International Union of United Brewery

National Labor Relations Board - Board Decisions

Aug 6, 1958

121 N.L.R.B. 271 (N.L.R.B. 1958)

INTERNATIONAL UNION OF UNITED BREWERY 271
Conclusion
In view of our holdings above, it will not be necessary to open the
ballot of Sidney Dugue; and as the Petitioner has obtained a majority
of the valid votes cast, we shall certify it as the bargaining representa-
tive of the employees in the appropriate unit.
[The Board certified International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, AFL-CIO, as the collective-bargaining rep-
resentative of employees of the Employer in the unit herein found
appropriate.]
International Union of United Brewery, Flour, Cereal, Soft
Drink and Distillery Workers of America, AFL-CIO, and Local
No. 366, International Union of United Brewery, Flour, Cereal,
Soft Drink and Distillery Workers of America, AFL-CIO and
Adolph Coors Company. Case No. 30-CC S0. August 6, 1958
DECISION AND ORDER
On January 6, 1958, Trial Examiner David F. Doyle 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 Respond-
ents filed exceptions to the Intermediate Report together with a
supporting brief, and the General Counsel filed a memorandum in
support of the Trial Examiner's Intermediate Report. The Respond-
ents also requested oral argument. This request is hereby denied
because, in our opinion, the record, the exceptions, the brief, and the
memorandum adequately present the issues and the positions of the
parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions, the brief, and the memorandum, and the
entire record in the case and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to the extent that
they are consistent herewith.'
1 The Intermediate Report contains certain minor misstatements and lnadvertencies,
none of which affects the Trial Esanuner's ultimate conclusions Accordingly, we note
the following corrections
The complaint, as amended, alleges, in pertinent part, that the Respondents picketed
121 &TLRB No 35
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Adolph Coors Company has a brewery in Golden, Colorado, and
a warehouse in Denver. Before the events involved herein Coors
itself distributed beer from its Denver warehouse to retail customers
in the Denver metropolitan area; independent distributors delivered
Coors beer to retailers located elsewhere in Colorado.
The Respondents were engaged in a labor dispute with Coors
involving the renewal of a collective-bargaining agreement. In fur-
therance of their position, the Respondents struck Coors. However,
before its old contract expired, Coors, anticipating difficulty in the
negotiation of a renewal contract with the Respondents, had arranged
for 6 of its independent distributors to handle the delivery of Coors
beer in metropolitan Denver in the event the Respondents struck
Coors. After the Coors drivers, in fact, went on strike, drivers
supplied by the independent distributors continued the deliveries of
Coors beer in the metropolitan Denver area which had formerly been
handled by the striking employees. In the course of their strike, the
Respondents engaged in various activities at the premises of certain
retail stores in Denver, which sold Coors beer to the public. The
Trial Examiner found that by virtue of those activities at the retail
stores the Respondents violated Section 8 (b) (4). (A) of the Act.
The Respondents urge that the purpose of their conduct at the
various Denver retail stores was to publicize their dispute with Coors,
and thereby persuade the buying public and the owners of the retail
stores not to purchase Coors beer. The Respondents have, in effect,
admitted that an object of their conduct was to place pressure on
the retail store owners to force them to cease using, handling, or
otherwise dealing in Coors products? It is therefore necessary to
determine whether the Respondents sought to achieve that object, at
least in part, by inducing or encouraging store employees to refuse
to handle goods or to perform services for their respective employers.
premises of Coors' customers at Denver , Colorado , and "in the Metropolitan San Fran-
cisco, California , area."
The record shows that Coors beer distributor , Ray C. Imel , is located at Lafayette,
Colorado, about 20 miles from Denver.
Coors made arrangements with its distributors for delivery of beer to its retail cus-
tomers in metropolitan Denver about a month before March 1, 1957.
On May 20, 1957 , the pickets ' activity at the Torch Club premises consisted of one
man going "into the account" and another parading outside the premises with placards.
Pahel did not remember whether pickets followed him back to Coors' Denver warehouse
after he made deliveries to retail customers on May 20, 1957. After May 21, 1957,
pickets "several other times " followed Pahel as he made deliveries to retail customers
between then and July 3, 1957.
On May 20 , 1957, when Knafelc entered the Plaza Drug premises to make a beer
delivery , the pickets "were just leaving."
The "Charlie Esposito" working at the premises of Ivanhoe Drug Company was the
manager of that retail store.
2 At page 2 of their brief in support of exceptions the Respondents stated, "There is
no question but that in the instant case the striking , employees made such direct appeals
to secondary employers . . . to cease doing business with the primary` employer." The
purpose of the Respondents ' activities is thus admitted.
INTERNATIONAL UNION OF UNITED BREWERY 273
The record shows that, at various stores, the Respondents' pickets
requested store employees not to accept deliveries of Coors products.
For example, on May 20, 1957, the pickets followed the substitute
driver, Knafelc, to the premises of Corona Drugstore. When Kna-
felcentered the store pickets were talking to the store pharmacist.
The pharmacist asked the pickets, "Can you get the rest of the,
unions to back you up on this?" A picket answered "Absolutely."
The pharmacist then told Knafelc, "that he wouldn't have anything
to do with Adolph Coors." However; the pharmacist decided to
telephone "the boss." After making a phone call, the pharmacist
told Knafelc, "Well, he owns the place and if he ever wants Coors
in here I guess you can bring it in." On another occasion the Re-
spondents' pickets followed a truck delivering Coors beer to Ivanhoe
Drug Company. Two pickets asked Salesman Almy whether he
"was going to accept this load of Coors Beer"; Almy did not accept
the delivery, instead he referred the matter to the store manager.
We find, accordingly, that, in furtherance of their object to force
the retail store owners to cease handling Coors beer, the Respondents
induced and encouraged the employees of those store owners to re-
fuse to perform their normal job functions of accepting deliveries of
Coors products.
The Respondents' conduct at the Denver retail stores involved an
"ambulatory situs"-that is, the trucks which were delivering Coors
beer. The Board has held that a union's picketing of an "ambulatory
situs" at "the premises of a secondary employer is primary," not-
withstanding the impact of such conduct on the employees of neu-
tral employers ; but such a holding depends upon the union's con-
formity with the standards establishing lawful "ambulatory situs"
picketing set out in the Moore Dry Dock case? Consideration of the
facts of this case shows that the Respondents' inducement and en-
couragement of secondary employees.was..not primary activity under
such standards. The Respondents not only stationed pickets near
the trucks delivering Coors beer, but their pickets also carried picket
signs in front of store entrances which were not used for deliveries
of the Coors beer, and the pickets contacted employees inside the
stores as well. Thus, the Respondents' failure to limit their activity
to picketing reasonably close to the, delivery trucks renders their
conduct unlawful.
8 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547. The
standards , stated at page 549, are : "( a) The picketing is strictly limited to times when
the situs of 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 reasonably close to the location of the situs; and
(d) the picketing discloses clearly that the dispute is with the primary employer."
487926-59-vol . 121-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the Respondents' assertion that their activities at
the retail stores were intended merely to publicize their dispute with
Coors, the Respondents advance a number of other arguments to
support their contention that the pickets' conduct at the retail store
premises was lawful. The Respondents contend in the first place
that the record fails to establish that any of the working personnel
inside the retail shops were employees within the meaning of the Act,
and, therefore, that there was no inducement or encouragement of
employees within the meaning of Section 8 (b) (4) (A). The record
as a whole refutes the contention; indeed the minimum of record
facts already recited in the text of this Decision bears this out. The
Respondents claim, in the alternative, that if the personnel in the
stores were in fact employees: (a) the evidence does not show that
more than 1 employee was present in any 1 store, and that induce-
ment or encouragement of. a single employee does not violate 8 (b)
(4) (A) ; (b) the oral appeals were made to the employees as in-
dividual members of the general public to persuade them not to
consume Coors beer; (c) the record fails to show that any employee
had the function, in the course of his employment, to purchase beer
and, therefore, could not be induced or encouraged not to perform
work within the meaning of 8 (b) (4) (A) ; (d) any appeal to em-
ployees was merely incidental to the respondents' primary purpose
of publicizing their dispute with Coors; and (e) the Respondents'
activities "were permissible under Section 8 (c) of the Act and pro-
tected under the First Amendment of the Constitution."
The Board has given thorough consideration to each of these alter-
native contentions and finds that none has merit. Review of the con-
tentions, as itemized, shows: (a) The Board and the Courts have re-
jected the contention that inducement or encouragement of a series
of single employees at various retail stores is not proscribed by
8 (b) (4) (A) ;' (b) the evidence shows that the Respondents' pickets
not only asked the neutral store employees not to buy Coors beer, but
also not to accept deliveries of such beer; (c) even if factually -true,
it is not crucial that particular employees in the stores did not have
the job function of buying beer for their employers, because, as just.
noted in (b), the Respondents asked the neutral store employees not
to accept delivery of Coors beer-a function they ordinarily performed
"in the course of their employment"; (d) the Respondents appealed
directly to the store employees, and as found hereinabove, the Re-
spondents' activities involved the neutral store employees beyond their
mere presence during the propagandizing of store customers; and
(e) "The general terms of Section 8 (c) appropriately give way to
6 See for example, Amalgamated Meat Cutter8 & Butcher Workmen of North America,
AFL, Local 88 v. N. L. R. B. (Swift d Company , Intervenor), 237 F. 2d 20 (C. A., D. C.)
cert. denied 352 U. S. 1015.
INTERNATIONAL UNION OF UNITED BREWERY 275
the specific provisions of Section 8 (b) (4)," and "The prohibition of
inducement or encouragement of secondary pressure by Section
8 (b) (4) (A) carries no unconstitutional abridgment of free speech."'
In their brief in support of exceptions, the Respondents themselves
refer to their activities involving the Denver retail stores as an "entire
program." Moreover, the record independently establishes that all of
the Respondents' conduct at the Denver stores-while the trucks were
there delivering Coors beer-constituted a cohesive, correlated pattern
of conduct in support of the Respondents' "entire program." We find,
accordingly, that all of the Respondents' conduct at the various Den-
ver retail stores was in support of the Respondents' unlawful object
and violated Section 8 (b) (4) (A) of the Act.'
2. Otterstein and Company was one of the Coors beer distributors
which, after the Coors drivers struck, sent personnel to Denver to
assist Coors in the distribution of its products to retail customers.
This occurred pursuant to the above-described arrangement made by
Coors in anticipation of the strike. But for Respondents' strike, such
assistance would have been unnecessary.
Otterstein's normal territory as a Coors beer distributor, was in the
vicinity of Pueblo, Colorado, located about 120 miles from Denver
On May 14, 1957, representatives of the Respondents called a meeting
of those Otterstein employees who remained at Pueblo and did not
participate in the handling of Coors' struck work in Denver. In sub-
stance, the Respondents' representatives requested these employees to
work less diligently with respect to their sales of Coors beer than they
normally did. -
The Trial Examiner found that Otterstein was a "neutral employer"
with respect to its Pueblo operations, and that the Respondents' ap-
peal to Otterstein's employees at the May 14 meeting violated Section
8 (b) (4) (A) of the Act. We do not agree.
The Court of Appeals for the Second Circuit has referred to an
employer performing the struck work of a primary employer, as,
follows :'
Nor are those who render such services completely uninvolved in
the primary strike. By doing the work of the primary employer
s International Brotherhood of Electrical Workers, Local 501 , et at. V. N. L. R. B., 341
U. S. 694, 704-705
" Inasmuch as the record is not clear whether the tacts herein warrant application
of Brewery and Beverage Drivers and Workers, Local Union No. 67 , International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , AFL (Washing-
ton Coca Cola Bottling Works, Inc.), 107 NLRB 299 , enfd. 220 F. 2d 380 (C. A., D. C.),
we do not pass upon the applicability hereto of the doctrine propounded in that case.
Member Bean agrees that the Moore Dry Dock standards were not met by the Respond-
ents in this case , but he would not in any event apply the doctrine of Washington Coca
Cola to ambulatory picketing of "allies" such as the independent distributors here involved.
7 In N. L. R B v. Business Machine and Office Appliance Mechanics Conference Board,
Local 459, International Union of Electrical , Radio & Machine Workers , CIO (Royal
Typewriter Co.), 228 F. 2d 553, 558-559 (C . A. 2) ; see also Douds V. Metropolitan Fed-
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they secure benefits themselves at the same time that they aid the
primary employer. The ally employer may easily extricate him-
self from the dispute and insulate himself from the picketing
by refusing to do that work. . . . We therefore hold that an
employer is not within the protection of Section 8 (b) (4) (A)
when he knowingly does work which would otherwise be done by
the striking employees of the primary employer and where this
work is paid for by the primary employer pursuant to an arrange-
ment devised and orginated by him to enable him to meet his
contractual obligations.
We find that the court's pronouncement is applicable to the facts
of this case. The struck work which Otterstein performed for Coors
was the delivery of beer to retail customers. This was an extension
of Otterstein's normal business activities at Pueblo. Otterstein thereby
voluntarily became involved in the dispute which existed between the
Respondents and the Coors Company. Accordingly, Otterstein be-
came an "ally" of Coors, with respect to all of Otterstein's beer distri-
bution business, and placed itself in the same position as Coors, the
primary employer. The Respondents' conduct at the May 14, 1957,
meeting involving the Otterstein employees, therefore, had the same
legal effect as if Coors' own employees had been involved. As such
conduct would have been lawful had Coors' employees been involved
directly, we find, that the Respondents' action at the May 14, 1957,
meeting did not violate the Act."
3. On July 24, 1957, the Respondents' members distributed "DON'T
BUY COORS BEER" flyers in front of a tavern in Berkeley, Cali-
fornia. The Respondents also advised the Coors beer distributor in
Berkeley to switch to distribution of another beer.
The Trial Examiner concluded that the Respondents' conduct in
Berkeley violated Section 8 (b) (4) (A). We do not so find. Even
if, as the Trial Examiner found, the Respondents had an unlawful
object when they engaged in the Berkeley activities, the record fails
to establish that they used unlawful means to achieve such an object.
There is no evidence tying the Berkeley, California, incident to the
retail store picketing at Denver, Colorado; nor is there evidence that
employees of any neutral employer were in any manner involved in
the Berkeley matter. Upon the record in this case, we find that the
Respondents' conduct in Berkeley was no more than a general public
appeal for a consumer boycott and did not violate the Act .9
eration of Architects, Engineers , Chemists and Technicians , Local 231 (Project Engi-
neering Company ), 75 F. Supp. 072 (D. C., N. Y.).
8 See Shopmen's Local Union No. -501 of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO (Oliver Whyte Company, Inc.),
120 NLRB 850.
e Dallas General Drivers , Warehousemen c6 Helpers , Local No. 745, AFL-CIO (Asso-
ciated Wholesale Grocery of Dallas, Inc.), 118 NLRB 1251. Cf. Capital Service, Inc.,
d/b/a Danish Maid Bakery, et at. v. N. L. R. B., 204 F. 2d 848 (C. A. 9).
INTERNATIONAL UNION OF UNITED BREWERY
THE REMEDY
277
The General Counsel excepts to the Trial Examiner's failure to
recommend that the Respondent International be required to post
notices at its main office and his failure to recommend that notices be
posted at the premises of the neutral retail customers of Coors whereat
the Respondents engaged in their unlawful conduct, those neutral
employers willing. We find merit in these exceptions, and we shall
order that notices be posted accordingly.'°
ORDER
Upon 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 the Respondents, International
Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, and Local No. 366, International
Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, and their respective officers, repre-
sentatives , agents, successors , and assigns, shall:
1. Cease and desist from inducing or encouraging the employees of
any customer of Adolph Coors Company, or of any other employer
except those engaged in performing "struck work" for Adolph Coors
Company, to engage in a strike or concerted refusal in the course of
their employment to use, manufacture , process, transport, or otherwise
handle or work on any goods, articles, materials , or commodities or to
perform any services, where an object thereof is to force or require any
such employer to cease doing business with Adolph Coors Company,
or with any other person.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their respective business offices and meeting places in
Cincinnati, Ohio, and in Denver, Colorado, copies of the notice at-
tached hereto marked "Appendix." 11 Copies of the said notice, to be
furnished by the Regional Director for the Seventeenth Region, shall,
after being duly signed by authorized representatives of the respective
Respondents, be posted by the Respondents immediately upon receipt
thereof and be maintained by them for a period of sixty (60) consecu-
tive days thereafter in conspicuous places, including all places where
notices to their respective members are customarily posted. Reason-
m Laundry, Linen Supply & Dry Cleaning Drivers Local No. 928, a ffiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
API-CIO, et at. (Southern Service Company , Ltd.), 118 NLRB 1435.
"In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able steps shall be taken by the Respondents to insure that the said
notices are not altered , defaced, or covered by any other material.
(b) Mail signed copies of the notice attached hereto marked "Ap-
pendix" to the Regional Director for the Seventeenth Region for post-
ing at the following retail stores in Denver , Colorado , in places where
notices to their employees are customarily posted, the store owners
willing: Torch Club ; Bill's Liquors; Unique Liquors ; Frank's
Liquors; Westwood Liquors; Roth 's Pool Hall ; J & B Buffet; El
Dorado Cafe ; Solomon 's Bar ; J & B Market ; Fillmore Drug; Alan
Eber Drugstore ; Fifth Avenue Grill ; Sam & Mug's Tavern; Tenth
Avenue Grill ; Herb 's Hideout ; Sherman Plaza Drug ; Corona Drug-
store ; Juarez Tavern ; and Ivanhoe Drug Company. Copies of said
notice, to be furnished by the Regional Director for the Seventeenth
Region, shall , after being duly signed by authorized representatives of
the respective Respondents , be forthwith returned to the said Regional
Director for posting by the said retail store owners.
(c) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondents have violated the
Act otherwise than herein found. I
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF UNITED
BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS
OF AMERICA, AFL-CIO, AND LOCAL 366, INTERNATIONAL UNION
OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY
WORKERS OF AMERICA, AFL-CIO, AND ALL EMPLOYEES
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, as amended, we hereby notify our members and em-
ployees that :
WE WILL NOT induce or encourage the employees of any cus-
tomer of Adolph Coors Company, or of any other employer
except those engaged in performing "struck work" for Adolph
Coors Company, to engage in a strike or concerted refusal in the
course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any services, where an ob-
ject thereof is to force or require any such employer to cease do-
INTERNATIONAL UNION OF UNITED BREWERY 279
ing business with Adolph Coors Company, or with any other
person.
INTERNATIONAL UNION OF UNITED BREWERY,
FLOUR, CEREAL , SOFT DRINK AND DISTIL-
LERY WORKERS OF AMERICA , AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL No. 3 66, INTERNATIONAL UNION
OF UNITED BREWERY , FLOUR, CEREAL,
SOFT DRINK AND DISTILLERY WORK-
ERS OF AMERICA , 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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Act , was duly heard at
Denver , Colorado, on August 27-29, 1957, pursuant to due notice to all the parties.'
The complaint, dated July 11, 1957 , was based on a charge filed by the Company,
and was issued by the General Counsel and duly served on the Union.
The complaint alleges, in substance , that (a ) on or about May 20, 1957, the
Union picketed the premises of Coors' customers at-Denver , Colorado, and Berkeley,
California , and (b ) on or about May 14, 1957, induced and encouraged the employees
of Otterstein and Company , "not to push Coors Beer ," and that this conduct
constituted unfair labor practices within the meaning of Section 8 (b) (4) (A) of
the Act.
The Union , by duly filed answers, denied the commission of unfair labor practices,
attacked the sufficiency of the complaint ,, and alleged that its conduct described in
the complaint was an exercise of free speech protected under the Constitution and
Section 8 (c) of the Act.
At the hearing all parties were represented , were afforded full opportunity to be
heard , to examine and cross -examine witnesses, to introduce evidence bearing on
the issues , to argue the issues orally upon the record, and to file briefs and proposed
findings.
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 COMPANY 2
The Company is a Colorado corporation , engaged in the manufacture , bottling,
sale, and distribution of beer . Its principal offices and brewery are located at
In this report the labor organizations named in the title are referred to individually
as the International , or the Local, and collectively as the Union ; Adolph Coors Company
as the Company or Coors, and the group of firms hereinafter described as distributors of
Coors products , as the Distributors; the General Counsel of the Board and his representa-
tive at the hearing as the General Counsel ; the National Labor Relations Board as the
Board ; and the Labor Management Relations Act of 1947, as amended , as the Act.
2 The findings in sections I and II of the report are based on the pleadings , a stipulation
of the parties at the hearing, and uncontroverted evidence.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Golden , Colorado, and it has a warehouse in Denver , Colorado. The value of
products shipped by the Company directly to points outside the State of Colorado
exceeds $1,000,000 annually.
I find that the Company is an employer within the meaning of Section 2 (2) of
the Act, and is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
II. THE LABOR ORGANIZATIONS
It is admitted by the pleadings , and I find, that the International and the Local
are labor organizations within the meaning of Section 2 (5) of the Act. I also find,
that at all times material hereto , the Union has represented employees of the
Company in an appropriate bargaining unit, and has entered into collective -bargain-
ing agreements with the Company on behalf of its members.
M. THE UNFAIR LABOR PRACTICES
A. Background of the controversy
1. No conflicting testimony
There is no dispute as to the facts, since the Union did not adduce any evidence
to contradict the testimony of the witnesses presented by the General Counsel. I
have credited the testimony of those witnesses . The Union rested on its motion to
dismiss the complaint for failure of the General Counsel "to prove a violation of
Section 8 (b) (4) (A), either with respect to Otterstein and Company , or with
respect to the picketing of the Union in the vicinity of the retail establishments
of Coors' customers.
2. Method of distribution prior to the strike of April 24
Coors is a nationally known company, whose products are distributed widely
in the Western States. It owns and operates a brewery at Golden, Colorado, which
is about 15 miles from Denver. The Company also operates a warehouse in the
city of Denver . Prior to the strike, the Company distributed its beer to its retail
customers in the Denver metropolitan area, by means of its own employees who
drove company -owned trucks, operating out of the Denver warehouse.
For some time prior to the strike the Union and the Company were parties to a
collective-bargaining agreement which covered an appropriate bargaining unit, com-
posed of employees at both the Golden brewery and the Denver warehouse. This
contract expired in March 1957. A new contract was not agreed upon , for reasons
not relevant to, or disclosed in, this proceeding, and on April 24, 1957, the em-
ployees at both the brewery and the warehouse struck . On that date the Union
established picket lines at both the brewery in Golden and the warehouse in Denver.
These picket lines were maintained continuously, thereafter , including the entire
period under examination here.
Outside of Denver, the Company distributed its beer through the medium of
beer distributing companies , each of which had an exclusive distributorship for a
designated geographical area . The distributors in the State of Colorado who played
a part in these events were : Ray C. Imel, Lafayette, about 10 miles from Denver;
C & H Sales, Morrison , about 12 miles from Denver ; McDoy Distributing Company,
Greeley, 60 miles from Denver ; George Pfalmer, Colorado Springs, about 60 miles
from Denver ; Otterstein and Company, Pueblo, about 120 miles from Denver;
and Gail Johnson, Alamoso, about 200 miles from Denver.
3. Method of distribution after strike of April 24
It is undisputed that about I month before the start of the strike, the Company
made arrangements with the distributors named above , that in the event of a strike
they would come into Denver for the purpose of delivering beer in the Denver
metropolitan area.
The strike began on April 24. The Company did not deliver beer on Saturday,
April 25. On the 26th , four distributors leased trucks from a truck-rental service
and proceeded to make deliveries to Coors' draught beer customers . On the follow-
ing day , the Company and the distributors executed leases , whereby the distributors
leased Coors' trucks at a rental of $10 per day per truck, and thereafter the dis-
tributors effected delivery of Coors ' products in the city of Denver, using 13 trucks
leased from the Company . These trucks were manned by the distributors per-
sonally, employees of the distributors , and Coors ' supervisory employees. Pfalmer
drove a truck , and Otterstein, Johnson, Imel, and Domenico acted as helpers on
INTERNATIONAL UNION OF UNITED BREWERY 281
other trucks. McDoy did not come into Denver himself, but sent his son and
some of his employees.
Thereafter, McDoy, from Greeley, Imel from Lafayette, and C & H Sales from
Morrison, made delivery in the sections of Denver which were adjacent to their
distributorship territories. They continued to conduct their own business from
their own warehouses, but also helped to supply Coors' customers in the city of
Denver. The distributors whose places of business were at a greater distance,
namely, Otterstein, Pfalmer, and Johnson, took over the delivery of beer in central
Denver and the remainder of the metropolitan area.
In the course of this service, the distributors collected payments for the beer which
were turned over to Coors , who paid each distributor his usual commission on
each sale.
Neither the Company nor the distributors claimed at the hearing that this arrange-
ment was anything other than a temporary, informal, expedient to effect delivery
to its Denver customers during the strike.
By means of this arrangement , the Company was able to service its keg and
bottled beer customers in the Denver metropolitan area until approximately July
12, 1957. On that date the Public Utilities Commission of the State of Colorado
notified the distributors that an investigation by the Commission disclosed that they
were transporting beer for Coors on a for-hire basis, and that the P. U. C. permits
issued to each distributor limited, its transport of beer to that which each dis-
tributor owned.
This development forced the Company to enter into another temporary arrange-
ment with George Pfalmer on or about July 15 . This arrangement need not be
discussed in this report , since the evidence adduced by the General Counsel at
the hearing with respect to the Denver area was confined to the period prior
to July 15.
B. Alleged unfair labor practices
1. The inducement of Otterstein's employees , the meeting of May 14, 1957
Several employees of Otterstein and Company testified credibly that on May
14, 1957, while working at the Otterstein warehouse at Pueblo, they were instructed
by the union steward to attend a special meeting of the Union that evening in the
lounge of the Hotel Whitman. The employees of Otterstein and the employees
of the Walters Brewery, both located at Pueblo, belong to Local 151 of the
International.
At 7 o'clock, the time appointed for the meeting, Chandler, a representative of
the Union , appeared and addressed the assembled employees of Otterstein and of
the Walters Brewery. In the course of his remarks Chandler said that a labor
dispute existed between the Union and the Coors Brewery, and that the employees
of Coors were on strike. He said that the Union was going to go the limit to get
what they were after. He asked the men "not to push Coors beer." He instructed
them to load their trucks and to go out on their routes, but not to push Coors beer.
He said that they should "sit on the court house steps and watch the girls go by."
Chandler also said that if the Union did not get what it wanted, that the Union
would picket every Coors' distributor. He said there was a possibility that the
Union might place a picket line around the Otterstein warehouse in Pueblo, and
in that event he asked them not to cross that picket line.
The Otterstein employees, present at this meeting, who testified, said that on
this date they did not know that Ottersein or any of his employees were delivering
beer for Coors in the Denver area, and that Chandler did not mention that fact
at the meeting. One of these witnesses, Houghton, testified in addition that he
drives the transport truck between the Coors brewery at Golden and the Otterstein
warehouse at Pueblo. Chandler told him that if the Union put a picket line around
the Otterstein warehouse he was not to drive into Otterstein's. In the course of
his daily run to the brewery at Golden, Houghton usually was accompanied by
another person who actually drove the truck across the picket line at the brewery.
After it was loaded, the other person drove it out through the picket line, and
Houghton drove it back to Pueblo. On this occasion, Chandler told him not to
drive into Coors' brewery either.
2. The picketing at retail establishments
As previously mentioned, from the beginning of the strike on April 24 until
May 20, the Union had confined its picket activities to the immediate vicinity of the
brewery at Golden and the warehouse at Denvei. However on May 20, the Union
enlarged the scope of its picketing. On that day, and for approximately 3 weeks
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter, when the trucks left the Denver warehouse to make deliveries to retail
establishments , they were followed by one or more carloads of striking employees.
The employees followed the delivery trucks to the retail outlets and picketed in the
vicinity of these taverns, stores , and restaurants , for the length of time that the
delivery was being made. As a. delivery was completed and the truck moved to
another Coors retailer , the pickets followed the truck and repeated the procedure.
The cars in which the strikers rode, and which they parked near the retail outlets
bore placards saying , "On strike. Don't buy Coors beer . Brewery Workers Local
No. 366, AFL-CIO." The picketing procedure was also fairly uniform .. Usually a
picket or pickets walked in front of the main entrance to the retail outlet wearing
placards, fashioned into sandwich boards. These placards , approximately 21h by
2 feet in size , bore the following legend in large letters:
TO THE
BEER DRINKING
PUBLIC
COORS BREWERY
ON STRIKE
DON'T BUY COORS BEER
Brewery Workers Union Local 366 AFL-CIO
For the first day or two during which the Union engaged in this type of picketing,
in addition to the pickets who patrolled , some of the striking employees would
customarily go into the retail outlet and pass out to patrons and employees of the
outlet pamphlets requesting support of the Union in its strike against Coors, and
giving the Union 's version of the labor dispute. The largest print on these pamphlets
also stated , "Don't buy Coors Beer."
The complaint names some 19 retail outlets at which this type of activity occurred.
A- narration of each of these incidents would be of no particular benefit here, and
would lengthen this report unduly. However, a summary of the testimony of a few
witnesses concerning a few typical incidents will illustrate the manner in which this
picketing was conducted.
Rialto Philleo , the Denver branch manager for the Company , testified , credibly,
that both before and during the strike , the employees of the Denver warehouse
started to work at 7 o'clock in the morning . He said that usually the beer trucks
were loaded the night before , and that shortly after 7 o'clock the trucks departed to
make their deliveries. The trucks making draught beer deliveries , of which there
were three, usually returned to the warehouse at least once in the course of the day
for a fresh supply of keg beer . The trucks which delivered bottled beer could take
a sufficient supply so they did not return to the warehouse until close to the end of
the workday. All drivers reported at the warehouse when they started to work and
when they finished , or any time they returned for additional beer.
Philleo said that the picketing at retail outlets began on May 20. On that day he
received a call from one of the drivers that someone was following his truck.
Philleo drove to the Torch Club , one of the Company 's customers , and in a few
moments the truck appeared there. It was followed by a pickup truck containing
several striking employees of the Denver warehouse with whom Philleo was
acquainted . Some of the striking employees alighted from the car and went into
the account , while others put placards on themselves , and patrolled for some
distance in front of the club . The account is located on a large lot with a
large parking lot around it. It has a front and a side entrance . The truck
drove into the parking lot, to the side entrance . One of the pickets patrolled
near the front entrance of the building, while another went into the account.
About 1 p . in., Philleo was at Bill 's Liquors when the striking employees drove
into the parking lot at that place. When Philleo entered Bill 's Liquors, he saw
Earl Daggett , a striking employee and a representative of the Union on the negotiat-
ing committee , talking to the owner of the grill . Philleo explained to the owner
that the Company was sorry that the picketing occurred , and that they thought it
was illegal , and would try to put a stop to it. Meanwhile two other strikers, with
placards, patrolled up and down on the sidewalk in front of the entrance to the
building.
On the next day, May 21, Philleo , accompanied by Masamori , a commercial
photographer , accompanied some drivers in the course of making deliveries.
Masamori took photographs showing the location of customer buildings , the pickets,
the delivery truck , and the strikers ' automobile or automobiles. In the pictures,
Philleo identified the pickets as members of the Union , employees of Coors who
INTERNATIONAL UNION OF UNITED BREWERY 283
were on strike . The pictures also are illustrative of the picket signs , and how they
were worn by the pickets.3
Ralph D . Pahel , Jr., the warehouse supervisor for the Company , also testified
credibly that during the strike he made deliveries of beer. On the afternoon of
May 20 the truck which he drove was reloaded and he proceeded to make a
delivery to Bill's Liquors. He parked in front of Bill's Liquors, and a car driven
by the strikers pulled in alongside the place in the parking lot. He recognized the
men in that car as striking employees . These men got out of the car and picketed
in front of the entrance to the store. When he finished that particular delivery he
proceeded to the Unique Liquors on West Alameda. He parked around the
comer from the liquor store , and the same car which had followed him previously
pulled up around the corner and parked on the same street . The point where the
cars were parked was about 200 feet from the entrance to the store , and around
the corner on the side street. The pickets left their car, and walked back and
forth in front of the entrance to Unique Liquors. From that place he went to
Frank 's Liquors , which is a short distance on West Alameda , followed by the
pickets. This is a side-door delivery, so he went to the side door and backed
the truck up to the door. The car with the pickets parked in the parking lot but
they did not leave their car. The same thing happened at Westwood Liquors at
Morrison Road . The pickets followed to two more customers, but there was no
picketing at those places . When he finished covering those customers , he returned,
followed by the pickets , to the warehouse.
On May 21, Pahel made a delivery at Roth's Pool Hall on Morrison Road.
Strikers followed him to this stop . The strikers picketed between the truck and the
entrance to the cafe , a distance of about 20 feet . On several occasions in the
next 2 weeks this witness made deliveries , and was followed by pickets. On these
later occasions he stated that the pickets kept fairly close to the delivery truck.
Robert, O. Gross testified that on May 20, 1957, he and an employee named
Duran made deliveries of beer from the warehouse to various retail outlets, one
of them being the J & B Buffet . He and Duran went into the cafe and Duran
proceeded to the basement to check the empty kegs of beer . At this time the
pickets, who had followed them from the warehouse , came in behind them and
gave the man behind the bar some leaflets and talked to him for some moments.
When Duran came up from the basement this man, the owner or manager, said
that, "He'd rather not taken any beer until after the strike, because he didn't want
to hurt anybody's feelings." At that time there was a second man behind the bar
and another man working in the kitchen. Later that afternoon about 4 o'clock,
Gross left the warehouse to make a late delivery at the El Dorado Cafe. The
pickets followed him from the warehouse as usual to the tavern . They parked
their car in front of the tavern and paraded up and down in front of the entrance,
carrying picket placards. When he went inside to make the delivery, three pickets
followed him in. At the time the owner and his wife were inside the tavern. When
he left the cafe the pickets followed him back to the warehouse. Gross testified
that on another occasion he made a delivery at Solomon 's on Larimer Avenue. He
parked about half a block away from the entrance to the tavern, but the picket
went to the front entrance of Solomon 's and picketed there while , he was making a
delivery through the side door. This witness stated that the pickets followed hun
every place that he went beginning May 20 for a couple of weeks.
Doyle F. Cummins testified that on May 20 while making a delivery of beer
for the Company he was followed by three strikers from the warehouse to the J & B
Market. He parked the truck in the back where they unloaded the beer. One
of the pickets went to the front and patrolled on the sidewalk with a picket sign.
Another stayed near the truck, and a third went into the store where he was engaged
in delivering the beer. The man who came in the store said that they were going
to picket the truck while the beer was being unloaded. The man behind the counter
of the tavern then asked the picket, "Well, how come the pickets are on the sidewalk,
and the truck is in the back?" The'picket made no reply but went out of the cafe.
The man behind the bar told Cummins to deliver the beer.
Cummins' next stop was the Fillmore Drug. Cummins did not know where
delivery was made at this stop , so he pulled around the corner , on the Fillmore
Street side, but the pickets' car that was following parked in front of the store on
East Colfax. One of the pickets picketed near the car, and the other one entered
,the drug store and gave a pamphlet to the man who appeared to be in charge.
This witness told this man that they had a delivery of Coors for him. One of the
a General Counsel's Exhibit No. 2-15.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers gave this man a pamphlet, which he read and then told Cummins to bring
in the beer.
Cummins' next stop was the Alan Eber Drugstore on Colfax. The witness parked
the truck on the side street, but the pickets parked in front. He delivered the
beer through the back door but the pickets continued to picket in front of the store.
Edward G. Duran said that he made deliveries of beer on May 20, 1957. The
pickets picked him up at the Fifth Avenue Grill. There were three cars full of
striking employees. He did not know the men personally but the automobiles bore
placards stating, "Don't buy Coors Beer." And the pickets whom he later saw
wore the larger signs. The men got out of their cars at the Fifth Avenue Grill.
Two or three went inside and passed out leaflets. Approximately three of the
pickets walked up and down in front of the building. Inside the Grill a waitress
and bartender were on duty.
The next stop he made was at Sam & Mugs Tavern, to which the pickets followed
him. That stop is a rear delivery, so he drove the truck to the back door. Two men
picketed in front of the tavern , and some of them stood near the truck.
Duran then went to the Tenth Avenue Grill, followed by the pickets. He went in
the grill and asked the lady in charge about checking the empties. At that point one
of the drivers of the picket cars entered by the front door and asked this lady if she
was going to accept delivery on the scab beer. She replied that Coors was the brand
they sold and she would have to. When he left that stop and went back to the ware-
house, the pickets followed. He said that from May 20 to the end of the month he
was followed in making practically all his deliveries.
On one occasion he made a delivery at Solomon 's Bar. This is a keg stop, and
because it is on a one -way street he had to park about three quarters of a block away
and roll the barrels from the truck to the tavern . The pickets picketed right in front
of the tavern while he rolled the beer from the truck into the tavern . Inside the
tavern there were three men serving drinks at the bar . On another occasion „he made
a delivery to Hersh's Hideout . At that time , three cars containing 2 women and
5 men followed him and as he delivered the beer these people stood in front calling
him names . On this occasion no one picketed . Finally the man who usually re-
ceived deliveries of beer for the grill came out of the tavern and told the strikers to
leave them alone.
Frank F. Knafelc testified that on May 20 he returned to the warehouse for a
second load of beer.' When he left the warehouse and went to Sherman Plaza Drug
he noticed that he was being followed by a car containing pickets. This car was
plastered with placards reading "Don't buy Coors Beer." He knew who the men
were because he had seen them many times on the picket line at the warehouse.
Plaza Drug is on the corner and he stopped in about the middle of the block where
there is a driveway. The pickets picketed in front of the store, and when he got
inside the store he noticed that there were pickets passing out handbills. One
waitress behind the counter was reading a handbill, and Mr. Stout, the owner, was
also reading one of the handbills. After that, Knafelc made a delivery to the Corona
Drugstore . At this stop he parked the truck on a side street, and the pickets parked
behind him. They all got out and one picketed in front of the store while 3 or 4
went into the store. When he entered the drugstore, the pickets were talking to the
pharmacist. This man asked, "Can you get the rest of the Unions to back you up
on this?" The pickets said, "Absolutely." Knafelc started to walk past the men,
but the pickets told him to talk to the pharmacist. The pharmacist then told Knafelc
that he would not have anything to do with Adolph Coors. However, at that point,
the pharmacist said that he thought he should phone the boss and talk to him about
accepting Coors beer. After he made the phone call, he returned and said, "Well,
if he wants the beer, I guess we have to take it." He then told Knafelc to bring in
the beer. When Knafelc asked the pharmacist to sign a receipt for the beer the man
refused. Knafelc then asked a young lady who was present and working there if
she would sign for it. She said she didn't want anything to do with it, but finally she
signed the ticket "Corona Drug," but would not put her name on it. At
that time there were two other persons working around the fountain serving
customers. At this stop, the pickets patrolled outside the drugstore between the
truck and the store.
Several other witnesses testified to the picketing which occurred when deliveries to
retailers were being made. That testimony illustrates the same pattern of activity as
shown by the above narrative. Suffice it to say that the testimony of the witnesses
presented by the General Counsel is all mutually corroborative, and is all uncon-
tradicted in the record. I credit it fully as to the general manner of the picketing, and
as to the specific incidents of picketing.
INTERNATIONAL UNION OF UNITED BREWERY 285
3. Testimony of secondary employees
Lila F. Rhodus, a female bartender at Sam & Mugs Tavern, Denver, testified that
the tavern was the scene of picketing during the strike. On one particular occasion,
one of the pickets accosted her employer and asked him if he was going to accept the
scab beer, and pickets patrolled in front of the tavern's entrance.
Joe Garcia, a bartender at the Juarez Tavern, Larimer Avenue, Denver, testified
that around May 20 he was on duty one morning when two of Coors' striking em-
ployees came into the tavern and told him that they were not picketing the place but
the trucks. They asked permission to pass out handbills, and he gave them permis-
sion. On this occasion, the pickets kept close to the truck but on another occasion
they picketed in front of the tavern, although the Coors truck was parked across the
street. Garcia said that his brother, who owned the tavern, continued to take Coors
beer until he was subpenaed as a witness for the government in an injunction proceed-
ing. At that point his brother decided to stop taking Coors beer, because, "They are
bothering us too, much."
Harry N. Almy testified that he is employed by the Ivanhoe Drug Company, a
drugstore with a liquor department. He is the salesman in the liquor department.
He testified that on an occasion in the course of the strike, the Coors truck backed
into the driveway, and pickets came in the store. The pickets asked him if he was
going to accept Coors beer. He told them that he didn't know, and referred them
to the manager. They gave him a pamphlet and walked away. At the time the
pickets came in the store, employees Charlie Esposito and Jean Blackman were
present. Jean Blackman also testified that on this occasion she asked the picket,
"What the deal was?" He replied, "Don't buy Coors beer and you'll be helping me."
4. The picketing at Berkeley , California
Karl F. Holze, president of the Pacific Beverage Company, Oakland, California,
testified credibly that his company is a distributor of Coors beer and 15 other brands
of beverages. On July 24, 1957, about 2 p. in., he went to the Bay Bridge Inn, on
San Pablo Avenue, Berkeley, California. When he reached the cafe he saw two
pickets walking in front of the door. They wore picket signs saying, "Coors beer is
unfair. Local 366." Holze introduced himself to the pickets, who told him that
they were Roy Lamb and Jack McCracken, striking employees of Coors brewery.
They gave Holze one of the pamphlets which they were passing out to persons
entering and leaving the cafe.
On the next day, July 25, Holze had two meetings with Chandler, the representa-
tive of the Union previously referred to. The first meeting was in Holze's office and
Chandler was accompanied by Murray, president of the Bartenders Union, Oakland,
by Christopher, who is an organizer for AFL-CIO, San Francisco, and Murphy who
is president of the Bartenders Union Local No. 52, Oakland. Chandler and Murphy
told Holze that they were forced to have a boycott on Coors beer in the area, and
that he should try to switch over his Coors account to another beer. They said that
they would give him 1 week before they started boycotting in the San Francisco
Bay Area.
At a second meeting at the Leamington Hotel, Oakland, the position of these
representatives of the labor organizations remained the same.
Concluding Findings
From the undisputed evidence, it is clear that at all the times relevant hereto, the'
Company maintained a brewery at Golden and a warehouse at Denver, both of
which were picketed continuously during the strike. Despite the fact that those
picket lines advertised its dispute with Coors, the Union picketed the premises of
Coors' retail dealers. The fact that in many instances the picketing at the retailers
premises occurred when the trucks of the Company were parked some distance
away, discloses the true purpose of this picketing, to bring secondary pressure upon
Coors by picketing the retail outlets.
The Board has uniformly condemned picketing conducted at the premises of
secondary employers when the primary employer has one or more fixed places
of business in the area which could be, and in this case were being, picketed. The
Board has condemned such secondary picketing as being violative of the Act per se.
In a similar situation, in Barry Controls, Inc., 116 NLRB 1470, the Board wrote
as follows:
The fact that the picketing was conducted at the premises of secondary
employers, plainly reveals that it was designed, at least in part, to induce and
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
encourage the employees of the secondary employers , to engage in a concerted
refusal in the course of their employment to handle Barry's freight with an
object of forcing or requiring the secondary employers to discontinue doing
business with Barry and that the Respondents thereby violated Section 8 (b)
(4) (A) of the Act.
In Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, 303 enfd. 220
F. 2d 380 (C. A., D. C.), the "On Strike" picketing was similar to the picketing
here. The Board wrote:
The Respondent advances the Schultz and Moore Dry Dock cases in defense
of the "On Strike " picketing . Unlike the instant proceeding , the Schultz case
involved picketing of trucks belonging to a company engaged in the trans-
portation business which had no permanent establishment where the trucks
could be picketed within the State in which the labor dispute arose . Similarly,
in the Moore Dry Dock case the owners of the ship , which was the situs of
- the picketing union's dispute with the ship owners, had no permanent berth
where the union could publicize the facts concerning its dispute with the ship
owners. Here the Coca-Cola plant, which the drivers enter and leave at least
four times each day, is located in downtown Washington and was picketed by
the Respondent union from the first day of the strike.
The Board has reiterated this ruling in Southwestern Motor Transport, Inc., 115
NLRB 981, W. H. Arthur Company , 115 NLRB 1137 , and Associated General
Contractors, etc., 116 NLRB 461. In these cases the Board has held that the
sections of the Act here under consideration proscribed all the picketing at the
premises of a secondary employer where the primary employer has a place at which
the union can picket and thus publicize its dispute with the employer directly
involved therein.
The conduct of Union Representative Chandler in both his address to the Otter-
stein employees , and in his talks with Holze in regard to the Bay Bridge Inn Cafe
discloses that the real purpose of the Union in this activity was not to acquaint the
"Beer Drinking Public" with the facts of its dispute with Coors, but to bring secondary
pressure upon Coors by picketing Coors' retail outlets. Thus, in the address to
Otterstein 's employees , Chandler asked them "not to push Coors Beer," and
instructed them to "sit on the courthouse steps and watch the pretty girls go by."
His speech was clearly inducement and encouragement of employees of a secondary
employer to engage in a strike or concerted refusal in the course of their employment
to handle goods or to perform services . The tenor of Chandler 's remarks to Holze,
which were reinforced by the presence and remarks of officials of affiliated unions in
the Berkeley area, disclosed the same fixed purpose , to bring pressure through
the medium of employees upon the retail outlets of Coors for the purpose of forcing
these secondary employers to cease doing business with Coors . Viewing the evi-
dence as a whole, this conduct of Chandler and his associates sheds considerable
light on the true purpose of the Union in its picketing at both Denver and Berkeley.
In the light of all the evidence, I find that the Union has committed the unfair
labor practices set forth in the complaint.
The Union has raised several defenses in the case which warrant some discussion.
The first of these is that the acts of the unions are here permissible under Section
8 (c) of the Act, which safeguards the freedom of speech , and under the First
Amendment to the Constitution . This defense was rejected by the Supreme Court
of the United States in International Brotherhood of Electrical Workers, Local 501,
et al. (Samuel Langer ) v. N. L. R . B., 341 U . S. 694 . As stated by the Supreme
Court in that case: "The remedial function of §8 (c ) is to protect noncoercive speech
by employer and labor organization alike in furtherance of a lawful object. It
serves that purpose adequately without extending its protection to speech or picketing
in furtherance of unfair labor practices such as are defined in §8 (b) (4). The
general terms of § 8 (c ) appropriately give way to the specific provisions of § 8 (b)
(4)." The Court further stated in that case, "The prohibition of inducement or
encouragement of secondary pressure by § 8 (b ) (4) (A) carries no unconstitutional
abridgement of free speech."
The Union also contends that the speech of its representative , Chandler, to the
employees of Otterstein , a distributor for Coors , not to push Coors beer , was per-
missible because Otterstein was an ally of Coors. The record establishes that Otter-
stein had been engaged in the distribution of Coors beer at Pueblo , Colorado, for
a long period prior to the strike , that Otterstein 's business was a separate , independent
enterprise , and was located 200 miles from the situs of the strike . The record estab-
lishes that in the early part of the strike Otterstein loaned Coors a few employees
for the delivery of beer in the Denver area, work formerly performed by strikers.
INTERNATIONAL UNION OF UNITED BREWERY 287
However, it seems clear to me that in the posture of this case Otterstein must be
considered a neutral employer. The employees appealed to by Chandler were en-
gaged in their usual occupations as employees of Otterstein at Pueblo. They were
in no way involved in any struck work, in which Otterstein and a few employees
might be engaged in Denver. The mere fact that Otterstein had loaned a few
employees to Coors for work in Denver does not render the Otterstein operations
at Pueblo vulnerable to picketing as an ally of Coors to the extent that the Union
could induce or encourage employees of Otterstein engaged in their usual tasks to
refuse to handle Coors beer. On the evidence here, I find that Otterstein and
Company was a legal entity separate and apart from Coors, and that as far as its
Pueblo operations are concerned it continued to remain that at all times . Hence,
it was a neutral employer entitled to the protection of the Act?
The Union also raises the defense that it was merely attempting to advertise
its dispute to the public. This same defense was recently rejected by the Board in
Dallas General Drivers, etc. (Associated Wholesale Grocery of Dallas , Inc.) 118
NLRB 1251. In that case the Board wrote:
Contrary to the Respondent's contention, we find, as did the Trial Examiner,
that the Respondent sought to achieve its objective, in part at least, through the
inducement and encouragement of employees of neutral employers to refuse
to handle merchandise or perform services for their employer. As indicated
above, the picketing covered entrances to stores of Associated's customers
normally used by store employees and employees of some suppliers of the
stores. This required the employees to cross the picket line in order to go to
work or make deliveries. But, as the Ninth Circuit Court of Appeals
observed:
The reluctance of workers to cross a picket line is notorious. To them
the presence of the line implies a promise that if they respond by refusing
to cross it, the workers making the appeal will in turn cooperate if need
arises. The converse, likewise, is implicit. "Respect our picket line and
we will respect yours." In this setting the picket line is truly a formidable
weapon, and one must be naive who assumes that its effectiveness resides
in its utility as a disseminator of information.
It is idle to suggest that the Respondent was not aware of this normal reaction
of employees to picket lines. Indeed, it appears that the Respondent resorted
to this "formidable weapon" to enlist the support of employees only after its
appeal to consumers through handbill distribution and newspaper advertise-
ment proved inadequate. The fact that the picketing was not successful in
inducing a work stoppage or a refusal to perform services is not controlling.
The significance of such conduct is that it necessarily invites employees to
make common cause with the strikers. And this is so irrespective of the
literal appeal of the legends on the picket signs. In these circumstances "To
exempt peaceful picketing from the reach of § 8 (b) (4)," as the Supreme Court
recognized, "would be to open the door to the customary means of enlisting
the support of employees to bring economic pressure to bear on their employer."
The Supreme Court therefore agreed with the Board in that case that peaceful
picketing for a proscribed objective was barred by Section 8 (b) (4) (A).
In the present case, we too find that picketing the stores of secondary em-
ployers at entrances customarily used by store- employees and employees of
suppliers for the purpose of forcing the store owners to cease doing business
with Associated, constituted inducement of employees within the meaning of
Section 8 (b) (4) (A). The fact that the picketing might, in part, additionally
serve the purpose of appealing to members of the public, as the Respondent
urges, cannot minimize the impact that the picketing normally has on employees
and which conduct the Act was clearly designed to reach.
It is interesting to note that in the Dallas General Drivers case , supra, the picket
signs were also ostensibly directed at the public.
The Union also makes the argument that the evidence does not show that "em-
ployees" were influenced by the picketing, pointing out that the exact status of
clerks, bartenders, and waiters was not proven, except to the extent that persons
performing that type of work were present in the retail outlets. I find no merit
in that proposition. From all the evidence, it is clear that the retail outlets were
manned , as is customary in retail establishments, by a combination of personnel,
' See Dallas General Drivers, etc. (Associated Wholesale Grocery of Dallas, Inc.), 118
NLRB 1251.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including both proprietors and employees. The witnesses who made the deliveries
described the personnel in the retail outlets and what they were doing at the time
of the delivery. From that testimony, I deem it a fair inference, and I find, that
they were what they appeared to be-bartenders, cooks, waiters, and that they were
employees of the retail establishments. To require more exact proof as to the
status of each person in the establishment as either owner or employee would be
to carry the technical requirement of proof to unrealistic lengths.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the, Union set forth in section III, above, occurring in connection
with the operations of the Company described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Union has engaged in unfair labor practices, it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, and Local No. 366, of the aforesaid International,
herein referred to collectively as the Union, are labor organizations within the mean-
ing of Section 2 (5) of the Act. -
2. By inducing and encouraging employees of retail outlets of Adolph Coors Com-
pany to engage in a concerted refusal to perform services for their employers, with
an object of requiring the retail outlets to cease doing business with Coors, the Union
has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act.
3. By inducing and encouraging employees of Otterstein and Company to engage
in a concerted refusal to perform services for their employer, with an object of
requiring the employer to cease doing business with Adolph Coors Company, the
Union has engaged in unfair labor practices within the meaning of Section
8 (b) (4) (A) of the Act.
4. 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.]
Rockwell Manufacturing Company (Du Bois Division) and
International Union of Electrical , Radio and Machine Workers,
AFL-CIO. Case No. 6-CA-1118. August 6, 1958
DECISION AND ORDER
On November 22, 1957, Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
121 NLRB No. 47.