Retail Clerks Local 1357

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Local 1357 and Genuardi Super Mar- kets, Inc. Case 4-CP-301 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEI:M1BlRS JIENKINS AND PENIH.I.O On January 23, 1980, Administrative Law Judge Raymond P. Green issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel, respectively, filed exceptions and a supporting brief. The General Counsel also filed an answering brief to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Retail Clerks Local 1357, Philadelphia, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. We agree O rili Ihe Adil isr;alive l.aw Judge that a hIbjecl Re spindentll picket ig of (f llnualrd Ifrolm July 9 to Sepltemlhr h wals fr r- clfgitioial or rgaiainial purposes, and that uch pickeilig iolated Sec 8(b)17)(C) of te Act III so inding, we do 111 rely. hse er, a did the Adilistrallie L.aw Judge, ll Ihe filinlg lf the 8(a))(I) charge by Re- ponldent against (illuardi irl Case 4 CA 111319 Nor do we finld it nlecks- sary to rely onl the Adclnisltratise Ia. Judge's personlil iu, sest tIurth i f )10 of his )ecisioi Finally, Member Jenkins s not find that the reference ill Respondent's August nlesspaper t "ilrlili cllIilollo" clear- Iv implies a recilglilillal object See his diss entl il Icrs:i,siul Brolthier- hitd l/ IIectrual Wrker. I.o, l 265 (R P & Al Elhctrnt). 236 N R t 1333, 133 5 -37 ( 1978) 2 Il his recolimended remedy the Adm i israti e ILav Judge rejected tile (General Cunel's request fr a hiatus i all picketing by Rc poiidellt at (enuardi for a periodl iof I imtllh lie fiunid thallt such a extraordilary remedy is lot justified since the picketitg after Septemhber 7 as for per- nlissihle objectl alld did nlil ohlate tihe Act We aglee We find t ltneceslsary. hv es er t pass il the Atininiratise ILas Judge' further gratuitolus remiarks il i recoilnllteude relL (ly thait such a remiedy ges heolld ti p crs graited i tle Ii;ali h statulte ailt %r.ould raise a serums questIrl uuder the first aillllteull(lll l tlhe (llsitil- 1 1111 APPENDIX NoTIicI To M MNBIRS POSTrII) BY ORI)ER OF IHI NATIONAI. LABOR Rl.ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act. Wl: NVIll. NOT picket, or cause to be picket- ed, the stores of Genuardi Super Markets. Inc., with an object of forcing or requiring said em- ployer to recognize or bargain with us as the representative of its employees or with an object of' forcing or requiring the employees of said employer to accept or select us as their collective-bargaining representative. RiT.XI. Cl I.RKS LOCAI. 1357 DIECISION S I'I INMl N I 01 il CASI. RA YMONDN P. (jREI.N, Administrative Law Judge: This case was heard before me on November 7, 1979.1 The charge was filed by Genuardi Super Markets, inc.. herein called Genuardi, on August , 1979, and the com- plaint it this matter was issued on September 7, 1979. 2 In substance the complaint alleges that Respondent violated Sectioni 8(b)(7)(C) of the Act by picketing Gen- uardi at fi e of' its stores since July 9, for recognitional or organizational objects, for more thani 30 days without the filing of a petition for an election under Section 9(c) of the Act.:' The conlplaint also alleges that Respondent is not currently certified by the Board as the collective- bargaining agent of any of Genuardi's employees. Respondent, although admitting that it is not certified as the bargaining representative of any of Genuardi's em- ployees, that no petition under Section 9(c) of the Act has been filed, and that it has picketed the stores in ques- tion for the time periods alleged,4 denies that an object of such picketing was, at any time, for recognitional or organizational purposes. Further, it contends that even if I were to find that the picketing, which commenced on July 9, was conducted initially for such objectives, the purpose of the picketing changed after the issuance of I !nless tll ter is isdi calted, all datles are ill 1979 ()i Splemhbet h, a preliminary Illjuillctoln was granted by District C'ilurl Judge I)onlald W' Vain Art sdalel ill a related 1()(1) proceedinig and iutI Spltemiber 27, Respotndelt wa:s adjudicated to be ill ciil contempt of thll a;oresaid rder tFhereafc; r Resplindenul purged itself of he contempt h talkinig ceriai ;actliolls which .re described belli, I lieh crnplailt specil.ical15 alleges that Responldenl cmmeneced pick- elhig ( -nuardi's sitore Icatetd ir Rckledg . Perulsyl a ia. il July 9 ad( SiiC ALIgUl i htas pi ketcd (6 eilutrdi's sires I1cated ilI Nnrristos in, Kluig of russia lMaple (lell. ailld Vlarmirlstser, tellInyIvsaiIa A l tl e of tilt telrltlg Respotldeut s as still eligaged irl pi cketinig il (ienuari'.ris stres 252 NLRB No. 124 X80 RtlAil t I.IRKS l.()CAI 1357 the preliminlary inljunctililo on September 6. Ill substance, Respondent cntends that at all times, its sole ohbjects ill picketing were. (1) to protest the "destruction" of area standards by Genuardi. and (2) to protest the failure of Genuardi to give preference in hiring to the employees at the Rockledge store who had been laid off hel the previous oiner terminated the operations of the store which ,as purchased. at auction, b (Gieinuardi. All parties were represented at tile hearing and were accorded full opportunity to be heard, to introduce rele- vanit evidence, to present oral argument, and to file briefs. I large measure, the idence presented consisted of the record made in the 10(l) proceedings which v, as placed in evidence by stipulation of the parties. In addi- tion, Respondent presented evidenlce at the hearing through llugo McKissic, its director of business agents.s Upon consideration of the entire record, the briefs, and my observations of the demeanor of the witnesses, I make the following: FINIIN(S 01 F/,scI I. J U RISDIC IION Genuardi, a Pennsylvania corporatioln, is engaged in the retail grocery business, operating supermarkets in southeastern Iennsylvania. Annually, the company de- rives gross revenues in excess of $5(X),0(X) and purchases goods valued in excess of 50,(XX) directly from suppliers located outside of Pennsylvania. I therefore find that Cienuardi is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. IHI- I ABOR OR(ANIZA ION INVOlIVEI) The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. Ill. Ilp At I Gl) UNFAIR I AHOR RACt( IS The store where the picketing commenced, and which is located at 821 Huntington Pike, Rockledge, Pennsyl- vania, had previously been owned by Food Fair and op- erated by Pantry Pride-Penn Fruit. The employees who had worked at that store were represented by Local 929, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 929. That store was purchased by Genuardi in April at a bankruptcy auction sale, and although not en- tirely clear from the record, it appears that Genuardi did not hire some of the former employees who worked at the store. When the store opened on June 12. ocal 929 began picketing at the store's entrance with signs read- ing: To Til: PI IC GINUARI)I UNI AIR To OR6ANIZII) LABhOR No UNION TILANISI RS ILOCA q2'). Picketing by Local 929 continued until June 24. It is noted that Respondent never represented any employees Irror, Ill ile tr.scrlpt ti. ic hccr itc itali d oi rrvtitl at this store although it does represent similar classifica- tions of employees at supermarkets o ned by Food Fair, A & 1', and other compailies. ()O June 21. a meeting was held by the Food Council which consists of various UnlillS. including Respondent, which lhave collective-bargaining agreements ill the il- dustr. At this meeting it as decided to picket iGel- uardi, starting on July 9, unless the Company responded to a letter to be sent to the Company, which is described below. In describing the June 21 meeting, Respondent in- troduced ia memorandum from attorney Bernard Katiz to the union officials of the Food Council dated June 28. The mernorandum stated: As it result of that meeting the committee decid- ed that picketing against the unfair labor practices and/or destruction of area standards of Genuardi would commence no later than July 9. 1979. unless Genulardi responded to a letter . It as also decided that unfair labor practice charges would be filed against Genuardi on behalf of Teamsters Local 929 and separate charges would be filed on behalf of Retail Clerks Local 1357. The basis of each set of charges would be the failure to hire at the Huntington Valley store applicants who were members of either of the two organizations despite a need for employees. On June 27, Katz wrote a letter to Genuardi. In perti- nent part this letter reads as follows: Re: Genuardi Markets, Teamsters Local 929 and Effected Parties Dear Mr. Genuardi: This office in conjunction with Mark Muller of the offices of Freedman and Lorry are counsel for a number of the labor organizations concerned with such activities of your company as have recently been reflected by your Huntington Valley Shopping Center operation. As you should be aware, Team- sters Local 929 as well as other sensitive segments of the labor movement are shocked by what ap- pears to be a deliberate avoidance of rehiring the good and loyal employees who invested years of their lives at the former Penn Fruit Huntington Valley ficility which you are now operating. A review of the conduct of your company has coni- vinced us that you have committed serious viola- tions of the Taft Hartley Act and, further that you are conducting an operation with pay and benefit policies that threaten to destroy the area standards which the labor organizations involved have devel- oped. Accordingly, Teamsters Local 929 and other concerned labor organizations intend to commence appropriate primary picketing in direct protest of your unfair labor operation and your destruction of are;l standards. This picketing is scheduled to start on or before July 9, 1979, and will be conducted at p Kill , i! partllnr oif McrancC. Kail, Spc.ir. rIt \IIAsternl an %% hich is rtprpTi elltT1g Resp. tllclnl In his case xxl I)EC.tISI()NS ()F NA'TI()NAIL I.AB()R RA'I()NS B()ARI) your Huntington Valley store as well as such other of your supermarkets as the Unions deem appropri- ate. This decision has been reached with a great deal of reluctance. It had been hoped that your oper- ations would not necessitate such steps. I am au- thorized to state to you that if, in fact, you are ame- nable to discussing the problems involved and reaching some type of resolution of the injustices and difficulties which you have caused, then the Unions would be happy to defer the contemplated action and to schedule a prompt and immediate meeting with you and your representatives. If you are willing to so meet and to explore the areas of issue, please contact me immediately to make appro- priate arrangements. If I do not hear from you by Tuesday, July 5, 1979, I will assume that you have rejected our attempt to arrange a meeting and I will advise the Union accordingly so as the contemplat- ed action may take place as scheduled. The Company did not reply to this letter. On July 2, Respondent by its president, Wendell Young, III, sent a notice to former Food Fair employees notifying them that on July 9 there would be a rally at the Rockledge store. The rally was announced to have the purpose of having "the owners employ former Pantry Pride-Penn Fruit employees." On July 9, a rally was held outside the Rockledge store. Also Respondent commenced picketing the store on this date. At the rally, which was attended by about 5(X) union members, Young acted as a master of ceremo- nies, speaking to the assembled, and introducing the speakers, some of whom were representatives of other labor organization. In the course of the rally Young led a number of chants such as: Young: Who are the bad guys? Crowd: Genuardi. Young: Who are the good guys? Crowd: The Union. Young: Who needs a Union'! Crowd: Genuardis. Young: Who do we want? Crowd: Union. Young: What do we want? Crowd: Union. Young: What does Genuardi need? Crowd: Union. Young & Crowd: Union-yes; Genuardi-no; Union busters got to go. According to the testimony of the Company's person- nel director, James McCanden, Attorney Katz, also spoke at the rally where he said, "this place will be union."7 Also, the testimony revealed that another speaker who was a representative of a Teamsters union was introduced at the rally by Young and that he said that he "was going to teach Mi. Genuardi he could not 7 Kal also mIlade rcefernc e Ilo un fair lhabor pracicc chairgs Io he liled aglinst the CoIIpII y il t charge, T hicth Aa,, filed onll Jul I I. did nl relalte Ihe alleged failure of G(enua;rdl Io hire thc prt cu.L ssor's mploy- ecs he sUbtltlance o thii s charge is lcsC rihed helis operate a non-union shop in a union towni." Imnimediately, at the conclusion of the rally, the picketing commenced. The picket signs read: (jI. NUARI)l UNI AIR Pl IAsi Do No IAI RAIONIZI RI IAII Cl IRKS I .57, AFL-CI() With respect to the rally, Katz testified that the rally had a different purpose from the picketing In this regard he testified: The reason for the rally was different than the reasons for the picketing. The purpose of the rally and the day of the timing of the rally was in order to create public at- tention and media attention to union activity at the (ienuardi operation because of a sale that was scheduled the following morning in Bankruptcy Court in New York, and because it was feared that with the Genuardi type of operation having taken over a store previously operated under certain wage levels, that notorious substandard operators such as Winn-Dixie and others, and Genuardi himself, would come to the Bankruptcy Court Tuesday morning, the day after the rally, and would bid on additional Food Fair properties that were going up for sale, and as a result of that, that fear, it was de- cided to do something other than picketing to dra- matize the-to get the press there, so at the bank- ruptcy sale people who came to bid on unsold prop- erties of the bankrupt vwould, if possible, be dis- suaded from bidding. That was the sole purpose for the rally. It was not geared to Genuardi's at Rock- ledge, Huntington Valley. It was geared to try to influence the bankruptcy sale the following day. The picketing, on the other hand, was thought out very carefully. We discussed with all of the union officials from the unions involved the fact that picketing at Genuardi's obviously was going to be a long-range affair, and that under the law pick- eting could not be either organizational or recogni- tional in nature, in that it would have to end after 30 days if we had not filed a representation petition, and it was concluded that there was absolutely no hope in any way, shape or form of organizing Gen- uardi's employees, and therefore, it would be foolish to undertake organizational picketing, or an organi- zational campaign, and it was agreed, stated, re- solved, discussed and concluded that the picketing would have, as its sole objectives, the protest of the destruction of the area wages and the protest of the Gienuardi conduct in what was and is felt as a delib- erate refusal to hire people because of their past union affiliation. And they were the sole objectives to the picket- ing, sole objectives discussed, and that was a matter of record. As to the statements made at the rally attributed to Katz, Young, and the other speaker referred to above, the Re- spondent did not offer any contradictory testimony. 88XX2 R FAll. (I.ERKS l()CAl 1357 The picketing which commenced a the Rockledge store was extended in August to (ieluardi stores located in Norristown. King of Prussia. Maple (len, and War- minster. An employee of the Company testified that during the course of the picketing at the Rockledge store, in late July, a woman who was putting uion leaf- lets on car windshields approached her in the parking lot and asked her not to patronize Gienuardi. This person testified that when she told the woman she worked at the Company, the woman asked if she would like to sign a union card and join a labor union. The witness could not, however, identify who this woman was. and there was no evidence of any similar incidents during the entire time that the picketing was conducted. The evidence also establishes that in conjunction with the picketing, various leaflets were handed out and dif- ferent examples of these leaflets were introduced into evidence. General Counsel points to one which contains the phrase "since Genuardi purchased this store, we have repeatedly attempted to meet with him to work out an agreement." However, the entire document reads: .... Please Do Not Patronize This Store.... Since Gienuardi purchased this store, we have re- peatedly, attempted to meet with him to work out an agreement. Mr. Genuardi has refused to meet and to discuss the problems involved and has refused to reach some type of resolution. Instead, Mr. Genuardi chooses to commit "Unfair labor practices.... He had deliberately and blatently avoided the rehire of many long-term and qualified workers of this location. Mr. Genuardi is attempting to destroy the area standards regarding wages and benefits..... .... Thousands of people need your help.... Moreover, an examination of the pamphlets, reveals that the general theme was to advise the public that the Union's dispute with the Company centered on the Com- pany's failure to hire the former employees and that the Company's wages and benefits did not meet area stand- ards. Thus, for example, another of the Union's leaflets states: Why Are We Picketing Genuardi's? We are union members who are opposed to the unfair labor practice of this store. Genuardi's is unfair to all union members because they pay their employees below the standard wage that is current- ly being paid to unionized labor, and they do not award their workers benefits commensurate with those enjoyed by organized workers. Genuardi's has also been shown to be unfair to the workers who formerly worked in this store by its refusal to give them first preference. All the unions represented on this picket line are in agree- ment on this point. We are not fighting only for the rights of one local union. We are fighting for the rights of workers to see justice prevail. In August. Respondent published its official newspa- per i which the front page story relates to the picketing at (ienulardi. The article reads: The Unions belonging to the Philadelphia Food Council Clerks. Meatcutlers, and Teamsters swere joined by the Building Trades Council and the Roofers Union in a rally held on Monday. July 9, 1979. at the Huntington Valley Shopping Center. The purpose of the rally was to bring to public at- tention the violations of area wage standards being committed by the Genuardi's-Company. Also, at stake are the thousands of jobs held by former Food Fair and Penn Fruit workers. Genuardi's has cata- gorically stated that they are a non-union chain and wish to remain so. The Union sponsoring the rally initiated lawful picketing at this market located in Rockledge, Pennsylvania, and have vowed to continue to picket until the Genuardi chain ceases its violation and lives up to its promises to hire the workers who worked in that store when it was Penn Fruit. Retail Clerks, Local 1357, is the prime sponsor of this campaign. The local needs the support and ACTIVE PARTICIPATION of all its members to achieve success. It is important for all members to realize that Genuardi's represents a serious threat to the labor movement as a whole and to Local 1357 in Particular. This Company is trying to break into the Philadelphia area and take over former Food Fair and Penn Fruit stores. Genuardi's has stated its desire to remain non-union. We cannot let them maintain this attitude as it will keep out former Penn Fruit workers and none from Food Fair, al- though many have submitted applications. Along with this anti-union behavior, Genuardi's has violated area wage standards by paying their help below Union level wages. This practice under- cuts the stability of all Union jobs. THAT MEANS YOUR J013! Genuardi's also does not cover their workers with a benefit package that is comparable to the Tri-State plan enjoyed by many Local Unions. If YOU allow Genuardi's to continue to pay their help below what YOU get paid, then YOU are helping them to under-cut the stabilit of YOUR contract. If you want to join in the struggle for justice for the former Food Fair members at the same time that you help to keep anti-union companies like Genuardi's from undercutting the stability of YOUR CONTRACT and YOUR JOB, then fill in the coupon below and return it as soon as possible. In the same paper, there is a message from Wendell Young, 11lI, which reads: The most important issue that our Local is now facing is that many of the Food Fair stores are being purchased by independent operators. One such supermarket chain, Cienuardi's, recently pur- chased a former Penn Fruit store located in Rock- ledge, Pennsylvania, right outside of Philadelphia in 883 I)8 'ISI()NS ()F NATI)NAI I A t(B)R RA 'I()IONS B()ARI) Montgomery County. 'lhe article on the ront page of this Dialogue described the situlation and hIow local 1357 is handling it. If we let Mr. Genuardi, who has hired only two former employees of that Penn Fruit store and no former Food Fair employees to operate the ne w store, get a way with defying the Union; this will have a ripple effect on all the other companies vho have purchased or will purchase the former Food Fair stores. We do know that other companies are looking at this situation in Rockledge very closely. The Food Council, which is comprised of the Teamsters, Meat Cutters, Retail Clerks, Bakery Workers, and other trades which are related to the Food Industry, has committed itself to bringing to the attention of the Montgomery County communi- ty the unfair labor practices hich Mr. Genuardi has committed and that we intend to carry these charges through to the National Labor Relations Board. We are urging all of our members to help us picket Genuardi's in order that we may put pressure on Mr. Genuardi to: 1) hire more people who were employed in the Food Fair/Penn Fruit stores anti 2) to bring about Union conditions in his 14 stores, most of which are located in Montgomery County and surrounding Philadelphia area. This is the I project of Local 1357 in conjunction with the other unions in the retail food industry. On September 6, Judge Donald W. Van Artsdalen of the District Court for the Eastern District of Pennsylva- nia, issued a preliminary injunction against Respondent pursuant to Section 10(1) of the Act. Respondent there- upon ceased all picketing at 2 p.m. of that day. Howev- er, at 7 p.m., on September 7, Respondent resumed its picketing at the Rockledge, King of Prussia, Warminster, and Norristown stores using the same signs as had previ- ously been used. Also, on September 6, Bernard Katz sent a telegram to the Company which reads: Pursuant to Judge Van Artsdalen's order, Retail Clerks Local 1357 has terminated it picketing. Pick- eting will commence on or after September 7, 179. You are hereby put on notice that the sole purpose of the picketing is to Protest your destruction of the established area wage and benefits standards. It is our position that your conduct is unfair and that you have unfairly and impossible violation of the law refused to hire available employees solely be- cause of their past union affiliation we reiterate our unequivocal denial that we have recognitional or organizational purpose. Any such purpose is specifi- cally disclaimed. Moreover, in order that the record be crystal clear we are not demanding nor picketing to demand that you hire any persons. On September 27, Judge Van Artsdalen adjudicated Respondent in civil contempt of the September 6 order. He ordered Respondent to purge itself of the contempt by changing the picket signs and leaflets (which had been done voluntarily by Respondent the night before), so that it was made clear that the sole purposes of the picketing ere to protest area wage standards and the Company's failure to hire employees because of their past union affiliation. Also, the Judge ordered that Re- spondent give notice to its members either through its newspaper or by mail that the sole purpose of the picket- ing vas as described abhove and that members were not to take any steps to organize or solicit any of the em- ployees of (Gcnuardi's to join any union pending final resolution of the case before the oard. It is noted that despite the fact that the General Counsel sought a total cessation of all picketing, the court refused to grant that request. On October I I. the Union filed with the court an affidavit of compliance which indicates that it had complied with the order of the District Court. From September 27, the picket signs used by the Respondent read as follows: Notice To The Public The sole purposes of the picketline are to protest Genuardi's destruction of the area wage standards and to protest Genuardi's failure to hire employees because of their past union affiliation. We have no recognitional or organizational purposes or objects. It also is noted that at the hearing before me, the Em- ployer stipulated that its labor costs, in terms of wages and fringe benefits, were lower than the costs to similar employers having collective-bargaining agreements with Respondent. Finally, noted is that on October 25, Re- spondent filed in Case 4-CA-10586 a charge against Genuardi alleging a violation of Section 8(a)(l) and (3) of the Act. In substance, the charge alleges that the Company has refused to hire people who were formerly employed at the store in questioni and that the sole reason for this refusal was because of the employees' union affiliation. As of the time of the hearing this charge was still under investigation. In explaining the reason for the delay in filing the charge, Respondent stated it was gathering evidence for submission to the Regional office. IV. I)ISCUSSION Section 8(b)(7)(C) of the Act prohibits a labor organi- zation from picketing an employer for recognitional or organizational objects where the union is not currently certified by the Board as the collective-bargaining repre- sentative of the employer's employees and where such picketing has been conducted without a petition under Section 9(c) of the Act being filed within a reasonable period of time not to exceed 30 days from the com- mencement of said picketing. Section 8(b)(7)(C) of the Act also permits certain types of publicity picketing for the purpose of truthfully advising the public that an em- ployer does not employ members of or have a contract with a labor organization unless the picketing has an effect of inducing any individual employed by any other person, not to pick up, deliver, or transport any goods or not to perform any services in the course of his employ- ment. Publicity picketing of the type permitted by the second proviso to Section 8(b)(7)(C) of the Act is not in- volved in the instant case and therefore an inquiry as to X884 RETAIL CLERKS LOCAL 1357 the effect of the picketing is not relevant to this proceed- ing. Butchers' Union. Local .No. 120. Amalgamated Meat Cutters and Butcher Workmenr of North America, A.4EL- CIO (John Pacheco. and individual d/b/a M. Moniz Portu- guese Sausage Factory), 160 N L R B 1465 (1966). Inasmuch as the picketing here has been conducted for more than 30 days prior to the filing of the charge, Re- spondent is not currently certified as the representative of any of Genuardi's employees, and no petition under Section 9(c) has been filed, the only issue is whether an object of the picketing was for recognitional or organiza- tional purposes. In this regard, to establish a violation, it is enough for the General Counsel to prove that at least one object of the picketing is prohibited by the Act, even if it also is established that there may be other per- missable goals sought to be achieved by the picketing. International Hod Carriers Building and Common Labor- ers Union of America, Local 840, AFL-CIO (Charles A. Blinne, d/b/a C. A. Blinne Construction Company), 135 NLRB 1153, (1962); Local 345, Retail Store Employees Union, Retail Clerks International Association, AFL-CIO (Gem of Syracuse, Inc.), 145 NLRB 1168 (1964). The issue therefore boils down to the question of whether, in evaluating all the surrounding circumstances. the evidence establishes that the reasons for Respond- ent's picketing was for the purposes of protesting the de- struction of area standards and the failure of the Compa- ny to hire former employees of the Rockledge store or whether, despite the legend on the picket sign and the purported disclaimer on September 6, the evidence estab- lishes that an objectively manifested intent of the Union's picketing was for recognitional or organizational pur- poses. Automotive, Petroleum and Allied Industries Em- ployees Union Local No. 618, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (S & R Auto Parts), 193 NLRB 714 (1971); International Union of Operating Engineers. Local 4, AFL-CIO, et al. (Seaward Construction Company), 193 NLRB 632 (1971). Thus, if the Union were to establish that its sole reasons for picketing were to protest area standards and the nonhiring of the predecessor's employ- ees, I would be compelled to dismiss the complaint be- cause in that circumstance it would not have been proven that an object of the picketing was either recog- nitional or organizational in nature. Automobile Workers, Local 55 (Don Davis Pontiac. Inc.), 223 NLRB 853 (1976), reversed and remanded 594 F.2d 327 (2d Cir. 1977); Local 259, International Union, United Autornobile. Air- craft and Agricultural Implement Workers of America. UAW, AFL-CIO (Fanelli Ford Sales. Inc.), 133 NLRB 1468 (1961); Houston Building & Construction Trades Council (Claude Everett Construction Company), 136 NLRB 321 (1962). On the other hand, if the evidence es- tablishes that despite the purported reasons for the pick- eting, and despite the September 6 disclaimer, that either the real purpose, or even an additional purpose of the picketing was to gain recognition or to organize employ- ees of Genuardi, then I must sustain the allegations of the complaint and find that Respondent violated Section 8(b)(7)(C) of the Act. International Longshoremens' and Warehousemen Union Local No. 8 (Waterway l er,minalv Company), 193 NLRP 477 (1971); Retail Clerks Interna- tional Association. Local Union No. 899. AFL-CIO (State- Mart Inc.. d/h/a Giant Foods), 166 NLRB 818 (1967); Roberts Tires, 212 NLRB 405 (1974). In support of the complaint's allegations the General Counsel makes a number of assertions, some of which I find are persuasive and others not. In support of his alle- gation that the picketing had an organizational purpose, the General Counsel adduced evidence from a single em- ployee who testified that one unidentified woman who was putting union leaflets on a car windshield ap- proached her in the parking lot and asked her if she would sign a union card and join a union. As this testi- mony did not identify the soliciter, and as there was no evidence of any similar type of conduct during the entire period of the picketing, it is my conclusion that this evi- dence cannot be relied upon for the assertion made by the General Counsel. With respect to the Union's claim that an object of the picketing was to induce Genuardi to hire the store's former employees, the General Counsel asserts that the evidence establishes that Respondent was seeking to re- quire the Company to hire all of the former employees, and to therefore lay the foundation for the inevitable result, pursuant to Section 8(a)(5) of the Act, that Gen- uardi would be a successor employer having an obliga- tion to recognize and bargain with another labor organi- zation; namely, Local 929. The General Counsel, there- fore, contends that this goal, in and of itself, establishes a recognitional object within the meaning of Section 8(b)(7) of the Act. I do not agree. The evidence in this regard does not establish that the Union was seeking to compel Genuardi to hire all of the former employees. On the contrary, the leaflets distributed to the public during the course of the picketing indicates that one of its object was only to induce Genuardi to give those employees first preference in hiring. The evidence does not disclose that either Respondent or Local 929, ever made a specif- ic demand on the Company to hire all, or any particular number of the former employees, and the evidence dis- closes that a demand for recognition on the Company was made by neither Union. As there is absolutely no evidence in this record to establish that Local 929 at any time made a demand for recognition, the General Coun- sel's assertion that Respondent was attempting to create, through the hiring of the predecessor's employees, a bar- gaining obligation on behalf of Local 929, is in my opin- ion, purely speculative and unsupported by the evidence. I would, therefore, conclude that insofar as the evidence establishes that at least one of the motives for the picket- ing was to induce Genuardi to give preferential hiring consideration to former employees of the Rockledge store, that such an object is permissable and not prohibit- ed by the Act. Autornobile Workers, Local 55 (Don Davis Pontiac. Inc.), 233 NLRB 853 (1977).' Ihe (eneral Clouniel aks me to ie ',ith upiciln the contention h Rspoldent thal it a picketing to protest Grenuardi h failure tIl employ indilduals hecaue of their past union affihallon. hcaue the charge filed h Responlden iolving this allegation ulas not iled untll ilcarl 3-1 2 n lith, after Ihe tart (of the picketing I do fit uhi.crle Ito the (cetral Counei % s %tlpicioln First, tihe titile gse a chairging pailt. piursilait "t Sectio l(h) of the Act, a h-nlolwh period to file a charge ( iorrllnucd 885 DECISIONS ()F NATIONAL I.ABOR RELATIONS BOARD With respect to the General Counsel's assertion re- garding the area standards issue, I note that he asserts that Respondent could not have been picketing to protest area standards because Respondent did not make an ade- quate investigation of the wages and benefits of Genuar- di's employees and did not request such information from the Company. Respondent presented McKissic, its director of busi- ness agents, who testified that in April he directed Bob Wolper, a business agent, to make a survey of the wages and benefits of Genuardi, that Wolper did so by talking to employees of the Company, and that based on this report, McKissic and the Union reached the conclusion that Genuardi was paying substandard wages and bene- fits. However, Wolper, who was present at the hearing, was not called as a witness by Respondent. Therefore, the agent of Respondent who allegedly conducted the survey gave no evidence as to how it was done or what his firsthand investigation revealed. Accordingly, McKis- sic's testimony concerning the result of the survey, and even his testimony that the survey was made, strikes me as having little or no weight. Notwithstanding the above, it would appear to me that the purchase of a unionized store by a nonunion compa- ny would, of itself, give rise to at least a reasonable sus- picion, if not a good-faith belief, that Genuardi's labor costs, in terms of wages and benefits per employee. were lower than its competitors in the area whose employees are represented by labor organizations. As such, a union might reasonably suspect that the competition of a com- pany which has a cost advantage would necessarily affect the job interests and security of employees who work in stores which have higher labor costs due to con- tractual obligations. On June 27, Bernard Katz, on behalf of Local 929, and other labor organizations, comprising the Food Council, wrote a letter to Genuardi complaining about the Com- pany's failure to hire four employees of the store and ac- cusing Genuardi of paying substandard wages and bene- fits. The letter goes on to invite a response and a meeting to discuss and attempt to resolve these issues. The Com- pany elected to ignore this letter and chose not to engage in any type of communication with Katz. Local 929, Respondent, or any agent of the organizations in- volved. Thus, although the General Counsel and the Charging Party contend that Respondent made no effort to request information from Genuardi concerning its wages or benefits, I conclude that by this letter, Katz did invite a response to his accusation the the Company was paying substandard wages and benefits and invited a meeting to discuss that subject matter. In my opinion this letter, which indicates that picketing would not take place if a meeting could be had concerning Katz's accu- Seon lly . Responldent asseriel that Ihe reason for the delay was d(c to Ihe fa1ci that it Aili s galhering e ideice, alln asselioti hich is ienilcitly reasonable. When a charge is filed i a Regional ofllice it s he hurdlen of the Charging Party ii comnie for rd with cormpctant evidenlce Io slupport Is allegailoni allld to make (Iit a prtnriu ]aie case Wilhult Such s itdence, neither Ihe Regiolinal (Office nor Respondent is cormpelled io help a charg- ing part) by rcspclivl askinlg for or presentinlg evidlence ol the issues raised It . therefore is not urlreasoa(ible for a harging party to gather ils mnitch cideicc ais possible behore f iing a charge rathter hani risk its dis- missal ecalusel of tile failure to presenl Siufficient eil.,ece sations tentamount to a request for wage and benefit in- formation from the best source available; namely the Company. It is not established that had the Company re- sponded to the June 27 letter, with information showing that its wages and benefits equaled or exceeded the area standards, that the Union would nevertheless have com- menced its picketing on July 9. Indeed, it seems to me that given the Company's silence to the accusations made by Katz, especially in the face of a threat to picket, could reasonably have been construed as an admission of the assertions made by him. In fact, at the hearing, the Company conceded that its labor costs were lower than such costs to other supermarkets having contracts with Respondent. It, therefore, appears to me that prior to the commencement of the picketing, Respondent did have a good-faith belief that Genuardi was paying substandard wages and benefits to its employees. Orange County Dis- trict Council of Carpenters, AFL-CIO, 227 NLRB 832 (1977). Despite my conclusions above, I nevertheless find, on the basis of the other evidence in the record, that an object of Respondent's picketing commencing on July 9 was recognitional. At the rally which was held on July 9, immediately preceding the commencement of the pick- eting, a number of statements were made indicating such an objective. The uncontradicted testimony was that Katz said inter alia that "this place will be Union." Also uncontradicted, is the testimony that another speaker at the rally, introduced by Wendell Young II1, stated in the latter's presence, that "he was going to show Mr. Gen- uardi he could not operate a non-union shop i a union town." Finally, the evidence establishes that among the chants led by Young was one that went, "who needs the union; Genuardi." Although Respondent asserts that the rally and the picketing were separate and discreet events having no re- lation to each other, I simply cannot accept this argu- met as it was the rally which was introductory to the picketing and these two events (assuming they can even be described as two events), are intertwined with each other. Therefore, I would conclude that the statements made at the rally by agents of Respondent or persons acting in concert with Respondent, constitute evidence of a recognitional object in relation to Respondent's picketing. Additionally, it is impossible to ignore what Respondent chose to print in its own newspaper. In the August issue of the paper, the front page story included the statement that; "Genuardi has stated its desire to remain non-union. We cannot let them maintain this atti- tude." And in the same issue of the paper, Wendell Young III stated inter alia, that in relation to the picket- ing at Genuardi, an object of the picketing was "to bring about union conditions in his 14 stores." In my opinion these articles, in conjunction with the statements made at the rally, demonstrate that an object of the picketing was recognitional. International Brotherhood of Electrical Workers. Local 453, AFL-CIO (Southern Sun Electric Corporation), 242 NLRB 1130 (1979).' l Although, it might be argued that the reference t "union conidi- niols" should nmerely he conlstrued as an ass-rioli hy Respiondent tIhl It Continued X86 RETAIL CLERKS LOCAL 1357 Additionally, I note for the purpose of intent, that in a charge filed by Respondent against the Company on July 11, in Case 4-CA-10319, Respondent asserted that the Company violated Section 8(a)(1) of the Act by seeking and obtaining a State court injunction preventing the Union from entering on the Employer's property for the purpose of distributing literature or union authorization cards, and that the sole purpose of seeking the injunction was to prevent "the union from reaching and organizing the employer's employees...." Based on the above, I find that, at least for the period from July 9 to September 6, an object of Respondent's picketing was for recognitional or organizational pur- poses. I, therefore, find that Respondent violated Section 8(b)(7)(C) of the Act. The General Counsel also urges that I find that since September 7, the resumption of the picketing was also motivated by an unlawful object. In support of this posi- tion, the only evidence which can be relied on by the General Counsel is the shortness of the hiatus in the picketing. Respondent argues that even if I find that the picketing which occurred up until September 6, was un- lawful, I should find that the picketing after this date was engaged in solely for permissable objectives. As noted above, on September 6, the District Court entered a preliminary injunction against Respondent in the 10(l) proceeding. Pursuant to that order, Respondent ceased all picketing at 2 p.m., and sent a telegram to the Company disclaiming any intention of seeking recogni- tion or engaging in organizational activities. On Septem- ber 7, and pursuant to advice of its counsel, Respondent resumed picketing at 7 p.m., with the same picket signs and leaflets. Respondent argues that in view of the dis- claimer, the hiatus, and the fact that the language on the picket signs and leaflets does not of itself evidence an il- legal object, the evidence is insufficient to establish that its picketing after September 6 was violative of the Act. In two very recent cases the Board dealt with hiatus issues. In McClintock Market, Inc., 244 NLRB 555 (1979), the Board directed an expedited election pursuant to the provisions of Section 8(b)(7)(C) of the Act where, despite a disclaimer and the assertion that the picketing was only to protest substandard wages and working con- sished to he (iGenuardi upgrade Its ;lages and benefits to meet area standards. It seems, Io me that f this is . hall tlh Union meant. it sholuld have been what the Union said The Board i l.o(al 265, El'ctriual IorA. eri (R P & .M l:ctricL. 236 NLRB I4 (1978). held that picket signs which stated that the employer does not py "union conditiollns clearly implies a recognitional object See also Sun Fruincciwo Lal t Jotlres rcu tiv Board (Fiodmaker. Inc.., d/bha Jack.In-The-RoxL) 20 NRIB 744 (1973) Although in both of these cases the language referring to "union coinditions" appeared on the picket signs. it would seem to me that In evaluatinig intent. no significant dstinction can be made h the fact that in the nlstiatt case the language appearetd in the !nion's rlcwspaper iowsc'er. I do nol behles that the t itllet which stated, in part. that the UilllOl had repeatedly attempted to meet with (ienuardi to work out all agreemcil. necesstrily evidences a recognltional object When viewed In the context of the entire document and the other leaflets to he public, Which clearly are designed ti stalte a prolest iser area standard and; the failure to hire former emrploeeccs. the particular stlacment cited could he read lo nil thl[t KRcpontldC'llt dClrIedl to meet ulith (iJeluardi to wuol-k outl all agreeelnt rclatis e oni: Io those questlolll I. therefore, do Ilot think thalt th, statementl should lecesarlly be conilrued Io neailil tlalt the Union Wt as seecking a colcc.iiet-bargallltig agreement Joit/l! lioril / C(al, SuIt urad 41lied l(,urtt.tl RiJork-ri' 0 :ttioni. lI.(;'l AI'--1( (to) (11- zauntrin In t. 212 NI R 715 tl 4 74) ditions, the Board concluded that the union had a recog- nitional object. In that case the evidence disclosed that the picketing initially had a recognitional object; that there was no hiatus; that the disclaimer was made only a few days after the union demanded a contract; that the union had not distributed leaflets advising the public of the picketing's purpose; that the union had not investi- gated the employer's wage scale and working conditions; and that the union had never unequivocally informed the employer that it did not seek immediate recognition. However, in International Brotherhood of Electrical Work- ers, Local 453, AFL-CIO (Southern Sun Electric Corpora- tion), 242 NLRB 160 (1979), the Board in dismissing an 8(b)(7)(A) complaint stated in pertinent part: It seems obvious to us that the Administrative Law Judge has predicated the finding of the viola- tion almost exclusively upon the timing of the pick- eting; namely, the fact that it commenced only 14 days after a recognitional claim and only 4 days after Respondent's disclaimer of such an interest. However, even when an illegal recognitional object has been demonstrated and after a brief hiatus the respondent engaged in what purports to be area standards picketing, the briefness of the hiatus is in and of itself not sufficient to permit an iference that there is a continuing recognitional object. As was stated in Altemose Construction Co.. In situations where unions have been found to have picketed for an illegal objective and then have sought to picket for another objective, the Board has long rejected the application of a pre- sumption of the continuity of the illegal objective where there is no substantial independent evi- dence to support such a presumption. The new picketing should be determined to be good or bad for what it is and not by reason of the object or purpose of earlier picketing. The concept of a "hiatus" is a tool in determining the objective of a union and not a rule. Here, as previously indicated, there is nothing in comments or conversations which occurred at the picket line which would demonstrate a recogni- tional object. Furthermore, aside from the interpre- tation to be placed on the language employed on the area standards picket signs which is discussed, infra. there is no evidence that Respondent at any relevant time claimed recognition other than through its pursuit of its legal right under Board processes. It seems to me that, insofar as the picketing by Re- spondent after September 7, the facts here are more simi- lar to those in Southern Sun Electric than they are to McClintock Market. Unlike McClinitock, the Respondent herein did have a picketing hiatus, albeit an admittedly brief one. Moreover, Respondent did notify Genuardi that it was not interested in recognition and the evidence establishes that Respondent never made a demand for recognition. Further, the evidence herein establishes that 887 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD Respondent did have a reasonable basis to believe that the Company was paying substandard wages and benefits and that the Company had failed to hire former employ- ees, objects which were fully explained to the public in its leaflets that were passed out in conjunction with the picketing. L Apart from the shortness of the hiatus, nei- ther the General Counsel nor the Charging Party has of- fered any evidence of any conduct after September 7 which would be inconsistent with Respondent's disclaim- er or would otherwise show that an object of this picket- ing was for organizational or recognitional purposes. I, therefore, conclude that the picketing by Respondent from September 7 was engaged in for permissible objects and cannot be construed as violative of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occur- ring in connection with the operation of Genuardi, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY The General Counsel and the Charging Party request that the remedy for the unfair labor practice herein should include, in addition to other affirmation provi- sions, a hiatus of all picketing by Respondent at Gen- uardi for a period of I month. However, neither the General Counsel nor the Charging Party cite any case in which such an order was granted and my research does not reveal any Board precedent for such an order. Such an order, by its terms, would prevent the Union during the period of the ban from engaging in any pick- eting for any reason. As I have concluded that the pick- eting since September 7 was for permissible objects and not violative of the Act, it is my opinion that such ex- traordinary relief is not justified by the evidence in the instant case. Moreover, it would seem to me that such a remedy would go beyond the powers granted to the Board by statute and in my judgment would raise a seri- ous question as to whether such an interpretation of the Act would violate the provisions of the Constitution's first amendment. Based on the above, I shall deny the General Coun- sel's request for the additional remedy. However, as I have concluded that Respondent, by its picketing from "' I d Ilot consider relesant the issue of whether the failure of Genl- uardi to hire former employees was motivated by illegal considerations Whether such a falilure as nlmotivated by legal ior illegal considerations does not preclude a union fronm demanding that a purchasinlg company give preference i hiring to) the employees of a predecessor, as picketing ill furtherance of such a demand is not viewed by me as recognilional or organizational in nature i ' The only reported case of which I am aware where a complete ban on picketing was ordered is Saunot v. Building irudt' (uncil (sher (Countruction ('i.), 236 FSupp 120 (DC Cir. 1963) Thal case, was a 1t(l) proceeding before the District Court for the Eastern District iof P'ennsyl lvania and the Judge ordered a 2-weck ban on all pickcling. How- eser, a, the standards fr granting relief in 10(l) proceedinlgs are ubhstan- fially different from the standards upoln which a Board decisoln ilaust rest, I dir ot beliesce this opinillon sill ds as sufficient precedent fir the ex- traiordlllar relief requested herein July 9 to September 6, violated Section 8(b)(7)(C) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action de- signed to remedy and remove the effects of the unfair labor practice and to effectuate the purposes of the Act. CONCLUSIONS OF LAW 1. Genuardi Super Markets, Inc., is an employer en- gaged in commerce within the meaning of Section 2 of the Act. 2. Respondent is a labor organization with the meaning of Section 2(5) of the Act. 3. By picketing Genuardi Super Markets, Inc., be- tween July 9 and September 6, 1979, with an object of forcing and requiring Genuardi to recognize and bargain with Respondent as the collective-bargaining representa- tive of Genuardi's employees, or forcing or requiring Genuardi's employees to accept or select the Respondent as their collective-bargaining representative, at a time when Respondent was not currently certified as such representative and when no petition had been filed under Section 9(c) of the Act, Respondent engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(7)(C) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The picketing of Genuardi Super Markets, Inc., after September 7, 1979, is not violative of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in the case, I hereby issue the following recommended: ORDER 2 The Respondent, Retail Clerks Local 1357, Philadel- phia, Pennsylvania, its officers, agents, and representa- tives, shall: 1. Cease and desist from picketing, or causing to be picketed, the stores of Genuardi Super Markets, Inc., where an object thereof is to force or require Genuardi to recognize or bargain collectively with the Respond- ent, or to force or require the employees of Genuardi to accept or select the Respondent as their collective-bar- gaining representative. 2. Take the following affirmative action which I find will effectuate the purposes of the Act: (a) Post at the Respondent's business offices and meet- ing halls, copies of the attached notice marked "Appen- dix A."':' Copies of said notice, to be furnished by the Regional Director for Region 4, after being duly signed by the Union's representative, shall be posted by the 2 In the event no exceptions are filed as provided by Sec 102 4 of the Rules and Regulations of the National Labor Relations Hoard, the firndings, conclusionls and recommended Order herein shall, as provided in Sec 1248 of the Rules and Regulations, be adopted by the Hoard and becomne ils findings, conlclusiors, ad Order, all (objections shall be deemed waived for all purposes ':' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "'Potcd by Order of the National Labor Relations Hoard" shall read "Posted Pursu- alnt to :a Judgimeit of the United States Court of Appeals Enforcing an Order d' tlie National l.ibor Relations Board 888 RFIIAII CI. ERKS L()tAI 1357 Union immlediately upon receipt thereof, and he main- taillCd by it for 60 collscltivye days thereafter, ill con - spicuous places. incluing all places here notices to members are customarily posted. Reasonable steps shall be taken hy the Union to insure that said notices are riot altered, defiaced, or co ered by any other material. (b) Mail to the Regional Director for Region 4, signed copies of the aforementioned notice for posting by Gen- uardi Super Markets, Inc., if it is willing. in places w\here iotlicts to e'mployees ;are custlomarily posted. Copies of said notice to he furnished hy the aforesaid Regional Di- reclor, shall, after being signed by the Union as indicat- ed, he returned forthwith to the Regional I)irector for disposition. (c) Notify said Regional FDirector, in riting, ,\ithin 2() ;days from the date of this Order. , ha;lt steps have been takien to comply herekith. S