Local 14055, Steelworkers

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 649 (N.L.R.B. 1974)

LOCAL 14055, STEELWORKERS 649
Local 14055, United Steelworkers of America,
AFL-CIO and The Dow Chemical Company and
The Chamber of Commerce of the United States.
Cases 7-CC-743 and 7-CC-756
June 18, 1974
tial importance in the administration of the Act,
ordered that this case be set down for oral argument
before the Board. Oral argument was heard on
January 7, 1974.
Upon the entire record in the case, the Board
makes the following findings:
DECISION AND ORDER
Upon unfair labor practice charges filed on March
13, 1973, by The Dow Chemical Company, herein
called Dow, and on May 22, 1973, by The Chamber
of Commerce of the United States against Respon-
dent, Local 14055, United Steelworkers of America,
AFL-CIO, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a consolidated amended complaint,
on May 31, 1973, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(4)(ii)(B) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the consolidated amended complaint and notice of
hearing were served on the Respondent and the
Charging Parties. Thereafter, Respondent filed a
timely answer denying the commission of any unfair
labor practices. A hearing before an Administrative
Law Judge was scheduled for June 18, 1973.
Meanwhile, pursuant to the provisions of Section
10(1) of the Act, a petition for an injunction was filed
by the Regional Director for Region 7, on behalf of
the National Labor Relations Board, in the United
States District Court for the Eastern District of
Michigan. A hearing on that petition was held on
May 23, 1973, before Hon. Thomas P. Thornton,
United States District Judge. Thereafter, on August
23, 1973, all parties herein joined in a motion before
the National Labor Relations Board that the instant
consolidated proceeding be transferred to the Board
without a hearing before an Administrative Law
Judge, and that the entire record consist of the
formal papers, the official record in the district court
proceeding including transcript and exhibits, and
certain stipulated facts. On August 29, 1973, the
Board granted this joint motion and transferred the
instant proceeding to itself.' Thereafter, the General
Counsel, the Respondent, and the Charging Parties
filed briefs.
On December 21, 1973, the Board, having deter-
mined that the instant case raised issues of substan-
I No further proceedings have ensued , nor has a decision been rendered
in the district court.
2 The Dow Chemical Company being the "primary employer" herein, we
assert jurisdiction on the basis of its engagement in commerce without
regard to the "commerce " status of Harold Alexander, Inc., Rupp Oil
Company, and Central Michigan Petroleum , Inc., who are the "secondary
employers" for purposes of this case . Sheet Metal Workers International
Association Local Union No. 299, AFL-CIO, and Allen Stout, its Agent (S. M.
1. JURISDICTION
The consolidated amended complaint alleges and
the answer admits that The Dow Chemical Company
in 1972, a representative year, in the conduct of its
Bay Refining Division located in Bay City, Michi-
gan, sold in excess of $500,000 worth of products, of
which goods valued in excess of $50,000 were
shipped directly to points located outside the State of
Michigan. The answer also admits, and we find, that
The Dow Chemical Company is a person engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
The consolidated amended complaint alleges and
the answer admits that Harold Alexander, Inc., Rupp
Oil Company, and Central Michigan Petroleum, Inc.,
are persons engaged in commerce within the mean-
ing of Sections 2(6) and (7) and 8(b)(4) of the Act. In
the absence of facts either in the pleadings or
elsewhere in the record sufficient to prove the last-
mentioned allegations, and since jurisdiction is
otherwise established to our satisfaction, we need not
make any findings regarding the "commerce" status
of these businesses.2
II. THE LABOR ORGANIZATION INVOLVED
Local 14055 , United Steelworkers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts we rely on are undisputed. The Dow
Chemical Company has its Bay Refining Division in
Bay City, Michigan, where it produces gasoline and
other products. Respondent was, at the times
pertinent to this proceeding, on strike against the Bay
Refining Division. Respondent picketed at six gas
stations deriving their revenues largely from the sale
of this gasoline, marketed under the trade name of
"Bay." The picket signs asked consumers to boycott
Bay gasoline.3 All of the gas stations involved are
Kisner and Sons), 131 NLRB 1196 ; Local 3, International Brotherhood of
Electrical Workers, AFL-CIO (New Power Wire and Electric Corp.), 144
NLRB 1089, In. 1.
3 A typical sign read: "Don't Buy Bay Gas." Other signs omitted the
word "Gas." Our resolution of the legal effect of the picketing makes it
unnecessary for us to pass upon the alleged failure of the signs to specify
adequately the boycotted product.
211 NLRB No. 59
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
independent, in the sense that none is operated,
either wholly or jointly, by Dow.
Three of the stations, located in Bay City, are
operated by Rupp Oil Company which, in addition
to operating several retail Bay gasoline stations, is
the area wholesale distributor for Bay gasoline.
While not owned or controlled in its day-to-day
operations by Dow, the Rupp distributorship was
created with the aid of Dow's endorsement as
cosigner of a bank note for a loan to Rupp of
$116,000. One of the conditions of this endorsement
is that Dow must agree to any purchases or
expenditures made with this money. Rupp's whole-
sale supply is maintained in tanks owned by Dow
adjacent to the Bay refinery. On at least one occasion
during the strike, Dow employees performed a
maintenance operation on the tanks, namely, the
installation of gauges. Each of Rupp's three retail gas
stations in question is leased by the landowner to
Dow, and subleased by Dow to Rupp Oil Company.
At two of the stations , at 248 Washington Street and
2100-22nd Street, the rental Rupp pays to Dow is
based on gallons of gasoline sold. The third station,
at 1017 Marquette Street, is on land owned by
Rupp's principal, Harold Rupp, and his wife, who
lease it to Dow, which in turn subleases it to Rupp
Oil Company for the same rental as provided for in
the primary lease . The purpose of this leaseback
arrangement does not appear. Dow owns the "Bay"
insignias at all three stations, and the gas pumps at
the Marquette and 22nd Street stations. At 22nd
Street, it also owns a hoist, a carwasher, battery
charger, racks and counters, and other personal
property.
Central Michigan Petroleum, Inc., operates two of
the picketed gas stations located in Midland,
Michigan. Central Michigan, like Rupp, also whole-
sales gasoline . Also like Rupp, Central Michigan is a
lessee to Dow with respect to these stations. One of
them is actually owned by Dow and the other is
leased to Dow and subleased to Central Michigan.
The terms of neither of these leases appear in the
record, except that a Dow representative testified
that he thought the subleased station was rented for
the same rental Dow pays. Both stations carry the
"Bay" insignia.
The remaining gas station involved is operated by
Harold Alexander, Inc., on Euclid Avenue, Bay City,
on property owned by Harold Alexander, Inc., leased
to Dow for a fixed rental, and leased back to
Alexander for a rental based on its gasoline sales.
Alexander also leases to Dow the Washington Street
gas station which Dow subleases to Rupp Oil
Company and, apparently, one of the Midland
stations which Dow subleases to Central Michigan
Petroleum.4
Among the three Rupp Oil Company stations, the
one on Washington Street has gross revenues of
about $280,000 a year, of which from 81 to 86
percent comes from the sale of Bay gas. It is also a
General Tire dealership. The 22nd Street station
grosses about $140,000, about 85 percent from Bay
gas, and the Marquette Street station had only
operated for about 6 months at the time of the
hearing, and had sold $39,000 worth of Bay gas out
of $40,000 in gross revenues. The Marquette station,
however, leases its servicing facilities to an independ-
ent mechanic, and neither the lease rental nor the
income of the mechanic (both unknown) is included
in the $40,000 figure.
The two stations operated by Central Michigan
Petroleum had only been in operation a few months
at the time of the hearing. One had gross revenues of
$68,000, of which 91 percent came from Bay gas and
oil and other Dow products such as radiator sealer,
brake fluid, and windshield solvent. The other
station had gross revenues of $45,000, of which about
98 percent was from Dow products.
The Harold Alexander, Inc., station grosses about
$1,200,000 a year. It is also a General Tire dealership.
Its fuel (gas and diesel oil) sales account for 60 to 65
percent of gross revenues. This station sells gas other
than Bay brand, and Alexander's owner, while at one
point in his testimony estimating that Bay represent-
ed about 75 percent of his fuel sales, later stated that
for the current year he did not know how much of
the gas he sold was Bay. While it is not entirely clear
from the record, it would appear that potential
customers would not generally have known that gas
other than Bay was available at the station.
It is the contention of the General Counsel and the
Charging Parties that by its picketing of these
independent gas stations Respondent sought to
coerce their operators with an object of forcing them
to curtail or cease doing business with Dow, in
violation of Section 8(b)(4)(ii)(B). Respondent de-
fends its picketing by asserting that the station
operators are not neutral parties entitled to protec-
tion from picketing in furtherance of a labor dispute
with Dow, and that its picketing at the premises of
these retailers of Dow's gasoline, even if they are
neutral parties, is lawful under the Tree Fruits cases
as consumer picketing aimed at Dow's product only.
4 Central Michigan 's general manager testified that the land was owned the property was owned by Dow, leased to Alexander , and subleased to
by Harold Alexander . A Dow representative testified that it was owned by a Central Michigan.
firm known as Bay General . Dow's brief to the Board cites the former S N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760
testimony in presenting its version of the facts , but inadvertently states that (Tree Fruits Labor Relations Committee, Inc.]. 377 U.S . 58 (1964).
LOCAL 14055, STEELWORKERS 651
A. Neutrality of the Picketed Stations
Where the business enterprise at which alleged
secondary picketing takes place is operated with such
identity and community of interests with the person
having the primary labor dispute as to negative the
claim that it is a neutral enterprise, we have held that
it is not then the kind of third party who was
intended to be protected by Section 8(b)(4).6 Here,
where there is no question of the gas stations being
"allies" or "joint employers" with Dow, as those
terms have been used in prior cases, Respondent
would have us translate the whole complex of
business relationships between the stations' operators
and Dow, including the lease arrangements, into
such a surrender of neutrality. The short answer to
this line of argument is that the Board does not
normally predicate loss of neutral status on economic
interdependency alone, absent such factors as com-
mon ownership or managerial control.7 None of the
facts relied on to persuade us of the unity between
Dow and each of the operators is so exceptional as to
warrant, in our judgment, departing from this policy
in the instant case.
B. The Applicability of the Tree Fruits
Doctrine
The second question posed by the set of facts
before us is the lawfulness of the picketing in light of
the Tree Fruits decision, supra. In that case a majority
of the Supreme Court held that Section 8(b)(4) does
not proscribe peaceful consumer picketing which is
employed only to persuade customers not to buy the
struck product, as opposed to picketing to persuade
consumers to cease all trading with the secondary
retailer. The majority stated at one point that:
"Peaceful consumer picketing to shut off all trade
with the secondary employer unless he aids the union
in its dispute with the primary employer, is poles
apart from such picketing which only persuades his
customers not to buy the struck product." 8
Respondent Union in the instant case argues that
the majority holding in Tree Fruits is necessarily
applicable irrespective of the extent of disruption of
the retailer's business by a successful consumer
boycott of the struck product. The Charging Parties
and the General Counsel emphasize, on the other
6 Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Acme Concrete & Supply Corp.), 137
NLRB 1321, 1324.
r See Grain Elevator, Flour and Feed Mill Workers, International
Longshoremen Association , Local 418, AFL-CIO (Continental Grain Compa-
ny), 155 NLRB 402, 403-406; Local 379, Building Material & Excavators,
a/w International Brotherhood of Teamsters, Chauffeurs , Warehousemen &
Helpers of America (Catalano Bros., Inc.), 175 NLRB 459, 459-460, 469;
Drivers, Warehouse & Dairy Employees, Local No. 75 (Seymour Transfer,
Inc.), 176 NLRB 530, 533.
8 377 U.S. at 70.
hand, that the Washington State apples which were
the struck goods in Tree Fruits were an insubstantial
part of the retail business of Safeway, the retailer
involved, and that a boycott limited to those apples
would not have discouraged consumers totally from
patronizing Safeway, while such an effect is likely in
the case of the gas stations involved here.
We think this factual distinction does indeed have
significant legal consequences . Where by the nature
of the business and of the picketing it is likely that
customers who are persuaded to respect the picket
signs will not trade at all with the neutral party, we in
turn are persuaded that a true Tree Fruits situation
does not exist, and that we are at the very least
required to make our own independent judgment as
to whether the picketing is permissible under the
Act .9 Arguably, certain dicta in Tree Fruits goes so
far as to compel us to find a violation in such
circumstances, 10 a point which we need not decide.
In Tree Fruits, the Supreme Court majority, finding
that Section 8(b)(4) did not prohibit all peaceful
consumer picketing at secondary sites , decided that
the minimal impact the picketing there would have
had, if successful, upon the total business of the
secondary retailer would not justify a conclusion that
an object of the union was to persuade the retailer to
discontinue handling the struck product to cut its
losses . It was on that basis, in our opinion, that it
held that the picketing in that case did not "threaten,
coerce, or restrain" the retailer within the meaning of
Section 8(b)(4).
Here, the situation is substantially different. We
find, as we did in the American Bread Company case,
supra, footnote 9, that the picketing was reasonably
calculated to induce customers not to patronize the
neutral parties, in this case the gas station operators,
at all. Even though some of the stations involved sell
tires and provide repair service, which special aspects
of their business might be relatively unimpaired,
most of their business is gasoline sales and minor
items incidental thereto. Some , at least, would
predictably be forced out of business if the picketing
were successful, and all would predictably be
squeezed to a position of duress, escapable only by
abandoning Dow in favor of a new source of supply.
It is not only the potential impact of the picketing,
however, that distinguishes this case from Tree
9 See Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 327,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (American Bread Company), 170 NLRB 91,
93, enfd . 411 F.2d 147 (C.A. 6, 1969).
10 For instance: "[W ]hen consumer picketing is employed to persuade
customers not to trade at all with the secondary employer, the latter stops
buying the struck product , not because of a falling demand , but in response
to pressure designed to inflict injury on his business generally . In such case,
the union does more than merely follow the struck product ; it creates a
separate dispute with the secondary employer." 377 U.S. at 72.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fruits. It is, more importantly, the predictability of
such impact that leads us to conclude that the
picketing had an unlawful object.
In Cascade Employers Association," we said that
Congress did not intend to confine Section 8(b)(4) to
a strict and precise definition of terms which would
limit its application in protecting neutral employers.
We think that, mindful of the conclusion reached on
the facts of Tree Fruits, fidelity to that congressional
intent does not permit so niggardly an interpretation
of the terms "threaten, coerce, or restrain" as would
be necessary to find that these terms do not apply,
within the meaning of Section 8(b)(4), to what this
Respondent is doing to these gas station operators.
Accordingly, we find that the picketing violated
Section 8(bX4)(ii)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth 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 of
commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, we make the
following conclusions of law:
1. The Dow Chemical Company is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 14055, United Steelworkers of America,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By its picketing at the premises of Harold
Alexander, Inc., Rupp Oil Company, and Central
Michigan Petroleum, Inc., in furtherance of a dispute
with The Dow Chemical Company, Respondent has
engaged in unfair labor practices within the meaning
of Section 8(b)(4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Local 14055 , United Steelworkers of America,
AFL-CIO, Bay City, Michigan , its officers , agents,
and representatives , shall:
1. Cease and desist from threatening , coercing, or
restraining Harold Alexander , Inc., Rupp Oil Com-
pany, Central Michigan Petroleum , Inc., or any other
person , where an object thereof is to force or require
any of them to cease using , selling, handling,
transporting, or otherwise dealing in the products of
The Dow Chemical Company, or to cease doing
business with The Dow Chemical Company.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the Act:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix." 12
Copies of said notice , on forms provided by the
Regional Director for Region 7, after being duly
signed by a duly authorized representative of the
Respondent , shall be posted by the Respondent
immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicu-
ous places , including all places where notices to
members are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered , defaced , or covered by any
other material.
(b) Furnish to the said Regional Director copies of
the aforementioned notice for posting by Harold
Alexander , Inc., Rupp Oil Company, and Central
Michigan Petroleum , Inc., these companies willing,
at the picketed gas stations.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBERS FANNING AND JENKINS, dissenting:
Contrary to the views of our colleagues, we find no
support in the statute, the teachings of Tree Fruits, 13
established Board doctrine, or the economic realities
involved herein for the conclusion that the Union's
consumer product picketing of six gas stations
marketing Dow Chemical Company's "Bay" gasoline
violated Section 8(b)(4)(ii)(B) of the Act.
I 1 Salem Building Trades Council, AFL-CIO (Cascade Employers Associa - of the National Labor Relations Board" shall read "Posted Pursuant to a
tion, Inc.), 163 NLRB 33, 35, enfd . per cunam 388 F .2d 987 (C.A. 9, 1968), Judgment of the United States Court of Appeals Enforcing an Order of the
cert . denied 391 U .S. 965 ( 1968). National Labor Relations Board."
12 In the event that this Order is enforced by a Judgment of a United 13 NLRB. v. Fruit and Vegetable Packers & Warehousemen , Local 760
States Court of Appeals, the words in the notice reading "Posted by Order (Tree Fruits Labor Relations Committee, Inc.), 377 U.S. 58 (1964).
LOCAL 14055 , STEELWORKERS
The facts are uncontroverted. The Respondent was
on strike against the Bay Refining Division of The
Dow Chemical Company in Bay City, Michigan,
which produces gasoline and related products. In
furtherance of this dispute the Respondent engaged
at six gas stations in picketing which urged a
consumer boycott of the major product manufac-
tured by the struck refinery-gasoline marketed by
Dow under the "Bay" label.
The record is clear that the picketing of the six
retail gas stations was at all times peaceful and
directed only at the consuming public. The record
also reveals that the picketing did not cause any
employee to stop working, nor otherwise interfere
with deliveries to or pickups from the picketed sites,
nor in any manner obstruct customer ingress and
egress . The evidence affirmatively shows that the
pickets stationed themselves on sidewalk locations
away from entrances or exit driveways, that they did
not appear until the station opened, and that they
departed before it closed. The evidence also discloses
that the picketing was in conformity with its avowed
consumer boycott purpose in all substantial aspects
and that the pickets limited their appeal to the struck
product-"Bay gasoline." The legends on the picket
signs generally stated: "Don't Buy Bay Gas,
"Boycott Bay Gas," and "Bay Gasoline Made by
Scabs."
It is undisputed that all the picketed locations sell
products and services other than Dow gasoline.
Indeed, the Harold Alexander Co., Inc., station sells
a certain percentage of non-Dow gasoline. Moreover,
Dow gasoline is clearly not merged into the non-
struck products or services so as to physically prevent
the purchase of one without the other. It is possible
to buy tires, car accessories, golf balls, and charcoal
or have a car washed or repaired without buying Bay
gasoline at the stations.
Thus, it appears that the only essential difference
between the instant factual situation and that
involved in the Tree Fruits decision is that here the
Respondent is engaged in consumer picketing of a
specific brand of gasoline rather than of Washington
State apples, and that the gasoline in question is a
much more important component of the stations'
income than were the apples of Safeway's income in
Tree Fruits.
Tree Fruits held that consumer picketing, asking
customers not to buy the struck product, is lawful
because it is part of, or confined to, the primary
dispute. Such picketing becomes unlawful only when
it extends beyond the struck product to embrace
other products or other parts of the business of the
person selling the struck product. The Supreme
Court made this crystal clear, in defining the
difference thus:
653
When consumer picketing is employed only to
persuade customers not to buy the struck product,
the union's appeal is closely confined to the
primary dispute . The site of the appeal is
expanded to include the premises of the secondary
employer , but if the appeal succeeds, the
secondary employer 's purchases from the struck
firms are decreased only because the public has
deminished its purchases of the struck product.
On the other hand , when consumer picketing is
employed to persuade customers not to trade at
all with the secondary employer , the latter stops
buying the struck product , not because of a
falling demand , but in response to pressure
designed to inflict injury on his business general-
ly. In such case , the union does more than merely
follow the struck product ; it creates a separate
dispute with the secondary employer . [377 U.S. at
72.]
Since Respondent's appeal . did not extend beyond
Bay gasoline , the struck product , nothing in its
conduct goes beyond the limits approved in Tree
Fruits.
The majority considers consumer picketing to be
unlawful if "it is likely that customers who are
persuaded to respect the picket signs will not trade at
all" at the picketed establishment . They rely on the
Court's statement that "Peaceful consumer picketing
to shut off all trade with the secondary employer
unless he aids the union in its dispute with the
primary employer" is unlawful (377 U.S. at 70), and
perhaps also on the Court's condemnation of
"consumer picketing [which] is employed to per-
suade customers not to trade at all with the
secondary employer" in the part of the decision set
out above. But this reliance is misplaced . "All trade"
which it was unlawful to shut off in Tree Fruits was
the trade including items other than the struck
product . The vice in appealing for such action lies
not, in the fact that all trade is sought to be ended,
but in the fact that, where the struck product is only
part of the goods sold by the picketed employer, an
appeal to end all trade with him is necessarily an
appeal to cease buying nonstruck products as well as
the struck product . The decision plainly indicates
that, whether all trade or a major fraction of it is in
the struck product , an appeal not to buy the struck
product is lawful. This is clear from the Court's
conclusion that "When consumer picketing is em-
ployed only to persuade customers not to buy the
struck product, the union 's appeal is closely confined
to the primary dispute" (377 U.S. at 72), and that the
evil at which the statute was aimed was the use of
consumer picketing:
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... to persuade the customers of the secondary
employer to cease trading with him in order to
force him to cease dealing with , or to put pressure
upon , the primary employer . This narrow focus
reflects the difference between such conduct and
peaceful picketing at the secondary site directed
only at the struck product . In the latter case, the
union's appeal to the public is confined to its
dispute with the primary employer, since the
public is not asked to withhold its patronage from
the secondary employer, but only to boycott the
primary employer's goods . [377 U.S. at 63.]
As the Court said in footnoting the "not to trade at
all" prohibited type of picketing , the distinction is
between "merely to `follow the struck goods' and
picketing designed to result in a generalized loss of
[business ] . . ."(377 U .S. 64, atfn.7). And yet again in
explaining this language , it drew the same distinction
between "a public appeal directed only at a product
which results in a decline of 25% in . . . sales of that
product" and an "appeal . . . that the public cease
all patronage ... " (377 U .S. at 72 , fn. 20).
The majority rests its decision principally on the
ground that , because the struck product, gasoline, is
so dominant and overwhelmingly important a
proportion of the service stations ' business, an appeal
to customers not to buy it will, where it is effective,
persuade customers not to patronize the service
stations at all. But the Court specifically recognized
this argument about degree of impact and the
probability that the consumer picketing "provokes
the public to stay away from the picketed establish-
ment." (377 U.S. at 71 ) Indeed , Mr. Justice Harlan
made this same point in his dissent . And the Court
rejected this argument unequivocally , saying, "Be
that as it may . . . Congress has never adopted a
broad condemnation of peaceful picketing , such as
that urged upon us by petitioners ..." (377 U.S. at
71).
Apart from the effect of inducing customers to stay
entirely away from the service stations, the majority
concludes that because the picketing of struck apples
in Tree Fruits would have "minimal impact" on
Safeway's total business and the picketing of gasoline
here (if successful) would have a major, possibly
devastating , impact on the service stations ' business,
this increase in impact causes the picketing to violate
the Act . That is, the more effective the picketing, the
14 Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local 237,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of Amenca (American Bread Company), 170 NLRB 91,
93, enfd . 411 F.2d 147 (C.A. 6, 1%9). In agreeing with his colleagues that
this picketing was violative of the Act, Member Jenkins relied solely on the
fact that Local 327 failed to take precautions for allaying any misgiving that
might arise concerning the picketing and further assure all parties , including
customers , that its picketing was focused solely on the Employer's bread.
(170 NLRB at 93, fn . 6.) Similarly, the court also retied on conduct by the
greater the possibility of its being unlawful. But the
Act makes no such distinction, and in Tree Fruits the
Court, as with other arguments advanced by the
majority, expressly rejected this one also. The same
argument had been made by Mr. Justice Harlan in
his dissent, and the court of appeals, and the
Supreme Court held:
We disagree ... with the Court of Appeals
that the test . . . is whether Safeway suffered or
was likely to suffer economic loss. A violation of
§ 8(b)(4)(ii)(B) would not be established, merely
because respondents' picketing was effective to
reduce Safeway's sales of Washington State
apples, even if this led or might lead Safeway to
drop the item as a poor seller. [377 U.S. at 72-73 ]
The majority's reliance on American Bread14 is
misplaced. There the struck product was bread, the
consumer picketing was of a restaurant serving the
bread as part of its meals, and the appeal was to
patrons not to buy the bread. Such picketing was
held to be unlawful because the diners could not
choose to refrain from buying the bread without also
refraining from buying the entire meal, so that the
nonstruck products which comprised the rest of the
meal were necessarily within the reach of the
picketing appeal. There is no such merger or
incorporation of the struck gasoline here into any
other product or service, and the consumers can
readily choose not to buy Bay gas without affecting
whatever other products or services might be
available at the service stations. Since this distinc-
tion, the lack of any appeal necessarily affecting
neutral products, is the foundation of Tree Fruits,
American Bread can have no application here.15
How the "close confine[ment ] to the primary
dispute" held to make consumer picketing lawful in
Tree Fruits becomes farther removed from the
primary dispute when the struck product becomes a
larger percentage of the total business of the picketed
employer, the majority does not explain. Both logic
and experience would lead to the opposite conclu-
sion, that such increasing mutual interdependence
between the struck supplier and the retailer would
increase the primary character of the picketing.
Indeed, the facts here show that the statutory
concept of neutrality tends to lose its substance as
picketing Union which showed that its objective was aimed at employees of
secondary employers . (411 F.2d at 154-155.) These factors are not present
here.
15 Member Jenkins has not adopted the "merged product " doctrine. See
his dissents in Honolulu Typographical Union No. 37, AFL-CIO, 167 NLRB
1030, 1033, enfd . 401 F.2d 952 (C .A. 9, 1%8, with the court deriving the
secondary object in part from handbills which stated, "Do not patronize this
establishment ."); Los Angeles Typographical Union No. 174, 181 NLRB 384.
LOCAL 14055, STEELWORKERS 655
the struck goods rise toward being the sole or nearly
sole product handled by the retailer.16
Our colleagues assert that, in addition to potential
impact, "it is , more importantly, the predictability of
such impact" which warrants finding an unlawful
object. But if the impact is permissible, as they seem
to concede and as Tree Fruits plainly holds, the
probability of the impact can hardly be relevant. Are
unions required to picket only known antiunion
neighborhoods, or to picket only very high-priced
stores whose customers might be expected to have
little interest in unions ? Activity which is sufficiently
primary in character may lawfully be carried on,
even if the effect is to close down the employer, and
regardless of whether this outcome is likely or
remote. The activity does not become less primary by
reason of any such effect. Since Tree Fruits held the
picketing here to be sufficiently primary in character
to be lawful, it does not become less lawful because it
reaches a major and possibly decisive portion of the
employer's business , and thus increases the likeli-
hood that the employer may close down entirely.
A constitutional problem lurks within the majori-
ty's view. The picketing here was peaceful, limited to
the struck product, did not interfere with deliveries
or customer access, did not induce or attempt to
induce the service station employees to interrupt
their work, and involved no means proscribed by the
statute. That is, the picketing here was no more than
speech concerning the Union's primary dispute over
the production of Bay gasoline. To prohibit it, as
does the majority, "might collide with the guarantees
of the First Amendment," as the Court noted in Tree
Fruits. (377 U.S. at 63.)
In short, the majority extracts and fastens upon the
Court's phrases such as "not to trade at all" and
"shut off all trade," and gives them a literal and rigid
meaning quite different from that made clear by the
context and by the circumstances and issues which
the Court in Tree Fruits addressed. This meaning is
that espoused in the Tree Fruits dissent and by the
court of appeals which the Supreme Court reversed,
a meaning expressly and repeatedly rejected by the
Court. Our colleagues commit the same error which
the Court there cautioned against, ignoring "the rule
that a thing may be, within the letter of the statute
and yet not within the statute, because not within its
spirit, nor within the intention of its makers." (377
U.S. at 72.) Thus the majority, mired in the
remembrance of things past, is now repeating the
mistake which led to the Board's original error in
Tree Fruits.
For these reasons, we dissent, and would dismiss
the complaint.
16 Thus, Rupp Oil Company which operates three of the stations
involved in this proceeding is the "exclusive" wholesale distributor of Bay
Refinery products. Written consent of Dow's general manager is apparently
required before it can distribute products to any service station , fuel oil
dealer, or other person or retailer in Bay County. It was Dow, not Rupp,
who selected the site for the bulk plant from which Bay Gas is distributed to
Rupp's retail outlets. The tank farm is on a site to which Bay gasoline could
be delivered by direct pipeline from the adjacent Bay refinery. Dow
constructed and owns the tanks , owns the property on which they are
located, and during the picketing Dow used employees in the struck
bargaining unit to install gauges in the tanks . Furthermore , Dow not only
cosigned the Rupp 's bank note making Rupp 's dealership possible, but it
approves the amount and type of Rupp's insurance and monetary reserves
and maintains the right to examine Rupp's balance sheet . The three Rupp
Oil stations operate retail sites which are all leased or subleased from Dow,
and Dow owns the pumps and a long list of property used by the stations.
The rent at two of the stations is based on the gallons of Bay Gas sold.
Similarly, Central Michigan Petroleum, Inc., operates two of the picketed
gas stations . Like Rupp, Central leases the stations from Dow . One of the
stations is actually owned by Dow (Saginaw station ) and the other is leased
to Dow and subleased to Central Michigan . Like Rupp, Central Michigan is
also a wholesale distributor of Bay Refining products, although the extent of
Dow's control does not appear to have been reduced to a written
distributorship agreement . The arrangement further raises questions not
only of the economic dependency of Central Michigan on Dow, but
whether the Saginaw station is in fact a "primary" site on the basis of the
Board's conventional legal standards . (See International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO
(Alexander Warehouse & Sales Co.), 128 NLRB 916.)
Finally, Harold Alexander, Inc., the sixth station picketed, subleases its
site from Dow pursuant to a fixed rental on property owned by Alexander
and leased by Dow. On two occasions Dow paid for the replacement or
repair of underground tanks and has also assumed half the cost of certain
card material . The rental , like the two Rupp stations above , is also based on
the sales of gasoline . Alexander purchases an indefinite amount of gasoline
other than the Dow brand, and there is some question from the available
facts whether Alexander has complete freedom to make unlimited outside
purchases.
These facts are of a type common where a retailer deals solely or
principally in products supplied by another; they are recounted here not to
show an "agency" or other relation between the supplier and the retailers,
but to show the economic realities underlying their relation . Obviously,
these economic circumstances pose an issue whether neutrality can have
any substantial meaning where such interdependence exists.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, by picketing their gas stations,
threaten, coerce, or restrain Harold Alexander,
Inc., Rupp Oil Company, Central Michigan
Petroleum, Inc., or any other person, where an
object thereof is to force or require any of them to
cease using, selling, handling, transporting, or
otherwise dealing in the products of The Dow
Chemical Company, or to cease doing business
with The Dow Chemical Company.
LOCAL 14055, UNITED
STEELWORKERS OF
AMERICA, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced Any questions concerning this notice or compli-
by anyone. ance with its provisions 'may be directed to the
This notice must remain posted for 60 consecutive Board's Office, 500 Book Building, 1249 Washington
days from the date of posting and must not be Boulvard, Detroit, Michigan 48226, Telephone
altered, defaced, or covered by any other material. 313-226-3200.