Retail Fruit & Vegetable Clerks' Union

National Labor Relations Board - Board Decisions

Aug 24, 1956

116 N.L.R.B. 856 (N.L.R.B. 1956)

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Fruit & Vegetable Clerks' Union , Local 1017, and Retail
Grocery Clerks ' Union , Local 648, Retail Clerks International
Association , AFL-CIO 1 [Crystal Palace Market ] and Retail
Fruit Dealers ' Association of San Francisco , Inc. Case No.
20-CC-106. August 24, 1956
DECISION AND ORDER
On July 19, 1955, Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging, in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the. rulings of the Trial Examiner made at
the hearing and finds that no. prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, to the extent consistent herewith.
As more fully set forth in the Intermediate Report, the Crystal
Palace Market is a large, one-story building covering approximately 4
acres and containing about 64 retail stands or shops. J. M. Long and
Company, Inc., herein called Long, owns the market but actually op-
erates only 4 of the 64 stands or shops; the others are operated by
entrepreneurs who lease their respective premises from Long on a
monthly basis under leases which either party may cancel on 30-day
notice and which provide for a rental based upon a percentage of
receipts coupled with a minimum monthly rate. Haag is Long's gen-
eral manager in charge of the entire premises and Green is Long's
manager in charge of retail operations. Grocers Association has bar-
gained with Local 648 and has entered into associationwide contracts;
these contracts have also covered nonassociation members who had fur-
nished Grocers Association with powers of attorney. Fruit Associ-
ation, the Charging Party, is a trade organization similar to Grocers
Association which has bargained on behalf of its members with Local
1017, a sister local of Local 648; its members include approximately
five fruit stand operations in Crystal Palace Market.
There was no dispute between Fruit Association and Local 1017 as
its most recent contract did not expire until after the events material
herein had already occurred. The remaining stands at the Market
bargain with various other labor organizations and were wholly un-
1 The AFL and CIO having merged, the Respondents ' affiliation is amended accordingly.
116 NLRB No. 99.
I
RETAIL FRUIT & VEGETABLE CLERKS' UNION 857
affected by any labor dispute. The present dispute had its genesis
in the 1955 negotiations between Grocers Association and Local 648,
and affected only Long's grocery operation at the Market, that of
Standard Groceteria, herein called Standard, and a few others at the
Market that came within the jurisdiction of Local 648.
On February 3, 1955, when two markets represented by Grocers
Association located elsewhere in San Francisco were picketed by Local
648, Grocers Association announced that a strike against one of its
members was a strike against all-a position it had taken during the
contract negotiations-and instructed its members to lay off their em-
ployees. Long and Standard thereupon not only laid off their em-
ployees in the grocery operations involved in the dispute with Local
648 but closed down these operations. On February 12, one of Local
648's business representatives visited the Market and signed up 3 of 6
operators. That evening employees of 2 of the 3 operators that did
not sign up laid off their employees and the third stand transferred
its employees to another operation. Another meeting was held on
February 14, at which Haag and Green for Long met with Jinkerson
and Lyons of Local 648, Brodke of Local 1017, and several repre-
sentatives of other labor organizations. Jinkerson asked Haag to
sign the contract proffered by Local 648. Green refused, stating that
he chose to abide by the position taken by the Association. Haag told
Jinkerson that there was no need to picket Crystal Palace Market be-
cause all stands involved in the dispute had closed down, that he had
his "full permission, if he so desired, to bring his pickets inside the
market and picket each of the individual stands" involved in the dis-
pute. Jinkerson replied that this would not give Local 648 the neces-
sary economic pressure, and rejected the offer. On the morning of
February 15, pickets sent by Local 648 appeared at 7 of the 11 en-
trances to the Crystal Palace Market; 2 the only entrances not picketed
were the 4 in the rear of the Market which face the free parking area.
The picket signs made reference to Long and Standard.
Respondents contend that such picketing, whatever its impact on
Long's lessees, did not violate Section 8 (b) (4) (A) of the Act be-
cause the lessees were not neutrals but allies of Long. It is clear from
the record that the respective stands in the Crystal Palace Market hire
their own employees, pay their own employees, and have complete
autonomy in dealing with their employees concerning terms and con-
ditions of employment. They use their own funds and purchase and
sell their own merchandise. Consequently, any interest of Long, as
owner of the Market, is insufficient to render its lessees allies of Long.
Nor is this a situation of struck work being transferred to other stands
in the Market. The Supreme Court in N. L. B. B. v. Denver Bldg. k
2 These entrances are numbered 1 to 7, inclusive , in the diagram attached hereto as
"Appendix C."
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction Trades Council, 341 U. S. 675, in this connection, aptly
stated :
We agree with the Board also in the conclusion that the fact that
the contractor and subcontractor were engaged on the same con-
struction project, and that the contractor had some supervision
over the subcontractor's work, did not eliminate the status of each
as an independent contractor or make the employees of one the
employees of the other. The business relationship between inde-
pendent contractors is too well established in the law to be over-
ridden without clear language doing so.
Accordingly, in agreement with the Trial Examiner, we find that
Long was not the employer of any of the employees working for its
various lessees in the Market, and that such lessees were not allies of
Long, and were therefore neutral employers entitled to the protection
of Section 8 (b) (4) (A) of the Act.3
This case thus presents the problem, with which the Board has had
frequent occasion to deal, of determining the legality of picketing at
a "common situs"-i. e., premises jointly occupied by primary and
secondary employers. In Denver Building and Construction Trades
Council, supra, the Supreme Court pointed out that in such cases the
Board was required to give effect to the "dual Congressional objectives
of preserving the right of labor organizations to bring pressure to bear
on offending employers in primary labor disputes and of shielding
unoffending employers and others from pressures in controversies not
their own."
In seeking to accommodate these sometimes conflicting congres-
sional objectives, the Board, with judicial approval, has established
certain standards for "common situs" picketing. The gist of these
standards is that where picketing occurs at premises which are oc-
cupied jointly by primary and secondary employers, the timing and
location of the picketing and the legends on the picket signs must be
tailored to reach the employees of the primary employer, rather than
those of neutral employers. If these standards are observed, the
picketing is lawful, and any incidental impact thereof on neutral em-
ployees at the common situs will not render it unlawful.4 Where,
however, there is any deviation from these standards, the Board, with
judicial approval, has held that the picketing violates Section 8 (b)
3 See John A Piezonki, d/b/a Stover Steel Service v. N L. R B, 219 F. 2d 879, 883
(C. A 4) ; N. L R. B v. Chauffeurs , Teamsters , Warehousemen & Helpers Local Union
No. 135, IBTCWHA, AFL, 212 F. 2d 216 (C A. 7) ; Professional and Bussness Men's Infe
Insurance Company, 108 NLRB 363, enfd. 218 F 2d 226 (C. A. 10).
4 Moore Dry Dock Company, 92 NLRB 547; N. L R. B. v. Service Trade Chauffeurs,
Salesmen & Helpers Local 145, etc, 191 F. 2d 65, 68 (C A. 2) ; John A. Piezonki, d/b/a
Stover Steel Service v. N. L R. B., 219 F. 2d 879, 883 (C. A 4) ; at. N. L. R B. v. General
Drivers, Warehousemen and Helpers Local 968, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, 225 F. 2d 205 (C. A. 5), cert. denied
350 U. S. 914.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 859
(4) (A) of the Act.' In developing and applying these standards,
the controlling consideration has been to require that the picketing
be so conducted as to minimize its impact on neutral employees insofar
as this can be done without substantial impairment of the effectiveness
of the picketing in reaching the primary employees.6
We believe, contrary to the contention of the Respondents, that the
foregoing principles should apply to all common situs picketing, in-,
eluding cases where, as here, the picketed premises are owned by the
primary employer. We can see no logical reason why the legality of
such picketing should depend on title to property. The impact on
neutral employees of picketing which deviates from the standards out-
lined above is the same whether the common premises are owned by
their own employer or by the primary employer.
There is ample precedent for this view. In Professional and Busi-
ness Men's Life Insurance Company, supra, the Board held that picket
ing of a construction site owned by the general contractor, the primary
employer, violated Section 8 (b) (4) (A) of the Act because of the
impact of the picketing on neutral subcontractors working on the site.
This finding was approved by the court of appeals, which held, in
effect, that the picketing was illegal because it did not conform to the
limitations imposed by the Board on common situs picketing in the
Moore Dry Dock case , supra. In the Deena Artware case ,7 court of
appeals rejected the contention that the fact that picketing was limited
to a construction site owned by the primary employer precluded, as
a matter of law, a finding that the picketing violated 8 (b) (4) (A)
or (B) with respect to employees of a neutral contractor who were
working on the site. The court deemed controlling the object, rather
than the geography, of the picketing. See, also, N. L. R. B. v. Deena
Artware, Inc., 198 F. 2d 645, 653 (C. A. 6), cert. denied 345 U. S. 906.
To the extent that the decision in Ryan Construction Corporation 8
and Crump, Incorporated,' are inconsistent with the foregoing au-
thorities and with the views expressed herein, we do not adhere to
those decisions.
While the Supreme Court in International Rice Milling Co., Inc.,
et al. v. N. L. R. B., 341 U. S. 665, 672, cited the Ryan case, such cita-
tion was merely in support of a dictum 'by the Court that Section 8
(b) (4) (A) was not meant to "interfere with the ordinary strike,"
5N. L R. B v. Local Union No. 55, and Carpenters' District Council of Denver and
Vieincty. 218 F. 2d 226 , 231 (C. A. 10) ; N. L. R. B. v. Chauffeurs, Teamsters , Warehouse-
men & Helpers Local Union No. 135, IBTCWHA, AFL. 212 F. 2d 216, 219 ' (C. A. 7) ;
Rich field Oil Corporation , 95 NLRB 1191; Columbia-Southern Chemical Corporation, 110
NLRB 206.
8 See Southwestern Motor Transport , Inc., 115 NLRB 981.
7 United Brick & Clay Workers of America, et al , v. Deena Artware, Inc., 198 F. 2d 637
( C. A. 6), cert. denied 344 U. S. 897.
8 85 NLRB 417
9 112 NLRB 311.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which general statement also appears in somewhat different terms in
the Board's opinion in the Ryan case. It does not necessarily follow
that, by such citation, the Supreme Court meant to indicate agree-
ment with the Board's specific holding in Ryan that, where the pick-
eted premises are owned by the primary employer, the picketing can-
not for that reason be secondary action, even though such premises
are used only by employees of secondary employers. Indeed, the Su-
preme Court expressly stated that the fact that the inducement of
neutral employees in the Rice Milling case occurred at the premises of
the primary employer was not necessarily controlling in evaluating
the legality of such inducement under Section 8 (b) (4) (A). In any
event, the validity of the specific holding of the Board in Ryan was
not in issue in the Rice Milling case. We do not believe, therefore,
that the reference in that case to Ryan, whenever its significance, pre-
cludes our reversal of Ryan.'°
We turn then to the question whether, in the instant case, Local 648
so conducted its picketing of the Crystal Palace Market as to minimize
the impact thereof on the employees of the neutral lessees in the
Market to the extent consistent with the effective exercise of its right to
appeal to the employees of the primary employers. Upon the entire
record, we find that it did not.
In reaching this conclusion, we rely upon the following
considerations :
As recited above, the day before the picketing began, Local 648 re-
jected Long's offer to bring the pickets inside the Market and post
them at the particular stands involved in the contract dispute. Local
648 contends in its brief that it rejected this offer because it did not
include permission to picket Long's nongrocery stands. Although
these were not involved in the dispute, Local 648 urges that it was
privileged to picket these stands, as they were manned by employees of
the primary employer (Long), citing the decision of the court in
N. L. R. B. v. General Drivers, Warehousemen and Helpers Local 968,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America.ll However this may be, we deem it sig-
nificant that Local 648 did not propose to Long that its offer be en-
larged to include the picketing inside the Market of such other op-
erations of Long. Such "inside" picketing would have been adequate
10 We do not mean to imply that the same considerations would apply in determining
the legality of picketing at premises occupied solely by the primary employer. In such cases,
we adhere to the rule established by the Board, with judicial approval , that accommo-
dation of the policy of Section 13 of the Act (preserving the right to engage in a primary
strike ) requires that more latitude be given to picketing at such separate primary premises
than at premises occupied in part (or entirely) by secondary employers. See International
Rice Milling Co., Inc, et at. v. N. L. R. B., 341 U. S. 665; Di Giorgio Wine Company,
87 NLRB 720, affd 191 F. 2d 642 (C. A.. D C.), cert. denied 342 U. S. 869 ; Santa Ana
Lumber Co., 87 NLRB 937.
n 225 F. 2d 205 (C. A. 5), cert. denied 350 U. S. 914.
RETAIL FRUIT & VEGETABLE CLERKS' UNION - 861
to achieve any lawful purpose of'Local 648, and would have minimized
the incidental effect on the neutral lessees.'2
(2) We deem it significant also that, while, as Local 648 contends,
each entrance picketed was in the immediate vicinity of one of Long's
stands (grocery or nongrocery), in at least 1 instance Local 648
picketed 2 adjacent entrances, where the picketing of 1 such entrance
would have been adequate to reach persons approaching Long' s near-
by stand. These are the Market Street entrances marked 3 and 4 on the
attached diagram, where most of the pickets were concentrated. Of
these, entrance 4 was the closer to Long's tobacco stand, and even if
some few persons for whatever reason should use the more remote
entrance 3 to reach the tobacco stand they could not fail to see any
picket line at entrance 4, only a few feet away. Accordingly, it is clear
that a picket line confined to entrance 4 would have adequately publi-
cized Local 648's dispute with Long to persons using either entrance
3 or 4. The failure of Local 648 to limit the picketing to entrance 4
under these circumstances is explainable only on the ground that
its strategy was not merely to reach persons having dealings with
Long but also to impose the necessity of crossing a picket line upon
other persons, constituting the bulk of the traffic through entrance
3, including necessarily employees of neutrals operating the stands
most directly served by that entrance.
(3) Finally, as already stated, Local 1017 represented the em-
ployees of operators of a number of fruit stands in the Market who
were not involved in Local 648's contract -dispute. As found by the
Trial Examiner, it was the official policy of Local 1017 to support
its sister local's strike by requiring its members to respect the picket
line at the Market.ls This policy was not only announced by repre-
sentatives of Local 1017 to several of the fruit dealers on the eve of the
strike, but was implemented by the conduct of Savin, a business agent
of Local 1017, in inducing two employees of Gummow, a neutral em-
ployer in the Market, to quit work during the picketing. As found
by the Trial Examiner, when these two employees reported for work
on the first day of the picketing, Savin peremptorily directed both of
them to leave the Market, and they promptly complied. One of them
(Andrews) did not return to work until the last day of the picketing,
and then only after obtaining special permission from Savin to cross
the picket line. We agree with the Trial Examiner that Local 1017
12Thus, had Local 648 been content to picket alongside the various grocery and non-
grocery stands operated by Long, as well as the other stands involved in the primary
dispute, there would have been no need for employees of neutrals to cross any,of the
picket lines.
13 In its brief filed with the Board, Local 1017 asserts that while it was its "official
union policy" to observe Local 648's picket line, such policy was authorized by its contracts
with fruit dealers in the Market, which allegedly sanctioned the refusal of their employees
to cross any picket line. However, the existence of such a contract provision was not
sufficiently established by the evidence. Accordingly, apart from any other considerations,
we reject this contention on evidentiary grounds.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was responsible for this conduct of its business agent , Savin, which
was clearly violative of Section 8 (b) (4) (A), in that it constituted
specific inducement of employees of a neutral to engage in a concerted
refusal to work with an object of disrupting the dealings of such
neutral with others. We find also that, as Savin, at the time of this
incident, was temporarily assigned to aid Local 648 in obtaining signed
contracts, and was therefore subject to its control, as well as that of
Local 1017, his conduct is imputable also to Local 648.14
In view of all the foregoing circumstances, we are satisfied that
Local 648 did not make any bona fide effort to minimize the impact
'of its picketing upon the operations of the neutral employers in the
Market, although, as shown above under (1) and (2), it might have
done so without any substantial impairment of its right to exert
pressure upon the primary employers through appeals to their em-
ployees. The absence of any such effort, together with the fact that
Savin, in his dual capacity as agent for both Locals, directly induced
neutral employees to quit work, convinces us that the involvement of
neutrals and their employees in the primary dispute and the disrup-
tion of their operations was a principal object of Local 648 and not
merely an unavoidable byproduct of legitimate primary picketing.
For all of the foregoing reasons, we find that, by inducing and en=
ccouraging employees of stands, other than grocery stands, that are
tenants of Crystal Palace Market, to engage in concerted refusals
to perform work for their respective employers, with an object of
forcing or requiring their respective employers to cease doing busi-
ness with Long, in the latter's capacity as owner of Crystal Palace
Market, and .with other employers, the Respondents have engaged in
-unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act.
ORDER
Upon the basis-of the entire-record in the case, and pursuant to
Section 10 (c) of the National Labor Relations.Act, as- amended,
the National Labor Relations -Board hereby orders that Respond-
ents, Retail Fruit & Vegetable Clerks' Union, Local 1017, and Retail
14 In any event, apart from Savin's temporary assignment to Local 648 , his conduct is
imputable to it on the ground that Locals 1017 and'648 were here engaged in a joint
venture, the latter having established a -picket line and the former having adopted and
enforced a policy of requiring its members to respect that line. In addition to the conduct
of Savin , the concert of action between the two Locals is shown by the circumstances that
Brodke , an officer of 1017, attended the meeting at which Long proposed that the picketing
by 648 be confined to the stands involved in the dispute ,, that Local 1017 ignored the letter
of the Fruit Dealers' Association of February 14, requesting that 1017 not intervene in
648's dispute , that Brodke maintained surveillance of the picket line throughout the period
of the strike , and actually walked in the line, although only for a few minutes, and that
Brodke in conversations' with members of his Local indicated approval of the picketing.
In View of the foregoing , we find that 648 was responsible for the conduct of Savin whether
acting as an agent of 648 or of 1017 . Los Angeles Building and Construction Trades
Council, 105"NLRB 868, 875.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 863
Grocery Clerks' Union, Local 648, both affiliated with Retail Clerks
International Association, AFL-CIO, their officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from inducing and encouraging the employees
of tenants of Crystal Palace Market, or the employees of any other
employer, to engage in a strike or concerted refusal in the course of
their employment to perform services for their employer, where an
object thereof is to force or require any employer or person to cease
doing business with J. M. Long and Company, Inc., in its capacity as
owner of the Crystal Palace Market, or with any other employer.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at their respective business offices copies of the notices
attached hereto marked "Appendixes A and B." 15 Copies of said
notices, to be furnished by the Regional Director for the Twentieth
Region, shall, after being duly signed by a representative of each
Respondent, be posted by said Respondent immediately upon receipt
thereof in conspicuous places, including all places where notices to
their members are customarily posted. Reasonable steps shall be
taken by said Respondents to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Mail to the Regional Director for the Twentieth Region signed
copies of the notice attached hereto marked "Appendixes A and
B" for posting at the Crystal Palace Market, J. M. Long and Com-
pany, Inc., willing, in places where notices to employees of the
tenants of the market are customarily posted.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that Local 1017 has engaged in conduct
violative of Section 8 (b) (1) (A) of the Act.
MEMBER BEAN, concurring :
Early in the morning of February 15, 1954, Respondent Local 648
established a picket line at the main entrances to the San Francisco
Crystal Palace Market, a retail food market covering several acres, in
which a large number of independent stores do business. Local 648
was then engaged in a labor dispute with several of the store owners.
The main issue before us is whether the picketing violated Section 8
(b) (4) (A) of the Act, which, in pertinent part, prohibits unions
from inducing employees of neutral employers to cease work for the
purpose of bringing about a cessation of business between the neutral
employers and those employers' with which the union has a labor dis-
pute. I join in finding that the picketing in this case violated that
' In the event that this Order is enforced by a decree of a United States Court of
•Appeals , there shall be substituted for the words "Pursuant to a Decision and Ordei" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
section of the statute because I am convinced that the object of the
picketing was for the very purpose of such inducement. Indeed I
believe that this record permits of no other conclusion as to the true
object of Local 648 that day.
As set out in detail in the Intermediate Report, there was a current
dispute between Local 648 and a group of San Francisco food retailers,
including Long's Grocery, Store, The Standard Groceteria, and a few
other food stand operators, all located in the Crystal Palace Market.
The Union was engaged in negotiating a new collective-bargaining
contract for employees of these particular storekeepers. Unable to
achieve its economic demands, it advised the companies that it would
resort to strike action. To forestall any picketing, Long and Stand-
ard, the largest employers involved, shut down their entire grocery
.operations on February 3, 1954. By February 14, all the remaining
stores in the market involved in the dispute with Local 648 also closed
down completely for the same reason.
Apart from its grocery business, Long is also the landlord of the
Crystal Palace Market; the many other companies doing business
there-totaling about 60-pay rent to Long as tenants. The bargain-
ing agent for the employees of some of these tenants is Local 1017, a
sister local to Respondent Local 648. Business Agent Savin of Local
1017 had been assigned to help Local 648 in its efforts to win certain
economic concessions from the companies involved in the current dis-
pute. It is admitted that there was no dispute between any employers
in the Market and Local 1017, and it does not appear, nor is it claimed,
that any other employers there-apart from the primary companies
mentioned above-were in dispute with any labor organizations.
Apparently with the hope of saving the neutral tenants from in-
jury, the affected storekeepers, with Long as their spokesman, invited
Local 648 to picket, if it wished, their individual stands or stores in-
side the Market itself. According to the credited testimony, Jinker-
son, secretary of Local 648, rejected the offer "because it would not
give Local 648 the necessary economic pressure." Without further
discussion or notice, picket lines were established outside the general
market entrances by 6: 30 the next morning, or perhaps even earlier.
The various parties to this proceeding suggest that the basic issue
to be decided is whether picketing the entrances to a general market
is lawful despite the proscription set out in Section 8 (b) (4) (A) even
though only a few of the independent merchants are affected by the
labor dispute. The General Counsel contends that the presence in the
Market of neutral employers automatically makes the outside picket-
ing unlawful. The Respondents on the other hand seek refuge in the
license allegedly emerging from the rules set out in the Board's
Moore Dry Dock decision,16 relating to certain common situs situations
16 Moore Dry Dock Company, 92 NLRB 547.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 865
in which employees of both primary and secondary companies are
simultaneously at work.
As I view the total picture of this case, the issue is not so broad.
We are not required to decide whether picketing of the general en-
trances of a market like the Crystal Palace, tenanted both by mer-
chants involved in a labor dispute and others, is per se a violation of
Section 8 (b) (4) (A). I believe, instead, that the only issue is
whether the evidence shows that the picketing was for a proscribed
object-bringing pressure upon the disputing (primary) employers
through the indirect technique of withdrawing labor from neutral
(secondary) employers in order to force capitulation of the primary
companies by interrupting their business relations with the neutrals."
By the close of the business day of February 14, the Respondent
Unions (Locals 648 and 1017) knew that there were no longer at work
anywhere in the Crystal Palace any employees of the employers with
whom Respondent Local 648 had a contract dispute. They also knew
that all the stores and the stands involved in the dispute were com-
pletely shut down, and that, in consequence, there would be no occa-
sion either for the buying public to approach the stores involved or
for any merchandise to be delivered to them. Therefore it seems it
must follow that the picketing at the outside general entrances to the
market could not have had as its purpose an appeal to the primary
employers' workmen, to the primary employers' suppliers, or to any
part of the general public normally doing business with the closed
establishments.
Returning to what is always the critical question in Section 8 (b)
(4) (A) cases, what was the object of Local 648 in picketing the gen-
eral entrances? On these simple facts, it appears quite clearly that the
purpose could only have been to induce the employees and the custom-
ers of the neutral employers not to enter the Market at all.'$ If this
was its purpose, the picketing constituted a clear violation of Section
8 (b) (4) (A) of the statute.
The Court of Appeals decision in Otis Massey (General Drivers,
Warehousemen and Helpers Local 968, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
supra), cited by my dissenting colleagues, supports, rather than de-
17 Section 8 (b) (4) (A ) reads :
It shall be an unfair labor practice for a labor organization or its agents- . .. to
induce or encourage the employees of any employer to engage in . . . a concerted
refusal in the course of their employment to . . . handle . . . any goods . . . or to
perform any services, where an object thereof is : (A) forcing . . . any employer . . .
to cease doing business with any other person ;
"It is the object of union encouragement that is proscribed by that section rather
than the means adopted to make it felt."
International Rice Milling Co., Inc, et al. v. N. L. R. B., 341 U. S. 665, 672.
28 See Washington Coca - Cola Bottling Works, Inc . v. N. L. R. B., 220 F. 2d 380
C. A., D. C.), enfg. 107 NLRB 229
405448-57-vol 116-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracts from, my position here. For the very question, as I view it, is
whether substantial evidence supports a finding that the Respondent's
object was to enlist the aid of neutral employers through their em-
ployees. Far from mechanically applying rigid tests as to where
a union may picket, I have concluded on the basis of all the evidence
that the Union's purpose here was to induce the employees of neu-
trals. And the fact that some nongrocery operations owned by Long
were open 19 does not outweigh the strong and convincing evidence
of the Union's unlawful objective.
This is not a case of lawful, primary picketing which only inci-
dentally has the unavoidable effect of inducing also the employees of
neutral employers.21 There does not appear to have been any pri-
mary picketing here on the morning of February 15, 1954. The
Crystal Palace Market was not then a common situs, harboring both
the employees of the primary and of the secondary, neutral employ-
ers.2' The so-called common situs cases cited by the Respondents
in defense are therefore inapposite.
As my colleagues of the majority indicate, there is more in the
record supporting our conclusion that the object of the picketing was
secondary and therefore unlawful. In its brief to the Board, Re-
spondent Local 648 candidly admits that the picketing was also di-
rected against the tenant employees. Savin, the business agent of
Local 1017, in furtherance both of the policy of his local and his spe-
cial assignment to assist Local 648, personally appealed to two em-
ployees of a neutral employer to quit work during the picketing. Fur-
ther, in its last effort to obtain signed contracts on February 14 at the
final conference preceding the picketing, the Local 648 officers were
accompanied by the secretary-treasurer of Local 1017 and represent-
atives of other labor organizations. As we know, Local 1017 repre-
sented the employees of some of the neutral merchants. Whether
the other union agents also represented employees in the Crystal Mar-
ket is not clear. Nonetheless their presence at that critical moment
at least implied some form of collateral pressure through the repre-
sentative status of these other union officials on behalf of other em-
ployees. And, finally, if the picketing had been intended only to
101 need not and do not decide whether Long's separate and different operations are
"primary" or "secondary" with respect to Long 's grocery business . Even assuming, for
the purposes of this opinion, that they are technically "primary," although not at all
involved in the dispute , I do not consider the fact that they remained open as significant
when viewed against the closing down by all primary employers who were disputing with
Local 648, the invitation to the Union to picket near those employers inside the Market,
and the actions of Savin in directly inducing employees of admitted secondary employers
to cease work
20 See Ryan Construction Company, 85 NLRB 417 , referred to with approval in the
Supreme Court decision in International Rice Milling Co., Inc., at at. v. N. L. R . B., 341
U. S. 665, 672.
21 See Moore Dry Dock Company, supra; Brotherhood of Painters, Decorators, and
Paperhangers of America, Local Union No. 193 (Pittsburgh Plate Glass Company), 110
NLRB 455.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 867
publicize the labor dispute,. instead of being aimed at the employees
of the neutral companies, the Respondents could well have accepted
Long's invitation to picket the primary stands only, which are dis-
persed in the large inside market area.
We are not called upon to decide in this case whether a shutdown
of operations in anticipation of a strike ipso facto outlaws picketing of
the employer's premises. All we need decide is whether under the
circumstances of this case, the picketing of the premises of the neu-
tral employers violated the statute. On the basis of the entire record,
considering all the many factors detailed above, I find that the Gen-
eral Counsel has sustained the burden of proving that the picketing
activity had an unlawful secondary object and therefore was an un-
fair labor practice in violation of the statute.
As to the Respondent's contention that the mere landlord-tenant
relation between Long and the many tenants in the market made each
of its tenants an ally of Long so as to expose all of them to any eco-
nomic pressure directed against Long, I find no merit in this defense
for the same reasons as those set forth by my colleagues of the
majority.
MEMBERS MURDOCK and PETERSON, dissenting :
The record in this case shows that the Crystal Palace Market is a
large retail shopping center operated and solely owned by J. M.
Long and Company, Inc. While a number of stands or shops are leased
to individuals under a 30-day lease arrangement, the record further
shows that Long itself is by far the largest entrepreneur in its own
Market. On February 4, 1955, Long and Standard Groceteria, a
lessee, both members of the Retail Grocers Association of San Fran-
cisco, locked out their grocery store employees and closed down opera-
tions in these 2 departments because Respondent Union Local 648 in
furtherance of a labor dispute with the Association had picketed 2
other members. On February 15, 1955, the Union placed pickets at
various customer entrances to the Crystal Palace Market with signs
stating that Long and Standard Groceteria were "Unfair." The dia-
gram attached to the majority's decision marked "Appendix C" shows
the location of Local 648's pickets at entrances immediately adjacent
to 'Long's direct business activities in the Market and the extensive
scope of such activities. A glance at this diagram reveals that Long's
grocery and housewares departments are the two largest single enter-
prises in the Market. Almost as large are Long's sport shop and
appliance department. Long also operates directly 2 liquor and 2
tobacco shops. In addition, Long maintains a grocery warehouse, a
carpenter shop, and a large parking area for the use of all Market cus-
tomers. Except for those employees locked out of its grocery depart-
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, the record is clear that Long attempted to operate all of its
remaining shops and services during the period of the picketing.
The majority finds that such peaceful picketing of a primary em-
ployer's fixed business premises is violative of Section 8 (b) (4) (A).
No precedent exists for this conclusion. Indeed, such a conclusion is
contrary to Board decisions beginning in 1949 and issued as recently
as last year-precedents which have received the approval of the
Supreme Court. Those cases hold that picketing of the type involved
in this case is primary conduct and the right to engage in such conduct,
protected under Sections 13 and 7 of the Act, has not been outlawed
by Congress under Section 8 (b) (4). Two of the leading decisions
in this area, spanning the history of the Board's and the courts' in-
terpretation of Section 8 (b) (4) (A), were strangely ignored by the
Trial Examiner, and are now explicitly and summarily overruled in
the main opinion. The first, Ryan Construction Corporation, was
issued by the Board in 1949 and appears in 85 NLRB 417; the second,
Crump, Incorporated, was decided only last year and appears in 112
NLRB 311. While the concurring opinion purports not to reverse
either of these decisions, we believe the necessary effect and sense of
that opinion accomplishes that very purpose. Although the concurring
opinion cites the Ryan case, we fail to see wherein that opinion takes
cognizance of the facts and holding in that decision. What to the
concurring member is "always the critical question in Section 8 (b)
(4) (A) cases, what was the object of Local 648 in picketing the gen-
eral entrances?", is certainly not the critical question posed squarely
by the Board in Ryan, Pure Oil,22 Crump, Incorporated, and other
decisions. The real issue in those cases was the problem of distinguish-
ing between primary and secondary picketing. In the Ryan case, the
Board clearly held that if the union was picketing the premises of any
employer with which it had a dispute that picketing could not be
"called secondary even though, as is virtually always the case, an
object of the picketing is to dissuade all persons from entering such
premises for business reasons." Elsewhere the concurring opinion, by
some reasoning which we cannot follow, states that the premises of
Long, the primary employer, are 'the "premises of the neutral
employers."
The main opinion's explicit and the concurring opinion's implicit
reversal of the Ryan and Crump, Incorporated, decisions is, we believe,
diametrically opposed to the express views of the Supreme Court of
the United States. In International Rice Milling Co., Inc., et al. v.
N. L. R. B., 341 U. S. 665, 672, the Supreme Court, reversing the Court
of Appeals for the Fifth Circuit, held that "Congress did not seek,
by Section 8 (b) (4) to interfere with the ordinary strike...."
22 The Pure Oil Company, 84 NLRB 315.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 869
Among others, two decisions of the Board were cited approvingly by
the Court as illustrative of this fundamental interpretation. With
regard to the first, Ryan Construction Corporation, supra, the Supreme
Court called attention to the facts and rationale of the Board appear-
ing in 85 NLRB 417, 418. From the facts set forth on that page it
appears that the respondent union had made certain demands upon
Bucyrus, the owner and occupier of premises, upon which Ryan, the
secondary employer, was engaged in a construction project. The union
picketed the entire premises including a gate which had been cut for
the use of Ryan employees. The Board held that the picketing was
nonetheless primary picketing and hence not violative of Section
8 (b) (4) (A). The Board's rationale, which received the approval
of the Supreme Court, was as follows :
Concededly, an object of the picketing was to enlist the aid of
Ryan employees, as well as that of employees of all other Bucyrus
customers and suppliers. However, Section 8 (b) (4) (A) was
not intended by Congress, as legislative history makes abundantly
clear, to curb primary picketing. It was intended only to outlaw
certain secondary boycotts, whereby unions sought to enlarge the
economic battleground beyond the premises of the primary Em-
ployer. When picketing is wholly at the premises of the employer
with whom the union is engaged in a labor dispute, it cannot be
called "secondary" even though, as is virtually always the case,
an object of the picketing is to dissuade all persons from enter-
ing such premises for business reasons.
With regard to the second Board decision, The Pure Oil Company,
supra, the Supreme Court called particular attention to so much of
the decision appearing in 84 NLRB 315, 318-320. On those pages
the Board set forth the fact that the union, engaged in a dispute with
Standard Oil, picketed the latter's premises on which a neutral em-
ployer, Pure Oil, was also doing business. The Board held that the
picketing was primary and the fact that it may have had a secondary
effect upon employees of other employers did not "convert lawful
primary action into unlawful secondary action within the meaning
of Section 8 (b) (4) (A)." Presumably, the majority would reverse
this decision too, along with Ryan Construction Corporation and
Crump, Incorporated.
In apparent explanation of the reversal of long-established prece-
dent, approved by the highest Court in the land, the main opinion
states that the legality of picketing should not depend upon "title to
property." No such issue exists in this case. Long was not an
absentee owner engaged in business at any location other than the
Crystal Palace Market. As set forth above and graphically illustrated
in "Appendix C," it was the principal occupier of its own premises
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and in active control of the whole market . The Union had a legitimate
dispute with Long over wages , hours, and conditions of employment.
Except for the grocery department , all of Long's extensive business
activities continued in full operation during the picketing . The right
to engage in primary picketing does not rest here upon bare legal title
but upon the fact that these were the premises where the primary em-:
ployer conducted his business.
Where but at the Crystal Palace Market , the only location of its
business , could Long be picketed? If a union cannot peacefully
picket the premises of a primary employer at entrances customarily
used by patrons and employees of that employer , what remains of the
statutory right to strike? What remains of the right of employees
to engage in concerted activities for their mutual aid and protection?
It is small comfort to these employees to declare , as the main opinion
does, that they should have requested permission from Long to picket
his own stands inside the market; that one of the pickets was not close
enough to a stand actually operated by Long , or that a business agent
of a sister Local induced two employees of a tenant under Long's
constant control to respect the picket line. Nor is it much more com-
fort to these employees to be told in the concurring opinion that their
picketing , otherwise lawful , suddenly became unlawful because Long
had closed down his grocery department . In our opinion , this is cut-
ting the area of lawful primary picketing to so fine a point that only
the majority can see it. If criteria such as these are now to be used
to find primary picketing to be secondary and a lawful strike unlaw-
ful, then the ordinary strike as we have known it in America has
suffered a telling blow . For the kind of minutiae seriously advanced
by the majority as the basis of its decision can be found in virtually
every primary strike. The main opinion states that restrictions of this
nature will not be applied to picketing at premises occupied solely by
the primary employer. To support this dicta it cites the Interna-
tional Rice Milling case , supra, in which the Supreme Court, as in-
dicated above , approved the Board 's Ryan and Pure Oil decisions.
But this concession in favor of Sections 13 and 7 of the Act would
appear to be more illusory than real . For the rationale and result of
their decision may well be an invitation to all employers to lease out
a small portion of their own premises and thereby substantially in-
sulate themselves from the effects of a strike by their employees.
Having reversed the controlling precedents , the main opinion relies
upon an entirely novel application of the Board's decision in the
Moore Dry Dock Company , 92 NLRB 547. That case was never
intended to establish a restrictive rule for picketing before the wholly
owned premises of an employer with which , as here, the union has a
dispute. There ' the union 's dispute was with the owner of the S. S.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 871
Phopho undergoing repairs on the premises of the Moore Dry Dock
Company, a neutral employer. A majority of the Board in that case
liberally interpreted Section 8 (b) (4) (A) to permit, under careful
restrictions, a minimum of picketing before the premises of a sec-
ondary employer. This liberal interpretation of the secondary boy-
cott provisions of the Act where premises of the secondary employer
are picketed has now been converted by the main opinion into a
harsher rule restricting the otherwise lawful picketing of a primary
employer's premises. The main opinion goes even further to forbid
the latter type of picketing than the Board and the courts have gone
in forbidding picketing before a secondary employer's premises. Re-
ferring only to the "gist of these standards," and to considerations
behind them, our colleagues do not state or apply the specific criteria
listed by the Board in the Moore Dry Dock case as distinguishing
primary from secondary picketing. In that case the Board said :
... we believe that picketing the premises of a secondary em-
ployer is primary if it meets the following conditions: (a) The
picketing is strictly limited to times when the sinus of the dispute
is located on the secondary employer's premises; (b) at the time
of the picketing the primary employer is engaged in its normal
business at the situs; (c) the picketing is limited to places rea-
sonably close to the location of the situs; and (d) the picketing
discloses clearly that the dispute is with the primary employer.23
[Emphasis supplied.]
No member of the majority disputes the fact that the picketing in
this case complies with conditions (a), (b), and (d). The implica-
tion in the main decision that the picketing was not reasonably close
to Long's business activities (conditions (c)) is, in our opinion, so
obviously a quibble that it answers itself. Indeed, that decision ob-
viously does not rely upon the above standards in finding that the
picketing in this case violated Section 8 (b) (4) (A). Rather, it
adopts a new criterion, ignoring the well-established and judicially
approved standards of the Moore Dry Dock case. The new test;
announced here for the first time in order to find conduct otherwise
lawful to be unlawful, is a broad generalization that the picketing
union must make a. "bona fide effort to minimize the impact of its
picketing upon the operations of the neutral employers." No specific
standards are now offered a union to guide its activities in picketing
the premises occupied.by two employers. Whatever a picketing union
does it does at the peril of finding that this Board will regard it as
evidence of bad faith and for that reason forbid all of the picketing.
23 Moore Dry Dock company, 92 NLRB 547, 549
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, where a union pickets two entrances to a primary employer's
premises, both entrances being used by customers and employees of
that employer, under the main opinion the Board could find, as here,
that this is evidence of the Union's bad faith because only one en-
trance should have been picketed. A union does not, according to this
view, have the choice of picketing outside a primary employer's
premises, but it must make an effort to picket inside those premises,,
where its signs advertising the primary employer as unfair will be
concealed from the general public. Failure to do this is evidence of
its bad faith and a sufficient reason to find that the picketing is
unlawful.
The concurring opinion presents, if that is possible, an even more
radical departure from established Board and court law in the area of
secondary boycotts and primary strikes. It reverts to the literal
language of Section 8 (b) (4) (A)-"the only issue is whether the
evidence shows that the picketing was for a proscribed object." In
so doing it ignores completely the conflict between this section of the
Act and Sections 13 and 7, a conflict that has absorbed the Board and
the courts ever since passage of the amended Act. As indicated in the
cases cited above, the Board has pointed out over and over again,
with the approval of numerous circuit courts of appeal and the Su-
preme Court of the United States, that there is a dual congressional
objective in this statute, that of preserving the rights of employees to
engage in the ordinary strike and that of neutral employers to be free
from controversies not their own. The Supreme Court itself, in Inter-
national Rice Milling, supra, pointed out the problem of reconciling
the right to strike with the language of Section 8 (b) (4) (A). Early
in the history of the Act the Board accepted the difficult task of ac-
commodating these rights fairly and reasonably. It is too late in the
day to refuse, as the concurring opinion does, to recognize the existence
of a conflict in these rights when Section 8 (b) (4) is literally applied.
As the Board said in the Pure Oil case, such a decision "might well
outlaw virtually every effective strike, for a consequence of all strikes
is some interference with business relationships between the struck
employer and others." a' To justify the conclusion that this picketing
is unlawful the concurring opinion relies primarily upon the circum-
stances that Long and Standard Groceteria had closed down their
grocery operations so that there were no employees in the Market
"directly involved in the contract dispute." The record is perfectly
clear, however, that all of Long's business activities, except the grocery
department, continued in full operation during the period of the pick-
24 The Put e Oil Company, supra, at 320
RETAIL FRUIT & VEGETABLE CLERKS' UNION 873
eting. Moreover, four other tenants of Long were similarly involved
in a contract dispute with Local 648. Although ordered by Long to
remain closed, it is not clear from the record that these latter stands,
in fact, remained closed after the first day of picketing. But even
assuming, contrary to the fact, that all employees of the primary em-
ployers had been locked out of their jobs, it is, indeed, a most novel
interpretation of Section 8 (b) (4) (A) to find that these employees
could not lawfully protest their lockout to the public by picketing the
premises where they had been, and hoped in the future to be, employed.
Such a finding is, in our opinion, a direct infringement of the right of
employees to publicize a labor dispute and to engage in concerted ac-
tivity specifically guaranteed by Congres isn Sections 13 and 7 of the
Act. The concurring opinion suggests that an employer may effec-
tively forestall notice to the public and its other employees that it is
engaged in a labor dispute by the simple expedient of closing down its
affected operations. No Board or court decision has ever held or even
suggested that a union, picketing the premises of a primary employer,
must limit its activity to the single group of the primary employer's
employees directly involved in the dispute. The distinction made in
the concurring opinion between Long's "primary stands" (those in-
volved in the dispute) and his other stands (which it suggests to be
secondary) introduces a wholly new concept. The line drawn by the
Board and courts has been between primary and secondary employers.
The idea that a single employer can be secondary to himself with re-
spect to his operations not directly involved in a dispute, and that such
operations are immune to picketing, is wholly novel. Indeed, the
Court of Appeals for the Fifth Circuit has gone so far recently as to
reverse the Board's decision in the Otis Massey '5 case and to hold that
a union may lawfully picket all employees of a primary employer, in-
cluding those not involved in a labor dispute, even where the union
appealed to such employees at premises other than those of the pri-
mary employer.
We believe the majority's decision is wrong. From it unions must
now anticipate the gravest impediment to what has heretofore been
their statutory and court recognized right to engage in primary strike
activity.
We are further persuaded that Local 648's alternative position that
all of the stand operators in the Market under license and control of
J. M. Long and Company, Inc., were allies rather than neutrals in this
labor dispute is meritorious. Therefore there could be no unlawful
26 N. L R. B v. General Drivers, Warehousemen and Helpers Local 968 , International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, 225 F. 2d
205 (C. A 5), cert. denied 350 U. S. 914.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secondary boycott regardless of whether the picketing was intended
to affect their operations. The record shows that the Crystal Palace
Market is wholly owned and directed by J. M. Long and Company, Inc.
As indicated above, a number of stands in the Market are operated di-
rectly by Long. Other stands are operated by individuals under a lease
arrangement with Long. These leases are terminable by Long on
30 days' notice. The lessees do not pay a fixed rental for their premises.
Payments are made to Long on the basis of a certain percentage of
the profits of each stand, and such payments cannot fall below a
specified minimum amount. Long retains the right under the lease to
enter any stand at any reasonable time to see to it that the stand is
being conducted in a clean and orderly fashion. Long also has the
right to audit the books of the various individuals under lease. All
advertising is conducted by Long for itself and all other tenants in the
Market. The entire premises are maintained by Long, including a
parking lot for the use of Market customers. Under the supervision
of Sidney A. Haag, a vice president, Long employs a superintendent,
an advertising manager, engineers, and other employees, all for the
benefit of itself and all other stand operators in the Market. Of some
further significance in assessing Long's interest in the businesses of
its lessees is the testimony of Haag that on February 12, 1955, he
told about six stand operators involved directly in the dispute with
Local 648 ". '.. that in the event they decided not to sign [a contract
with Local 648] that under no circumstances would I permit them to
open their places on Monday morning." These facts, in our opinion,
support the conclusion that the Crystal Palace Market was run as a
single market enterprise under the overall control and direction of its
owner, J. M. Long and Company, Inc. We therefore conclude that
Long was directly involved economically and administratively in
the operation of the stands of all of its lessees and that such lessees
were not, in any event, independent, neutral employers entitled to the
protection of Section 8 (b) (4) (A).
APPENDIX A
NOTICE TO ALL MEMBERS OF RETAIL FRUIT & VEGETABLE CLERKS'
UNION, LOCAL 1017, RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
RETAIL FRUIT & VEGETABLE CLERKS' UNION 875
WE WILL NOT induce or encourage the employees of any tenant
of Crystal Palace Market, or of any other employer, to engage in
a strike or concerted refusal in the course of their employment
to perform services for their employer where an object thereof is
to force or require any employer or person to cease doing business
with J. M. Long and Company, Inc., in its capacity as owner of
Crystal Palace Market, or with any other employer.
RETAIL FRurr & VEGETABLE CLERKS' UNION,
LOCAL 1017, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF RETAIL GROCERY CLERKS' UNION, LOCAL
648, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT induce or encourage the employees of any tenant
of Crystal Palace Market, or of any other employer, to engage in a
strike or concerted refusal in the course of their employment to
perform services for their employer where an object thereof is to
force or require any employer or person to cease doing business
with J. M. Long and Company, Inc., in its capacity as owner of
Crystal Palace Market, or with any other employer.
RETAIL GROCERY CLERKS' UNION, LOCAL 648,
RETAIL CLERKS INTERNATIONAL ASSOCI-
ATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
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INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10 (b) of the National Labor Relations
Act, 61 Stat. 136, herein called the Act, and stems from a complaint issued by the
General Counsel of the National Labor Relations Board against Retail Fruit &
Vegetable Clerks' Union, Local 1017, and Retail Grocery Clerks' Union, Local 648,
both affiliated with Retail Clerks International Association, AFL-CIO, herein called
Respondents and Local 1017 and Local 648, respectively. The complaint, dated
April 25, 1955, alleged that Respondents had engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A) and 8 (b) (1) (A) of the Act. Copies
of the complaint, the charge upon which it was based, and notice of hearing thereon
were duly served upon Respondents. In their duly filed answer, Respondents denied
the commission of any unfair labor practices; challenged the jurisdiction of the
Board; and claimed that the activities of Respondents at issue herein were protected
under the Act and the Constitution of the United States.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 877
Pursuant to notice, a hearing was held in San Francisco, California, on May 17,
18, and 24, 1955, before the duly designated Trial Examiner. All parties were
represented by counsel and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce relevant evidence. A motion by
Respondents to dismiss the complaint was denied at the conclusion of the General
Counsel's case. The motion was renewed at the close of the hearing, ruling was
reserved, and it is hereby denied. At the conclusion of the hearing, the parties were
afforded an opportunity to argue orally and to file briefs. Oral argument was
presented and briefs were waived.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Retail Grocers Association of San Francisco, Ltd., herein called Grocers Asso-
ciation, is a trade association whose membership is comprised of approximately
500 retail grocers in the San Francisco area. Save for a few establishments located
in adjoining San Mateo County, all are located in the city of San Francisco. This
group operates approximately 555 grocery stores. At least some of the stores
operated by the members of this trade association also contain fruit departments
which are operated by other entrepreneurs, this apparently being a common form
of business venture among independent retail markets.
Since 1937, Grocers Association has entered into associationwide collective-bar-
gaining agreements in behalf of its members with Local 648. As part of this identi-
cal bargaining procedure, it has also bargained for nonmembers who have given
it powers of attorney, as is the practice among its members. Some of the 500 mem-
bers of Grocers Association do not have any employees, the result being that the
bargaining negotiations in practical effect are carried on in behalf of 275 to 300
members and nonmembers who operate approximately 360 stores, although the con-
tracts do become applicable to members having no employees at such time or times
as their operations expand, temporarily or permanently, to a point where employees
are hired.
During the year 1954, members of Grocers Association and those other em-
ployers for whom Grocers Association bargains in one broad unit purchased, for the
approximately 360 stores which they operate, groceries and other products valued
in excess of $25,000,000, of which products valued in excess of $5,000,000 were
received indirectly in the flow of commerce from points outside the State of Cali-
fornia.
I find that the operations of Grocers Association, its members, and those em-
ployers for whom it bargains in one industrywide unit affect commerce within the
meaning of the Act. N. L. R. B. v. Gottfried Baking Co., Inc., 210 F. 2d 772
(C. A. 2); Davis Furniture Company v. N. L. R. B., 197 F. 2d 435, 205 F. 2d 355
(C. A. 9); Lee's Department Store v. N. L. R. B., 196 F. 2d 411 (C. A. 9); Motor
Truck Association of Southern California, 110 NLRB 2151; Insulation Contractors
of Southern California, Inc., 110 NLRB 638; Capital District Beer Distributors Asso-
ciation , 109 NLRB 176; and Niagara Beer Distributors Association, 108 NLRB 1571.
See Hogue and Knott Supermarkets, 110 NLRB 543; and Central Cigar & Tobacco
Co., 112 NLRB 1094.
Retail Fruit Dealers' Association of San Francisco, Inc., herein called Fruit
Association, is a trade association comprised of approximately 150 to 160 employers
who operate retail fruit and produce stands in the city of San Francisco. This as-
sociation has engaged in multiemployer collective bargaining in behalf of its mem-
bers with Local 1017 since 1937.1
U. THE LABOR ORGANIZATIONS INVOLVED
Retail Fruit & Vegetable Clerks' Union, Local 1017, and Retail Grocery Clerks'
Union, Local 648, both affiliated with Retail Clerks International Association, AFL-
CIO, are labor organizations admitting to membership the employees of members
of the Employers.
1 The foregoing findings are based upon the uncontroverted and credited testimony of
Francis Tissler, secretary of Grocers Association ; the uncontroverted and credited testi-
mony of Victor Corsini, executive secretary of Fruit Association ; and upon allegations of
the complaint which have been stipulated to be true.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The issue
The principal issue presented is whether the two Respondent Unions, by picket-
ing at the premises of Crystal Palace Market, a large food retailing establishment
covering approximately 4 acres in the city of San Francisco, including a parking lot,
have, to paraphrase the language of the statute, induced or encouraged the employees
of any employers to refrain from performing services with the object of requiring
employers to stop doing business with other persons. A subsidiary issue is whether
Respondent Local 1017 unlawfully threatened employees with loss of employment
if they crossed a picket line established at said Crystal Palace Market.
B. The situs
A description of the business arrangement under which Crystal Palace Market is
operated and of the premises - may be of assistance at this point, prior to a consid-
eration of the contentions of the General Counsel herein.
Crystal Palace Market is a large food retailing and service establishment located
in a building owned by J. M. Long and Company, Inc., herein called Long. This
building has but one story with all of its retail and service ventures on the main
floor, save for a beauty parlor located on a mezzanine; the offices of Long are
also located on this mezzanine. The building, together with its adjacent parking
lot, covers almost 4 acres and contains retail stands or departments which deal in
groceries, delicatessen products, creameries, bakery goods, liquors, and tobaccos.
There are various service stands such as shoe repair and a locksmith. Other de-
partments are two cocktail bars, restaurants, and an appliance store.
Long actually operates only 4 of the approximately 64 operations or concessions
found in this 1 story building, these being 2 liquor and tobacco departments, the
appliance store, and a self-service grocery store; this grocery store is operated under
the Long name. All other stands or stores are operated by entrepreneurs who lease
their respective premises from J. M. Long and Company, Inc., on a monthly basis,
either party being entitled to cancel the lease on a 30-day notice. These leases
provide for a rental based upon a percentage of receipts coupled with a minimum
monthly rate. They are silent as to any control by Long over the labor relations
of its tenants.
The various retailing operations of Long on these premises, namely liquor, tobacco,
appliances, and the grocery, are under the supervision of John E. Green, general
manager for Long in charge of retail operations. The entire premises of Crystal
Palace Market are under the supervision of Sidney A. Haag, general manager and
vice president of the concern. Both have offices at Crystal Palace Market.
Vital to an appreciation of the problems posed herein is the physical layout of the
building which is shaped roughly in the form of a T and can be entered from 11
entrances on all sides. Once the premises are entered one can proceed throughout the
entire selling area without any difficulty. Some of the entrepreneurs have space
along a wall and others, in the majority, have establishments more centrally located
in that they are substantially surrounded by aisles for public access. A diagram
introduced in evidence, although not to true scale, adequately reflects this picture.
In fact, the selling floor of the establishment, in utilization of selling space, is not
unlike that of a large department store for it contains both wall counters as well as
self-enclosed counters more centrally located and approachable by customers from
all sides. Apparently, payment is made for purchases at the respective stands.
At least two of the stands, the grocery operated by Long and the other principal
grocery stand, known as Standard Groceteria, are self-service groceries and have
a common distinguishing feature. They are located on opposite sides of the store,
are substantially enclosed by walls or partitions, and entrance is had via turnstiles.
Exit is had by the same turnstiles after passing check stands, in the manner preva-
lent in the modern supermarket. These two operations of Standard and Long, re-
spectively, which are directly involved in the present dispute, lend themselves to
complete segregation from the rest of the Market when desired, in that they are
provided with canvas curtains which can be closed and locked when they are not in
operation.
The Market is located in downtown San Francisco in an area heavily traveled
both by automobiles and pedestrians and it can be entered from a number of streets.
One side of the establishment faces Market Street, a principal artery of the city,
and has three entrances. Two of them lead directly into aisles of the store which
initially pass between (1) a meat stand and a fruit stand and (2) the aforesaid
RETAIL FRUIT & VEGETABLE CLERKS' UNION 879
fruit stand and a liquor and tobacco stand; the last named stand is one of those
operated by Long itself. The third entrance leads into an appliance store, a Long
operation, from which passage may be had into all other portions of the premises.
Although Market Street does not run true east and west,2 this side of the Market may
be referred to as the north side.
The adjoining west side of the Market faces Eighth Street, also a heavily traveled
artery of the city, and has two entrances. One entrance passes between the prem-
ises of Standard Groceteria and that of a locksmith and the other passes between
the premises of a meat dealer and a tobacco stand operated by Long.
The south side of the Market is set back some distance from Mission Street, also
a heavily traveled artery. Between the outer wall of the Market and Mission Street
is located a free parking area for customers of the Market. This parking area is
owned by Long. There are four entrances to the Market from the parking area, one
beside a steam beer dispensing establishment, a second between a fish stand and
a fruit stand, a third between the aforesaid fruit stand and a liquor stand operated
by Long, and the fourth between liquor and tobacco stands operated by Long.
The remaining side of the Market, that facing east, is actually approached by two
streets, namely Jessie and Stevenson, which end at the side of the Market. There
is an entrance to the Market proper from Jessie Street, this also passing by the
steam beer dispensing department. The entrance from Stevension Street initially
passes by a shoe repair stand.
The doors of the Market open for business at 8 a. in. and close at 6 p. in. Some
departments, including Long's grocery department and Standard Groceteria, open
for business at 9 a. in. and other stands, the number undisclosed, apparently open
at 8 a. in. Customers use all entrances of the Market. Employees of the Market
who enter after 8 a. in. use any entrance. Those employees who appear for work
prior to 8 a. in. are instructed to use one particular door. This is the door on the
south side of the Market located between a fruit and vegetable concession and the
Long liquor department. Long has no direct control over the employees of any of
the entrepreneurs save of course those employees working for the four Long oper-
ations. The main aisles of the store are approximately 8 to 10 feet wide. Other
aisles appear to be slightly narrower, but their precise width is not disclosed.
C. Bargaining history and 1955 negotiations
The present dispute arises from the 1955 negotiations between Local 648 and
various grocers in the San Francisco area, both members and nonmembers of
Grocers Association. These negotiations for a new contract did not initially result in
an accord among the interested parties. This affected the two principal groceries in
Crystal Palace Market, Long's and Standard Groceteria plus a handful of other
stands in the Market which were operating within the jurisdiction of Local 648.
All other stands in the Market were not involved in the dispute.
As stated, Local 648 has bargained since 1937 with Grocers Association and has
entered into associationwide contracts. These contracts also covered nonassoci-
ation members who had furnished Grocers Association with Powers of attorney.
The last agreement between the parties, prior to the instant dispute, was for a 5-
year term expiring January 1, 1955.
In the latter part of October 1955, Local 648 and Grocers Association corre-
sponded relative to a new agreement. A number of meetings were held com-
mencing on November 10, 1954. The negotiators included Secretary Francis
Tissier of Retail Grocers and a number of representatives of Local 648, including its
secretary, Claude Jinkerson. Proposals were exchanged and a total of approxi-
mately 13 meetings were held. The last meeting, held on January 20, 1955, was
also attended by representatives of the San Francisco Labor Council, but no agree-
ment resulted. More direct action was thereafter undertaken by Local 648 against
members of Grocers Association, as described below.
The Charging Party herein, Fruit Association, is a trade organization, similar to
Grocers Association, which, since 1937, has been bargaining in behalf of its mem-
bers with Local 1017, a sister local of Local 648. Its members included a number of
fruit stands in Crystal Palace Market, totaling approximately five in number. It
is thus apparent that the great majority of the approximately 64 stands in the
Market had no labor dispute of any nature at the time material herein.
In fact, there was no dispute between Fruit Association and Local 1017 because
their most recent contract, entered into March 23, 1954, did not expire until April 1,
1955, a date subsequent to the period material herein. This agreement contained a
provision forbidding all strikes and lockouts. Although the agreement also con-
2 As reflected on a map of the city.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained provisions calling for a greater degree of union security or preference than is
permitted under the Act, and there is evidence that the agreement was so applied,
the General Counsel expressly does not attack these provisions herein.
The remaining stands at the Market, constituting the large majority thereof,
bargain with various labor organizations, and, so far as the record indicates, were
enjoying labor peace. Indeed, one or more of the other stand operators are mem-
bers of another trade association which is under contract with Local 648. In sum,
Local 648 had a dispute with the two main grocery stands in the Market, as
reflected by their picket signs described below, and also was interested in signing up
a handful of allied operators within their jurisdiction. The remainder of the
approximately 64 stands, including the fruit stands coming within the jurisdiction of
Local 1017, had no labor strife. In fact, if the signs carried by the pickets during
the picketing commencing February 15, as described below, are to be taken at face
value, the picketing by Local 648 was directed only at Long's grocery stand and
Standard Groceteria.
On the morning of February 3, 1955, two markets located elsewhere in the city,
and represented by Grocers Association, were picketed by Local 648. Grocers As-
sociation immediately announced that a strike against one of its members was a
strike against all, a position which it had adopted during the contract negotiations,
and instructed its members that day to lay off their employees. A number of the
employers did so that evening. Among them was Long's grocery and Standard
Groceteria which not only laid off their employees that evening but also closed down
operations entirely. The curtains around their respective grocery stands were
drawn and locked. Although both stands did not reopen for business until February
24, picketing of Crystal Palace Market commenced on the morning of February 15.
In the interim, the picketing had spread to a total of 13 or 14 markets located
throughout the city. It appears that the picketing at Crystal Palace Market came
to an end on or about February 24. A new industrywide agreement between
Grocers Association and Local 648 was reached on March 18, 1955.
Material facts leading to the picketing of Crystal Palace Market are as follows.
On February 3, as indicated, the two principal grocery stands at the Market, namely
Long's and Standard Groceteria, closed down and laid off their employees. On the
morning of Saturday, February 12, Eric Lyons, 1 of 3 business representatives em-
ployed by Local 648 under the supervision of Secretary Jinkerson, visited Crystal
Palace Market for the purpose of signing up several employers. He spoke sepa-
rately to a number of stand operators; he estimated the number as 8 but named only
6. Of the 6, 3 signed contracts forthwith and 3 did not. Not included in this group
were Long's or Standard who, as stated, had been closed since February 3.
One of the three nonsigners suggested that all stand operators similarly situated
meet with Lyons. A meeting was arranged for 11 a. m. and was attended by
Lyons, General Manager Green of Long's, and approximately six stand operators.
The latter group included both operators who had as well as some who had not
authorized Grocers Association to bargain for them.
Lyons explained the economic gains sought by Local 648. He was asked for
assurance that there would be no picketing if the stand operators signed the agree-
ment . He replied that he was unable to give this assurance. He gave the stand
operators a deadline of 6 p. m. on Sunday, February 13, to sign up. At least three
of the employers present, Italian Importing Company, S & G Delicatessen, and
Kessler's Market, did not sign . At least one of them, Italian Importing Company,
had designated Grocers Association as its bargaining agent. That evening employees
of 2 of these 3 operations were laid off and the third stand transferred its employee
to another business operation.
That afternoon, February 12, General Manager and Vice-President Haag of
Long's was asked to meet with a group of the stand operators. A meeting was
promptly arranged and held at 1 p. m. with substantially the same group present
as had met several hours earlier with Lyons. The stand operators informed Haag
of the 6 p. m. deadline on February 13 that Lyons had given them to sign up.
Haag replied that this was an individual determination for them to make. He did
tell them, however, that if they refused to sign with Local 648, he would not permit
them to open on February 14 because he wished to avoid picketing. He stressed the
fact that Long's grocery and Standard Groceteria had closed down, as had one of
the delicatessens, Ostrow's, and that if the others closed down there would be no
basis for a picket line, as he viewed the situation.
The stand operators agreed to consider the matter and on February 14 and 15 the
nonsigners among them remained closed, although on February 15 some of them
worked without employees. The record does not disclose the extent to which, if
any, these stands operated during the picketing that followed thereafter. This laid
the scene for the crucial meeting of February 14, 1955.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 881
On February 14, General Manager and Vice-President Haag of Long 's was tele-
phoned by Secretary Jlnkerson of Local 648 . The latter asked to meet with him
that day and a meeting was arranged for 1 p . m. Present at the meeting in addition
to Haag and Jinkerson were General Manager Green of Long's, Business Agent
Lyons of Local 648, Secretary Treasurer Allen Brodke of Local 1017 , and several
representatives of other labor organizations , presumably those representing other
employees of the Market.
Jinkerson asked Haag to sign the contract proffered by Local 648 and asked why
other stands in the Market, such as creameries and delicatessens , did not sign. He
claimed that a majority of the stores within the jurisdiction of Local 648 had signed
up. Haag turned to Green , the latter being in charge of Long's retail operations,
and asked if he was willing to sign the contract . Green refused , stating that he
chose to abide by the stand taken by Grocers Association.
Haag pointed out to Jinkerson that there was no need to picket Crystal Palace
Market because all stands involved in the dispute with Local 648 had closed down.
According to Haag, and I so find, he told Jinkerson that he had his "full permis-
sion, if he so desired , to picket, to bring his pickets inside the Market and picket each
of the individual stands.. .. Green testified similarly, and I find , that Haag
stated it was unfair for Local 648 to picket - the Market because the stands involved
had closed down , but that if Jinkerson thought it necessary Haag was inviting him
to bring his pickets within the Market and picket those stands that were involved
in the trade dispute. Jinkerson replied that this proposed technique would not give
Local 648 the necessary economic pressure and rejected it. In a telephone conversa-
tion with Jinkerson later that day, Haag asked for 24 hours' notice of any picketing
by Local 648 so that other departments in the Market, not involved in the dispute,
could dispose of perishable goods. Jinkerson declined and the meeting ended .3
On the morning of February 15, 1955 , pickets sent by Local 648 appeared at 7 of
the 11 entrances to the Crystal Palace Market. They first appeared at approximately
6:30 a. in., although several may have been present as early as 5:30, and by 8 a. m.
there were 25 to 30 pickets parading before the 2 entrances on Market Street which
bracket one of the fruit stands. There were 2 or 3 pickets at each of the other 5
entrances . The only entrances not picketed were the four in the rear of the market
which face the free parking area . Picketing of those entrances would have re-
quired the pickets to parade on private property and this was at no time attempted.
Pickets also appeared at the entrances to the truck lane on Eighth Street, located
between the building and the parking area , this being the means of access for in-
coming trucks . In addition , on the first morning, they physically blocked the prin-
cipal entrance to the free parking area , also facing Eighth Street . This mass picket-
ing at the parking lot area was abandoned by noon of the first day and was not re-
peated , according to the credited testimony of Vice-President Haag.
On the first day of the picketing , Business Agent Lyons of Local 648 carried a
banner in the picket line which at all times was peaceful, so far as this record indicates.
8 The foregoing findings are based upon the credited testimony of Haag and Green
which was in substantial agreement . Both were clear and concise witnesses who im-
pressed me as honest witnesses . The version of Jlnkerson did agree in some respects with
that of Haag and Green He then proceeded , however , to give the conversation a different
flavor According to Jinkerson , Haag referred to a similar offer he had made during a
dispute some years earlier with Local 1017 to a group of union negotiators including
Jinkerson and Brodke . Jinkerson stated that on the prior occasion Haag had made the
offer to permit picketing inside the Market at the stands directly involved and that it was
then refused Haag admitted that he had made this identical offer on the prior occasion
but both he and Gieen maintained that it was made on February 14, 1955. The record
is silent as to whether or not Green , who has been in his present position for 2 years,
attended the earlier meeting or was even in Long 's employ at that time Green's testimony
makes reference only to an offer on February 14, 1955. I am not impressed by Jinkerson's
testimony that Haag , on the instant occasion , was only "laying the groundwork " to make
the offer again ; that Haag did refer to the topic ; but that he , Jinkerson, did not "think"
that-Haag actually made the offer . Neither Brodke nor Lyons was questioned about the
conversation I am unable to accept Jinkerson ' s version where inconsistent with that of
Green and Haag and believe his recollection to be at fault Not only, as indicated, did
Haag and Green impress me favorably as witnesses , but, in addition , their testimony is
the more logical under the circumstances . If Haag had made the offer previously and it
had been rejected , there was no basis for him to withhold the actual offer on this occasion
and to have laid only the "groundwork ." Such an offer was consistent with his expressed
desire to avoid picketing of the Market and stood to benefit Haag 's employer . Hence,
Jinkerson 's testimony in this respect is not accepted.
405448-57-vol. 110-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Picketing was carried on under the supervision of 12 picket captains , who in turn
were responsible to the 3 business agents including Lyons, all under the supervision
of Secretary Jinkerson . The participation of representatives of Local 1017 in this
activity is discussed hereinafter in a separate section.
Special signs had been ordered by Local 648 for the occasion. They were de-
livered to the pickets at approximately 8 a. m. on February 15. At least some of the
pickets, it may be noted , also wore sashes designating them as AFL pickets. The
signs referred only to two of the grocery concerns in the market , namely Long's
grocery and Standard Groceteria . Their content is as follows:
STANDARD GROCERY
UNFAIR
Grocery Clerks Union A. F. L.
Sponsored by S. F. Labor Council
J. M. LONG CO.
UNFAIR
Grocery Clerks Union A. F. L.
Sponsored by S. F. Labor Council
One other sign merits discussion. It was carried prior to 8 a. in. on February 15, as
well as thereafter, and had been personally prepared by Jinkerson on the previous
evening. It was left over from a picketing episode elsewhere . This sign , according
to Jinkerson , originally read as follows:
UNFAIR
Don't Patronize The Grocery Department
Sponsored by S. F. Labor Council
A. F. L. Grocery Clerks Union
Over the second line Jinkerson had pasted sheets of paper on which he printed
the words, "J. M. LONG & CO.", the result being that this sign was substantially
similar to the other signs which appeared on the scene at 8 a. m. on February 15.
This sign, in its corrected form, together with the others, was carried during the pick-
eting at all entrances to the Market save those in the rear which, as described, are
located on private property. Stated otherwise, 7 of the 11 market entrances, located
on 3 sides of the property and used by employees and customers alike, were picketed
from the morning of February 15 until approximately February 24.
One more aspect of the picketing may be of interest. The picketing met with
the displeasure of one Rose Misuraca , who operated a fruit and produce stand in
the Market within the jurisdiction of Local 1017. She became concerned over the
fact that the picketing would affect her stand, despite the fact that she and the
other fruit dealers in the Market were not involved in any labor dispute. She pre-
pared a sign reading as follows:
IM NOT
UNFAIR
TO ANYONE
I HAVE 4 KIDS
THE UNION WONT
FEED THEM.
FRUITS AND VEG
ARE NOT ON STRIKE
DEPT 54.
She personally donned the sign and picketed outside the Market Street entrances,
in effect picketing the pickets from 10 until 12 noon on February 15. She did not
picket again. Misuraca claimed that during this period while she was picketing,
one of the signs, presumably that prepared by Jinkerson, did not bear the superim-
posed paper prepared by Jinkerson, this resulting in the sign referring not to J. M.
Long and Company, Inc., but rather to "the Grocery Dept." as unfair. However,
pictures introduced as exhibits by Respondents demonstrate that the sign bore the
superimposed language described by Jinkerson at the time Misuraca placed the
uncorrected sign on the scene. I have concluded, therefore, that Misuraca, who was
in an emotional state at the time because of her fear of impending monetary loss
and was busy picketing on a heavy traveled sidewalk, was in error as to the content
of the sign . And, in any event, assuming that she was correct in her observation,
this was an isolated happening which was quickly remedied pursuant to plan by
Respondents.
RETAIL FRUIT & VEGETABLE CLERKS' UNION o 883
D. Conclusions with respect to Local 648
For the purposes of this discussion I shall assume that the signs bearing the
Long Company name identified Long in its capacity as a grocery stand operator
only and not as the operator of the Market. At least the General Counsel does not
contend otherwise. It is found, therefore, that the signs made reference only to
the two employers with whom Local 648 had a primary dispute.
In sum, Local 648 had unsuccessfully attempted to negotiate a contract with the
Long Company and Standard Groceteria in their respective capacities as grocery
stand operators in the Crystal Palace Market. These negotiations had taken place
as part of the associationwide negotiations between Grocers Association and Local
648 and, commencing on February 3, 1955, Local 648 had picketed various mem-
bers of that organization. As a result, some of the members of Grocers Associa-
tion, as well as nonmembers for whom it bargained, had closed down operations.
This group included J. M. Long and Company and Standard Groceteria which had
closed down completely on February 3. A last minute attempt by Local 648 to
sign up the Long Company on February 14 was rejected by the latter which chose
to abide by the position of the Grocers Association that the union demands should
be resisted.
On February 14, Vice-President Haag of the Long Company did invite Local
648 to bring its pickets inside the Market and picket the stands directly involved
in the dispute. This offer was rejected by Secretary Jinkerson who stated that
this technique would not allow Local 648 the necessary economic pressure. As a
result, 7 of the 11 entrances to the Crystal Palace Market, all located on public
thoroughfares on 3 sides of the Market, were picketed from February 15 until on or
about February 24.
While the dispute centered primarily about conditions involving the two grocery
stands, Local 648 was also interested in signing up several other stands in the
Market. In fact, Business Agent Lyons, on February 14, had raised the point with
Haag that seveial other stands in the Market had failed to sign up. It was after
this that Haag had extended the invitation to picket within the Market. I find,
therefore, that the invitation applied not only to the stands operated by the Long
Company and Standard Groceteria, which were closed down, but also to the
others, apparently three in number. Nevertheless, the signs carried by the pickets
from February 15 on identified only the Long Company and Standard Groceteria
as the grocery stands being picketed by Local 648. And these two stands, as
found, had shut down operations and remained closed for the duration of the
picketing. Thus, with the possible exception of approximately 3 other stands, none
of the approximately 59 remaining stands in the market were involved in this dispute.
It is readily apparent that this case falls within the group known as "common
situs" cases . One qualification is in order because here, the common situs is a
permanent and fixed one while the usual cases treating the problem are ones where
the common situs happens to be a temporary one. See, e. g., Moore Dry Dock
Company, 92 NLRB 547.
Perhaps a logical starting point in an evaluation of this problem is found in the
language of the Supreme Court in N. L. R. B. v. Denver Bldg. & Construction
Trades Council, 341 U. S. 675, where the Court pointed out that in such cases there
were "dual congressional objectives of preserving the right of labor organizations
to bring pressure to bear on offending employers in primary labor disputes and of
shielding unoffending employers and others from pressures in controversies not
their own. .
Stated otherwise, was the interest of Local 648 in publicizing the dispute with a
very small minority of the employers in the common situs outweighed by the in-
terests of other proprietors and the community at large in remaining free from
controversies not their own') See International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, etc., Local 309 v. A. E Hanke, 339 U. S. 470, where the
Court upheld a determination by the Supreme Court of Washington which answered
this question in the affirmative. Does Board policy require a similar result here?
Current Board thinking on the matter stems from the Moore Dry Dock Com-
pany case, supra. In that case the respondent union had a dispute with a shipping
company relative to recognition of that union as the representative of certain
shipboard employees. The ship was placed temporarily in drydock for various
alterations. Thus, the secondary employer, the drydock operator, harbored the
situs of the dispute between the respondent union and the primary employer.
In treating with the issue whether such picketing was primary or secondary,
the Board laid down four conditions which, if met, would warrant a finding that
the picketing was primary and therefore protected. These are:
884 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) The picketing was limited strictly to times when the situs of the dispute was
on the secondary employer's premises.
(b) At the time of the picketing the primary employer was engaged in its normal
business at the situs.
(c) The picketing was limited to places reasonably close to the situs of the dispute.
(d) The picketing clearly disclosed that the dispute is with the primary employer.
The reliance by the General Counsel in the present case on an alleged failure
to meet the second requirement specified above is treated below. In the Moore
Dry Dock Company case, a Board majority found that all four requisites were met
and accordingly dismissed the 8 (b) (4) (A) allegations of the complaint. It is
interesting to note that the minority 4 argued that the picketing was not protected
because the primary employer, the shipping company, was not engaged in its normal
business at the situs, namely the drydock, and that as a result a violation should
be found.
In fact , the General Counsel stresses this aspect of the present case , pointing out
that Long Company and Standard Groceteria, the only concerns identified by picket
signs as the object of the picketing, were closed down during the picketing. Thus,
his claim would appear to be that there was an even greater failure to meet the,
second requisite of the Moore decision than that adverted to by the Moore minority
for, in the present case, the primary employers involved were shut down, whereas
in the Moore Dry Dock decision they were carrying on certain operations.
Before leaving the Moore decision, note must be taken of the fact that the majority,
in treating with the third element, namely the requirement that the picketing be
conducted at places reasonably close to the situs, pointed out that the respondent
union had sought and had been denied permission to place pickets at the particular
dock where the ship was tied up and, as a result, had posted pickets at the entrance
to the shipyard. This, too, is relevant to the present case where Local 648 had
been offered the opportunity to picket at the individual stands involved in the dispute
and had refused. Indeed, this opportunity for inside picketing, it is interesting to
note, was one that they could not claim of right. See Marshall Field & Co. v.
N. L. R. B., 200 F. 2d 375 (C.A.7).
An application of the Moore Dry Dock formula on facts similar to those present
in the instant case is found in Richfield Oil Corporation, 95 NLRB 1191. There, as
in the present case, the signs were carefully tailored to the dispute and identified
only the primary employer involved. However, the Board pointed out that this
was not "the deliberate attempt to confine the force of the picketing to the primary
employer found by the Board in the Moore Dry Dock case. There the picketing
union , before it established its picket line, asked permission of the secondary em-
ployer to place the line inside the premises right at the situs of the dispute, so that
there would be no disruption to business between secondary employers. Here no
such request was made to Richfield.. " The Board went onto find the picketing
violative of Section 8 (b) (4) (A) of the Act on the basis that, in part at least, the
picketing sought to bring about a cessation of business between the primary and
secondary employers involved. See also Columbia-Southern Chemical Corporation,
110 NLRB 206, where the Board stated, "Apart from any other considerations, it
suffices to establish a violation of Section 8 (b) (4) (A) that, so far as the record
shows, respondent . . . made no effort to obtain permission from [the neutral em-
ployer] to picket inside the construction area at the actual situs of the primary
dispute...." Significantly, in the present case, in a not dissimilar context, such
permission was readily offered but was promptly rejected.
,In Stover Steel Service v. N. L. R. B., 219 F. 2d 879, the Court of Appeals for
the Fourth Circuit treated with the problem of picketing by the respondent unions
of construction projects of open-shop contractors who employed union subcon-
tractors. The court there stated,
It is no answer to this to say that the campaign was an organizational cam-
paign and that the picket signs so indicated. The picketing was done at premises
where business of the subcontractors as well as business of the contractors
was being carried on; and everyone knew that it would affect, not the nonunion
employees of the general contractors, but the union employees of the subcon-
tractors, and it is idle to suggest that it was not engaged in for this purpose.
As the object was to bring pressure on the general contractors by the pressure
exerted on the subcontractors, through concerted action of their employees,
we think that the conduct complained of is clearly an unfair labor practice
within the meaning of Section 8 (b) (4) (A) of the Labor Management Rela-
tions Act. . . .
"Members Reynolds and Murdock.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 885
The court then set aside and remanded a Board order dismissing a complaint
which had alleged the picketing to be violative of Section 8 (b) (4) (A) of the
Act. This has since been adopted by the Board as the law of the case. Stover Steel
Service, Supplemental Decision, 112 NLRB 1044. The foregoing rationale only
serves to bring to the fore again the fact that the employees of the two primary
employers involved, Long Grocery Company and Standard Groceteria, were not
working at the time of the dispute due to the shutdown.
Another of Respondents' contentions may be treated at this point. Respondents
claim that J. M. Long and Company, Inc., in its capacity as the owner of Crystal
Palace Market, is directly interested in the businesses of every tenant of the Market,
and that as a result, there are no neutral or independent employers in the Market
because all are operating their respective businesses for the benefit of Long. Re-
spondents stress the claim that the Long Company in its capacity as market operator
could tell tenants when to close or open; derived revenue from a percentage of the
tenants' receipts; and handled advertising for the entire Market. They rely on the
fact that Vice-President Haag, on February 12, informed several of the grocery
stand operators that he would not permit them to remain open during the picketing
if they did not sign with Local 648, this being done in his attempt to remove a cause
for picketing as he viewed it.
Nevertheless, Board and court precedent in analogous cases is to the contrary.
The respective stands hire their own employees, pay their own employees, and have
complete autonomy in dealing with their employees concerning conditions of em-
ployment. They use their own funds and purchase and sell their own merchandise.
Any interest of the market operator, Long, in the method of doing business by, the
stand operators, is not sufficient to alter the status of the latter as independent busi-
nessmen. Nor is this sufficient to render these other concerns, other than grocery
stand operators, allies of the grocery stands or of Long, and therefore not neutral
employers. There is no evidence of control by the Long Company in its capacity as
market operator over the methods by which the respective stands sell their mer-
chandise and, moreover, this is not a situation of struck work being transferred to
other stands in the Market.
Nor does the fact that the Long Company also operated several other stands in
the Market assist Respondents here. These other operations were not involved
in any labor dispute with any labor organization, let alone Local 648, and any
picketing directed at the employees of these operations engaged in their normal
business, is on the same plane as picketing directed at the employees of other non-
grocery stands. The fact is that the employees of these other stands are not em-
ployees of the Long Company and that these other stands were not, on this record,
allies of Long or nonneutrals in the particular labor dispute which gave rise to the
picketing. Accordingly, this contention of Respondents is rejected. N. L. R. B. v.
Denver Bldg. & Construction Trades Council, 341 U. S. 675; Denver Building and
Construction Trades Council, 108 NLRB 318, enfd. 219 F. 2d 870 (C. A. 10);
Hoosier Petroleum Co., Inc., 106 NLRB 629, enfd. 212 F. 2d 216 (C. A. 7);
N. L R. B. v. Norma Mining Corp., 206 F. 2d 38 (C. A. 4); and N. L. R. B. v.
Steinberg and Company, 182 F. 2d 850 (C. A. 5).
I find, therefore, that J. M. Long and Company, Inc., in its capacity as operator
of the Crystal Palace Market, was not the employer of any of the employees work-
ing for the various stands in the Market, other than those it operated itself. I further
find that the nongrocery stands in the Market are not allies of J. M. Long and
Company, Inc., in its capacity as operator of the Market, and that they are neutral
employers entitled to the protection of 8 (b) (4) (A) of the Act.
In summation, J. M. Long and Company, Inc., had a dual role in the Crystal
Palace Market. It owned the Market and, as landlord, rented space to tenants who
operated approximately 60 stands. Long also operated four stands on the same basis
as the tenants, in effect renting from itself. But the record demonstrates that
Local 648 took up with Vice-President Haag the problem of the grocery stand
operators, other than Long and Standard Groceteria, that had not signed up with
Local 648.
Pertinent to the instant problem is the fact that the grocery stands involved in the
dispute were not located near the majority of the picketed entrances. This is par-
ticularly true of the Market Street entrance where the majority of the pickets were
stationed and where a picket line was maintained.
Of course, had permission for inside picketing been refused, a different problem
would have been posed, one 'which need not be treated with herein . The fact is,
however, that Local 648 was given the opportunity to picket at the immediate situs
of the dispute, refused, and chose to picket only at locations where the employees of
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employers would be affected. Moreover, the record demonstrates that, to some
extent at least, the picket line was respected by other employees within the Market.
Nor is it an answer to say that the pickets were interested only in influencing the
public. Employees of the other tenants used all entrances to the Market. There is
no evidence that Local 648 attempted to influence the public in any manner other than
by picketing. Presumably, the public interested in patronizing the grocery stands
directly involved in the dispute would be equally responsive to picket signs placed at
the respective stands or to media other than picketing to publicize the dispute. This
is not to say that other media should have been used by Respondents. However, the
use of only a medium with secondary complications is indicative of purpose.
In fact, the stands involved in the dispute were closed at the time of the picketing.
While it could be claimed that the picketing was intended to influence the public
against future patronage of the closed grocery stands, namely Long's and Standard
Groceteria, it would appear far more likely, and I find, that the picketing was in-
tended to bring pressure to bear, as one of its objectives, on the other stands in the
Market and on their employees.
The General Counsel has contended that the second item of the Moore Dry Dock
formula requiring the primary employer (the Long and Standard Groceteria stands)
to be engaged in its normal business at the situs, has not been met because the stands
were closed and, as a result, a violation of Section 8 (b) (4) (A) of the Act has been
spelled out. I deem it unnecessary to pass upon this contention as such, although the
facts are a portion of the factual picture from which conclusions may properly be
drawn as to the objective of the picketing. Hence, I deem it unnecessary to deter-
mine whether by the term "normal business," as used by the Board in the Moore Dry
Dock decision, the Board included a business temporarily closed down but one which
was likely to reopen upon conclusion of the labor dispute.
The most that can be said for Respondents' position is that Local 648 made an
ostensible effort to stay within the letter of the law as formulated by the Board in the
Moore Dry Dock case. There was a primary labor dispute in the present case, the
signs were carefully tailored to the dispute , and picketing was peaceful.
But there was a failure to comply with another standard defined in that decision
dealing with the common situs problem . Because , notwithstanding the outward aim
of this action directed to 2 grocery stands of 64 stands in the Market, Respondents
were manifestly interested in hitting the neutral employers. In view of the fact that
the two grocery stands directly involved in this dispute were closed down, the fact
that no other media were utilized, and the fact that Local 648 refused to picket in the
immediate vicinity of the dispute, thus directly and inevitably affecting the employees
of neutral employers, there is little doubt as to the real intentions of Local 648.
While it is obvious that picketing inside the Market at the respective locations of
the two grocery stands is not as effective as picketing outside the Market, this is no
answer. The Act does not guarantee effective picketing. The answer is rather that
Congress, with a purpose of confining the area of economic conflict in labor disputes
to direct disputants, intended Section 8 (b) (4) (A) to condemn all action directed
against or which has the effect of injuring the business of third persons not involved
in the basic labor dispute.
The operator of the Crystal Palace Market, consonant with such policy, attempted
to localize the dispute by offering to permit picketing inside the Market, but this
offer was rejected by Local 648. After an inspection of pictures of the interior of
the Market, I am unable to find that picketing inside the Market would be neither
effective nor reasonable and would create confusion in the aisles. This would appear
rather to be a policy matter for the operator of the Market and the latter has offered
to assume that risk. Indeed, the turnstiles are the only entrances to the two grocery
stands and establish a focal point for picketing . Accordingly, Respondents' con-
tention to the contrary is not adopted.
I find, therefore, as contended by the General Counsel, that Local 648 picketed 7 of
the 11 entrances to Crystal Palace Market with the object, in part at least, of bring-
ing pressure to bear upon the other stands in the Market in order to force them to
cease doing business with I. M. Long and Company, Inc., in its capacity as owner of
the Market. I further find, contrary to the contention of Local 648, that the illegal
objective requirements of Section 8 (b) (4) (A) have been sufficiently established
herein.
E. The case against Local 1017
The record is replete with evidence demonstrating that Local 1017 ratified and
actively supported the strike of its sister local, Local 648, all of which need not be
set forth . Local 1017 , it will be recalled , was signatory to a contract with Fruit As-
sociation which included a small number of fruit and produce stands in Crystal
RETAIL FRUIT & VEGETABLE CLERKS' UNION 887
Palace Market, approximately five in number. This contract did not expire until
April 1, 1955, and contained a broad no-strike clause. Nevertheless, despite such
clause. Local 1017 actively supported the strike, thereby breaching its contract with
Fruit Association, although that issue is not before me.
(1) Secretary-Treasurer Allen Brodke of Local 1017 attended the February 14
meeting of Local 648 with Vice-President Haag of Crystal Palace Market and was
aware that the latter had offered Local 648 the opportunity to picket inside the
Market directly at the stands involved in the trade dispute.
(2) On February 14, counsel for Fruit Association wrote to Brodke and asked
that Local 1017 follow a policy of nonintervention in the grocery dispute and live
up to their contract. Brodke did not reply to this letter and the conduct thereafter
of Brodke and his assistant demonstrates that they adopted a different course of
action.
(3) Brodke does not normally in the course of his duties visit the Crystal Palace
Market. However, during the picketing he was present every day, the first day for
6 to 7 hours, the second for 2 to 3 hours, and for undisclosed periods on succeeding
days. His appearances were primarily in the vicinity of the main picket line on
Market Street. He testified that he was present on February 14 because he wanted
to see what was going on at the Market.
(4) Although Brodke claimed that he was present at the Market solely as an
observer, he physically picketed for 2 or 3 minutes on the first day. He testified
that he held a conversation with one of the pickets on this occasion.
(5) Although Brodke held conversations with his members who, as he put it,
were observing the picket line at Crystal Palace Market, these conversations being
held in the vicinity of such picket line, the record is devoid of any evidence that
Brodke informed the membership of Local 1017 that by observing the line they
might be placing their union in the position of breaching a labor contract. To the con-
trary, he testified that members of his union would approach him, this too in the
vicinity of the picket line at Crystal Palace Market, and say "Hello, Al, what's doing?"
To this, Brodke invariably replied, "Well, pretty good picket line around here." 5
(6) On the first day of strike activity, February 3, Brodke assigned one of his
business agents, Pat Savin, to Local 648. He testified that Savin was recuperating
from an operation and that he instructed him to report to Local 648 because "they
might need a litttle manpower. The business agents will be out signing agreements.
Maybe they can use you."
Secretary Jinkerson testified that Savin assisted his labor organization during the
strike as one of a group of outside union representatives who came into the area
to assist the business agents of Local 648 in obtaining signed contracts. The record
demonstrates that Savin went beyond this, however. Savin, from time to time, al-
though he allegedly had no business at Crystal Palace Market, would drive by. On
occasions he would get out of his car and visit the area. The record demonstrates,
as will appear below, that Savin took steps to actively support the picket line.
(7) Savin testified that both prior to and during the picketing he never gave any
instructions to his members concerning working in the Market. There is evidence to
the contrary. Thus, one Preciado, an employee of a fruit stand in the Market and a
Local 1017 member, asked Savin for permission to go through the line to work.
Savin replied, as he testified, "I issue nobody any orders to go through the picket line;
if he wanted to go through the picket line, it was up to him and I couldn't stop him;
if he needed aid to come up to the Union and we would take care of him."
It is obvious that this statement by Savin, as well as the statement invariably made
by Brodke to the pickets, set forth above, is hardly the answer of a union representative
attempting to live up to a no-strike clause of an existing contract. See Joliet Con-
tractors Association, 99 NLRB 1391, 1395, enfd. 202 F. 2d 606 (C. A. 7); and
Richfield Oil Corporation, 95 NLRB 1191, 1193. In the latter case the Board charac-
terized similar statements as "evasive replies suggestive of a negative response."
(8) There are a number of instances of conduct on the part of representatives of
Local 1017 which are explainable only on the basis that Local 1017 was officially sup-
porting the strike of its sister local, Local 648. Thus, on the evening before the
strike, Savin spoke to Donald Donabedian, the operator of a fruit and produce stand
in the Market, and informed him that if there was a strike, as Donabedian testified,
"the boys wouldn't be able to come to work." This statement, again in the face of a
no-strike clause in the contract, amounts not to a comment about what individual mem-
bers might do but rather to a statement of an official union position. I so find.
5 Nor is his presence explainable on the theory that he was attempting to find other
employment opportunities for his members. For, not until February 21 did Brodke take
steps in such a direction.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(9) On the first day of the picketing, one Hagopian, an employee of Rose Misuraca
at her fruit and produce stand in Crystal Palace Market, did not appear for work.
Later that day, Misuraca noticed Hagopian working for one Gummow, the operator of
two fruit and produce stands in the Market. She spoke to Business Agent Savin and
asked him for an explanation. Savin promptly entered the Market and spoke to
Hagopian. There is a conflict as to whether Savin merely asked Hagopian what
he was doing in the Market or whether he expressed himself more forcefully to the
effect that Hagopian would never work again in San Francisco as a fruit man. I
deem it unnecessary to resolve this conflict, in this aspect of the case, because either
version is consistent with Savin's testimony that Hagopian, as a permit man, was
allowed only to work for the one concern for which the permit was issued, in this
instance the stand operated by Misuraca. It may be noted, however, that the con-
tract contains no such restriction on permit men and that this restriction stems from
union policy. Accordingly, in the conclusions that follow, no reliance is placed upon
this occurrence.
(10) Warren Gummow operated two fruit stands in the Market and included
among his employees one Andrews, a member of Local 1017, and one Higgins, who
held a permit from Local 1017 and has since entered military service. According to
Gummow, Higgins was a cleanup man, and at 8 a. m. on February 15 had been,
assigned by Gummow to trim cabbage. Savin passed by and instructed Higgins to
drop his knife and leave the Market. Soon thereafter, Savin entered the Market
again, spoke to Andrews, and informed him that he was "not supposed to be here;
come on let's go." Both employees duly left the building.
Savin admitted that he asked Andrews what he was doing in the Market and
presented herein no basis for asking the question, a question which, it is apparent,
was in no way related to Savin's claimed assignment to Local 648 for the purpose
of signing up grocery operators. Savin denied that he told Higgins to drop his
knife and to leave the Market. He did not recall seeing Higgins that morning but
admitted that he was in the vicinity at that time. He claimed that Higgins' working
hours were from 9 to 6, those specified in the contract, and further claimed that Gum-
mow had agreed to employ him only during those hours.
I find, in view of Savin's admission that he spoke to Andrews, that he also spoke
to Higgins on this occasion. I credit Gummow's testimony that Higgins had no
set hours. It is apparent that Savin's similar treatment of Andrews and Higgins was
an attempt to keep members of Local 1017 from working for fruit and produce
stands in the Market and not, as his testimony would indicate, an attempt merely to
police the union contract. I so find, and in doing so rely upon the marked in-
consistency between his conduct on this occasion and his claimed activity in behalf
of Local 648 at the same time.
(11) As set forth, picketing of the Crystal Palace Market commenced on Tuesday,
February 15. On the previous Saturday, Secretary-Treasurer Brodke visited Donald
Donabedian at the latter's produce stand, informed him that there might be a
grocery strike, and advised him not to stock up with merchandise because "his
[Brodke's] members would not be able to cross the picket line." On Monday after-
noon, prior to the strike, Business Agent Savin visited Donabedian and spoke to him
in the same vein, saying "if there was a strike the boys [members of Local 1017]
wouldn't be able to come to work."
About a week before the strike commenced, Savin spoke to the same effect to
Rose Misuraca, then operating a fruit stand in Crystal Palace Market. She asked
Savin if a grocery strike would affect the fruit and produce stands and Savin replied
"if they put a picket, of course we won't cross it." Misuraca protested that this
would make things difficult for her, to which Savin replied, "Well, then, you'd better
prepare yourself." Again, on Monday, February 14, Savin passed by Misuraca's
stand at closing time and stated loudly as he passed, "If there is a picket out there
your boys won't report to work." 6
(12) Although Donabedian testified at one point that Brodke wore an AFL
picket sign on the Eighth Street side of the Market, he elsewhere indicated that he
might have had in mind another occasion later that week when Brodke picketed
Donabedian's truck while it was at the produce market in San Francisco. This
arose from another dispute, namely the fact that Donabedian had for 1 day hired
a nonunion member, Rose Misuraca , the latter's stand then being closed . Accord-
ingly, I do not find that Brodke wore a picket designation at the Crystal Palace
Market picket lines . And, as indicated , this complaint does not attack the imposi-
6 The foregoing findings are based upon the credited testimony of Misuraca and
Donabedian, which, in this respect, was not controverted or specifically denied.
RETAIL FRUIT & VEGETABLE CLERKS' UNION 889
tion of closed-shop conditions by Local 1017: As a' result, in the conclusions that
follow, no reliance is placed upon this incident , although it is significant , as previ-
ously set forth, that Brodke was present at the picket lines prior to this incident.
I find that the foregoing incidents serve to refute the claim that Business Agent
Savin was engaged elsewhere during the period of the picketing at Crystal Palace
Market. I further find that the statements by Brodke and Savin as set forth above
were not opinions as to what their members might do, but rather were expressions of
official union policy. This is not to say that union members may or may not cross
the picket lines as they see fit. It is to say that when such conduct is the result of
official union policy, it encounters the possibility that it may be violative of the
provisions of the Act.
In view of the foregoing circumstances, except as otherwise indicated, I find that
Local 1017 ratified and supported the strike of its sister local, Local 648. If the
objectives of the latter were forbidden by, the Act, it necessarily follows that Local
1017 has also engaged in conduct violative of Section 8 (b) (4) (A) of the Act.
I so find . See Hammermill Paper Company, 100 NLRB 1176; and Howland Dry-
goods Company, 85 NLRB 1037, enfd. in part and remanded in part 191 F. 2d 65
(C. A. 2), and enfd. 199 F. 2d 709 (C. A. 2).
F. The alleged violation of Section 8 (b) (1) (A)
The complaint also alleges that Local 1017, commencing on or about February
15, 1955, threatened employees that they would be blacklisted and would never
work again in a union shop if they crossed the picket line and reported for work.
The General Counsel, it appears, is relying herein on one incident. This is the
occasion when Hagopian, an employee of Rose Misuraca at her fruit stand, worked
for 1 day during the strike for another fruit and produce stand operator, Gummow.
The facts surrounding this and the conflict of testimony have been heretofore set
forth. This all reduces itself to whether or not Business Agent Savin of Local 1017
stated, when he saw Hagopian at work for Gummow, that Hagopian would be
blackballed from the Union and would never work again in San Francisco as a fruit
man. Gummow testified that Savin so spoke, whereas Savin testified that he
merely asked Hagopian what he was doing there. Hagopian, a witness of limited
comprehension, testified similarly to Savin. It will be recalled that Hagopian, accord-
ing to Savin, was a permit man and was authorized by Local 1017 to work only
for the employer for whom the permit was issued, in this case Misuraca.7
Although I am disposed to credit Gummow's version of the conversation, I deem
it unnecessary to resolve the conflict.
(1) Assuming that Gummow's version of the conversation were accepted, it is
clear that this was an isolated statement. The sole issue is whether the statement
if made, constituted a violation of the Act and, if so, whether remedial measures
are required in order to effectuate the policies of the Act. The disposition of this
issue would be a simple one were it not for cases in which it has been held that
statements or incidents occurring in isolation do not constitute a violation of the
Act or if so, do not require remedial measures. As stated in language adopted by
the Board, "isolated and vagrant coercive statements by an employer's supervisor
alone are usually not deemed sufficient to constitute an unfair labor practice."
Playwood Plastics Co., Inc., 110 NLRB 306. And closer to the present case, the
Board has recently held, in the case of an isolated threat to discharge an employee
if he went on strike, that "it would not serve any useful purpose to issue a cease
and desist order based thereon." Atlas Storage Division, P & V Atlas Industrial
Center, Inc., 112 NLRB 1175. Needless to say, the decisional standards in cases
against a labor organization are the same as those in cases against employers, both
qualitatively and quantitatively.
(2) Moreover, there is no evidence that any action was taken to effectuate this
threat if made. To the contrary, Hagopian testified that he is now working for a
fruit and produce stand in the Crystal Palace Market. The record does not indicate
when he went to work for this concern, the Peninsula Fruit Company, but it is
significant that at least until April 1, 1955, the fruit and produce stands in the
Market were operating under an illegal closed-shop contract with Local 1017.
s Of course the claimed violation would relate solely to the threat that Hagopian would
not obtain further work and not to blacklist him from further union membership, for the
prohibition in the Act does not apply to a union's threatened action with respect to purely
internal union status not involving terms or conditions of employment. Fos Mid west
Amusement Corp , 98 NLRB 699, 719.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) 1 am of the belief that a decision by the Court of Appeals for the Ninth
Circuit is in point. In N. L. R. B. v. Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 127 (A. F. L.), 202 F. 2d 671 (C. A. 9),
the court refused to enforce a Board order finding a violation of Section 8 (b)
(1) (A) under not dissimilar circumstances . As stated by the court , "Even if this
isolated incident did occur, to predicate a cease and desist order upon it is to
magnify the inconsequential to the point where the action becomes an abuse of
discretion ." Accordingly, and in view of the foregoing considerations , I find that
it would not effectuate the purposes of the Act to issue a cease and desist order based
upon this allegation of the complaint and will recommend its dismissal . Terri Lee,
Inc., 107 NLRB 560, and Gillcraft Furniture Co., 103 NLRB 81.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in con-
nection with the operations set forth in section I, above, 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 thereof.
V. THE REMEDY
Having found that Respondents have engaged in conduct violative of Section
8 (b) (4) (A ) of the Act , it will be recommended that they cease and desist there-
from , and take certain affirmative action designed to effectuate the policies of the
Act. See International Brotherhood of Electrical Workers, Local 501 v . N. L. R. B.,
341 U . S. 694.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Retail Fruit & Vegetable Clerks' Union , Local 1017 , and Retail Grocery Clerks'
Union, Local 648 , Retail Clerks International Association , AFL-CIO, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By inducing and encouraging employees of stands , other than grocery stands,
that are tenants of Crystal Palace Market , to engage in concerted refusals to perform
work for their respective employers , with an object of forcing or requiring their
respective employers to cease doing business with J. M. Long and Company, Inc.,
in the latter's capacity as owner of Crystal Palace Market, Local 648 and Local 1017
have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication.]
Local No. 224, International Union , Allied Industrial Workers of
America, AFL-CIO and Queen Ribbon & Carbon Co., Inc.
Case No. 2-CC-366. Auguat 94,1956
DECISION AND ORDER
On March 21, 1956, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent Union had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
116 NLRB No. 112.