with an object of forcing or requiring PFA to recognize and bargain with Respondent as the collective-bargaining representative of PFA's employees, and/or of forcing or requiring PFA employees to accept and select Respondent as their collective-bargaining representative, although Respondent was not currently certified as such representative, and a valid election under Section 9(c) of the Act had been held within the preceding 12 months, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(7)(B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. On the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, District Local 340, Respon- dent, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Picketing, causing to be picketed, or threatening to picket PFA-Farmers Market Association, Springfield, Missouri, and vicinity, for a period of 1 year from March 26, 1977, where an object thereof is to force or require PFA-Farmers Market Association to recognize or bargain collectively with Respondent or to force or require the employees of PFA-Farmers Market Association to accept or select Respondent as their collective-bargaining repre- sentative. (b) Picketing, causing to be picketed, or threatening to picket PFA-Farmers Market Association for any of the above-mentioned objects, where within the preceding 12 months a valid election under Section 9(c) of the Act has been conducted which Respondent did not win. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at Respondent's business offices and meeting halls copies of the attached notice marked "Appendix."' 5 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 17 signed copies of the aforementioned notice for posting by PFA- Farmers Market Association, if it is willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the aforesaid Regional Director, shall, after being signed by Respondent as indicated, be returned forthwith to the Regional Director for disposition by him. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 13 Respondent's brief cites numerous court cases which hold that the first and second provisos of Sec. 8(bX7Xc) are equally applicable to 8(bX7)(B) situations. The Board, however, holds in Colony Liquor to the contrary. I am bound by Board authority. 14 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. ts In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WILL NOT picket, cause to be picketed, or threaten to picket, for a period of I year from March 118 MEAT CUTTERS, DISTRICT LOCAL 340 26, 1977, PFA-Farmer's Market Association, where an object thereof is forcing or requiring this employer to recognize or bargain collectively with this Union, or to force or require the employees of this employer to accept or select this Union as their collective-bargain- ing representative. WE WILL NOT picket, cause to be picketed, or threaten to picket PFA-Farmer's Market Association, for any of the above-mentioned objects, where within the preceding 12 months a valid election under Section 9(c) of the National Labor Relations Act has been conducted which this Union did not win. AMALGAMATED MEAT CuTrrERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO DISTnuCT LOCAL 340 119